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HomeMy WebLinkAbout1649 Doremus In Re: Brian L. Doremus, : File Docket: 13-023 Respondent : X-ref: Order No. 1649 : Date Decided: 9/30/14 : Date Mailed: 10/21/14 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark R. Corrigan Roger Nick Kathryn Streeter Lewis Maria Feeley This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an “Investigative Complaint.” A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. I.ALLEGATIONS: That Brian L. Doremus (“Doremus”), a public official/public employee in his capacity as a Supervisor for Marlborough Township, Montgomery County, violated \[Sections 1103(a), 1105(b)(5), 1105(b)(8), and 1105(b)(9)\] of the State Ethics Act when he used the authority of his public position for the private pecuniary benefit of himself, a business with which he is associated, and/or a member of his immediate family, when he utilized confidential information to contact general contractors and/or individuals who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals Doremus and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same; when Doremus participated in actions of the Board of Supervisors resulting in the hiring of his brother, Barry Doremus, to the position of Township Fire Marshall; and when Doremus failed to list all sources of income in excess of $1,300.00 on his Statement of Financial Interests form filed for the 2012 calendar year, his office, directorship or employment in Doremus Kitchens on Statements of Financial Interests filed for the 2008-2012 calendar years, and his financial interest in Doremus Kitchens on Statement of Financial Interests forms filed for the 2008-2011 calendar years. II.FINDINGS: 1. Brian Doremus (“Doremus”) has served as a Marlborough Township Supervisor since approximately January 7, 2008. Doremus, 13-023 Page 2 a. Marlborough Township (“Township”) is a Township of the Second Class, governed by a three (3) Member Board of Supervisors. b. Members of the Marlborough Township Board of Supervisors (“Board of Supervisors”) receive annual compensation, as reported on W-2 Wage & Tax Statements, in the amount of $1,875.00. 2. Professionally, Doremus co-owns and operates Doremus Kitchens, LLC, 2025 Ziegler Road, Pennsburg, PA 18073. a. Doremus Kitchens and Doremus Kitchens, LLC, specialize in the construction and installation of kitchen cabinetry and countertops. b. Doremus Kitchens is a family-owned business, originally started by Doremus’ father, Irving Doremus. c. Doremus was an employee of Doremus Kitchens from approximately 1983 through 2011. 1. Doremus, along with his brother, Barry Doremus, assumed ownership of Doremus Kitchens, LLC, on or about January 1, 2012. 3. Business records on file with the Pennsylvania Department of State, Corporation Bureau, include a Fictitious Name Registry and a Certificate of Organization for Doremus Kitchens and Doremus Kitchens, LLC, respectively. a. A fictitious name registration for Doremus Kitchens was filed by attorney Scott L. Feldman, P.O. Box 1231, Doylestown, PA 18901, on May 21, 2009. 1. Entity number 3883259 was assigned to Doremus Kitchens by the Pennsylvania Department of State. 2. Irving Doremus is the only stated business owner, with a principal place of business of 2025 Ziegler Road, Pennsburg, PA 18073. b. A Certificate of Organization for a Domestic Limited Liability Company known as Doremus Kitchens, LLC, with an effective date of January 1, 2012, was filed with the Pennsylvania Department of State on December 22, 2011. 1. Organizers are identified as Brian Doremus, 1743 Swamp Creek Road, Pennsburg, PA 18073 and Barry Doremus, 2035 Ziegler Road, Pennsburg, PA 18073. 2. The stated registered address for Doremus Kitchens, LLC, is 2025 Ziegler Road, Pennsburg, PA 18073. 3. Entity number 4074559 was assigned by the Pennsylvania Department of State to Doremus Kitchens, LLC. 4. In 2011, Township Manager Paul Williams initiated repairs, upgrades and renovations \[for\] the Township Building. a. The nature of the anticipated repairs included new entry doors, roof repairs, installation of a wall, and security upgrades to the office area. Doremus, 13-023 Page 3 b. Public Works Director Edward Carter was responsible for developing the project specifications. c. The project itself was subdivided into different project areas: doors, roof, and wall installation. 5. Minutes of Board of Supervisors meetings held during 2011 do not include any discussions or official action authorizing or directing Doremus or any other Township official to solicit quotes for the project. a. No official action was taken by the Board of Supervisors regarding the project until the Supervisors’ February 27, 2012, meeting, during which a portion of the project was awarded to contractor R. Dale Ziegler. 6. The Township did not follow a formal competitive/sealed bid process in obtaining construction quotes for the project; however, Township records include a file folder containing bids/quotes received for various renovations and/or repairs to the Township Building. 7. Records reflect that around September 2011, Township officials, including then Manager Paul Williams and Public Works Director Edward Carter, began soliciting telephonic quotes for renovations to the Township Building. a. Quotes for renovations being considered included: security upgrades; new entry doors; roof repair/replacement; an office entry door with security wall; sliding teller window; countertop areas for Township business; and new carpeting. b. Quotes were obtained by project area (i.e., doors, roof, wall installation). c. Contractors that were contacted for quotes were ones known to Township officials and who had worked in the local region. 8. The Township Supervisors, including Doremus, participated in obtaining, reviewing, and approving the quotes for the building repairs/renovations, including the Manager’s office area portion of the project. a. Township files include three (3) separate quotes for the Manager’s office area portion of the project. b. Quotes were received from the following companies: 02/06/2012 – John G. Membrino - $4,675.00; 01/31/2012 – R. Dale Ziegler - $5,117.00 (base bid) plus alternates increasing the bid by $150.00 and $240.00; 02/07/2012 – John David O’Donnell - $7,485.00. 