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HomeMy WebLinkAbout1735 WheelerPHONE: 717- 783 -1610 TOLL FREE: 1- 800 - 932 -0936 In Re: Melvin Wheeler, Respondent l� �k STAVE ETHICS COMMISSION! FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120 -0400 File Docket: X -ref: Date Decided Date Mailed: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics ga.goy 17 -009 Order No. 1735 4110118 4/16/18 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Monique Myatt Galloway Michael A. Schwartz Shelley Y. Simms 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 Melvin Wheeler, a public official /public employee in his cappacity as a Supervisor for Sterling Township, Wayne County, violated [Sections 1103(a), 1104(a), 1104(d), and 1105(b)(3), (4), (5),(8) and (9)] of the State Ethics Act (Act 93 o 1998) when he used the authority offhis public position to obtain a private pecuniary benefit for himself, a member s) of his immediate family, and/or a business with which he /members of his immediate( family islare associated, when he directed and/or authorized Township employees to utilize Township men, equipment, time, etc. to deliver and/or provide topsoil and/or dirt/fill material(s) obtained from Township projects to him and /or members of his immediate family, resulting in a pecuniary benefit; when he removed and/or converted Township dirt/fill material for his personal uselpecuniary benefit; and when he failed to filelfiled deficient Statements of Financial Interests, namely when he: failed to identifyy, report and/or respond to listing all applicable creditors, sources of income, officeldirectorshiplemployment in any business, and financial interests in any business -- concerning calendar year 20'f2 Statement of Financial Interests; failed to identify, report and/or respond to listing all applicable real estate interests, creditors, sources of income, officeldi rectors hiplemployment in any business, and financial interests in any business — concerning calendar year 2013 Statement of Financial Interests; Wheeler, 17 -009 a� failed to file /timely file a 2014 calendar year Statement of Financial Interests; and failed to identify, report and/or respond to listing all applicable sources of income, office /directorship /employment in any business, and financial interests in any business — concerning calendar year 2015 Statement of Financial Interests, as well as misidentifying the filing year. 11. FINDINGS: 1. Melvin Wheeler has served as a Member of the Sterling Township ( "Township "), Wayne County, Board of Supervisors since approximately January 7, 2008. a. The Township is a Second -Class Township governed by a three - Member Board of Supervisors. 2. Professionally, Wheeler has held business interests including Mel Wheeler Excavating alk/a Wheeler Excavating; Two Timers Cutting; and the North Pocono Bagel Shop. a. Wheeler holds 100% ownership of both Wheeler Excavating and Two Timers Cutting, while holding a 50% ownership interest in the North Pocono Bagel Shop. 1. Two Timers Cutting is a business name through which Wheeler reports rental income received from two rental properties. 2. The North Pocono Bagel Shop, 814 State Route 690, Spring Brook Township, Pennsylvania, is a point partnership Wheeler maintains with Diana Trygar. b. Neither Wheeler Excavating nor Two Timers Cutting are registered with the Pennsylvania Department of State Corporation Bureau. A fictitious name for the North Pocono Bagel Shop was filed with the Pennsylvania Department of State Corporation Bureau on April 4, 1996. aa. Fictitious name holders were John Murray, Joseph Murray, and Kathy Murray. C. Wheeler confirmed these business interests during an interview with a Commission investigator on April 11, 2017. 3. Wheeler Excavating is currently operated by Melvin Wheeler from his private residence, located at [ "Property 1," which is situated along a road referred to herein as "Road A "]. a. Wheeler has owned and operated Wheeler Excavating for approximately thirty (30) years. Wheeler has also operated Wheeler Excavating under the name "Melvin Wheeler Excavating." b. Melvin Wheeler operated Wheeler Excavating together with his son, Chad Wheeler, until approximately 2015. Wheeler, 17 -009 age 1. Equipment used for Wheeler Excavating operations is owned exclusively by Melvin Wheeler. C. Chad Wheeler simultaneously operated "Wheeler Excavating, LLC," also known as "Chad Wheeler Excavating," independent of his father, Melvin Wheeler. 