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HomeMy WebLinkAbout1703 Grab?,v t STATE ETHICS COMMISSION 309 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Richard Grab, File Docket: Respondent X -ref: Date Decided Date Mailed: 15 -043 Order No. 1703 10/19/16 10/31/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick 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." 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 Richard Grab, a public official /public employee in his capacity as a Supervisor for Clifton Township, Lackawanna County, violated [Sections 1103(a), 1103(f), 1104(d), and 1105(b)(5)] of the State Ethics Act (Act 93 of 1998) when he utilized the au hority of his public position for the private pecuniary benefit of himself, a member of his immediate family, and/or businesses with which he and/or a member of his immediate family are associated, when he participated in discussions and actions of the Clifton Township Board of Supervisors which resulted in contracts and/or other agreements [being] entered into between the Township and A. H. Grab Company for the rental of equipment and purchase of stonelaggregate, at a time when he and his brother were co- owners of A. H. Grab; and when he participated in discussions and actions of the Board of Supervisors to hire his brother as an employee of the Township; when he voted to approve invoices /bill lists approving payment to A.H. Grab Company and/or Thomas Grab; and when he failed to list Clifton Township as a source of income on Statements of Financial Interests filed for calendar years 2012 and 2014. 11. FINDINGS: Richard Grab (also referred to herein as "Respondent," "Respondent Grab," or "Grab ") has served as a Supervisor for Clifton Township, Lackawanna County, from approximately 1986 until the present. At all times relevant to the Commission investigation, Grab did not hold any officer position (Chairman or Vice Chairman) while a Member of the Board of Supervisors. P.O. BOX 1 1470, HARRISBURG, PA 17108-1470 • 717- 783 -1610 • 1 -800- 932 -0936 • www.ethics.state.pa.us Grab, 15 -043 55ge 2 b. Although not an officer position, Grab has been designated "Roadmaster" by the Board of Supervisors. 2. Clifton Township is a Second Class Township governed by a three - Member Board of Supervisors. a. The Township Supervisors receive $156.25 gross per month compensation. The Supervisors hold regular meetings on the second Thursday of each month. 2. Special meetings are held as necessary. b. Supervisors do not have to be p resent at Township meetings in order to receive supervisor (non -labor related) compensation. 3. Voting by Supervisors at Clifton Township meetings occurs via a group "aye" or "nay" voice vote, after a motion is made and properly seconded. a. Abstentions and/or dissenting votes are specifically documented within the official meeting minutes. If an abstention and /or dissenting vote is cast, a roll call vote is normally then taken. b. Minutes of the prior Supervisors meeting are approved for accuracy at each subsequent meeting of the Board. 4. In order to be properly prepared for the agenda, meeting packets are issued to the Supervisors approximately two (2) to three (3) days prior to a scheduled Township meeting. a. Meeting packets usually include an agenda, draft minutes, bill lists, etc. 5. Although provided within the pre- meeting packet, copies of the bill lists are additionally provided to the Supervisors at the time of the regular monthly meetings, so that a vote for approval can be made. a. Invoices received by the Township and listed for approval on bill lists are routinely reviewed by the Supervisors at the Township meetings. b. Bill lists generally document the payee, check number, check date, and check amount. C. In addition to invoices for goods /services provided to the Township, payroll (including part-time, temporary labor) is included for approval. 6. Once a bill list is approved, checks are presented to the Supervisors for signature. a. Township checks are usually drafted prior to the regular Supervisors meeting, in anticipation of the vote to approve the bills for payment. b. Once a bill list is approved for payment, Township checks are mailed or otherwise distributed by the Township Secretary the following business day. Instances exist in which checks are issued prior to actual approval of the bill list at the Township meeting, in order to avoid late fees. Grab, 15 -043 f 3 2. In most instances when a payment check is sent pre - approval, it is reflective of routine, non - contested fees, such as utilities, etc. 3. Payroll, including temporary, part -time labor, is never subject to payment prior to approval by the Board of Supervisors. 7. The Secretary/Treasurer of Clifton Township, along with the Chairman and Vice - Chairman of the Board of Supervisors, maintain signature authority over Township accounts. a. Township- issued checks require the live signature of at least two (2) Township officials. b. Checks can be signed by any combination of the Secretary/Treasurer and either the Chairman or Vice- Chairman of the Board of Supervisors. 8. At the annual reorganizational meeting of the Township, all Supervisors are appointed and /or otherwise authorized to be working Supervisors on an as- needed basis. a. Compensation for workin Supervisors has been set by the Township Auditors pursuant 53 P.S. 1 65606. b. All working Supervisors are to be compensated at $19.00 per hour. C. The Auditors last set compensation for working Supervisors in 2007 and have not increased or decreased the amount since that time. 9. Since at least 2010, Richard Grab has been the Roadmaster for Clifton Township. a. Grab's hourly rate of compensation as Roadmaster was set at $19.00 per hour for general labor and $20.00 per hour for snow plowing. 