9. In addition to the quote dated February 7, 2012, the Township received a separate, undated proposal from John David O’Donnell, Remodel & Design (“O’Donnell”) for the front entry doors and office wall portions of the overall project. a. This proposal, in the amount of $8,503.00, was $1,018.00 higher than the quote dated February 7, 2012, as listed in the previous finding. 10. The O’Donnell quote of February 7, 2012, included a fax transmission from “Doremus Kitchens 215-679-1998” dated September 26, 2011. a. No quote information regarding the Township project was appended to this fax. Doremus, 13-023 Page 4 b. The undated proposal from O’Donnell was not considered by the Township. 11. Doremus continued involvement in reviewing project quotes after participating with O’Donnell’s quote. On January 25, 2012, Doremus sent an email to the other two (2) Supervisors regarding a bid from Atlantic Roofing. a. In that email, Doremus writes: “I reviewed the bid from Atlantic Roofing, it seems high, have you asked the contractors bidding the wall project to also bid the roof. I think all of the names in circulation do roof work too! I know R. Dale Zeigler \[sic\] started out in business as a roofer. We should have at least 3 bids, would you agree? Brian D.” 12. During the February 8, 2012, meeting of the Board of Supervisors, Township Manager Eleanor Sadorf reported that three (3) proposals had been received by the Township for interior renovations to the administrative office area, which would be provided to the Supervisors as an agenda item at the February 27, 2012, work session. a. Doremus was in attendance at this meeting. 13. During the Board work session of February 27, 2012, the Township Supervisors, including Doremus, discussed and took action to award the office wall portion of the building renovation project to R. Dale Ziegler, Inc. a. At the Board of Supervisors February 27, 2012, work session, a motion was made by Doremus, seconded by Mr. Walter, and carried unanimously, to award the bid to R. Dale Ziegler at a cost of $5,117.00. 14. Township records reflect that Township Manager Sadorf executed an acceptance of proposal from R. Dale Ziegler, Inc., in the amount of $5,117.00 on February 28, 2012. a. Sadorf signed the acceptance of proposal the day after it was approved by the Board of Supervisors. 15. Work on the wall portion of the project began in March 2012 and was completed by May 9, 2012. 16. Sometime between March 2012 and April 12, 2012, Township Manager Sadorf directed Public Works Director Carter to contact Ziegler regarding what she believed was a delay in construction. a. Sadorf was informed that the delay in completing the project was due to Ziegler waiting for Doremus to complete his portion of the project. b. According to statements provided by Township officials to Commission Investigators, prior to this time, no official was aware that Doremus/Doremus Kitchens, LLC, was serving as a subcontractor for the Township project. 1. Doremus asserts that other Township officials were aware that Doremus/Doremus Kitchens, LLC, was serving as a subcontractor for the Township project. Doremus, 13-023 Page 5 17. Doremus Kitchens, LLC, subcontracted with Ziegler for the construction and installation of a countertop area as part of the wall installation. a. Doremus Kitchens, LLC, utilized the services of Robert Young Cabinetmaker to construct and install the countertop. b. This work was completed by Robert Young Cabinetmaker on or about March 22, 2012. c. Doremus and his brother, Barry Doremus, installed support brackets to complete the installation sometime between March 22, 2012, and April 12, 2012. 18. From September 2011, when Township officials began soliciting quotes, until February 27, 2012, when the Township awarded the contract to Ziegler, Doremus never informed the Township or any Township official that his company was submitting quotes to contractors to serve as a subcontractor. a. On or about September 26, 2011, Doremus Kitchens sent a fax to O’Donnell, one of the unsuccessful bidders. b. At the time when the Board of Supervisors voted on February 27, 2012, to award the contract to Ziegler, Doremus voted to approve the contract even though he had submitted a quote to Ziegler to serve as a subcontractor. c. Doremus asserts that other Township officials were aware that Doremus/Doremus Kitchens, LLC, submitted quotes to contractors to serve as a subcontractor. 1. Statements provided by Township officials to Commission Investigators indicate that from September 2011 to February 27, 2012, Doremus never informed the Township or any Township official that his company was submitting quotes to contractors to serve as a subcontractor. 19. Upon learning of Doremus’ involvement as a subcontractor, Township Manager Sadorf contacted the Township Solicitor seeking advice as to what, if any, action should be taken. a. Sadorf was advised by the Township Solicitor to have Doremus explain his involvement in the project at the next Board of Supervisors meeting. 20. During the Board of Supervisors April 11, 2012, meeting, Doremus made a public disclosure regarding his involvement in the renovation project. Minutes from that meeting include the following recorded disclosures by Doremus: a. “I’ve been asked to clarify my working relationship with the contractor selected for the township renovation project. So for clarification purposes, I would like to state that Doremus Kitchen has bid one component (Formica) for two of the contractors bidding the township project, including the contractor chosen for the job. And that Doremus Kitchens supplied only limited components to the contractor selected, to complete the order. Doremus Kitchens (I, and my partner) did not bid on, or construct the wall project for the township.” b. Doremus did not disclose how much money Doremus Kitchens, LLC, was paid for its portion of the project. Doremus, 13-023 Page 6 c. Doremus Kitchens, LLC, was paid directly from the contractor, R. Dale Ziegler, as a subcontractor, and not by the Township. 21. Doremus made the public disclosure at the April 11, 2012, meeting after being advised by Township Manager Sadorf to do so. a. Doremus additionally disclosed that Doremus Kitchens, LLC, had had private business dealings with all three (3) companies which had submitted quotes/proposals on the wall portion of the project, and that he personally provided quotes for the countertop portion to R. Dale Ziegler and John David O’Donnell, Remodel & Design. 