4. Township records reflect that Wheeler served as the appointed Roadmaster during years 2008, 2009, 2010, and 2011; and as Assistant Roadmaster and Roadmaster during portions of years 2015 and 2016. a. Wheeler would regularly visit the Township Building to oversee road employee work assignments, regardless of whether he was holding the position of Roadmaster. b. During the August 12, 2013, Board meeting, Wheeler advised the Board of Supervisors that he desired to accompany the Roadmaster /road workers on road inspections each year. 1. Wheeler was not the designated Roadmaster at the time of this request. 5. Kenneth (Ken) Wheeler is Respondent's brother. a. Ken Wheeler maintains his primary residence at [Property 2, which is not situated along Road A]. b. Ken Wheeler also owns undeveloped land located within the Township, identified by tax parcel number 26 -0- -0029 -0004, [hereinafter referred to as Property 3]. 1. Property 3 is physically [situated along Road A]. 2. Melvin Wheeler is the owner of Property 1; tax parcel number 26 -0- 0029 -0003. 6. The Township is responsible for the general care and maintenance of approximately 20 miles of Township road. a. Many Township road surfaces are dirt, tar and chipped, and/or not completely paved. b. The Township also has primary responsibility to maintain on a regular basis a large number of ditches and culvert pipes. 7. Since 2012, the Township has employed numerous individuals to perform road maintenance in both a full and part-time capacity. a. Individuals employed during this timeframe include, but are not necessarily limited to: Brian Cole, Paul Tufano, Mark Havenstrite, Mark Kizer, Brian Major, Robert Zaorski, Jr., and Scott Fleming. b. Individual daily work assignments consisted of directives from Members of the Township Board of Supervisors and were generally overseen by Supervisor Melvin Wheeler, regardless of whether Wheeler was then currently Roadmaster. Wheeler, 17 -009 9 C. During the normal course of business, Township employees would memorialize daily work activities on log sheets maintained by the Township Secretary. 1. Employee work to s detail the date, number of hours worked, and a brief description of duties performed. 8. Some of the road projects /maintenance completed resulted in leftover materials, including topsoil, road and berm gradings, and millings. a. The Township does not have a formal policy regarding the disposal of materials from Township - related projects. b. Jeff Treat, Township Solicitor, was of the opinion that material removed from Township right -of -ways belongs to the property owner. 9. Although the Township was responsible for developing policies concerning the disposal of excess road materials, if material was to be used to fill or alter wetland areas, approval for the dumping was to be obtained from the Monroe County Conservation District. 10. In 2015 questions were raised by Members of the Board of Supervisors, as well as residents of the Township, concerning Wheeler's receipt of leftover material from Township road projects. a. Wheeler continually was removing excess material and stockpiling for his personal business. b. The Board of Supervisors contemplated enacting an ordinance to curtail Wheeler's continued receipt of excess material. 11. Chad Wheeler, son of Melvin Wheeler, in a sworn statement to a Commission investigator stated that his father would receive no less than one truck load of material per week, delivered to his father's or uncle's property by Township employees, utilizing the Township's five -ton dump truck. a. Neither Wheeler, nor the Township, maintained records detailing the quantity, dates, or hours involved in making the deliveries. 12. On September 14, 2015, Township Solicitor Jeff Treat was directed by the Board of Supervisors to draft a proposed ordinance regarding the "disposal of any, or all dirt, millings and any other road materials." a. The motion authorizing Solicitor Treat to prepare the draft ordinance ]which would have limited Wheeler's ability to obtain material derived from Township public works projects passed by a 2 -1 Board vote.] 1. Wheeler cast the dissenting vote. 13. Solicitor Treat presented the Board with a sample road materials ordinance for review during the November 9, 2015, regular meeting. a. Excerpts from the draft ordinance provided that any excess material to be offered to the property owners situated on the Township roadway which the material was removed from ... If they don't want it, it will be offered to other Township residents who request it ... Township Officials are not eligible to receive any of the material unless it was removed from a right -of -way adjoining lands owned by said Township Official. Wheeler, 17 -009 a b. During the Board of Supervisors November 9, 2015, meeting, Wheeler made a motion and participated in a 2 -1 Board vote, tabling any action pertaining to the draft ordinance. In October 2015, Timothy Tuite was replaced by Jack Ziegler as a