1. Grab's rate of pay was set by the Township Auditors in 2007 and has not changed since that time. b. Although designated "Roadmaster," Grab held no specific or special duties. C. Even as Roadmaster, Grab was considered an "as- needed" laborer and only worked for Clifton Township occasionally. d. Grab did not receive any additional compensation as Roadmaster beyond what was set by the Auditors. 10. Grab performs labor for the Township, logging his hours informally on scratch paper. a. Grab identifies the date, hours, and general description of the work performed. b. Work Grab has performed for the Township since 2011 includes: • Snow plowing. • Spring cleanup. • Loader /salt (snow plowing). • Lawn /mowing. • Pothole filling. • Ditching /culvert cleaning. Grab, 15 -043 'li age 4 THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS REGARDING A.H. GRAB BEING UTILIZED BY THE TOWNSHIP ABSENT AN OPEN AND PUBLIC PROCESS, AND RESPONDENT'S AUTHORIZATION TO APPROVE BILL LISTS. 11. The Pennsylvania Department of State, Bureau of State Corporation Records f indicate] that a fictitious name was established for "A.H. Grab" on or around March 9, 1982. a. The nature of the business was listed as "Earthmoving." b. The application for fictitious name listed the owner of the business as Nellie C. Grab. C. The principal office or location of this business was identified as: Star Rte. Box 93 Gouldsboro, Pennsylvania 18424. Lackawanna County 12. Richard Grab (Respondent), and his brother, Thomas Grab, are currently the owners of the business identified as A.H. Grab. a. Although started by their father, Richard and Thomas Grab have owned and operated A.H. Grab for approximately the last 25 years. 1. Each brother (the Respondent and Thomas) maintains a 50% ownership interest. b. A.H. Grab continues to be mainly a trucking and excavating business. 1. Although a fictitious name exists, A.H. Grab is not incorporated under the laws of the Commonwealth of Pennsylvania. 13. Clifton Township has no full -time or regular part -time employees who work to maintain Clifton Township roads. 14. Clifton Township only utilizes road crew labor on a temporary, as- needed basis throughout the year. 15. All Township laborers /road crew employees who are not Supervisors are paid $16.00 per hour. a. The hourly rate for non - supervisor labor was set by the Township Supervisors in 2007 and has not changed since set. 16. Clifton Township does not own any heavy equipment, nor does it maintain any equipment lend /lease agreements with neighboring municipalities. a. Clifton Township has historically leased equipment from private sources. 17. Most Township road maintenance is conducted by contractors who are hired following a public bidding process. a. Small, less involved maintenance projects are usually conducted by Township labor when cost effective. b. If equipment is needed for Township labor projects, equipment is usually sought by rental agreements. Grab, 15 -043 page 5 1. Historically, over the last 10 years, A.H. Grab has provided equipment rental to the Township. 18. Ted Stout has served as a Clifton Township Supervisor for approximately 43 years. a. Stout currently serves as the Chairman of the Board of Supervisors. 19. For at least the past 10 years, Stout has authorized A.H. Grab to be utilized for equipment rental and road projects not subject to the bidding provisions of the Second Class Township Code. 20. Since 2011, A.H. Grab has provided equipment rental and hauling forthe Township. 21. As the Chairman of the Board of Supervisors, Stout has primarily been responsible for contacting and selecting vendors for roadwork projects, Including equipment rental, for approximately the last 30 years. a. Although appointed Roadmaster, Grab did not solicit telephone bids for equipment rentals. 22. Prior to 2015, Stout never considered, nor realized, that by the Township utilizing A.H. Grab for equipment rental by Clifton Township, a potential conflict of interest may be occurring in light of Richard Grab's co- ownership of the business and his public position as a Clifton Township Supervisor. a. Stout contacted and utilized A.H. Grab for equipment rental purposes, mainly due to A.H. Grab's lower fees being a savings to the Township. b. Stout normally spoke with Thomas Grab when soliciting quotes. 23. Projects undertaken by Clifton Township requiring a public bid were properly [advertised] and bid. a. When pro ects and/or equipment was needed below the bidding threshold, Stout colcted A.H. Grab to obtain quotes and/or engage as a contractor. b. Stout made the decision to pursue a project without input from other Supervisors. 24. The following chart reflects the payments made to A.H. Grab from Clifton Township from 2011 through 2015: Date Check Amount Description of work 5/15/2015 5582 $600.00 April 16, 2015- Machine rental- Road Grader -one day 1/23/2015 5455 $1,520.00 Level 2A Stone and fill, 16 hours D -3 @$95 /hour - $1,520.00 9123 - 8 hours 10/9 - 4 hours 11/24 - 4 hours 5/8/2014 5201 $550.00 May 7, 2014 - M2chine rental -Road Grader -one day 12/2/2013 5024 $3,940.00 Cut, fill and grade area behind Township Bldg., level 3A stone 12 Hours D -6 Bulldozer - $1,800.00 12 Hours Hydraulic Excavator $1,440.00 5 Hours D -3 Bulldozer - $500.00 Grab, 15 -043 pFa e6 Haul 1 load 2A stone from Eureka - $100.00 Haul 1 load of big Rocks away - $100.00 10/11/2013 4975 $515.00 Haul a load of 2A stone from Edwards Stone Quarry to Twp. Building on July 22 2 hours dump truck - $140.00 3 hours bike -proof catch basin grates $375.00 4/28/2011 3939 $500.00 Road Grader - for road work a. The only action that was taken by the Board of Supervisors to approve the work performed by A.H. Grab to be done for the benefit of Clifton Township was to approve the payment of invoices submitted after the work was completed. b. Richard Grab did not direct and/or otherwise recommend that the Township utilize A.H. Grab for equipment rental. 