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HomeMy WebLinkAbout1689 BrownIn Re: David Brown, File Docket: 14 -064 Respondent X -ref: Order No. 1689 Date Decided: 4/6/16 Date Mailed: 4/15/16 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. 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. ALLEGATIONS: That David W. Brown, a public official /public employee in his capacity as a Member of the Board of Supervisors for Windham Township, Bradford Countyy, violated Sections 1103(a) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a) and 1105(b), when he utilized the authority of his office to direct, engage and /or otherwise contract with a member of his immediate family to provide labor /operator services on behalf of the Township; when he participated in actions of the Board of Supervisors including, but not limited to authorizing, awarding and /or otherwise issuing payment to a member of his immediate family, all of which resulted in a pecuniary benefit to said member of his immediate family, namely his father Larry Brown; and when David W. Brown failed to file required Statements of Financial Interests for the 2009, 2010 and 2011 calendar years in connection with his service as a Supervisor for Windham Township. II. FINDINGS: David Brown ( "Brown ") served as a Supervisor for Windham Township, Bradford County from January 5, 2004, until November 7, 2011. Brown was the appointed Roadmaster of Windham Township from May 2, 2011, until November 7, 2011. Brown resigned from his public position on November 7, 2011. Brown, 14 -064 Page 2 2. Windham Township is a Second Class Township governed by a three Member Board of Supervisors. a. The population of Windham Township is approximately 933. b. Supervisors were compensated $50.00 per meeting for calendar years 2009 through 2011. 3. Windham Township employs a Roadmaster who is responsible for the overall maintenance of Township roads, serves as Supervisor of Road Department personnel, and is responsible for the maintenance and operation of Township equipment. a. Windham Township does not have a formal job /position description for the Roadmaster. b. The duties of Roadmaster are specifically detailed in the Second Class Township Code, 53 P.S. § 67302. 4. In addition to the Roadmaster, Windham Township also employs laborto assistwith road maintenance. a. In 2011, the Windham Township road crew consisted of Irving Bump, Jr. and Douglas Clearwater. b. Bump and Clearwater typically worked four ten -hour shifts Monday through Thursday. C. Bump's and Clearwater's normal working hours as road employees were normally Monday through Thursday from 7 a.m. until 5 p.m. 5. Official action requiring a vote by Windham Township Supervisors, at a Township meeting, occurs via group yes /no vote, after a motion is made and properly seconded. a. Any abstentions which occur are specifically listed in the minutes. 6. The Township Secretary /Treasurer and all three Township Supervisors maintain signature authority over the General and State Fund Township financial accounts. a. Checks from the different accounts require the signatures of both the Township Secretary and at least two Supervisors. b. Signatures on the Township checks are live signatures; facsimile stamps are not used. 7. The Township Secretary /Treasurer routinely provided the Supervisors with a monthly bill list prior to each regular Township Supervisors' meeting fortheir review prior to the vote to approve the monthly bills. a. The Township Supervisors would routinely place their initials on the bill lists signifying they reviewed and approved all of the bills as presented. 8. The Township Supervisors signed the Township checks at the monthly meetings after a motion was made to approve the payment of bills. Brown, 14 -064 Page 3 a. The Township Secretary /Treasurer typically signed the checks as she drafted the actual checks. 9. Larry Brown is the father of Windham Township Supervisor David Brown a. Larry Brown previously served as a Windham Township Supervisor during the 1960s, and again from in /about 2002 through 2008. 10. Larry Brown is the owner of a John Deere backhoe that is used for farm /personal use in or around his property. a. Prior to September 2011, Larry Brown used the backhoe to open sluice pipes on Township road[(s)] during a time of emergency without compensation. 11. In or around September 5, 2011, Tropical Storm Lee caused severe flooding to various counties in Pennsylvania, including Bradford County. 