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HomeMy WebLinkAbout1685 Eitnier In Re: Anthony G. Eitnier, : File Docket: 14-067 Respondent : X-ref: Order No. 1685 : Date Decided: 10/6/15 : Date Mailed: 10/21/15 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis Maria Feeley Melanie DePalma 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.” An Answer was filed, and a hearing was requested by the Investigative Division. 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 Anthony G. Eitnier, a public official/public employee in his capacity as a Council Member of Terre Hill Borough, Lancaster County, violated Sections 1103(a), 1104(a), and 1104(d) of the State Ethics Act (Act 93 of 1998) when he utilized the authority of his office as a Council Member to motion and/or vote to award a paving project contract to Burkholder Paving, at a time when he knew or had a reasonable expectation that he would be serving as the Project Manager regarding that specific Borough project, as an employee of Burkholder Paving; and when he motioned and/or voted to pay invoices regarding that same project for which he served as Project Manager resulting in a private pecuniary benefit to himself, and/or a business with which he \[was\] associated, namely Burkholder Paving; and when Eitnier failed to file Statements of Financial Interests for st calendar years 2009, 2010 and 2011 on or before May 1 of each calendar year. II.FINDINGS: 1. Anthony Eitnier served as a Member of Council for Terre Hill Borough, Lancaster County, from January 3, 2006, until February 8, 2011. a. Eitnier served as the Chairman of the Public Works Committee during his tenure on Council. b. Eitnier voluntarily resigned his seat on Council after relocating his residence outside of the Borough. Eitnier, 14-067 Page 2 c. In a private capacity, Eitnier was employed by Burkholder Paving, Inc. at all times relevant to this Investigative Complaint/Findings Report. 2. The Borough is governed by a seven-Member Council and a Mayor. a. The Board meets on the second Tuesday of each month. 1. Workshop and Special meetings are not normally held. b. Councilmembers do not receive compensation for performing their elected duties. 3. Council conducts voting in either a group aye/nay or roll call fashion. a. Roll call votes are done for controversial issues. b. The Mayor has voting privileges only in the event of a tie vote among Council. 4. The Borough utilizes The Lancaster Newspapers Inc. for advertisements/postings. a. The advertisement is created by the Secretary/Treasurer, Solicitor, or Engineer, depending on the scope/nature of the project. 5. The Borough Secretary/Treasurer is responsible for creating meeting agendas. a. The Borough Secretary is informed by Borough Department heads of action items to be included on the meeting agenda. b. The Borough Secretary may also place items on the agenda independently, based upon department reports. 6. The Borough Secretary/Treasurer is responsible for compiling a monthly meeting packet for the Councilmembers. a. The packet includes, but is not limited to, the meeting agenda, prior month’s minutes, treasurer’s report and monthly \[“Bills for Payment”\] listing/register, correspondences, and committee reports. 7. The Borough Secretary/Treasurer is responsible for the generation of Council’s meeting minutes. a. The Secretary/Treasurer takes notes at the meeting to assist in generating the minutes. b. The prior month’s minutes are approved for accuracy at the subsequent regular meeting of Council. 8. The Secretary/Treasurer, Council President, and Council Vice-President maintain signature authority over Borough checks. a. Borough checks require the signature of any two authorized signatories. 1. There is a signature stamp for the Council President. Eitnier, 14-067 Page 3 b. Borough checks are prepared by the Secretary/Treasurer and signed immediately following Council’s regular monthly meeting. 9. Council votes at its regular monthly meeting to approve payments listed on the Bills for Payment report/register. a. The Bills for Payment listing reflects the specific Borough account, check number, payee, and amount paid. b. Invoices associated with payments documented on the Bills for Payment listing are not regularly reviewed by Council, but are made available for review upon request. 10. Council Members are appointed by the Council President to serve on the following committees: Community Improvement; Finance; Parks and Recreation; Personnel; Police & Public Safety; Public Works; and Zoning. a. The committees have scheduled meetings and/or meet on an as-needed basis. 11. The Public Works Committee consists of three Councilmembers who meet on the last Monday of each month. a. Committee meetings are also attended by Mayor/Public Works Supervisor Rob Rissler and the Borough Engineer. 12. Public Works Committee meetings involve discussion on current and future Public Works projects. a. Mayor Rissler presents anticipated projects to the Committee for planning purposes. b. Upon further discussion, the Committee determines which projects to pursue for the following fiscal year. 1. An estimated cost of the project is typically determined during these preliminary discussions. 2. Estimated costs for projects are obtained by Rissler from local contractors, including Burkholder Paving. c. Once the Committee determines which project(s) to pursue, Rissler and/or the Committee Chairman presents the project(s) to Council for formal approval. 13. Rissler generates a Public Works report that is included in Councilmembers’ monthly meeting packet. a. Rissler and/or the Public Works Committee Chairman will present the report to Council during its regular monthly meeting. b. Borough Secretary Valerie Gregory places action items pertaining to the Public Works Department within the Council meeting packet at Rissler’s direction and/or after Gregory’s independent review of the Public Works report. Eitnier, 14-067 Page 4 14. The Public Works Committee Chairman regularly initiates motions relating to the Public Works Department at Council’s regular meetings. a. Eitnier regularly initiated motions relative to the Public Works Department throughout his tenure as the Public Works Committee Chairman. b. Eitnier, as the Public Works Committee Chairman, regularly participated in discussions pertaining to Public Works projects. c. Eitnier regularly assisted Public Works Superintendent Rob Rissler in assessing projects, creating project estimates, and bid specifications. d. Rissler was aware of Eitnier’s position as an Estimator with Burkholder Paving prior to Eitnier’s tenure on the Council. 