25. Between April 2011 and May 2015, Richard Grab participated in actions as a Clifton Township Supervisor to motion and /or second motions to approve the payment of bill lists of Clifton Township which included payments made to A. H. Grab, as detailed below: Grab's Motion to Approve Payment Grab's Vote Approving Date Check No. Amount of Bills Payment of Bills 4/28/2011 3939 $500,00 2nd the Motion Yes 10/11/2013 4975 $515.00 No Yes 12/2/2013 5024 $3,940.00 2nd the Motion Yes 5/8/2014 5201 $550.00 No Yes 1/23/2015 5455 $1,525.00 2nd the Motion Yes 5/15/2015 5582 $600.00 Made Motion Yes a. Grab did not serve as a Township signatory on any of the checks issued to A.H. Grab. b. Grab did not endorse any of the checks as a representative of A.H. Grab which were made payable to A.H. Grab. 26. At the Clifton Township Supervisors meeting of June 11, 2015, the following discussion took place concerning the renting of equipment from A. H. Grab: June Ejk (Clifton Township Supervisor) questioned Check #5582 made out to A.H. Grab for $600.00, for equipment rental. She felt it was a conflict of interest. It was briefly discussed. Attorney Sayers stated it did not seem to be a conflict. June Ejk stated if everyone was okay with renting. the equipment from A.H. Grab she did not have a problem with it. 27. Subsequent to the Township Supervisors meeting of June 11, 2015, Township Solicitor Sayers, after further reviewing the matter, advised the Board of Supervisors for Clifton Township that in the future, [the Township] needed to obtain quotes prior to awarding any work to A.H. Grab, due to Richard Grab having a 50% ownership in the business. Grab 15 -043 'l ale 7 28. Following the payment to A.H. Grab by the Township on June 11, 2015, Supervisor Stout contacted other vendors in the Clifton Township area to obtain quotes as to what the cost would have been had the Township utilized a vendor other than A.H. Grab. a. Stout's telephone solicitation was in response to Ejk's question as to a potential conflict. b. Telephone quotes were obtained from the following vendors as follows: Cleveland Brothers Caterpillar Motor Grater 120 $1,255.00 per day $3,180.00 per week Plus transportation $500.00 each way Five Star Motor Grater 672 $1,150.00 per day $2,900.00 per week Plus transportation $600.00 each way 29. Agreements between the Township and A.H. Grab for equipment rental were never approved, nor voted capon, by the Supervisors at a Township meeting. a. Since Stout sought only telephone quotes, no proposals were submitted in writing. b. A.H. Grab did not enter into written contracts with the Township, but rather, verbally agreed to perform the work and submitted an invoice to the Township upon completion of the project. 30. On November 30, 2015, Richard Grab received the Notice of Investigation from the State Ethics Commission concerning the allegations that A.H. Grab completed contractual obligations for Clifton Township. 31. Robert Sayers, Esquire, has served as the Township Solicitor for Clifton Township for approximately 37 years. 32. Prior to June 2015, Sayers (as the Clifton Township Solicitor) never addressed, nor was requested to opine, as to Clifton Township utilizing A.H. Grab for equipment rental and any potential conflict of interest under the State Ethics Act due to Richard Grab's position as a Township Supervisor. 33. On the advice of the Township Solicitor, at the Clifton Township Supervisors Reorganization Meeting on January 4, 2016, Grab made the following statement concerning work that was completed by A.H. Grab and the hiring of Thomas Grab: Richard Grab will not participate in any decisions of the Board of Supervisors regardin the employment of Thomas Grab as a Clifton Township employee or contracting with the A. H. Grab, LLC to do work for Clifton Township including but not limited to hiring, contracting with or setting wages or contract rates. 34. At the Clifton Township Supervisors meeting on March 10, 2016, three businesses including A. H. Grab submitted written proposals in response to a telephone request of Stout seeking quotes for general road maintenance including rental of equipment, as follows: Grab, 15 -043 'age 8 Vendor Date of Proposal Proposal Amount Five Star Equipment 03/10/16 $1,100.00 per ay rents fee and $525.00 o ,625.00 transport the equipment each way to Clifton Township from Dunmore PA. eve an Brot ers 03110/16 $1,255.00 per day rental $1,755.00 Equipment and $500.00 to transport the equipment each way from Wilkes- Barre. A.H. ra 03/10116 Plank Road East- $600.00 Machine Rental -Road Grader for one day a. The quote from A.H. Grab was unsigned. 35. At the Township meeting of March 10, 2016, action was taken by the Board of Supervisors to award the contract for road maintenance and equipment rental. a. When discussion took place on the proposal, Richard Grab stated he had a conflict of interest because of his partnership in A.H. Grab, and as such, he abstained from being involved in the discussion. b. Supervisor Stout made the motion to award the contract to A.H. Grab, the low bidder. Supervisor June Ejk did not second the motion. C. Subsequently Richard Grab seconded the motion to award the contract to A.H. Grab and voted affirmatively to award the contract to A.H. Grab, along with Supervisor Stout. 