22. Business records of Doremus Kitchens, LLC, include an invoice received from Robert Young Cabinetmaker, 274 Mine Road, Quakertown, PA 18951, 215-536- 8224, dated March 22, 2012, in the amount of $425.00. a. This invoice was for the Formica Countertop used in renovating the Township Building. Written on the invoice were the following notations: “Township Bldg. Countertop Formica 7736-48 Tuscan Marble, Template & Fabricate, No install, Ballmer Sheet $425.00.” b. Also affixed to the invoice was a “paid” stamp, with a date of 4/11/12, #1077 $425.00. 23. On April 12, 2012, Doremus Kitchens, LLC, issued invoice number 137, in the amount of $743.00, to R. Dale Ziegler, 2455 Overlook Lane, Harleysville, PA 19438. a. This invoice was for “Formica Top + Supplies Installed (List $825.00).” b. This invoice is listed as being paid on May 4, 2012, by check number 2508. c. The project is listed as Marlborough Township. d. Business records of R. Dale Ziegler, Inc. confirm that Doremus Kitchens, LLC, was paid $743.00. 24. Costs incurred by the Township for the renovation project were processed as part of the routine bill paying process, which is as follows: a. Bills to be paid are received by the Secretary/Financial Assistant, Mary Beth Cody. b. Cody creates monthly bill lists containing vendor information and payment amounts for the Board of Supervisors to review and approve. c. The bill lists are voted on in their entirety as a single Board action. d. Employee payroll is not included as part of the routine payment of bills. e. Township-issued checks are then signed by two Supervisors and the Township Manager or by all three (3) Supervisors if the Township Manager is unavailable. 25. Township financial records confirm that General Fund check number 12423 in the amount of $5,117.00, dated May 9, 2012, was issued to R. Dale Ziegler for Doremus, 13-023 Page 7 renovation work completed at the Township Building. a. The check was signed by Supervisors Brian Doremus and Charles Walter and Township Manager Sadorf. b. This payment was included as part of the monthly bill list approved by the Board of Supervisors on May 9, 2012. c. Doremus was present at the May 9, 2012, meeting, and he seconded the motion to approve the bill list and participated in the vote taken to approve the bill list that included this payment. 26. Doremus Kitchens, LLC, received a payment in the amount of $743.00 from R. Dale Ziegler, Inc. in or about April 2012. a. Of this $743.00, Doremus Kitchens, LLC, had documented material acquisition costs paid to Robert Young Cabinetmaker of $425.00, thereby netting the business approximately $318.00 in profit. 1. The $425.00 in countertop costs was paid to Robert Young Cabinetmaker on April 11, 2012. b. Doremus Kitchens, LLC, asserts it had undocumented expenses for brackets of an additional $140.00. 1. Doremus does not have any business records confirming the cost of the support brackets, which he estimated cost an additional $140.00. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT DOREMUS PARTICIPATED IN ACTIONS OF THE BOARD OF SUPERVISORS RESULTING IN THE APPOINTMENT OF HIS BROTHER, BARRY DOREMUS, TO THE POSITION OF TOWNSHIP FIRE MARSHALL. 27. Each January, as part of its annual reorganizational process, the Board of Supervisors takes action to appoint individuals to various compensated Township positions. a. Since at least 2008, the Board of Supervisors has approved separate Resolutions as to the hiring of Township employees and the setting of said employees’ compensation for the year. b. Township positions annually appointed/reappointed include but are not limited to Manager, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, Police Chief, Director of Public Works, Emergency Management Coordinator, and Fire Marshall. 1. The Township does not annually solicit bids, quotes, or applications for these positions. c. Funding for Township employees is included as a separate line item within the Township’s annual budget. 28. Doremus consistently participated in approving Township Resolutions authorizing the hiring/retention of Township employees since he took office in 2008. Doremus, 13-023 Page 8 29. Since at least 2008, the position of Fire Marshall would annually be appointed/reappointed by the Board of Supervisors. General duties performed included but were not limited to: a. Issuing burn permits, performing building plan reviews, and conducting/assisting with fire investigations. 1. Any criminal/mandatory fire investigations are generally performed by the Pennsylvania State Police or State Fire Marshall. 30. The Township did not seek applicants for the position of Fire Marshall. a. Since at least 2008, the Board of Supervisors would consider interested individuals for the position. b. The position of Fire Marshall was budgeted to include compensation of $1,000.00 per year, which also was the same amount budgeted for the Township’s appointed Emergency Management Coordinator. c. Neither the Township nor the Board of Supervisors maintained a specific job description/job duties listed for the position of Fire Marshall. 31. Shawn Shade was appointed as the Fire Marshall for 2008 and 2009. a. Shade received the budgeted compensation amount of $1,000.00 annually for the position of Fire Marshall during 2008 and 2009. b. Board of Supervisors meeting minutes from 2008 and 2009 do not reflect Shade ever submitting or presenting a monthly Fire Marshall report. 32. Barry Doremus approached the Board of Supervisors around November of 2009 to inquire as to how he could be considered for the Fire Marshall position to begin in 2010. a. Barry Doremus believed that Shawn Shade was not performing any of his duties as Fire Marshall. 33. Minutes from the November 23, 2009, Board of Supervisors meeting reflect that Barry Doremus appeared before the Board to express his interest in being appointed to the Fire Marshall position for 2010. a. Minutes from that meeting indicate that Barry Doremus possessed sufficient education, training, and experience necessary to execute the duties of Fire Marshall. b. No action was taken by the Board of Supervisors as to the Fire Marshall position at this meeting. 