15. New Enterprise Stone & Lime (hereafter, “NESL”) is one of the largest aggregate suppliers in the United States, supplying stone, concrete, blacktop, precast, sand, and lime. a. NESL has numerous subsidiaries, which include Martin Limestone, Inc. 1. In 1975 New Enterprise Stone & Lime Co. purchased Ivan M. Martin, Inc. and formed Martin Limestone, Inc. as a subsidiary. 2. In 1982 Martin Limestone purchased David M. Burkholder, Inc., of Ephrata, PA, which included a quarry and Burkholder Paving. 16. Burkholder Paving offers asphalt materials and asphalt placement for excavators, general contractors, municipalities, builders, homeowners, and PennDOT projects. a. Burkholder Paving is headquartered at 621 Martindale Road, Ephrata, PA 17522. 1. Burkholder Paving is approximately three miles from the Borough Municipal Building. 17. Eitnier was employed with Burkholder Paving, Inc. from May 31, 1988, to approximately April 22, 2015. a. Eitnier held several positions with Burkholder Paving, including the following:  Laborer (1988 and 1989);  Screed Operator (1989 to 1996);  Paving Crew Foreman (1996 to 2000);  Estimator/Sales Representative (2000 to 2002);  Senior Estimator/Sales Representative (2002 to 2011); and  Sales Manager (2014 to 2015). 1. Eitnier was employed as a Senior Estimator/Sales Representative throughout his entire tenure on Council. b. Eitnier did not have any “financial interest” in Burkholder Paving, as that term is defined by 65 Pa.C.S. § 1102. 18. Eitnier was a salaried employee of Burkholder Paving while employed as a Senior Estimator. Eitnier, 14-067 Page 5 a. Eitnier did not receive commissions or bonuses in his position as a Senior Estimator. 1. Councilmembers and the Public Works Superintendent Rob Rissler were aware of Eitnier’s employment with Burkholder Paving. (a) Rissler interacted directly with estimators from various contracting companies for Borough projects, including Eitnier. 19. The duties/responsibilities of a Burkholder Paving Senior Estimator/Sales Representative include, but are not limited to, the following: a. Bidding on projects by creating an estimate summary, meeting with respective municipal officials, and obtaining/submitting the bid package for review by the Burkholder Paving sales manager. b. Acting as the project manager/coordinator to arrange the work schedule with the scheduling department and forwarding direct cost sheets to the corporate office for billing purposes. c. Generating the work crew instructions for the scheduling department. d. Serving as the primary point-of-contact for the client. e. Maintaining responsibility for managing any additional issues pertaining to a project. 20. Burkholder Paving has traditionally bid on both public and private paving projects. a. For public projects, Burkholder Paving’s administrative employees identify and forward advertisements to the construction sales manager, who then assigns the project to an estimator. 1. Estimators may be assigned to specific municipalities. b. The estimator is responsible for meeting with the respective municipal representatives to review the project, obtain bid documents, and to create an estimate for the bid. c. The estimated bid and bid documents are generally reviewed/approved by the construction sales manager and submitted by the estimator to the municipality for consideration. 21. An estimator serves as a municipality’s point-of-contact and may assist, free-of- charge, the municipality in generating bid specifications for upcoming projects as a way to build a business relationship. a. The Borough typically utilized estimators from various contractors to assist in the creation of bid specifications. 1. The Borough has utilized Eitnier to assist in bid specifications preparations for upcoming paving projects. b. Bid specifications would be distributed to all interested parties, as part of a public announcement/public request for bids. Eitnier, 14-067 Page 6 22. As the project manager, the Burkholder Paving Estimator is subsequently responsible for performing the following duties: a. Acting as the point-of-contact with the municipality; b. Administering the project scheduling; and c. Overseeing change orders. 23. Burkholder Paving, Martin Limestone, and/or NESL have conducted business (material supply, paving services) with the Borough since at least 2000. a. Burkholder Paving has bid, been awarded, and/or performed paving projects at the Borough since prior to Eitnier’s tenure on Council. 1. Burkholder Paving was awarded a paving project at the Borough as early as June 2002. 24. In 2006, after taking office as a Councilman, Eitnier informed his Burkholder Paving supervisor, Construction Sales Manager David Powers, of a possible conflict-of- interest pertaining to Burkholder Paving bidding and performing work for the Borough. a. Powers told Eitnier that it was permissible to bid on Borough projects since Eitnier did not have \[a\] financial interest in Burkholder Paving. b. Burkholder Paving officials continued to permit Eitnier to be involved in creating bid proposals to the Borough after Eitnier began service on Borough Council. 1. Bid proposals were based on non-confidential information presented through a public request for bids. 2. Creation of a bid proposal was not a guarantee of work. 25. As early as January 2007, Eitnier, as a Councilmember, took part in Council’s official actions to award projects to Burkholder Paving, at a time he was employed as the Senior Estimator of Burkholder Paving. a. In January of 2007, Eitnier voted affirmatively to award Recycling Center Construction Contract 2 to Burkholder Paving in the amount of $23,927.54. b. In February of 2007, Eitnier, as the Senior Estimator of Burkholder Paving, singed the Borough’s Notice to Proceed for the Recycling Center Construction project. 26. From 2006 to 2010, five of the nine Borough publicly bid paving projects were awarded to Burkholder Paving, as listed below: 5-17-2006: East Earl Township’s Vine/Maple/Main Streets Paving contract- $207,398.00 7-11-2006: Borough Hall Parking Lot-$2,937.20 9-12-2006: Fairview-East Main Street Paving Project-$41,745.65 1-09-2007: Recycling Center Paving Project-$23,927.54 7-13-2010: Oak Lane/College Ave. Paving Project-$31,787.14 Eitnier, 14-067 Page 7 a. Eitnier was identified on and/or signed bid proposal documents, on behalf of Burkholder, for the Recycling Center Paving Project and the Oak Lane/College Avenue Paving Projects only. b. Bid proposal documents were typically signed by Burkholder Paving Vice Presidents Jeffrey Rutt, Dale Good, or Joseph Craft, and/or Sales Manager David Powers. 