1. Supervisor Ejk refused to cast a vote. 36. Richard Grab attached a written memorandum to the minutes of the March 10, 2016, meeting that stated as follows: WRITTEN MEMORANDUM FOR DISCLOSING A CONFLICT OF INTEREST IN ACCORDANCE WITH SECTION '1103 OF THE PUBLIC OFFICIAL AND EMPLOYEE ETHICS ACT, 65 Pa. C.S. §11030) (FILE WITH PERSON RESPONSIBLE FOR RECORDING THE MINUTES OF THE MEETING) Pursuant to Section 11030 of the Public Official and Employee Ethics Act (Ethics Act) 65. PA. C.S. §1103(])), this memorandum will serve to disclose that 1, RICHARD GRAB, in my capacity as a Supervisor of Clifton Townshi and abstaining from agenda item or t e reclu Ear township meeting of March 10, 2016, pertaining to road maintenance and a ui ment rental, due to a conflict of interest under the Ethics Act. The nature of my interest is as follows: I have interest in the business of A.H. Grab, one of the contract a. The Abstention Memo was filed by Grab at the recommendation of the Township Solicitor. b. Richard Grab signed the written memorandum on or after March 10, 2016. Grab, 15 -043 X e9 37. Richard Grab utilized the authority of his office when he voted to approve the Eof bill lists, which included the payment of invoices from A.H. Grab, a business with which he and/or his immediate family is associated, resulting in a pecuniary benefit to himself, his immediate family, and/or A.H. Grab. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS THAT RICHARD GRAB VOTED TO APPROVE INVOICESIBILL LISTS APPROVING PAYMENT TO HIS BROTHER, THOMAS GRAB. 38. Thomas Grab has worked for the Township on road maintenance projects on an as- needed basis for approximately 20 years. a. All Township laborers, including [Thomas] Grab, who are not Supervisors, are paid $'16.00 per hour. b. This hourly rate was set by the Township Supervisors in 2007 and has not changed. 39. Individuals who have worked on the Township roads as laborers in addition to Thomas Grab have included Greg Werner and George Stefanski. 40. Clifton Township Supervisor Ted Stout is primarily responsible for contacting laborers to work on the Township roads. a. Stout identified Thomas Grab and initiated contact with Thomas Grab to make inquiry as to his availability as labor. 41. Stout asserted during an interviewwith a State Ethics Commission investigator that it was difficult to locate individuals to work on the Township roads, mainly due to the fact that the projects are infrequent and only last a few days. 42. Each year part -time, temporary labor was needed; Stout was responsible for contacting Thomas Grab and any other laborer to work on the Township roads. a. Thomas Grab served as a flag person for traffic control and also for assistance with the Township's spring cleanup. 43. Richard Grab never voted or otherwise authorized the appointment/hiring of Thomas Grab as a laborer for Clifton Township. 44. The Township does not maintain timesheets or logs as to laborer hours. a. Hours worked were written on scratch paper and submitted to the Township Secretary for the generation of paychecks. b. Grab, as Roadmaster, did not officially verify submitted hours but voted to approve paychecks based on hours submitted. 45. The following payments were issued to Thomas Grab as compensation for labor and were approved by the Township Supervisors at the noted monthly Township meetings: Date Check No. Amount Description of Hours worked 5/15/2015 5573 $338.72 24 hours - Spring Cleanup, 517 - 519 5/14/2015 5567 $112.92 8 hours - Spring Cleanup, 4116 2/12/2015 5475 $56.45 4 hours - Snow and ice removal - 2/9 Grab, 15 -043 Page 10 6/10/2014 5231 $390.20 28 hours - Spring Cleanup, 5115- 5117 5/8/2014 5199 $112.90 8 hours - May 7 - Road Grader 12/12/2013 5034 $169.37 12 hours - Loader & Truck 11126 & 11127 11/11/2013 4998 $112.90 8 hours - Road signs 10118 10/4/2013 4962 $333.75 24 hours - Catch basins 9119, 9130 & 9/26 9/7/2013 4913 $423.40 30 hours - Road Maintenance - 7131, 811, 8/2, 8116 8/1/2013 4887 $41 8.40 30 hours - Road maintenance - 7122- 7124, 7126 5/17/2013 4808 $395.18 28 hours - Spring Cleanup - 512- 514 6/8/2012 4436 $418.52 29 hours - Spring Clean up 12/212011 4223 $317.50 22 hours - Road Maintenance - 11117, 11118, 11122 11/15/2011 4215 $461.83 32 hours - Cemetery - 1117, 1118, 11110, 11111 10/28/2011 4178 $216.48 15 hours - Cemetery - 1014, 1015, 1016 9/13/2011 4134 $288.65 20 hours - Work on Backhoe - 918, 919, 9112 5/26/2011 3986 $432.95 30 hours - Spring Cleanup - 5118 - 5/20 4/29/2011 3952 $115.45 8 hours - Road Maintenance - 4115 Total $5,115.57 a. Richard Grab participated in approving the payments of bill lists at Township meetings which included the payments made to Thomas Grab. b. The work performed by Thomas Grab for Clifton Township from 2011 through 2015 as part of spring cleanup, resulting in payment of wages totaling $2,088.49, was done at the direction of Clifton Township Supervisors other than Richard Grab. C. Payments made to Thomas Grab by Clifton Township as a laborerfrom 2011 through 2015, other than spring cleanup work, totaled $3,027.08. 46. The Reorganization meeting for the Clifton Township Supervisors on January 4, 2016, states [sic]. that Richard Grab would not participate in an decisions of the Board of Supervisors regarding the employment of Thomas Grab as a Clifton Township employee. THE FOLLOWING FINDINGS RELATE TO GRAB'S FAILURE TO DISCLOSE ALL REQUIRED SOURCES OF INCOME ON HIS STATEMENTS OF FINANCIAL INTERESTS FILED FOR CALENDAR YEARS 2012 AND 2014. 47. As a Clifton Township Supervisor, Richard Grab is required to file a Statement of Financial Interests ("SFI ") by May 15 of each year disclosing financial interests for the prior calendar year. 48. Grab timely filed SFIs for calendar years 2012 through 2014 with Clifton Township, which included the following disclosures: a. Calendar year: 2012 Filed: 1/4/2013 on SEC -1 Rev. 01112 Public position: Twp. Supervisor Political subdivision: Clifton Twp. Direct or indirect sources of income: A.H. Grab Office, directorship or employment in any business: Partners AH Grab b. Calendar year: 2014 Filed: 1/8/2015 on SEC -1 Rev. 01115 Grab 15 -043 11 Public position: Supervisor /Roadmaster Political subdivision: Clifton Twp. Direct or indirect sources of income: A.H. Grab Office, directorship or employment in any business: Partners AH Grab 49. Richard Grab neglected to include income received from