34. The topic of appointing a Fire Marshall for the 2010 calendar year was discussed again during the Board of Supervisors December 9, 2009, meeting. a. Township Manager Paul Williams informed the Board that during a conversation with then Fire Marshall Shawn Shade, Shade reported that due to out-of-town and out-of-state work assignments, he was considering resigning as Fire Marshall at the end of his term in 2009. b. The Supervisors took no action as to the appointment of a Fire Marshall. Doremus, 13-023 Page 9 35. Minutes from the January 4, 2010, reorganizational meeting of the Board of Supervisors include action taken by the Board to approve Resolution #2010-01 and Resolution #2010-03, relating to the hiring of Township employees and the setting of Township employees’ wages/salaries. a. Resolution #2010-01 was enacted following a 2-0-1 vote. 1. Doremus seconded and voted in favor of enacting Resolution #2010- 01. 2. Supervisor Smith abstained. b. Resolution #2010-01 listed the terms of current elected Township officials and affirmed the appointment of staff and members of various Township Boards and Commissions. 1. Resolution #2010-01 includes the appointment of Barry Doremus as Fire Marshall. 2. Barry Doremus’ name was in bold print to indicate a new appointment. c. Resolution #2010-03 established the rate of compensation for all Township positions based upon the final budget adopted December 21, 2009. 1.Resolution #2010-03 did not include a salary listed for the position of Fire Marshall. d. Doremus signed both Resolution #2010-01 and Resolution #2010-03 in his official capacity as a Member of the Board of Supervisors. 36. Minutes from reorganizational meetings of the Board of Supervisors held January 3, 2011, and January 3, 2012, reflect similar action taken by Doremus in approving Township Resolutions to appoint and set salary/wage/compensation for Township employees. a. Doremus was present and participated by voting to approve Resolution #2011-01, listing the terms of current elected Township officials and affirming the appointment of staff and members of various Township Boards and Commissions, and Resolution #2011-03, establishing the rate of compensation for all Township positions based upon the final budget adopted December 15, 2010. 1. Resolution #2011-01 affirmed the reappointment of Barry Doremus as Fire Marshall. b. Doremus was present and participated by voting to approve Resolution #2012-01, listing the terms of current elected Township officials and affirming the appointment of staff and members of various Township Boards and Commissions, as well as Resolution #2012-03, establishing the rate of compensation for all Township positions based upon the final budget adopted December 19, 2011. 1. Resolution #2012-01 affirmed the reappointment of Barry Doremus as Fire Marshall. Doremus, 13-023 Page 10 37. As the Fire Marshall, Barry Doremus received compensation of $1,000.00 each year from 2010 through 2012. a. Board of Supervisors meeting minutes did not reflect specific Board action establishing the $1,000.00 annual salary for the position of Fire Marshall. b. The $1,000.00 annual salary paid to the Fire Marshall was the same rate paid to the Township’s Emergency Management Coordinator and was included in annual budgets covering calendar years 2009 through 2012. c. The $1,000.00 annual compensation for the position of Fire Marshall was established prior to Barry Doremus being appointed as Fire Marshall. 38. Board of Supervisors meetings included action taken approving budgets for the 2010, 2011, and 2012 calendar years on December 21, 2009, December 15, 2010, and February 8, 2012, respectively. a. Meeting minutes confirm Doremus was present at each of these meetings and voted in favor of the budget’s approval. 39. Barry Doremus’ annual compensation as Fire Marshall from 2010 through 2012 was paid in quarterly installments. a. Barry Doremus also received mileage and expense reimbursement payments. b. All payments made to Barry Doremus were in the form of Township checks which were signed by Township officials including Doremus. 40. W-2 Wage & Tax Statements on file with the Township document the following amounts as being paid to Barry Doremus between 2010 and 2012 as the Fire Marshall: a. 2010: $1,000.00 2011: $1,000.00 2012: $1,000.00. 41. From March 15, 2010, through February 25, 2013, the Township made expense reimbursement payments in the total amount of $713.63 and salary payments in the total amount of $2,685.74 to Barry Doremus as Fire Marshall. a. From April 13, 2011, through November 14, 2012, Doremus executed ten (10) expense reimbursement payments totaling $668.67 made payable to his brother, Barry Doremus. b. From March 15, 2010, through September 14, 2012, Doremus executed ten (10) Fire Marshall salary payments totaling $2,239.75 which were made payable to his brother, Barry Doremus. 42. From 2010 through 2012, Doremus, in his official capacity as a Supervisor, voted to authorize the appointment/reappointment of Barry Doremus as Fire Marshall. a. Doremus did not disclose that Barry Doremus is his brother. b. It was common knowledge among Township officials that Barry Doremus is Doremus’ brother. Doremus, 13-023 Page 11 43. Barry Doremus was not appointed/reappointed as Fire Marshall for the 2013 or 2014 calendar years. a. The Fire Marshall position has been vacant the past two years. b. Minutes from the January 7, 2013, meeting of the Board of Supervisors reveal that a discussion regarding the position of Fire Marshall was held \[and state that\] “since the township has no formal description for the position and conflicting information has been received about what the position should entail, \[Supervisor Smith\] believes the position should be left vacant until a description and duties are clarified. Supervisor Smith then moved that the position remain vacant and Supervisor Walter seconded. Smith and Walter voted aye and Doremus opposed.” 44. By way of correspondence dated January 8, 2013, the Board of Supervisors informed Barry Doremus that the Board had temporarily vacated the position of Fire Marshall. a. Barry Doremus was advised that “After careful consideration the Board of Supervisors voted during the organization meeting to temporary \[sic\] vacate the position of Township Fire Marshall. The Board will work towards creating an appropriate job description and list of required certifications necessary to best serve the needs of the township. We thank you for your service and would appreciate any input you care to offer during this process. Please return any township-issued equipment you may have in your possession to the township manager.” 