12. A Declaration of Disaster Emergency was declared by the Bradford County Commissioners on September 7, 2011, effective for all municipalities in Bradford County, including Windham Township. 13. The Declaration of Disaster Emergency issued by the Bradford County Commissioners on September 7, 2011, pursuant to the provisions of Section 7501 of the Pennsylvania Emergency Management Services Code (35 Pa.C.S. § 7501), in part was as follows: Further, we direct that Bradford County Emergency Directorto coordinate the activities of the emergency response, to take all appropriate action needed to alleviate the effects of this disaster, to aid in the restoration of essential public services, and to take any other emergency response action deemed necessary to respond to this emergency. Still further, we authorize officials of Bradford County to act as necessary to meet the current demands of this emergency, namely: by the employment of temporary workers, by the rental of equipment, by the purchase of supplies and materials, and by entering into such contracts and agreements for the performance of public work as may be required to meet the emergency, all without regard to those time consuming procedures and formalities normally prescribed by law, mandatory constitutional requirements excepted. 14. After the Disaster Emergency was declared throughout Bradford County, on or around September 7, 2011, David Brown contacted Windham Township Supervisor David English to advise him of the declaration. 15. As the Roadmaster for Windham Township, David Brown initiated the procedure to make arrangements and to coordinate efforts with various individuals and vendors to begin repairs /remediation of the Township roads due to storm damage. a. A list of at least thirteen (13) vendors /contractors was compiled by Brown to assist with the flood clean up and to assist with regular road maintenance. b. This list was not formally approved by vote of the Board of Supervisors during a regular meeting. Brown, 14 -064 Page 4 C. Supervisors Nichols and English were aware that outside vendors were being utilized to assist with the flood clean -up. 1. All three Supervisors met regularly during the clean -up. d. Outside sources were used due to the limited Township road department. 1. There was a limited number of equipment operators and equipment available due to the significant flood damage in the County. 16. Included within the list of vendors /contractors compiled by David Brown to perform work on the Township roads was Larry Brown, David Brown's father and a member of his immediate family. a. In his capacity as Roadmaster, Brown selected contractors for specific services from the list he developed. b. Over the Top Heavy Hauling, LLP owned by John English, son of Supervisor David English, was also selected by Brown. 17. The following expenses were incurred by Windham Township at the direction of Brown in repairing various Township roads after the Declaration of Disaster Emergency was issued as a result of the flooding: Date Source Name Account Amount 9/29/2011 Larry Brown Contracted Services $68.23 9/29/2011 Larry Brown Contracted Services $2,136.77 9/29/2011 Larry Brown Contracted Services $184.12 9/29/2011 Larry Brown Contracted Services $5.88 9/29/2011 Larry Brown Contracted Services ($74.11) 9/29/2011 Allenwood Equipment Repairs supplies $2,509.48 9/29/2011 Chemung Supply Repairs supplies $274.80 9/29/2011 Five Star Equipment, Inc. Repairs supplies $244.28 9/29/2011 M.R. Dirt Contracted Services $400.00 9/29/2011 Over the Top Heavy Hauling, LLP Contracted Services $693.75 9/29/2011 Bowen Trucking, LLC Contracted Services $1,320.00 9/29/2011 C & C Ready Mix Corp. Road Supplies $2,150.00 9/29/2011 Chemung Supply Storm Sewers & Drain Supplies $5,438.46 9/29/2011 DEF Construction Supply & Realty, LLC Contracted Services $1,320.00 9/29/2011 DEF Construction Supply & Realty, LLC Contracted Services $1,600.00 9/29/2011 Highway Equipment & Supply Co. Repairs supplies $109.08 9/29/2011 Martin Towing Contracted Services $450.00 9/29/2011 William Snyder Contracted Services $336.00 9/29/2011 Toot Trucking Contracted Services $1,000.00 10/2/2011 William Snyder Contracted Services $364.00 a. The contracted services include those fees assessed the Township through invoices dated September 7, 2011, through September 24, 2011. Brown, 14 -064 Page 5 b. A total of $74.11 was deducted from the contracted services that were to be paid to Larry Brown, which represented the cost of fuel that was paid for the Township. 