Member of the Board of Supervisors, creating a change in the Board's composition resulting in the changed vote. 14. During the Board of Supervisors December 14, 2015, meeting, Wheeler participated in a 2 -1 vote to defeat the proposed Ordinance for material distribution. a. Wheeler cast the deciding vote. b. Wheeler's actions enabled him to continue to acquire fill material from Township work sites without cost. 15. Wheeler's participation in discussions and votes to defeat the proposed ordinance occurred contemporaneously to his benefit from the receipt of road materials [including] his actions in directing Township employees to transport Township material to property owned by his brother located on Road A. a. The Ordinance, had it been enacted, would have limited the amount of Township derived material Wheeler could receive. 16. In or about May 2015, the Township began requiring residents who wanted excess material from Township projects to execute a liability release, which also identified the approximate amount of material requested and/or received. a. The release was an attempt by the Township to protect itself against any liability for contaminants in the material, and as a tracking mechanism of how much material any one individual received. b. Previously, no accounting was maintained by the Township as to the amount of material distributed, or who received it. 17. Township records reflect that approximately 20 different requests for material were submitted to the Township between May 13, 2015, and October 12, 2016. a. On June 19, 2015, Melvin Wheeler submitted one request to the Township for an undisclosed number of loads of Township material for property addressed as 145 Woodland Drive and Property 1. 18. Melvin Wheeler asserted during a sworn statement to a Commission investigator provided on April 11, 2017, that the material received from the Township was delivered to his brother, Ken Wheeler's, property on Road A. a. Ken Wheeler permitted Melvin Wheeler to utilize property he (Ken Wheeler) owned on Road A to store, screen, and process soil -like materials. b. Ken Wheeler was not involved with Wheeler Excavating operations and did not receive any compensation for the use of his property. 19. At no time did Melvin Wheeler disclose to Township employees that materials originating from Township projects were being delivered to property owned by his brother, Ken Wheeler. Wheeler, 17 -009 Page ` 6 a. Township employees did not ask Melvin Wheeler to complete a material request form(s) over a fear of possible retaliation by Melvin Wheeler against them. b. If Melvin Wheeler had completed a request form(s) it would have documented the quantity of material he received. 20. Since May of 2012, Melvin Wheeler received, at no cost to him: dirt, road millings, and other unquantifiable fill material (derived from the general care and maintenance of Township roads, and the construction of a recycling center at the Township's municipal complex). a. Materials Wheeler received from the construction of the recycling center at the Township complex and excess material derived from Township road projects were two separate sources of material. 21. Starting in 2013, Wheeler participated in discussions and official actions taken by the Board of Supervisors to obtain grant funding for construction of a 40'x 60' pole building behind the Township building, to serve as a recycling center. a. Actual construction of the recycling center began in 2094. b. In preparation for the construction, Wheeler directed Township employee Mark Havenstrite to excavate an additional three feet in depth from whatwas initially required for construction. C. The additional excavation was not necessary for construction; construction specifications required the surface material only to be leveled. d. Havenstrite reported at the November 10, 2014, Supervisors meeting that the recycling building area was ready. 22. Chad Wheeler, the Respondent's son, provided sworn testimony on May 4, 2097, to a Commission investigator that the recycling center site was excavated an additional three feet to enable his father to obtain additional topsoil from the site. a. Chad Wheeler stated that the additional excavation was not required for construction, as the plans required that the site only needed to be leveled. b. Chad Wheeler worked with Melvin Wheeler, doing business as Wheeler Excavating, at the time excavating work was occurring at the Township recycling center. 