Clifton Township as a Member of the Board of Supervisors and Roadmaster on Statements of Financial Interests filed for calendar years 2012 and 2014. lll, DISCUSSION: As a Supervisor for Clifton Township ( "Townshipkab, Lackawanna County, from approximately, 1986 until the present, Respondent Richard also referred to herein as Respondent, Respondent Grab, and Grab, 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 seq. The allegations are that Grab violated Sections 1103(a), 1103(f), 1104(d), and 1105(b)(5) of the Ethics Act: (1) when he utilized the authority of his public position for the private pecuniary benefit of himself, a member of his immediate family, and /or businesses with which he andlor a member of his immediate family are associated, when he participated in discussions and actions of the Township Board of Supervisors which resulted in contracts andlor other agreements being entered into between the Township and A.H. Grab Company for the rental of equipment and purchase of stone /aggregate, at a time when he and his brother were co-owners of A.H. Grab; (2) when he participated in discussions and actions of the Township Board of Supervisors to hire his brother as an employee of the Township; (3) when he voted to approve invoices /bill lists approving payment to A.H. Grab Company andlor Thomas Grab; and (4) when he failed to list the Township as a source of income on Statements of Financial Interests ( "SFIs ") filed for calendar years 2012 and 2014. 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 Grab, 15-043 1a 12 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 ecuniar 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 11030) of the Ethics Act, pertaining to voting conflicts, provides as follows: § 1103. Restricted activities (j) Voting conflict.- -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. § 11036). Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting: § 1103. Restricted activities (f) Contract. —No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract Grab, 15 -043 X13 or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). Section 1103(f) of the Ethics Act provides in part that no public official /public employee or his spouse or child or business with which the public official /public employee or his spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official/public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. 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. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of any dire_ ct or indirect source of income totaling in the aggregate $1,300 or more. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. The Township is a Second Class Township governed by a three - Member Board of Supervisors. Respondent Grab has served as a Township Supervisor from approximately '1986 until the present. Township Supervisors receive Supervisor compensation in the amount of $156.25 gross per month. The Township has no full -time or regular part-time employees to maintain Township roads. The Township only utilizes road crew labor on a temporary, as- needed basis. Since at least 2010, Respondent has been the Township Roadmaster. Although designated " Roadmaster," Respondent held no specific or special duties. Even as Roadmaster, Respondent was considered an "as- needed" laborer and only worked for the Township occasionally. For approximately the last 25 years, Respondent and his brother, Thomas Grab, have owned a trucking and excavation business named "A.H. Grab." Respondent and his brother each maintain a 50% ownership interest in A.H. Grab. Since 2011, A.H. Grab has provided equipment rental and hauling for the Township. Respondent did not direct and/or otherwise recommend that the Township utilize A.H. Grab for equipment rental. Ted Stout ( "Stout "), Chairman of the Township Board of Supervisors, has primarily been responsible for contacting and selecting vendors for roadwork projects, including e uipment rental, for approximately the last 30 years. Stout contacted and utilized A.H. Grab for equipment rental purposes, mainly due to A.H. Grab's lower fees resulting in a savings to the Township. Stout normally spoke with Thomas Grab when soliciting quotes. Stout made the decision to pursue a project without input from other Supervisors. Grab, 15 -043 Fa e14 A.H. Grab did not enter into written contracts with the Township, but rather, verbally agreed to perform work and submitted an invoice to the Township upon completion of the project. The only action that was taken by the Township Board of Supervisors to approve the work performed by A.H. Grab was to approve the payment of invoices submitted after completion of the work. The chart at Fact Finding 24 reflects the payments made by the Township to A.H. Grab from 2011 through 2015. Each of the six payments listed was $500.00 or more. The Township's payment of invoices is approved by votes of the Supervisors to approve bill lists. As detailed in Fact Finding 25, from April 28, 2011, through May 15, 2015, Respondent participated in six votes of the Township Board of Supervisors to approve bill lists which included payments totaling $7,630.00 made to A.H. Grab. For one of those payments, Respondent made the motion to approve the payment of bills, and for three other payments, Respondent seconded the motion to approve the payment of bills. The parties have stipulated that Respondent utilized the authority of his office when he voted to approve the payment of bill lists which included the payment of invoices from A.H. Grab, a business with which he and/or his immediate family is associated, resulting in a pecuniary benefit to himself, his immediate family, and /or A.H. Grab. At the Township Supervisors meeting of June 11, 2015, one of the Supervisors questioned whether the Township's rental of equipment from A.H. Grab presented a conflict