18. On or about September 7, 2011, David Brown, as the Roadmaster for Windham Township, selected Larry Brown to perform labor /work on various roads in the Township that included Merry Go Round Road. a. Larry Brown was authorized to use his privately owned backhoe to work on the Township roads. b. There was no formal vote of the Board of Supervisors authorizing Larry Brown to perform the road maintenance /repairs. C. The specific road work assigned to Larry Brown was [assigned] by David Brown. d. Supervisors English and Nichols were aware that outside contractors were being utilized to assist with the clean -up. 19. The following reflects the days Larry Brown worked for the Township during the flood emergency of 2011, in comparison to the time sheets submitted by Township Road Department employees Doug Clearwater and Irving Bump, Jr. forworking on the Township roads: Date Larry Brown Irving Bump, Jr. Hours Doug Clearwater Hours Hours Worked Worked Worked 09/07/2011 10 a.m. until 6 p.m. 7 a.m. until 6 p.m. 7 a.m. until 6 p.m. Wednesday 8 hours 11 hours 11 hours 09/08/2011 10 a.m. until 7 p.m. 7 a.m. until 5:30 p.m. 7 a.m. until 5:30 p.m. Thursday 9 hours 10.5 hours 10.5 hours 09/09/2011 1:30 p.m. until 6:30 p.m. 7 a.m. until 3 p.m. 7 a.m. until 4 p.m. Friday 5 hours 8 hours 9 hours 09/10/2011 12 noon until 6 p.m. No Hours No Hours Saturday 6 hours 09/12/2011 9:30 a.m. until 1:30 p.m. 7 a.m. until 5 p.m. 7 a.m. until 5 p.m. Monday 4 hours 10 hours 10 hours 09/14/2011 1 .m. until 7 p.m. 7 a.m. until 5 p.m. 7 a.m. until 5 p.m. Wednesday 6 hours 10 hours 10 hours 09/24/2011 8 a.m. until 9:30 a.m. No Hours No Hours Saturday 1.5 hours a. Township road workers Bump and Clearwater typically did not work on Saturdays. 20. Invoices submitted to the Township by Larry Brown reflect the following work for Windham Township on or after the disaster declaration was issued: Invoice No. Date Work performed by Larry Brown Amount 332696 9/7/2011 10:00 a.m. - 6:00 p.m. $560.00 Backhoe & operator 8 hrs @ $70 /hr. Merry Go Round Rd. Buck Rd. Peck Hill Rd. XT, 0"M Waterman Rd. Brown, 14 -064 Page 6 21. Payment was made to Larry Brown from the Windham Township Liquid Fuels Account Fund, drawn on an account with the Pennsylvania Local Government Investment Trust Fund, on Check No. 4446 dated September 29, 2011, in the amount of $2,320.89. a. The check was signed by Township Supervisors David Brown and Fred Nichols, along with Secretary /Treasurer A. Lynette Nickels. Yeagle's * Minus 22 gal diesel fuel, backhoe, not incl. in subtotal 9/8/2011 10:00 a.m. - 8:00 p.m. 9:30 a.m. - 12:00 noon Road checks 2'/2 hrs. @ $10 /hr. $25.00 12:00 noon - 7:00 p.m. Backhoe & operator 7hrs. @ 70 /hr. $490.00 332697 9/8/2011 cont'd Merry Go Round Rd. Big Pipe replacement smaller sluices cleaned 9/9/2011 1:30 p.m. - 6:30 p.m. Backhoe & operator 5 hrs. @ $70 /hr $350.00 Merry Go Round Rd. Creek cleaning @ Clark's sluice cleaned and recovered 9/10/2011 12:00 noon - 6:00 p.m. Huddle Rd. 6hrs. @ $10 /hr. $60.00 332698 9/12/2011 9:30 a.m. - 1:30 p.m. Lamb Rd. $280.00 Merry Go Round Rd. 2hrs. @ $70 /hr. 9/14/2011 1:00 p.m. - 7:00 p.m. Backhoe & operator 6 hrs. @ $70 /hr. $420.00 Peck Hill Rd. Merry Go Round Rd. Buck Rd. cleaning ditches 9/24/2011 8:00 a.m. - 9:30 a.m. Backhoe operator 1 '/2 hrs. @ $70 /hr. $105.00 Total $2,290.00 a. The hourly rate paid to Larry Brown for operating the backhoe was determined through negotiations between Larry Brown and David Brown. 21. Payment was made to Larry Brown from the Windham Township Liquid Fuels Account Fund, drawn on an account with the Pennsylvania Local Government Investment Trust Fund, on Check No. 4446 dated September 29, 2011, in the amount of $2,320.89. a. The check was signed by Township Supervisors David Brown and Fred Nichols, along with Secretary /Treasurer A. Lynette Nickels. Brown, 14 -064 Page 7 22. Payment of the $2,320.89 to Larry Brown was approved as part of the payment of bills received in September 2011 at the Windham Township Board of Supervisors meeting on October 4, 2011. a. Payment of bills was approved by a 2 -0 vote, with Township Supervisors David Brown and Fred Nichols participating in the approval. Supervisor English was not present at the meeting. 23. On October 4, 2011, David Brown and Fred Nichols initialed the bill lists as Township Supervisors for Windham Township, signifying they reviewed and approved the payment of bills for the September 2011, paid bills under both the General and State funds. a. The State fund payments for September 2011 included the payment made to Larry Brown in the amount of $2,320.89. 