27. Burkholder Paving was not the sole recipient of all Borough paving projects during Eitnier’s tenure on Council (2006-2011). a. Eitnier, as the Burkholder Paving Senior Estimator, completed portions of the bid proposal documents which were submitted to the Borough for the 2007 Terre Hill Park/Community Center, and the 2009 Willow Street Paving Project. 1. Burkholder Paving was not awarded either of these projects. 28. In 2009 and 2010, Eitnier participated in Public Works Committee discussions as the Public Works Chairman, relating to the Oak Lane/College Avenue paving project (hereafter, “Project”). a. The Borough Council, in 2003, prior to Eitnier’s service on Council, approved Ordinance No. 2003-1 which accepted dedication of Oak Lane with College Avenue and all public improvements. b. Council discussions relating to the Project began as early as August 2009. c. The Project was first presented to the Public Works Committee by Rissler. d. The Public Works Committee further discussed the Project before presenting it to the Finance Committee, and ultimately Council for approval. 1. Once Council decides to pursue a specific project, the Borough budgets accordingly and includes the project in the Borough’s annual budget. 29. At the October 13, 2009, regular meeting, Eitnier reported that the Borough’s 2010 budget included funding for a project on College Avenue. a. Eitnier reported the project was to be paid with Liquid Fuels funds. b. Council was receptive to the pursuit of the Project. 30. At the December 29, 2009, special meeting, Council adopted the Borough’s 2010 Budget. a. The Capital Improvements Budget, line item account 439.00, allocated $3,500 to the College Avenue Improvement Project. 1. At the May 11, 2010, meeting, Council approved additional funding for the project in the amount of $6,000, increasing the total allocation to $9,500. b. The Highway Aid Fund budget, line item account 439.00, documented $75,000.00 for construction and rebuilding projects. Eitnier, 14-067 Page 8 c. Eitnier was not present for the December 29, 2009, special meeting. 31. At Council’s January 12, 2010, regular meeting, Eitnier presented information, as the Public Works Committee Chairman, pertaining to the Project. a. The Project was previously discussed by the Public Works Committee at its January 8, 2010, meeting. 1. The Public Works Committee discussed the continued work on the Project, as well as issues pertaining to curb lining, unevenness on the curb, turnaround right-of-way, and curb installation notification. 32. At Council’s April 13, 2010, regular meeting, Eitnier motioned, seconded by Councilmember Gary Hartranft, to prepare and advertise bid specifications for the Project with the bid opening scheduled for July 6, 2010, to award on July 13, 2010. a. The motion carried unanimously with Eitnier voting affirmatively on the action. 33. At Council’s May 11, 2010, regular meeting, Eitnier motioned, seconded by Councilmember Williard Good, to allocate an additional $6,000 from the general fund to the Project to cover costs of the installation of storm water inlets and piping. a. The motion carried unanimously with Eitnier voting affirmatively on the action. 34. Also at Council’s May 11, 2010, regular meeting, Eitnier motioned, seconded by Good, to authorize Borough Secretary Gregory to send letters to affected property owners informing them that they were required to install curbing along Oak Lane and College Avenue. a. The motion carried unanimously with Eitnier voting affirmatively on the action. 35. Beginning in or about March 2010, Eitnier assisted Rissler and Borough Secretary Gregory with the Project bid specifications. a. The April 2010 and May 2010 Public Works Committee reports reflect preparation of the Project bid specification and advertisement. 36. Eitnier emailed Gregory on March 31, 2010, at 12:26 p.m. with an estimated cost analysis form for an unnamed alley associated with the Project. a. The estimate was completed on a Burkholder Paving quote/estimate form, dated April 1, 2010, quoting the unnamed alley costs at $4,316.00. 1. The quote/estimate was made to Rissler’s attention. b. In the email, Eitnier requested that Gregory print the quote/estimate form and provide the form to Rissler. c. The email was sent from Eitnier’s Burkholder Paving email address of TEitnier@burkholderpaving.com. 37. Email communications between Eitnier and Gregory included Eitnier’s review of Project specifications and costs. Eitnier, 14-067 Page 9 a. Emails from June 11, 2010, and June 15, 2010, provided Eitnier with the Project specifications for Oak Lane, College Avenue, and the Unnamed Alley and the quantities, units, and descriptions of material for the Project. b. Emails between Gregory and Eitnier, on June 17, 2010, and June 18, 2010, documented the schedule of prices for the Project. 1. Gregory requested Eitnier to review the material and informed him thnd that the bid advertisement is planned for the June 25 and July 2 circulatory. 2. Gregory also requested an estimated cost of the Project to submit with the request for prevailing wages. 3. Eitnier provided Gregory with a total estimated cost for the Project. 4. The estimate was completed on a Burkholder Paving quote/estimate form quoting the Project at $36,507.93. College Ave. $19,322.15 Oak Lane $12,951.34 Unnamed Alley $4,234.44 Total amount $36,507.93 c. The email was sent to and from Eitnier’s Burkholder Paving email address. 38. At Council’s June 8, 2010, regular meeting, Eitnier motioned, seconded by thth Hartranft, to change the Project’s bid opening date from July 6 to July 13 at 9:00 a.m. and to authorize the inclusion of an escalator clause in the bid specification. a. The motions carried unanimously with Eitnier voting affirmatively on both actions. 1. The Public Works Committee recommended the bid opening take th place on July 13 due to the inclusion of the escalator clause. (a) The escalator clause, in accordance with PennDOT Publication 408, Section 110.04, required bidders to base their price on the current asphalt price index. 39. On or about June 22, 2010, Secretary Gregory submitted the Invitation to Bidders notice to The Lancaster Newspapers Inc. thnd a. The advertisement was published in the June 25 and July 2 circulatory. 40. Eitnier, along with Gregory and Rissler, created The Invitation to Bidder, which listed the following information: a. The Borough was seeking sealed proposals for work to be performed for the Project. b. The bid documents were available at the Borough municipal building. 1. Bid documents were distributed by Gregory or Rissler. Eitnier, 14-067 Page 10 c. The bids could be received at the Borough municipal building up until 9:00 a.m. on July 13, 2010, at which time the bids were to be publicly opened and read aloud. 