23. The material removed from the building site by Havenstrite, at the direction of Wheeler, was deposited into piles at the Township complex. a. None of this material was made available to Township residents. b. All excavated material from the Township recycling center project was eventually removed by Wheeler, for his personal use. 24. Between November 2014 and June 2015, Melvin Wheeler expended approximately one week using personal equipment (including a loader and tri -axle dump ruck) to remove material (dirt) from the Township Municipal Complex, derived from the recycling center project. Wheeler, 17 -009 9 a. Wheeler, in his capacity as a Township Supervisor, made the determination to remove this material without any prior approval or authorization from the Township's Board of Supervisors. b. Wheeler transported this material to his brother's property located on Road A. 25. Wheeler was questioned during the Board's July 13, 2016, meeting as to the disposition of Township dirt and road millings. a. Meeting minutes record the following: "Mel (Wheeler) said he moved dirt to neighbors around the Township. Jeffrey Olsommer questioned where it went and if waivers were signed when dirt was given to residents... Connie Swingle asked how are residents supposed to know if dirt is available ?" b. Wheeler never disclosed that the materials were taken either to his or his brother's property. 26. During a sworn statement with a Commission investigator, Chad Wheeler, the Respondent's son, stated that material from the recycling center project ((along with material removed as part of road berming and ditch cleaning) was taken fo property owned by Ken Wheeler (the Respondent's brother) located on Road A. a. Melvin Wheeler owns Property 1, parcel number 26 -0 -0029 -0003. Melvin Wheeler has owned this property since approximately June 24, 1999. b. Ken Wheeler owns adjoining property located on Road A, identified by parcel number 26- 00029 -0004. Ken Wheeler has owned this property since approximately October 1, 1999. 27. Township employee timesheets reflect that ditch cleaning and road berming activities occurred on at least 189 days between April 12, 2012, and September 30, 2016, or approximately thirty -eight days per year. a. Township employees did not document when delivering material to the Respondent, as Wheeler, in his capacity as a Township Supervisor, had instructed them that he (Wheeler) expected to receive the material. 28. Entries of employee work logs for nine separate days make specific reference to materials being loaded and/or hauled to property owned by Wheeler and/or his brother, Ken Wheeler. a. Those specific days were: May 31, 2013; June 9 -12, 2014; December 26, 2014; March 22, 2016; September 29, 2016; and October 20, 2016. b. Details as to specific employee(s) /date(s) are as follows: May 31, 2013: Paul Tufano — clean ditches & haul to Mels June 9, 2014: Mark Havenstrite — 2 (hours) Mels June 10, 2014: Mark Havenstrite -- 3 (hours) Mels June 11, 2014: Mark Havenstrite — 2 (hours) Mels Wheeler, 17 -009 a9 - - June 12, 2014: Mark Havenstrite -- 3 (hours) loads Mel December 26, 2014: Mark Havenstrite — loaded Mels truck with dirt. March 22, 2016: Paul Tufano — Load of topsoil to Mels September 29, 2016: Robbie Zaorski — 4 hours haul loads of dirt to Mels Brian Major — 4 hours haul 6 loads to Mels October 20, 2016: Robbie Zaorski — 5 hours haul dirt to Mels C. Township employees believed Melvin Wheeler owned the property, since he was the person who directed the delivery/deposit. 29. At a minimum value of $100.00 per 22 -ton tri -axle load, each load delivered to Wheeler by the Township truck would have a value of at least $22.50. a. This value is based on $4.50 per ton, utilizing the five -ton capacity of the Township truck. b. Presuming the value of $22.50 per load is multiplied by the 189 known days ditch and berming work was completed, Wheeler received Township material with a minimum value of $4,252.50. 30. Sworn statements of current and former Township road employees confirmed that on many days multiple trips were made in a Township dump truck to Road A to deliver fill material; however, no records are available to quantify the number of loads delivered to Wheeler. a. Wheeler was not assessed any delivery fee by the Township. b. Wheeler would have incurred a minimum delivery fee of $4,725.00 for the use of a truck and driver, based on a $25.00 per day rental fee. 1. The delivery fee is based on 50% of flat rate delivery quotes from rental facilities located in the region. C. The [minimum] financial gain Wheeler realized through the delivery of Township material is $8,977.50 (material value [$4,252.50] + delivery [$4,725.00]). 