24. Windham Township Solicitor John Thompson submitted a letter to the Board of Supervisors dated October 10, 2011, relating to the use of contractors without formal Board of Supervisors approval: Dear Supervisors: Recently, it has come to my attention that the Township has employed individuals to do road work without formal approval. I understand that the employment was the result of the recent emergency that impacted so many communities. However, the township may not continue to pay individuals without formal action on behalf of the Board of Supervisors. I understand that no motion has been made approving the action or setting the appropriate wages. I would strongly recommend that no further work be performed until formal action has been taken by the Board. Additionally, it is imperative that the township prohibit the use of township equipment by anyone not authorized to utilize the equipment. The potential for liability is simply too great. While I can appreciate the need to take immediate action at the time of an emergency, going forward, I would recommend that the township authorize an emergency plan now, and ratify the actions at the first opportunity thereafter. I hope this clarifies my concerns. Should you have any questions, please don't hesitate to contact me. Cordially Yours, John E. Thompson 25. David Brown submitted his resignation as a Windham Township Supervisor effective November 7, 2011, stating as follows: To Fred Nichols and David English: This is my official resignation as Road Foreman, and Township Supervisor for Windham Township. It is with utmost regret that I will be unable to continue in this position, however, I do believe that it will be in the best interest of the Township and myself that this resignation be effective immediately. I thank all that Brown, 14 -064 Page 8 are involved for the opportunity to have been able to effectively do my time informational, educational and rewarding. 26. Larry Brown incurred costs totaling $717.75 forthe operation of a John Deere 310SE backhoe in relation to Windham Township projects as listed below: Hydraulic oil filter $12.00 Fuel filter $19.50 Oil (motor) filter $10.00 Hydraulic oil -10 gal. $40.00 Grease-tubes $12.00 Anti - freeze -2ga1. $22.00 Tire tube -front tire $45.75 Cylinder repair $230.00 Teeth -3 $66.50 Cutting edge w /bolts $120.00 Diesel fuel $100.00 Grinder $40.00 Total: $717.75 27. Larry Brown received a net profit of at least $1,603.14 as a result of roadwork performed for Windham Township, which was calculated as follows: Payment received: $2,320.89 Expenses- $717.75 Net Profit Received: $1,603.14 28. David Brown, in his public position as a Windham Township Supervisor participated in discussions and actions of the Board of Supervisors resulting in his father, Larry Brown, being utilized to assist in the flood clean -up in the Township resulting in payments to Larry Brown [with a net profit] totaling $1,603.14. a. David Brown's use of the authority of his public office included the following: • Included his father on listing of contractors and made work assignments to his father; • Negotiated payment terms with his father without Board approval; • Participated in making payments to his father totaling $2,320.89, including approving payment and signing the check issued to Larry Brown. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATION THAT DAVID BROWN FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS. 29. David Brown, as a Windham Township Supervisor, was required to file a Statement of Financial Interests form (SEC -1) each year he held office and the year following completion of public service. 30. A Statement of Financial Interests compliance review was conducted by the Investigative Division of the State Ethics Commission on December 4, 2014, and December 5, 2014, for officials with Windham Township for calendar years 2008 through 2013. Brown, 14 -064 Page 9 31. As a candidate, and while serving as a Windham Township Supervisor in 2009, David Brown filed a Statement of Financial Interests on March 8, 2009, for calendar year 2008. 