1. Bid documents were to be addressed to Rissler. d. The Project was subject to the Prevailing Wage rate requirements. 41. A Burkholder Paving administrative assistant provided Eitnier the Project’s public bid advertisement for Eitnier’s subsequent pursuit of obtaining the proper bid documents. a. Eitnier was aware of the Project timeline and bid opportunity based on his role as Councilman and Public Works Committee Chairman. b. Eitnier did not inform Councilmembers or Borough representatives of Burkholder Paving’s intention to bid on the Project. 42. Eitnier discussed with his supervisor, David Powers, if he should proceed to create the bid proposal for the Project since he was a Councilmember at the Borough. a. Powers informed Eitnier that he could proceed in completing the bid proposal documents since he had no financial interests in the company and did not receive commission/bonus from the Project. 43. Eitnier obtained the bid documents from the Borough municipal building, as referenced in the Invitation to Bidders. a. Obtaining bid documents for municipal projects was a regular responsibility of Eitnier as a Senior Estimator. b. Bid documents were available to any interested bidder at the municipal building. 44. Municipal projects require contractors to meet with a municipal representative to review a project prior to submitting a bid. a. The meeting/review is to be documented on bid document’s Special Provisions to Contract form (MS-944). 45. Contractors that bid on the Project were required to complete the Special Provisions to Contract form. a. The Special Provisions to Contract form (MS-944) was included in the Project’s bid proposal forms. 46. On or by July 8, 2010, Eitnier reviewed the Project with Rissler as required in the bid documents Special Provisions to Contract form (MS-944). a. Eitnier signed the Project’s Special Provisions to Contract form, dated July 8, 2010. 47. Borough Code, Article XIV, Contracts, Section 1402-Regulation of Contracts, sets forth multiple mandates to be observed in relation to award of contracts. a. Contracts are generally to be awarded to the lowest responsible bidder. Eitnier, 14-067 Page 11 48. Eitnier completed the remaining bid documents, including project costs, for the formal review by Burkholder Paving management. a. Burkholder Paving management applied the mark-up for the bid without any discussion/input with or from Eitnier. 1. Eitnier had no role in the final quote price submitted by Burkholder Paving. b. Eitnier was not informed of the mark-up placed on the bid proposal. c. Eitnier did not request Burkholder Paving management to apply a particular mark-up to the bid proposal that would have favored Burkholder Paving being awarded the project. 49. Sealed bids for the project were received at the Borough municipal building from Burkholder Paving, Landis C. Deck & Sons-Division of Reading Materials, Inc., and Lyons & Hohl Paving, Inc. a. The bid proposals were maintained at the Borough municipal building by Gregory and Rissler. 1. Bid proposals were not available to any individuals prior to the July 13, 2010, public bid opening. 50. The public bid opening was conducted at the Borough municipal building at 9:00 a.m. on July 13, 2010. a. The Project sealed bid proposals were opened and read aloud by Rissler. 51. Eitnier attended the bid opening for the Project as an employee of Burkholder Paving. a. Eitnier was seated with the remaining bidders during the opening. 1. Eitnier normally attended municipal bid openings, as an employee of Burkholder Paving, for which Burkholder Paving had submitted a bid. 2. Eitnier, as a Councilmember and Public Works Committee Chairman, normally attended Borough bid openings pertaining to the public works department. 3. Bids are opened by either Rissler or Gregory. 52. Gregory maintained notes from the bid opening that listed information from the bids received and ranked the proposals from lowest to highest bidder, as follows: Company Bid Amount Point of Signed Dated Ranking Contact Burkholder $31,787.14 Eitnier Joseph 7-12-10 1 Paving Craft, Vice- Oak Pres. Lane/College Ave. $28,618.74 Eitnier, 14-067 Page 12 Option: Alley $3,168.40 Landis C. $40,169.94 Gary Deck Christian 7-13-10 3 Deck & Bundez, Sons-Oak Lane/ Vice- Division of College Ave. Pres./Asst. Reading 36,303.78 Sec. Materials, Option: Alley Inc. $3,866.16 Lyons & $37,686.94 Roger Fox Roger Fox, 7-12-10 2 Hohl Paving, President Inc. Oak Lane/College Ave. 37,868.94 Option: Alley $3,147.04 a. Gregory listed Eitnier as the Burkholder Paving “point-of-contact” for the Project. 1. Eitnier had a prior history as being the Burkholder Paving Point-of- Contact for the Borough. 53. The July 13, 2010, meeting agenda included an action item to award the bid for the Project. a. The agenda was created by Gregory. 54. Prior to Council’s vote on the matter, Eitnier requested direction from Borough Solicitor Bradford Harris regarding whether he should vote to award the Project to Burkholder Paving. a. Eitnier normally inquired of Harris if it was permissible for him to vote on Borough matters that involved Burkholder Paving. b. Harris had advised Eitnier to abstain from voting matters, depending on the circumstances of the vote. 55. Harris advised Eitnier that it was allowable for him to vote on Council’s action to award the Project to Burkholder Paving for the following reasons: a. Eitnier was an employee with no financial interest in Burkholder Paving; b. The project was publicly bid; and c. Eitnier would not be the deciding vote. 56. At Council’s July 13, 2010, regular meeting, Eitnier motioned, seconded by Good, to award the Project to Burkholder Paving at the contract price of $31,787.14. a. The minutes reflect the motion carried without a specific notation as to the vote. b. Eitnier is not specifically noted as abstaining or objecting to the contract being awarded to Burkholder Paving. Eitnier, 14-067 Page 13 57. Gregory sent a Borough letter, dated July 26, 2010, to Eitnier’s attention, at Burkholder Paving, informing him that Council awarded Burkholder Paving the contract for the Project at the proposed amount of $31,787.14. a. The Borough normally forwards letters to contractors to inform them of being awarded a project. 58. Burkholder Paving Project Crew Instructions and Daily Foreman Reports list the Project Manager as Dan Boley and Rissler as the Borough point-of-contact for the Project. a. Eitnier is not listed as a crew member on any of the Project Crew Instructions. 1. Eitnier is listed as the salesman for the Project. 