45. The “township-issued equipment” referenced in Township Manager Sadorf’s notification letter included $3,549.60 worth of radio and communication equipment purchased by the Township on or about July 1, 2012, which was issued to Barry Doremus. a. To date, Barry Doremus has not returned the Township equipment, and the Township has not made any additional request for its return. 46. Doremus realized a private pecuniary gain when he used the authority of his public position by voting to award a contract to R. Dale Ziegler for renovations to the Township municipal building at a time when he had a reasonable expectation that his company, Doremus Kitchens, LLC, would be utilized as a subcontractor by the successful \[bidder\]. 47. Doremus’ brother, Barry Doremus, realized a private pecuniary gain as a result of Doremus using his public position to participate in Board of Supervisors’ votes in 2010, 2011, and 2012 appointing Barry Doremus as Fire Marshall; also, Barry Doremus realized a private pecuniary benefit as a result of maintaining possession of Township equipment bought for use by the Fire Marshall. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT DOREMUS FAILED TO LIST ALL SOURCES OF INCOME IN EXCESS OF $1,300.00 ON HIS STATEMENT OF FINANCIAL INTERESTS FILED FOR THE 2012 CALENDAR YEAR, HIS OFFICE, DIRECTORSHIP OR EMPLOYMENT IN DOREMUS KITCHENS ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR THE 2008-2012 CALENDAR YEARS, AND HIS FINANCIAL INTEREST IN DOREMUS KITCHENS ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR THE 2008-2011 CALENDAR YEARS. Doremus, 13-023 Page 12 48. Doremus, in his official capacity as a Member of the Board of Supervisors, was annually required to file a Statement of Financial Interests form by May 1,reporting financial information for the prior calendar year. a. Doremus was annually provided a blank Statement of Financial Interests form to complete by the Township administrative staff. b. Completed Statement of Financial Interests forms are maintained at the Township Building along with other Township records. 49. Statement of Financial Interests forms on file with the Township include filings by Doremus in his official capacity as a Member of the Board of Supervisors from calendar years 2008 through 2013. 50. Doremus filed incomplete and/or inaccurate Statement of Financial Interests forms with the Township for calendar years 2008 through 2012. Specific deficiencies by year are as follows: a. Calendar Year 2012 Deficiencies: Boxes 10 and 13. 1. Box 10: Doremus failed to list the Township as a direct/indirect source of income in excess of $1,300.00. The Township is listed as a source of income on Statements of Financial Interests filed by Doremus for prior calendar years. Doremus received Supervisors’ wages totaling $1,875.00 during 2012. 2. Box 13: Doremus failed to list his Office, Directorship or Employment in Doremus Kitchens, LLC. Doremus discloses his 50% ownership of this business in Box 14: Financial Interest in any \[Legal Entity in Business for Profit\]. He also lists the business as a source of income on each Statement of Financial Interests he filed since the 2008 calendar year. b. Calendar Years 2008 through 2011: Box 13. 1. For each of his Statements of Financial Interests filed for calendar years 2008 through 2011, Doremus failed to list his Office, Directorship or Employment in Doremus Kitchens in Box 13; Doremus was employed by Doremus Kitchens during calendar years 2008 through 2011. 51. Doremus, in his official capacity as a Supervisor, was paid wages totaling $1,875.00 annually since 2008. a. Doremus accepted his wages as a Supervisor since 2008 while not having properly completed Statements of Financial Interests for the 2008 through 2012 calendar years as detailed above. b. From 2008 through 2012, this compensation totaled $9,375.00 as reported on annual W-2 Wage & Tax Statements issued to Doremus by the Township. III.DISCUSSION: As a Supervisor for Marlborough Township (“Township”) since approximately January 7, 2008, Respondent Brian L. Doremus, also referred to herein as “Respondent,” Doremus, 13-023 Page 13 “Respondent Doremus,” and “Doremus,” has been a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Doremus violated Sections 1103(a), 1105(b)(5), 1105(b)(8), and 1105(b)(9) of the Ethics Act: (1) when he used the authority of his public position for the private pecuniary benefit of himself, a business with which he is associated, and/or a member of his immediate family, when he utilized confidential information to contact general contractors and/or individuals who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals Doremus and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same; (2) when he participated in actions of the Board of Supervisors resulting in the hiring of his brother, Barry Doremus, to the position of Township Fire Marshall; and (3) when he failed to list all sources of income in excess of $1,300.00 on his Statement of Financial Interests (“SFI”) form filed for the 2012 calendar year, his office, directorship or employment in Doremus Kitchens on SFIs filed for the 2008-2012 calendar years, and his financial interest in Doremus Kitchens on SFI forms filed for the 2008-2011 calendar years. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. Doremus, 13-023 Page 14 Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any office, directorship or employment in any business entity. Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFl any financial interest in any legal entity engaged in business for profit. The term “financial interest” is defined in the Ethics Act as “\[a\]ny financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness.” 65 Pa.C.S. § 1102. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. The Township is governed by a three-Member Board of Supervisors (“Board”). Township Supervisors receive annual compensation in the amount of $1,875.00 for serving on the Board. Doremus has served as a Supervisor since approximately January 7, 2008. Doremus was an employee of Doremus Kitchens, a family-owned business started by his father, from approximately 1983 through 2011. On or about January 1, 2012, Doremus and his brother, Barry Doremus, assumed ownership of a limited liability company named “Doremus Kitchens, LLC.” Doremus Kitchens and Doremus Kitchens, LLC, specialize in the construction and installation of kitchen cabinetry and countertops. In 2011, then-Township Manager Paul Williams (“Williams”) initiated a project for repairs, upgrades, and renovations for the Township municipal building (the “Township Project”). The anticipated repairs included, in pertinent part, installation of a wall. The Township Public Works Director was responsible for developing the Township Project specifications, and the Township Project was divided into different areas for doors, roof, and wall installation. Minutes of Board meetings held during 2011 do not include any discussions or official action authorizing or directing Doremus or any other Township official to solicit quotes for the Township Project. The Township did not follow a formal competitive/sealed bid process in obtaining construction quotes for the Township Project. Around September 2011, Township officials began soliciting telephonic quotes for renovations to the Township municipal building. Contractors contacted for quotes were ones known to Township officials and which had worked in the local region. Quotes were obtained by area of the Township Project. In early 2012, the Township received quotes from John G. Membrino, R. Dale Ziegler, Inc. (“Ziegler”), and John David O’Donnell (“O’Donnell”) for the wall portion of the Township Project. The O’Donnell quote included a fax transmission from “Doremus Kitchens 215-679-1998” dated September 26, 2011. No quote information regarding the Township Project was appended to the fax transmission. During a Board work session on February 27, 2012, the Supervisors, including Doremus, took action to award the bid for the wall portion of the Township Project. Doremus made a motion and participated in a unanimous Board vote to award the bid to Ziegler at a cost of $5,117.00. From September 2011, when Township officials began soliciting quotes, until February 27, 2012, when the Township voted to award the bid to Ziegler, Doremus never informed the Township or any Township official that his company was submitting quotes to contractors to serve as a subcontractor for the Township Project. Doremus, 13-023 Page 15 Doremus voted to award the bid to Ziegler even though he had submitted a quote to Ziegler to serve as a subcontractor for the Township Project. Work on the wall portion of the Township Project began in March 2012. Doremus Kitchens, LLC, subcontracted with Ziegler for the construction and installation of a countertop area as part of the wall portion of the Township Project. Doremus Kitchens, LLC, utilized the services of Robert Young Cabinetmaker to construct and install the countertop. Robert Young Cabinetmaker completed its work on or about March 22, 2012, and sometime between that date and April 12, 2012, Doremus and Barry Doremus installed support brackets to complete the installation. Sometime between March 2012 and April 12, 2012, Township Manager Eleanor Sadorf (“Sadorf”) directed the Township Public Works Director to contact Ziegler regarding what she believed was a delay in construction. Sadorf was informed that the delay in completing the work was due to Ziegler waiting for Doremus to complete his portion of the project. According to statements provided by Township officials to Commission Investigators, prior to this time, no Township official was aware that Doremus/Doremus Kitchens, LLC, was serving as a subcontractor for the Township Project. Doremus asserts that other Township officials were aware that Doremus/Doremus Kitchens, LLC, was serving as a subcontractor for the Township Project. Upon learning of Doremus’ involvement as a subcontractor, Sadorf contacted the Township Solicitor, seeking advice as to what action, if any, should be taken. The Township Solicitor advised Sadorf to have Doremus explain his involvement in the Township Project at the next Board meeting. During the Board meeting on April 11, 2012, Doremus made a public disclosure regarding his involvement with the Township Project. Doremus disclosed that Doremus Kitchens, LLC, had had private business dealings with all three companies which had submitted quotes on the wall portion of the Township Project, and that he had personally provided quotes for the countertop portion to Ziegler and O’Donnell. Doremus further disclosed that Doremus Kitchens, LLC, had supplied components to Ziegler for the Township Project. Doremus did not disclose how much money that Doremus Kitchens, LLC, was paid for its portion of the Township Project. Doremus Kitchens, LLC, was paid directly by Ziegler as a subcontractor and not by the Township. Business records of Doremus Kitchens, LLC, include an invoice from Robert Young Cabinetmaker in the amount of $425.00 for the countertop used for the Township Project. The invoice is stamped “paid” on April 11, 2012. Doremus Kitchens, LLC, received a payment in the amount of $743.00 from Ziegler in or about April/May 2012. Doremus Kitchens, LLC, netted approximately $318.00 in profit from working on the Township Project based upon documented material acquisition costs of $425.00 that were paid to Robert Young Cabinetmaker. At the Board meeting on May 9, 2012, Doremus seconded a motion and participated in the Board vote to approve the monthly bill list that included a payment to Ziegler in the amount of $5,117.00 for renovation work completed at the Township municipal building. Doremus was one of three signatories of the Township check issued to Ziegler for such work. Each January, as part of the Board’s annual reorganizational process, the Board takes action to appoint individuals to various compensated Township positions. The Fire Marshall is among the positions annually appointed by the Board. From at least 2008, the Board would consider interested individuals for the position of Fire Marshall, which was budgeted for compensation in the amount of $1,000.00 per year. Neither the Township nor the Board maintained a specific job description or list of job duties for the position of Fire Marshall. Doremus, 13-023 Page 16 Shawn Shade (“Shade”) was appointed as the Fire Marshall for 2008 and 2009. Minutes from the November 23, 2009, meeting of the Board reflect that