32. Statements of Financial Interests for David Brown for calendar years 2009, 2010 and 2011 were not on file with the Township at the time the compliance review was completed. a. Brown received compensation as a Township Supervisor from public funds at a time when Statements of Financial Interests for him were not on file with the Township. b. Brown was compensated as follows as a Township Supervisor while in non- compliance with the Statement of Financial Interests filing requirements: 2009: $850.00 2010: $500.00 2011: $550.00 33. David Brown asserts he filed Statements of Financial Interests with the Township Secretary for the 2009, 2010 and 2011 calendar years. III. DISCUSSION: As a Supervisor for Windham Township ( "Township "), Bradford County, from January 5, 2004, until November 7, 2011, Respondent David Brown (also referred to herein as "Respondent," "Respondent Brown," and "Brown ") has been a public official /public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. C.S. § 1101 et seg. The allegations are that Respondent Brown violated Sections 1103(a) and 1105(b) of the Ethics Act: (1) when he utilized the authority of his office to direct, engage and /or otherwise contract with a member of his immediate family to provide labor /operator services on behalf of the Township; (2) when he participated in actions of the Board of Supervisors including, but not limited to, authorizing, awarding and /or otherwise issuing payment to a member of his immediate family, all of which resulted in a pecuniary benefit to said member of his immediate family, namely his father Larry Brown; and (3) when he failed to file required Statements of Financial Interests ( "SFIs ") for the 2009, 2010 and 2011 calendar years in connection with his service as a Township Supervisor. 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 Brown, 14 -064 Page 10 "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 an SFI for the preceding calendar year, each year that he holds the position and the year after he leaves it. 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. 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 Board of Supervisors ( "Board of Supervisors ") consists of three Members. Respondent Brown served on the Board of Supervisors from January 5, 2004, until November 7, 2011. The Township employs a Roadmaster who is responsible for the overall maintenance of Township roads and maintenance and operation of Township equipment. The Township Roadmaster also serves as Supervisor of Road Department personnel. The Township does not have a formal job /position description for the Roadmaster. The statutory duties of a township roadmaster are detailed in the Second Class Township Code at 53 P.S. § 67302. Respondent was Township Roadmaster in or around September 2011, when Tropical Storm Lee caused severe flooding to various counties in Pennsylvania. On September 7, 2011, the Bradford County Commissioners declared a disaster emergency effective for all municipalities in Bradford County, including the Township. As Township Roadmaster, Respondent initiated the procedure to make arrangements and to coordinate efforts with various individuals and vendors to begin repairs /remediation of the Township roads due to storm damage. Respondent compiled a list of vendors /contractors -- including Respondent's father, Larry Brown, who owns a backhoe - -to assist with the flood clean up and to assist with regular road maintenance. The aforesaid list was not formally approved by a vote of the Board of Supervisors during a regular meeting. Brown, 14 -064 Page 11 As the Township Roadmaster, Respondent selected Larry Brown to perform work on various roads in the Township. There was no formal vote of the Board of Supervisors authorizing Larry Brown to perform the road maintenance /repairs. The specific road work was assigned to Larry Brown by Respondent and was performed at an hourly rate negotiated by Larry Brown and Respondent. The contracted services provided to the Township by Larry Brown totaled $2,320.89. On October 4, 2011, Respondent participated in the vote of the Board of Supervisors to pay bills which included the $2,320.89 payment to Larry Brown for the aforesaid road work. Payment of the bills was approved by a 2 -0 vote, with Respondent and Supervisor Nichols participating in the approval. Supervisor English was not present at the meeting. Also on October 4, 2011, Respondent and Supervisor Nichols initialed the bill lists as Township Supervisors, signifying they reviewed and approved the payment of such bills. Respondent signed, as an authorized Township signatory, the Township check that paid Larry Brown for the aforesaid work. The parties have stipulated that Respondent, in his public position as a Township Supervisor, participated in discussions and actions of the Board of Supervisors resulting in his father, Larry Brown, being utilized to assist in the flood clean -up in the Township. The parties have stipulated that Respondent used the authority of his public office