59. Prior to beginning the Project, Eitnier met with Boley to discuss the initial schedule for the Project. a. Before a project, the estimator routinely meets with the Project Manager to discuss the initial work schedule. 60. Eitnier, as a Councilmember and/or Senior Estimator, was not on-site overseeing the day-to-day work for the Project. a. Eitnier, as the Senior Estimator, was not responsible for quality of work issues during the Project. 1. Quality of work issues are the responsibility of the Project Manager. 61. The Project involved one change order (C/O#1) for driveway restorations in the total amount of $2,249.10. a. Eitnier e-mailed Gregory the change order form C/O#1 requesting approval. b. Eitnier received approval for C/O#1 via email from Gregory on September 9, 2010. 1. Gregory included C/O#1 form, which was sent back to Eitnier signed by Gregory, dated September 9, 2010. thth 62. Burkholder Paving performed the work the week of September 10 to 18 of 2010. 63. Eitnier, as a senior project estimator, is responsible for review of Project Manager billing records. a. Eitnier then forwards the billing records to the Burkholder Paving (Martin Limestone subsidiary) billing clerk for processing. 64. Martin Limestone invoiced the Borough upon completion of the Project. a. Invoice #500028, dated October 6, 2010, billed the total amount of $34,036.24 to the Borough. 65. The Borough issued check #132, dated October 12, 2010, in the total amount of $34,036.24, in response to invoice #500028. Eitnier, 14-067 Page 14 a. Check #132 was signed by Council President Jeff Cassel and Gregory. 66. Borough check #132 was documented on the October 2010 Bills for Payment. a. Council approved the payment of check #132 at its October 12, 2010, regular meeting. 1. Eitnier was present at the meeting and voted affirmatively in approving payment of check #132. b. Check #132 was dispersed from the Borough’s Highway Aid Fund account. 67. Burkholder Paving received check #132 in the amount of $34,036.24 from the Borough for completion of the Project. a. Burkholder Paving incurred expenses of $32,723.23 relating to the Project. b. Burkholder Paving realized a profit of $1,313.01 for completion of the Project. 68. Eitnier received the same bi-weekly salary from Burkholder Paving throughout 2010. a. Eitnier did not receive a bonus or commission as a result of Burkholder Paving being awarded the bid for the Project. 69. Council accepted Eitnier’s resignation from the Board at its February 8, 2011, regular meeting. a. Eitnier resigned as a result of his relocation outside of the Borough. 70. Eitnier was interviewed by Commission Investigators on April 23, 2015, and asserted the following: a. It is typical for an estimator to provide free-of-charge cost estimates to a municipality, but Eitnier did not specifically recall whether he provided cost estimates for any Borough projects prior to the 2010 Oak Lane/College Ave. project (Project). b. Eitnier did not specifically recall when Burkholder Paving assigned him to the Borough’s account, but admitted that during his tenure on Council, he was assigned to the Borough’s account. c. Eitnier did not recall any specific Borough projects prior to 2010 for which he prepared Burkholder Paving bids. d. It was typical for Eitnier to provide input on a public works project if requested by Rissler. e. Eitnier did not independently create the Project’s bid specifications or have any face-to-face meetings with Rissler to discuss or review the Project bid specifications. Any input would have been via email or by telephone. f. Eitnier was aware of the Project being advertised and expected Burkholder Paving would bid on the Project; however, Eitnier did not pursue the bid documents until his secretary provided him with the bid advertisement. g. Eitnier’s Burkholder Paving secretary informed him of the Project after it was Eitnier, 14-067 Page 15 publicly advertised and Eitnier proceeded with completing the appropriate bid proposal documents after inquiring with Powers whether it was permissible for him to estimate the bid. h. Eitnier hand delivered the bid proposal to the Borough after the appropriate Burkholder Paving representatives had authorized the submittal of the bid documents. i. Eitnier sought advice from the Solicitor prior to the vote whether he was permitted to vote on the awarding of the Project and that Eitnier voted on the awarding of the Project to Burkholder Paving based on the Solicitor’s advice that it was permissible since he had no financial interests in Burkholder Paving and since he did not receive commission or a bonus from the awarding of the Project. j. Eitnier’s role in the Project was to arrange the initial project schedule with the Project Manager, handle any cost related issues associated with the Project, specifically handling the one change order for the Project, and to forward billing records from the Project Manager to the Burkholder Paving billing clerk; however, Eitnier was not the Project Manager and had no involvement overseeing the Project on-site. THE FOLLOWING FINDINGS RELATE TO EITNIER FAILING TO FILE STATEMENTS OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2009, 2010, AND 2011 . 71. Section 1104(a) of the State Ethics Act sets forth that each public official of the Commonwealth shall file a Statement of Financial Interests for the preceding calendar year with the Commission no later than May 1 of each year that he holds such position and of the year after he leaves such position. a. Eitnier was required to file a Statement of Financial Interests (“SFI”) for calendar years 2005 through 2011 as a Councilmember of Terre Hill Borough. 72. On December 16, 2014, a Statement of Financial Interests compliance review was conducted for Terre Hill Borough. a. Statements of Financial Interests were not found on file with the Borough for Eitnier representing calendar years 2009, 2010 and 2011. 