of interest. Afterthat meeting, the Township Solicitor advised the Township Board of Supervisors that in the future, the Township needed to obtain quotes prior to awarding any work to A.H. Grab, due to Respondent's 50% ownership in the business. On November 30, 2015, Respondent received the Notice of Investigation from the Investigative Division of the Commission initiating an investigation in this matter. On the advice of the Township Solicitor, at the Township Supervisors Reorganization Meeting on January 4, 2016, Respondent stated that he would not participate m any decisions of the Board of Supervisors regarding the employment of Thomas Grab as a Township employee or contracting with A.H. Grab, LLC to do work for the Township. At the Township Supervisors meeting on March 10, 2016, the Township Board of Supervisors discussed written proposals that had been submitted by three businesses including A.H. Grab for general road maintenance and equipment rental. See, Fact Finding 34. When the discussion occurred as to the proposals, Respondent stated that he had a conflict of interest because of his partnership in A.H. Grab, and as such, he abstained from being involved in the discussion. Supervisor Stout made the motion to award the contract to A.H. Grab, the low bidder. Supervisor June Ejk did not second the motion. Subsequently, Respondent seconded the motion to award the contract to A.H. Grab and voted affirmatively to award the contract to A.H. Grab, along with Supervisor Stout. Supervisor Ejk refused to cast a vote. Respondent attached a written memorandum to the minutes of the March 10, 2016, meeting disclosing his conflict of interest as to the contract award, as detailed in Fact Finding 36. Respondent's brother, Thomas Grab, has worked for the Township 'on road maintenance projects on as- needed basis for approximately 20 years. Since 2007, all Township laborers /road crew employees who are not Supervisors —including Thomas Grab —have been paid $16.00 per hour. Stout is primarily responsible for contacting laborers to work on the Township roads. Respondent never voted or otherwise authorized the appointment/hiring of Thomas Grab as a laborer for the Township. As Roadmaster, Respondent did not officially verify hours Grab, 15 -043 15 submitted by Township laborers but voted to approve paychecks based on hours submitted. As detailed in Fact Finding 45, from April 29, 2011, through May 15, 2015, the Township Board of Supervisors approved payments totaling $5,115.57 to Thomas Grab as compensation for labor. Respondent participated in approving the payments of bill lists that included the aforesaid payments made too Thomas Grab. As for the allegation involving Respondent's SFIs, Respondent neglected to disclose the Township as a direct or indirect source of income totaling in the aggregate $1,300.00 or more on his SFIs filed for calendar years 2012 and 2014. 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: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(x), occurred as to the allegations that Richard Grab participated in discussions and actions of the Clifton Township Board of Supervisors which resulted in contracts and/or other agreements being entered into between the Township and A.H. Grab Company for the rental of equipment and purchase of stonelaggregate, at a time when he and his brother were co- owners of A.H. Grab, in that there is insufficient, clear and convincing evidence that he (Grab) participated in the hiring /contracting process as either a member of the Board of Supervisors and/or a representative of A.H. Grab. b. That no violation of Section 11 03 a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Richard Grab participated in discussions and actions of the Board of Supervisors to hire his brother as an employee of the Township, in that there is insufficient, clear and convincing evidence that he (Grab) participated in the hiring process. C. That, as reflected in paragraph �a) above, no violation of Section 1103(f) of the ublic Official and Employee Ethics Act, 65 Pa.C.S. § 1103(f), occurred when contracts /agreements were entered into between Clifton Township and A.H. Grab, absent an open and public process. d. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Richard Grab voted to approve invoices /bill lists approving payment to Grab, 16 -043 page 16 A.H. Grab Company and/or Thomas Grab, at a time when he and his brother were co- owners of A.H. Grab and Thomas Grab was a member of his immediate family. That a violation of Section 1105(b)(5) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred when Richard Grab failed to list ClAon Township as a source of income on Statements of Financial Interests filed for calendar years 2012 and 2014. The Investigative Division is not seeking an disgorgement pursuant to 65 Pa.C.S. § 1104(d) of the Ethics Act. Those instances in which Richard Grab did participate in discussions and actions of the Clifton Township Board of Supervisors which resulted in contracts and /or other agreements being entered into between the Township and A.H. Grab Company for the rental of equipment appear to have been in good faith compliance with 65 Pa.C.S. § 11030). Grab agrees to make payment in the amount of $1,250.00 in settlement of this matter as follows: a. $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. b. $250.00 which represents a portion of the expenses and costs incurred by the State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission within thirty, (30) days of the issuance of the final adjudication in this matter. 