when he: (1) included his father on the aforesaid listing of contractors and made work assignments to his father; (2) negotiated payment terms with his father without Board approval; and (3) participated in making payments to his father totaling $2,320.89, including approving payment and signing the check issued to his father on behalf of the Township. After expenses, Larry Brown received a net profit of at least $1 603.14 as a result of performing the aforesaid work for the Township. On December 4 -5, 2014, an SFI compliance review was conducted by the Investigative Division of the Commission for Township officials for calendar years 2008 through 2013. At the time of the compliance review, there were no SFIs on file with the Township for Respondent for calendar years 2009, 2010 and 2011. Respondent asserts that he filed SFIs with the Township Secretary for the 2009, 2010 and 2011 calendar years. 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: The Investigative Division will recommend the following in relation to the above allegations: That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred in relation to Brown's use of office to direct, engage and /or otherwise contract with a member of his immediate family to provide labor /operator services on behalf of the Township. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred when Brown participated in actions of the Board of Supervisors including, but not limited to authorizing, awarding and /or otherwise issuing payment to a member of his immediate family, all of which resulted in a Brown, 14 -064 Page 12 pecuniary benefit to said member of his immediate family, namely his father Larry Brown. C. That a violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1105(b) occurred when David W. Brown failed to file required Statement[s] of Financial Interests for the 2009, 2010 and 2011 calendar years in connection with his service as a Supervisor for Windham Township. 4. Brown agrees to make payment in the amount of $1,603.75 in settlement of this matter payable to Windham Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Brown agrees to file complete and accurate Statements of Financial Interests with Windham Township through the Pennsylvania State Ethics Commission, for the 2009, 2010 and 2011 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. 6. Brown agrees to not accept any reimbursement, compensation or other payment from Windham 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. Consent Agreement, at 1 -2. In considering the Consent Agreement, we note that Respondent served as both a Township Supervisor and Township Roadmaster. As a Township Supervisor, Respondent was a "public official" subject to the Ethics Act, and it is that position which is referenced in the allegations. A township roadmaster is generally not considered a "public employee" subject to the Ethics Act, 51 Pa. Code § 11.1. However, a roadmaster whose employment duties /authority fall within the Ethics Act's definition of the term "public employee" would be considered a public employee subject to the restrictions and requirements of the Ethics Act. The parties' settlement in this case contemplates their agreement that Respondent's actions forming the basis for the recommended violations were undertaken in a capacity that was subject to the Ethics Act and encompassed by the allegations. We accept the recommendation of the parties and we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §1103(a), occurred in relation to Respondent's use of office to direct, engage and /or otherwise contract with a member of his immediate family, specifically, his father, Larry Brown, to provide labor /operator services on behalf of the Township. Brown, 14 -064 Page 13 We further hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent participated in actions of the Board of Supervisors including, but not limited to, authorizing, awarding and /or otherwise issuing payment to a member of his immediate family, specifically, his father, Larry Brown, all of which resulted in a pecuniary benefit to Larry Brown. Respondent used the authority of office when he voted to pay Larry Brown, initialed the applicable bill list, and signed as a Township signatory the Township check paying Larry Brown. The resulting private pecuniary benefit to Larry Brown was the profit he received in the amount of at least $1,603.14. As for Respondent's SFIs, there are inconsistencies between the allegation and the recommendation of the parties. The allegation is that Respondent violated