73. During an interview with Commission Investigators on April 23, 2015, Eitnier claimed the following: a. Eitnier acknowledged that early in each year he served on Council, he received a blank Statement of Financial Interests form (SFI) from Gregory, during Council’s regular meeting, and that he usually completed the form and turned it back in at a following month’s meeting. b. Eitnier believed he completed his SFIs on an annual basis as required, with the exception of 2012 (the year after he left office). c. Eitnier was uncertain whether he filed an SFI or even received a blank SFI in 2011 (the year he resigned). III.DISCUSSION: Eitnier, 14-067 Page 16 As a Councilmember of Terre Hill Borough (“Borough”), Lancaster County, from January 3, 2006, until February 8, 2011, Respondent Anthony G. Eitnier, also referred to hereinafter as “Respondent,” “Respondent Eitnier,” and “Eitnier,” was 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 Eitnier violated Sections 1103(a), 1104(a), and 1104(d) of the Ethics Act: (1) when he utilized the authority of his office as a Council Member to motion and/or vote to award a paving project contract to Burkholder Paving, at a time when he knew or had a reasonable expectation that he would be serving as the Project Manager regarding that specific Borough project, as an employee of Burkholder Paving; (2) when he motioned and/or voted to pay invoices regarding that same project for which he served as Project Manager resulting in a private pecuniary benefit to himself, and/or a business with which he was associated, namely Burkholder Paving; and (3) when Eitnier failed to file Statements of Financial Interests (“SFIs”) for calendar years 2009, 2010 and 2011 on or st before May 1 of each calendar year. 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 1104(a) of the Ethics Act provides that each public official/public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Eitnier, 14-067 Page 17 Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a Statement of Financial Interests as required by the Ethics Act. 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 Borough is governed by a seven-Member Council and a Mayor. Councilmembers do not receive compensation for performing their elected duties. Respondent Eitnier served as a Borough Councilmember from January 3, 2006, until February 8, 2011. Eitnier voluntarily resigned his seat on Council after relocating his residence outside of the Borough. In a private capacity, Eitnier was employed by Burkholder Paving, Inc. from May 31, 1988, to approximately April 22, 2015. Council Members are appointed by the Council President to serve on various committees including the Public Works Committee. The Public Works Committee consists of three Councilmembers. Committee meetings are also attended by Mayor/Public Works Supervisor Rob Rissler (“Rissler”) and the Borough Engineer. Public Works Committee meetings involve discussion on current and future Public Works projects. Rissler presents anticipated projects to the Committee for planning purposes. The Committee determines which projects to pursue for the following fiscal year. An estimated cost of the project is typically determined during these preliminary discussions. Estimated costs for projects are obtained by Rissler from local contractors, including Burkholder Paving. Once the Committee determines which project(s) to pursue, Rissler and/or the Committee Chairman presents the project(s) to Council for formal approval. Eitnier served as the Chairman of the Public Works Committee during his tenure on Council. Eitnier regularly assisted Rissler in assessing projects, creating project estimates, and bid specifications. Rissler was aware of Eitnier’s position as an Estimator with Burkholder Paving prior to Eitnier’s tenure on Borough Council. Burkholder Paving offers asphalt materials and asphalt placement for excavators, general contractors, municipalities, builders, homeowners, and PennDOT projects. Eitnier was employed as a salaried Senior Estimator/Sales Representative for Burkholder Paving throughout his entire tenure on Borough Council. Eitnier did not receive commissions or bonuses in his position as a Senior Estimator. Eitnier did not have any “financial interest” in Burkholder Paving, as that term is defined by 65 Pa.C.S. § 1102. Borough Councilmembers and Rissler were aware of Eitnier’s employment with Burkholder Paving. Rissler interacted directly with estimators from various contracting companies for Borough projects, including Eitnier. Eitnier’s duties/responsibilities as a Burkholder Paving Senior Estimator/Sales Representative included, but were not limited to, the following:  Bidding on projects; Eitnier, 14-067 Page 18  Acting as the project manager/coordinator to arrange the work schedule with the scheduling department and forwarding direct cost sheets to the corporate office for billing purposes;  Generating the work crew instructions for the scheduling department;  Serving as the primary point-of-contact for the client; and  Maintaining responsibility for managing any additional issues pertaining to a project. Burkholder Paving has bid, been awarded, and/or performed paving projects at the Borough since prior to Eitnier’s tenure on Council. In 2006, after taking office as a Borough Councilman, Eitnier informed his Burkholder Paving supervisor, Construction Sales Manager David Powers (“Powers”), of a possible conflict-of-interest pertaining to Burkholder Paving bidding and performing work for the Borough. Powers told Eitnier that it was permissible to bid on Borough projects since Eitnier did not have a financial interest in Burkholder Paving. Burkholder Paving officials continued to permit Eitnier to be involved in creating bid proposals to the Borough after Eitnier began service on Borough Council. Bid proposals were based on non- confidential information presented through a public request for bids. Creation of a bid proposal was not a guarantee of work. From 2006 to 2010, five of the nine Borough publicly bid paving projects were awarded to Burkholder Paving. Of these, only one paving project took place during the time period under review, which was the project referred to herein as the “Oak Lane/College Avenue Paving Project” (hereinafter also referred to as the “Project”). The Project was first presented to the Public Works Committee by Rissler. In 2009 and 2010, Eitnier participated in Public Works Committee discussions relating to the Project in his capacity as the Public Works Chairman. At the October 13, 2009, regular meeting, Eitnier reported that the Borough’s 2010 budget included funding for the Project, which was to be paid with Liquid Fuels funds. Council was receptive to the pursuit of the Project. At the December 29, 2009, special meeting, Council adopted the Borough’s 2010 Budget, which allocated funds for the Project. Eitnier was not present for the December 29, 2009, special meeting. At Council’s January 12, 2010, regular meeting, Eitnier presented information pertaining to the Project as the Public Works Committee Chairman. At Council’s April 13, 2010, regular meeting, Eitnier motioned, seconded by Councilmember Gary Hartranft (“Hartranft”), to prepare and advertise bid specifications for the Project with the bid opening scheduled for July 6, 2010, to award on July 13, 2010. The motion carried unanimously with Eitnier voting affirmatively on the action. At Council’s May 11, 2010, regular meeting, Eitnier