5. To the extent he has not already done so, Grab agrees to file complete and accurate Statements of Financial Interests with Clifton Township through the Pennsylvania State Ethics Commission for the 2012 and 2014 calendar years within thirty (30) days of the issuance of the final adjudication in this ma ter. 6. Grab agrees to not acceppt anyy reimbursement, compensation or other payment from Clifton Township, Lackawanna County, 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 Grab, 15 -043 �_ 17 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 a�lure 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 2 -3. In considering the Consent Agreement, we agree with the parties that there is an insufficiency of evidence to establish violations of Section 1103(a) of the Ethics Act either with regard to the aforesaid contractslagreements being entered into between the Township and A.H. Grab Company or with regard to the hiring of Respondent's brother as an employee of the Township. Per the Stipulated Findings, it was Stout who engaged in such actions, and there is no basis in the Stipulated Findings to establish a use of authority of office by Respondent that would support a violation of Section 1103(a). With regard to the Township meeting of March 10, 2016, when Respondent initially disclosed his conflict and abstained, subsequently seconded a motion to award a contract to A.H. Grab when a second was not forthcoming, in order to bring the matter to a vote, and finally voted when Supervisor Ejk refused to cast a vote, Respondent followed the principles that this Commission established in Garner, Opinion 93 -004 for complying with Sections 1103(a) and 11030) of the Ethics Act, 55 Pa.C.S. § 1103(a), (j), under similar circumstances. Clearly, if Supervisor Ejk had voted against the motion, Respondent would have been able to break the tie, and there was no meaningful difference where she refused to vote instead. Accordingly, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegations that Respondent Grab participated in discussions and actions of the Township Board of Supervisors which resulted in contracts andlor other agreements being entered into between the Township and A.H. Grab Company for the rental of equipment and purchase of stone /aggregate, at a time when he and his brother were co- owners of A.H. Grab, based upon an insufficiency of evidence to establish the element of a use of authority of office by Grab. We further hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegation that Respondent Grab participated in discussions and actions of the Township Board of Supervisors to hire his brother as an employee of the Township, based upon an insufficiency of evidence to establish the element of a use of authority of office by Grab. The parties have recommended a finding that no violation of Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), occurred when contractslagreements between the Township and A.H. Grab were entered into absent an open and public process. The parties' reasoning for this particular recommendation of the Consent Agreement is not explicitly stated but appears to be the fact that Respondent did not personally participate in entering into such contractslagreements. Factually, contractslagreements valued at $500.00 or more were entered into by the Township and A.H. Grab without an open and public process. See, Fact Findings 19- 24(b). Additionally, given the fact that Respondent is a 50% owner oTA.H. Grab, this case might be distinguishable from Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004), in which the Commonwealth Court of Pennsylvania held that a township supervisor did not violate Section 1103(f) of the Ethics Act when a business that employed him entered into a contract in excess of $$500 with his township without an open and public process, but the supervisor himself was neither a party to the contract nor a principal of the contracting business. Id. Grab, 15 -043 'fie 18 We recognize that Bixler left unanswered the question of whether status as a principal of a company is su icient to support a violation of Section 1103(f) by a public official where the public official himself does not personally enter into the contract between his company and his governmental body. Id. (Note 7). We also recognize the give-and- take that is involved in the negotiation of a Consent Agreement, as well as the prosecutorial discretion of the Investigative Division. Without adopting any particular reasoning of the parties, we hold that based upon the Consent Agreement of the parties, Respondent Grab did not violate Section 1103( of the Ethics Act, 65 Pa.C.S. § 1103(f), as alleged in this case. We agree with the parties that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent Grab voted to approve invoiceslbill lists approving payment to A.H. Grab Company and/or Thomas Grab, at a time when he and his brother were co- owners of A.H. Grab and Thomas Grab was a member of his immediate family. Each element of the recommended violation has been established. Respondent used the authority of office when he voted to approve invoices/bill lists approving payment to A.H. Grab Company and/or Thomas Grab, resulting in private pecuniary benefits to A.H. Grab Company, a business with which Respondent is associated as a 50% owner, and/or to Thomas Grab, a member of Respondents immediate family. See, Fact Findings 25., 45- 45(x). Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent Grab voted to approve invoices/bill lists approving payment to A.H. Grab Company and/or Thomas Grab, at a time when he and his brother were co- owners of A.H. Grab and Thomas Grab was a member of his immediate family. We agree with the pparties, and we hold, that a violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. 