Section 1105(b) of the Ethics Act; the recommendation of the parties is for a finding of a violation of Section 1104(a) of the Ethics Act with a citation to Section 1105(b). Although a violation for failure to file SFI(s) is generally based on Section 1104(a) of the Ethics Act, a failure to file would necessarily include a failure to disclose the required information pursuant to Section 1105(b). Therefore, in order to effectuate the intent of the parties, we hold that a violation of Section 1104(a)/1105(b) of the Ethics Act, 65 Pa.C.S. § 1104(a)/1105(b), occurred when Respondent failed to file required SFIs for the 2009, 2010 and 2011 calendar years in connection with his service as a Township Supervisor. As part of the Consent Agreement, Respondent has agreed to make payment in the amount of $1,603.75 payable to Windham Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has further 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. Respondent has agreed to file complete and accurate SFIs with the Township through this Commission, for the 2009, 2010 and 2011 calendar years 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, Respondent Brown is directed to make payment in the amount of $1,603.75 payablen o Windham Township and forwarded to this Commission by no later than the thirtieth (30th day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Respondent Brown 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, Respondent is directed to file complete and accurate SFIs with the Township through this Commission for the 2009, 2010 and 2011 calendar years by no later than the thirtieth (30t ) 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: Brown, 14 -064 Page 14 1. As a Supervisor for Windham Township ( "Township "), Bradford County from January 5, 2004, until November 7, 2011, Respondent David Brown ( "Brown ") has been a public official /public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. §1103(a), occurred in relation to Brown's use of office to direct, engage and /or otherwise contract with a member of his immediate family, specifically, his father, Larry Brown, to provide labor /operator services on behalf of the Township. 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Brown participated in actions of the Board of Supervisors including, but not limited to, authorizing, awarding and /or otherwise issuing payment to a member of his immediate family, specifically, his father, Larry Brown, all of which resulted in a pecuniary benefit to Larry Brown. 4. A violation of Section 1104(a)/1105(b) of the Ethics Act, 65 Pa.C.S. § 1104(a)/1105(b), occurred when Brown failed to file required Statements of Financial Interests for the 2009, 2010 and 2011 calendar years in connection with his service as a Township Supervisor. In Re: David Brown, File Docket: 14 -064 Respondent Date Decided: 4/6/16 Date Mailed: 4/15/16 ORDER NO. 1689 1. As a Supervisor for Windham Township ( "Township "), Bradford County, David Brown ( "Brown ") violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), in relation to Brown's use of office to direct, engage and /or otherwise contract with a member of his immediate family, specifically, his father, Larry Brown, to provide labor /operator services on behalf of the Township. 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Brown participated in actions of the Board of Supervisors including, but not limited to, authorizing, awarding and /or otherwise issuing payment to a member of his immediate family, specifically, his father, Larry Brown, all of which resulted in a pecuniary benefit to Larry Brown. 3. A violation of Section 1104(a)/1105(b) of the Ethics Act, 65 Pa.C.S. § 1104(a)/1105(b), occurred when Brown failed to file required Statements of Financial Interests for the 2009, 2010 and 2011 calendar years in connection with his service as a Township Supervisor. 4. Per the Consent Agreement of the parties, Brown is directed to make payment in the amount of $1,603.75 payable to Windham Township and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Brown 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, Brown is directed to file complete and accurate Statements of Financial Interests with the Township through the Pennsylvania State Ethics Commission for the 2009, 2010 and 2011 calendaryears by no later than the thirtieth (30t ) day after the mailing date of this Order. 7. Compliance with paragraphs 4, 5, and 6 of this Order will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Nicholas A. Colafella, Chair Name, Case Page 16