motioned, seconded by Councilmember Williard Good, to allocate an additional $6,000 from the general fund to the Project to cover costs of the installation of storm water inlets and piping. The motion carried unanimously with Eitnier voting affirmatively on the action. Also at Council’s May 11, 2010, regular meeting, Eitnier motioned, seconded by Good, to authorize Borough Secretary Gregory to send letters to affected property owners informing them that they were required to install curbing along Oak Lane and College Avenue. The motion carried unanimously with Eitnier voting affirmatively on the action. Eitnier, 14-067 Page 19 Beginning in or about March 2010, Eitnier assisted Rissler and the Borough Secretary/Treasurer with the Project bid specifications. Eitnier emailed the Borough Secretary/Treasurer on March 31, 2010, with an estimated cost analysis form for an unnamed alley associated with the Project. The estimate was completed on a Burkholder Paving quote/estimate form, dated April 1, 2010. The quote/estimate was made to Rissler’s attention. In the email, Eitnier requested that the Borough Secretary/Treasurer print the quote/estimate form and provide the form to Rissler. The email was sent from Eitnier’s Burkholder Paving email address. Email communications between Eitnier and the Borough Secretary/Treasurer included Eitnier’s review of Project specifications and costs. Emails from June 11, 2010, and June 15, 2010, provided Eitnier with the Project specifications and the quantities, units, and descriptions of material for the Project. Emails between the Borough Secretary/Treasurer and Eitnier on June 17, 2010, and June 18, 2010, documented the schedule of prices for the Project. The Borough Secretary/Treasurer requested Eitnier to review the material and informed him that the bid thnd advertisement was planned for the June 25 and July 2 circulatory. The Borough Secretary/Treasurer also requested an estimated cost of the Project to submit with the request for prevailing wages. Eitnier provided the Borough Secretary/Treasurer with a total estimated cost for the Project. The estimate was completed on a Burkholder Paving quote/estimate form quoting the Project at $36,507.93. The email was sent to and from Eitnier’s Burkholder Paving email address. At Council’s June 8, 2010, regular meeting, Eitnier motioned, seconded by thth Hartranft, to change the Project’s bid opening date from July 6 to July 13 at 9:00 a.m. and to authorize the inclusion of an escalator clause in the bid specification. The motions carried unanimously with Eitnier voting affirmatively on both actions. The Public Works th Committee recommended the bid opening take place on July 13 due to the inclusion of the escalator clause. The escalator clause, in accordance with PennDOT Publication 408, Section 110.04, required bidders to base their price on the current asphalt price index. Eitnier, along with the Borough Secretary/Treasurer and Rissler, created The Invitation to Bidder. Eitnier did not inform Councilmembers or Borough representatives of Burkholder Paving’s intention to bid on the Project. Eitnier discussed with Powers whether he should proceed to create the bid proposal for the Project since he was a Councilmember at the Borough. Powers informed Eitnier that he could proceed in completing the bid proposal documents since he had no financial interests in the company and did not receive commission/bonus from the Project. Eitnier obtained the bid documents from the Borough municipal building, as referenced in the Invitation to Bidders. Municipal projects require contractors to meet with a municipal representative to review a project prior to submitting a bid. The meeting/review is to be documented on bid document’s Special Provisions to Contract form (MS-944). Contractors bidding on the Project were required to complete the Special Provisions to Contract form. On or by July 8, 2010, Eitnier reviewed the Project with Rissler as required. Eitnier signed the Project’s Special Provisions to Contract form, dated July 8, 2010. Eitnier completed the remaining bid documents, including project costs, for the formal review by Burkholder Paving management. Burkholder Paving management applied the mark-up for the bid without any discussion/input with or from Eitnier. Eitnier, 14-067 Page 20 Sealed bids for the project were received at the Borough municipal building from three bidders including Burkholder Paving. The bid proposals were maintained at the Borough municipal building by the Borough Secretary/Treasurer and Rissler. Bid proposals were not available to any individuals prior to the July 13, 2010, public bid opening. The Project sealed bid proposals were opened and read aloud by Rissler at the public bid opening on July 13, 2010. Eitnier attended the bid opening for the Project as an employee of Burkholder Paving. The July 13, 2010, meeting agenda included an action item to award the bid for the Project. Prior to Council’s vote on the matter, Eitnier requested direction from Borough Solicitor Bradford Harris (“Harris”) regarding whether he should vote to award the Project to Burkholder Paving. Harris advised Eitnier that it was allowable for him to vote on Council’s action to award the Project to Burkholder Paving for the reasons that Eitnier was an employee with no financial interest in Burkholder Paving, the project was publicly bid, and Eitnier would not be the deciding vote. At Council’s July 13, 2010, regular meeting, Eitnier motioned, seconded by Good, to award the Project to Burkholder Paving at the contract price of $31,787.14. The minutes reflect the motion carried without a specific notation as to the vote. Eitnier is not specifically noted as abstaining or objecting to the contract being awarded to Burkholder Paving. Prior to the beginning of the Project, Eitnier met with Boley to discuss the initial schedule for the Project. Before a project, the estimator routinely meets with the Project Manager to discuss the initial work schedule. The Project involved one change order for driveway restorations in the total amount of $2,249.10. Eitnier e-mailed the Borough Secretary/Treasurer the change order form requesting approval. Eitnier received approval for the change order via email from the Borough Secretary/Treasurer on September 9, 2010. Burkholder Paving performed the work the week of September 10-18, 2010. The Borough was then invoiced and paid the total amount of $34,036.24 for the Project. Council approved the payment for the Project at its October 12, 2010, regular meeting. Eitnier was present at the meeting and voted affirmatively to approve that payment. Burkholder Paving incurred expenses of $32,723.23 relating to the Project. Burkholder Paving realized a profit of $1,313.01 for completion of the Project. Eitnier received the same bi-weekly salary from Burkholder Paving throughout 2010. Eitnier did not receive a bonus or commission as a result of Burkholder Paving being awarded the bid for the Project. With regard to Eitnier’s SFIs, Eitnier was required to file an SFI for calendar years 2005 through 2011 as a Borough Councilmember. On December 16, 2014, an SFI compliance review was conducted for the Borough. SFIs were not found on file with the Borough for Eitnier for calendar years 2009, 2010 and 2011. 