Barry Doremus appeared before the Board to express his interest in being appointed to the Fire Marshall position for 2010 and that Barry Doremus possessed sufficient education, training, and experience necessary to execute the duties of the position. The Board took no action as to the Fire Marshall position at the meeting. The topic of appointing a Fire Marshall for 2010 was discussed again during the Board meeting on December 9, 2009. Then-Township Manager Williams informed the Board that Shade was considering resigning as the Fire Marshall at the end of his term in 2009. The Supervisors took no action at that time as to the appointment of a Fire Marshall. At the January 4, 2010, reorganizational meeting of the Board, the Board approved Township Resolution #2010-01, which listed the terms of current elected Township officials and affirmed various Township appointments, including the appointment of Barry Doremus as the Fire Marshall for 2010. Doremus seconded the motion to approve, voted to approve, and signed Township Resolution #2010-01. At reorganizational meetings of the Board held on January 3, 2011, and January 3, 2012, Doremus voted to approve Township Resolutions which affirmed various Township appointments, including the reappointment of Barry Doremus as the Fire Marshall for 2011 and 2012, respectively. As the Fire Marshall, Barry Doremus received compensation in the amount of $1,000.00 each year from 2010 through 2012. The compensation was included in annual Township budgets that Doremus voted to approve for calendar years 2010 through 2012. From March 15, 2010, through September 14, 2012, Doremus signed ten Township checks totaling $2,239.75 that were issued to Barry Doremus as salary for serving as the Fire Marshall. At the Board meeting on January 7, 2013, the Board approved a motion to leave the Fire Marshall position vacant based upon concerns regarding the lack of a formal job description for the position. Doremus voted against the motion. Barry Doremus was not reappointed as the Fire Marshall for 2013 or 2014, and the position has remained vacant. The parties have stipulated that Barry Doremus realized a private pecuniary gain as a result of Doremus participating in Board votes in 2010, 2011, and 2012 which appointed or reappointed Barry Doremus as the Fire Marshall. With regard to the allegations involving Doremus’ SFIs, the parties have stipulated that Doremus failed to disclose: (1) his employment with Doremus Kitchens on his SFIs for calendar years 2008 through 2011; (2) the Township as a source of income in excess of $1,300.00 on his SFI for calendar year 2012; and (3) his office, directorship or employment in Doremus Kitchens, LLC, on his SFI for calendar year 2012. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Brian Doremus utilized confidential information to contact general contractors and/or individuals Doremus, 13-023 Page 17 who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals, Doremus and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same, in that insufficient clear and convincing evidence is available to substantiate that any private pecuniary benefit was beyond a de minimis amount. b. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Doremus participated in actions of the Board of Supervisors resulting in the hiring of his brother, Barry Doremus, to the position of Township Fire Marshall, and as a result, Barry Doremus realized a private pecuniary gain. c. That a violation of Section 1105(b) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Doremus failed to list Marlborough Township as a source of income in excess of $1,300.00 on his Statement of Financial Interests filed for the 2012 calendar year, and when he failed to list his office, directorship \[or\] employment in Doremus Kitchens on Statements of Financial Interests filed for the 2008-2012 calendar years. 4. Doremus agrees to make payment in the amount of $1,000.00 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Doremus agrees to file complete and accurate amended Statements of Financial Interests with Marlborough Township through the Pennsylvania State Ethics Commission, for calendar years 2008, 2009, 2010, 2011 and 2012 within thirty (30) days of the issuance of the final adjudication in this matter. 6. Doremus agrees to not accept any reimbursement, compensation or other payment from Marlborough Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Doremus, 13-023 Page 18 Consent Agreement, at 2-3. In considering the Consent Agreement of the parties, we accept the recommendation of the parties for a finding that Doremus did not violate Section 1103(a) of the Ethics Act in relation to the allegation that he utilized confidential information to contact general contractors and/or individuals who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals, he and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same, in that insufficient evidence is available to substantiate that any private pecuniary benefit was beyond a de minimis amount. Per the Stipulated Findings, Doremus Kitchens, LLC, netted approximately $318.00 in profit from working as a subcontractor for the Township Project, which amount was de minimis. Accordingly, we hold that Doremus did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to the allegation that he utilized confidential information to contact general contractors and/or individuals who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals, he and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same, in that insufficient evidence is available to substantiate that any private pecuniary benefit was beyond a de minimis amount. We accept the recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred when Doremus participated in actions of the Board resulting in the hiring of his brother, Barry Doremus, to the position of Fire Marshall, and as a result, Barry Doremus realized a private pecuniary gain. Each January, as part of the Board’s annual reorganizational process, the Board takes action to appoint individuals to various compensated Township positions, including the position of Fire Marshall. At the November 23, 2009, meeting of the Board, Doremus’ brother, Barry Doremus, appeared before the Board and expressed his interest in being appointed to the Fire Marshall position for 2010. Another individual held the position