1105(b)(5), occurred when Grab failed to list the Township as a source of income on S Is filed for calendar years 2012 and 2014. We note that the Investigative Division is not seeking any disgorgement of Respondent's Supervisor compensation pursuant to 65 Pa.C.S. § 1104(d) of the Ethics Act. As part of the Consent Agreement, Grab has agreed to make payment in the amount of $1,250.00 in settlement of this matter as follows: a. $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. b. $250.00 which represents a portion of the expenses and costs incurred by the State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent Grab has also agreed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. Finally, to the extent he has not already done so, Respondent Grab has agreed to file complete and accurate SFIs with the Township through this Commission for the 2012 Grab , 15 -043 rage 19 and 2014 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 Grab is directed to make payment in the amount of $1,250.00 as follows: a. $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to tois Commission by no later than the thirtieth (30 ") day after the mailing date of this adjudication and Order; and b. $250.00, which represents a portion of the expenses and costs incurred by this Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State iOics Commission by no later than the thirtieth (30 ) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Respondent Grab 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 Grab is directed to file complete and accurate amended SFIs with the Township thro h this Commission for the 2012 and 2014 calendar years by no later than the thirtieth (309 day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Supervisor for Clifton Township ( °Township " ) , Lackawanna County, from approximately 1986 until the present, Respondent chard Grab ( "Grab ") 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 sec.. 2. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegations that Grab participated in discussions and actions of the Township Board of Supervisors which resulted in contracts and/or other agreements being entered into between the Township and A.H. Grab Company for the rental of equipment and purchase of stonelaggregate, at a time when he and his brother were co- owners of A.H. Grab, based upon an insufficiency of evidence to establish the element of a use of authority of office by Grab. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegation that Grab participated in discussions and actions of the Township Board of Supervisors to hire his brother as an employee of the Township, based upon an insufficiency of evidence to establish the element of a use of authority of office by Grab. Grab, 15 -043 F a 20 4. Based upon the Consent Agreement of the parties, Grab did not violate Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), as alleged in this case. 5. A violation of Section 1103(a) .of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Grab voted to approve invoices /bill lists approving payment to A.H. Grab Company and/or Thomas Grab, at a time when he and his brother were co- owners of A. H. Grab and Thomas Grab was a member of his immediate family. 6. A violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred when Grab failed to list the Township as a source of income on Statements of Financial Interests filed for calendar years 2012 and 2014. In Re: Richard Grab, Respondent File Docket: 15 --043 Date Decided: 10/19/16 Date Mailed: 10/31/16 ORDER NO. 1703 1. No violation of Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1103(a), occurred as to the allegations that Richard Grab ( "Grab'), as a Supervisor for Clifton Township ( "Township "), Lackawanna County, participated in discussions and actions of the Township Board of Supervisors which resulted in contracts and/or other agreements being entered into between the Township and A.H. Grab Company for the rental of equipment and purchase of stone /aggregate, at a time when he and his brother were co- owners of A.H. Grab, based upon an insufficiency of evidence to establish the element of a use of authority of office by Grab. 2. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred as to the allegation that Grab participated in discussions and actions of the Township Board of Supervisors to hire his brother as an employee of the Township, based upon an insufficiency of evidence to establish the element of a use of authority of office by Grab. 3. Based upon the Consent Agreement of the parties, Grab did not violate Section 1103(f) of the Ethics Act, 65 Pa.C.S. § 1103(f), as alleged in this case. 4. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Grab voted to approve invoices /bill lists approving payment to A.H. Grab Company and/or. Thomas Grab, at a time when he and his brother were co- owners of A.H. Grab and Thomas Grab was a member of his immediate family. 5. A violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred when Grab failed to list the Township as a source of income on Statements of Financial Interests filed for calendar years 2012 and 2014. 6. Per the Consent Agreement of the parties, Grab is directed to make payment in the amount of $1,250.00 as follows: a. $1,000.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pensylvania State Ethics Commission by no later than the thirtieth (30 )day after the mailing date of this Order; and $250.00, which represents a portion of the expenses and costs incurred by the Pennsylvania State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Per��nsy[vania State Ethics Commission by no later than the thirtieth (30t )day after the mailing date of this Order. 7. Grab is 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. Grab, 15 -043 22 8. To the extent he has not already done so, Grab is directed to file complete and accurate amended Statements of Financial Interests with the Township through the Pennsylvania State Ethic�,Commission for the 2012 and 2014 calendar years by no later than the thirtieth (30 ) day after the mailing date of this Order. 9. Compliance with paragraphs 6, 6a, 6b, 7 and 8 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, • as A, Golatella,