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: Eitnier, 14-067 Page 21 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 in relation to Eitnier’s use of authority of office as a Council Member to motion and/or vote to award a paving project contract to Burkholder Paving, and when he subsequently motioned/voted to pay invoices regarding that same project for which he served as the Project Manager and employee of Burkholder Paving, as any pecuniary benefit realized was de minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Commw. Ct. 2004); b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Eitnier did not maintain Statements of Financial Interests for calendar years 2009, 2010 and 2011 on file with the Borough. 4. Eitnier additionally states as follows: a. “Although Eitnier understands the State Ethic’s Findings as they relate to Eitnier voting to award Burkholder Paving a project, Eitnier feels he was misguided by Borough Solicitor. Eitnier believes that Borough solicitor should have explained the issues more thoroughly.” b. It is Eitnier’s position that he “gained no financial gain for this project and the facts show that this was more of a misunderstanding than a wrongful act of law.” c. The Investigative Division maintains that any pecuniary benefit was de minimis, and that the negotiated resolution of this matter appropriately addresses the allegations. 5. Eitnier agrees to file complete and accurate Statements of Financial Interests with Terre Hill Borough through the Pennsylvania State Ethics Commission, for calendar years 2009, 2010, and 2011 within thirty (30) days of the issuance of the final adjudication in this matter. 6. 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 Eitnier, 14-067 Page 22 cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 2. In considering the Consent Agreement of the parties, we shall accept the parties’ recommendation for a finding of no violation of Section 1103(a) of the Ethics Act. Although Respondent Eitnier used the authority of his public position in matters relating to the Project, the only resulting pecuniary benefit established by the Stipulated Findings was the profit Burkholder Paving received in the amount of $1,313.01, which we agree was de minimis. (In accepting the parties’ aforesaid recommendation, we note that in this case, only one contract is at issue, there is no basis to conclude that the calculation of Burkholder Paving’s profit for the Project was based upon any allocation for salaried employees, and Respondent received the same bi-weekly salary from Burkholder Paving throughout 2010 and did not receive a bonus or commission as a result of Burkholder Paving being awarded the bid for the Project.) Based upon the Stipulated Findings and the Consent Agreement, we hold that Eitnier did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his use of authority of office as a Councilmember to motion and/or vote to award a paving project contract to Burkholder Paving, and when he subsequently motioned/voted to pay invoice(s) regarding that same project for which he served as the Project Manager and employee of Burkholder Paving, as any pecuniary benefit realized was de minimis. See, Bixler, supra. We hold that a violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Eitnier did not maintain SFIs for calendar years 2009, 2010 and 2011 on file with the Borough. It appears that the Investigative Division has exercised its prosecutorial discretion to non pros the allegation under Section 1104(d) of the Ethics Act. As part of the Consent Agreement, Eitnier has agreed to file complete and accurate SFIs for the 2009, 2010, and 2011 calendar years with the Borough, 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, to the extent he has not already done so, Eitnier is directed to file complete and accurate SFIs for the 2009, 2010, and 2011 calendar years with the th Borough, 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 Councilmember of Terre Hill Borough (“Borough”), Lancaster County, Respondent Anthony G. Eitnier (“Eitnier”) was a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. Eitnier, 14-067 Page 23 2. Eitnier did not violate Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to his use of authority of office as a Councilmember to motion and/or vote to award a paving project contract to Burkholder Paving, and when he subsequently motioned/voted to pay invoice(s) regarding that same project for which he served as the Project Manager and employee of Burkholder Paving, as any pecuniary benefit realized was de minimis. 3. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Eitnier did not maintain Statements of Financial Interests for calendar years 2009, 2010 and 2011 on file with the Borough. In Re: Anthony G. Eitnier, : File Docket: 14-067 Respondent : Date Decided: 10/6/15 : Date Mailed: 10/21/15 ORDER NO. 1685 1. Anthony G. Eitnier (“Eitnier”), as a Councilmember of Terre Hill Borough (“Borough”), Lancaster County, 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 his use of authority of office as a Councilmember to motion and/or vote to award a paving project contract to Burkholder Paving, and when he subsequently motioned/voted to pay invoice(s) regarding that same project for which he served as the Project Manager and employee of Burkholder Paving, as any pecuniary benefit realized was de minimis. 2. A violation of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred when Eitnier did not maintain Statements of Financial Interests for calendar years 2009, 2010 and 2011 on file with the Borough. 3. To the extent he has not already done so, Eitnier is directed to file complete and accurate Statements of Financial Interests for the 2009, 2010, and 2011 calendar years with the Borough, through the Pennsylvania State Ethics Commission, by no th later than the thirtieth (30) day after the mailing date of this Order. 4. Compliance with paragraph 3 of this Order 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, ___________________________ Nicholas A. Colafella, Chair