of Fire Marshall for 2008 and 2009. Doremus used the authority of his public position as a Supervisor at the Board’s 2010 reorganizational meeting when he seconded the motion to approve, voted to approve, and signed Township Resolution #2010-01, which included the appointment of Barry Doremus as the Fire Marshall for 2010. Doremus further used the authority of his public position as a Supervisor when he voted to approve Township Resolutions that included the reappointment of Barry Doremus as the Fire Marshall for 2011 and 2012, and when he signed ten Township checks totaling $2,239.75 that were issued to Barry Doremus as salary for serving as the Fire Marshall. The parties have stipulated that Barry Doremus realized a private pecuniary gain as a result of Doremus participating in Board votes in 2010, 2011, and 2012 which appointed or reappointed Barry Doremus as the Fire Marshall. With each element of a violation of Section 1103(a) established, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Doremus participated in actions of the Board resulting in the hiring of his brother, Barry Doremus, to the position of Township Fire Marshall, and as a result, Barry Doremus realized a private pecuniary gain. We further accept the recommendation of the parties and we hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Doremus failed to list the Township as a source of income in excess of $1,300.00 on his SFI filed for the 2012 calendar year, and when he failed to list his office, directorship or employment in Doremus Kitchens/Doremus Kitchens, LLC, on SFIs filed for the 2008-2012 calendar years. Doremus, 13-023 Page 19 It appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros the portion of the allegations involving Doremus’ alleged failure to disclose his financial interest in Doremus Kitchens on SFIs filed for the 2008- 2011 calendar years. As part of the Consent Agreement, Doremus has agreed to make payment in the amount of $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Doremus has also agreed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. Doremus has further agreed to file complete and accurate amended SFIs for calendar years 2008, 2009, 2010, 2011, and 2012 with the Township, through this Commission, within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Doremus is directed to make payment in the amount of $1,000.00 payable to the Commonwealth of Pennsylvania th and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Doremus is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. To the extent he has not already done so, Doremus is directed to file complete and accurate amended SFIs for calendar years 2008, 2009, 2010, 2011, and 2012 with the th Township, through this Commission, by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Supervisor for Marlborough Township (“Township”) since approximately January 7, 2008, Respondent Brian L. Doremus (“Doremus”) has been a public official subject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Doremus did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to the allegation that he utilized confidential information to contact general contractors and/or individuals who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals, he and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same, in that insufficient evidence is available to substantiate that any private pecuniary benefit was beyond a de minimis amount. 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Doremus participated in actions of the Township Board of Supervisors resulting in the hiring of his brother, Barry Doremus, to the position of Township Fire Marshall, and as a result, Barry Doremus realized a private pecuniary gain. Doremus, 13-023 Page 20 4. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Doremus failed to list the Township as a source of income in excess of $1,300.00 on his Statement of Financial Interests filed for the 2012 calendar year, and when he failed to list his office, directorship or employment in Doremus Kitchens/Doremus Kitchens, LLC, on Statements of Financial Interests filed for the 2008-2012 calendar years. In Re: Brian L. Doremus, : File Docket: 13-023 Respondent : Date Decided: 9/30/14 : Date Mailed: 10/21/14 ORDER NO. 1649 1. As a Supervisor for Marlborough Township (“Township”), Brian L. Doremus (“Doremus”) did not violate Section 1103(a) of the Public Official and Employee Ethics Act (”Ethics Act”), 65 Pa.C.S. § 1103(a), in relation to the allegation that he utilized confidential information to contact general contractors and/or individuals who had submitted sealed bids in response to a publicly advertised Township project, and in contacting those individuals, he and/or Doremus Kitchens, LLC, submitted bids to serve as subcontractor and was awarded a subcontract for same, in that insufficient evidence is available to substantiate that any private pecuniary benefit was beyond a de minimis amount. 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Doremus participated in actions of the Township Board of Supervisors resulting in the hiring of his brother, Barry Doremus, to the position of Township Fire Marshall, and as a result, Barry Doremus realized a private pecuniary gain. 3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Doremus failed to list the Township as a source of income in excess of $1,300.00 on his Statement of Financial Interests filed for the 2012 calendar year, and when he failed to list his office, directorship or employment in Doremus Kitchens/Doremus Kitchens, LLC, on Statements of Financial Interests filed for the 2008-2012 calendar years. 4. Per the Consent Agreement of the parties, Doremus is directed to make payment in the amount of $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the th thirtieth (30) day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Doremus is further directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 6. To the extent he has not already done so, Doremus is directed to file complete and accurate amended Statements of Financial Interests for calendar years 2008, 2009, 2010, 2011, and 2012 with the Township, through the Pennsylvania State Ethics th Commission, by no later than the thirtieth (30) day after the mailing date of this Order. 7. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ Name, Case # Page 22 John J. Bolger, Chair