31. During the October 10, 2016, Board of Supervisors meeting, Supervisor Jeff Olsommer provided Wheeler with an invoice dated September 28, 2016, in the amount of 1,684.00. a. This invoice accounted for costs associated with Township employees, materials and equipment, which were used on September 28, 2016, for three hours to load, transport, and unload materials at Wheeler's property, all of which occurred during normal Township working hours. b. Itemized charges included: 1 Two Township employees at $14.00 per hour for three hours = $84.00 2 Two Township dump trucks rented for three hours each = $600.00 3 One Township front -end loader rented for three hours = $400.00 4 Twelve loads of Township dirt (approx. 24 cubic yards) = $600.00 32. To date, Wheeler has refused to pay the invoice. a. Wheeler did not dispute the accuracy of the invoice when itwas presented to him during the Board of Supervisors October 10, 2016, meeting. Wheeler, 17 -009 agf' Se b. Wheeler also did not dispute the accuracy of the values stated in the invoice during a sworn statement provided by him to Commission representatives on April 11, 2017. 33. Wheeler also received a financial gain of at least $1,780.00 when he removed soil from the construction of the Township recycling center. a. The dimensions excavated were 40' x 60' x 3', equating to approximately 7200 cubic feet/266.67 cubic yards of excavated material. b. Wheeler's 22 -ton tri -axle dump truck possesses a volume capacity of between 14 and 17 cubic yards. C, Based on 15 yards per load and 267 yards of material, Wheeler hauled approximately 17.80 loads of material from the Township recycling center with a minimum value of $100.00 per load or $1,780.00. 1. An average of 15 yards per load was used for determining the approximate financial gain of the material. 2. This material was loaded using Wheeler's own excavating equipment. 34. The material from the Township site was combined with other materials left over from Wheeler Excavating projects, and was sold /used as part of Wheeler's business operations. a. Wheeler would sell fill material of the type and quality as the recycling center material for approximately $100.00 to $150.00 pertn -axle load, utilizing a 22- ton tri -axle truck for delivery. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT WHEELER FAILED TO FILE A STATEMENT OF FINANCIAL INTERESTS FORM FOR THE 2014 CALENDAR YEAR, AND MAINTAINED REPORTING DEFICIENCIES ON FORMS FILED FOR THE 2012, 2013, AND 2015 CALENDAR YEARS. 35. Wheeler, in his official capacity as a Member of the Township Board of Su ervisors, was annually required to complete a Statement of Financial Interests { "SF ") form by May 1St of each calendar year, reporting financial interests for the prior calendar year. 36. The Township Secretary is provided with blank SFI forms by January of each year, to be distributed to Township employees and officials required to file. a. In January of each year, the Secretary provides each Member of the Board of Supervisors with a blank SFI form to complete with instructions that the form be filled out and returned no later than May 1 st of the year. b. Completed SFI forms are maintained by Township Secretary Deborah Gromlich, along with other official Township documents. 37. Wheeler has been provided with a blank SFI form to complete each year since at least 2012. 38. SFI forms filed by Wheeler for calendar years 2012 through 2015 were reviewed with him during an investigative interview conducted on April 11, 2017. a. During that interview, Wheeler confirmed having the following filing deficiencies by calendar year: Wheeler, 17 -009 a�U b. Calendar Year: 2015 dated April 26, 2016 Box # 7 Calendar Year: Wrong calendar year listed Box # 10 Direct/indirect income: Failed to report North Pocono Bagel Shop & Sterling ownship. Box # 13 Office, Directorship or Employment in any Business: Failed to report Two Timers Cutting & Wheeler Excavating. Box # 14 Financial Interest in any Business: Failed to report the percentage of ownership in any of his three (3) business interests. Calendar Year: 2014 Non -Filer d. Calendar Year: 2013 dated April 30, 2014 Box # 8 Real Estate Interests: No Response Box # 9 Creditors: No Response Box # 10 Direct/indirect income: Failed to report North Pocono Bagel Shop, Two Timers Cutting & Sterling Township. Box # 13 Office, Directorship or Employment in any Business: Failed to report Two Timers Cutting & Wheeler Excavating. Box # 14 Financial Interest in any Business: Failed to report Two Timers Cutting & Wheeler Excavating. e. Calendar Year 2012 dated May 1, 2013 Box # 9 Creditors: No Response Box # 10 Directlindirect income: Failed to report North Pocono Bagel Shop, Two Timers Cutting & Sterling Township. Box # 13 Office, Directorship or Employment in any Business: Failed to report North Pocono Bagel Shop, Two Timers Cutting & Wheeler Excavating. Box # 14 Financial Interest in any Business: Failed to report North Pocono Bagel Shop, Two Timers Cutting & Wheeler Excavating. 39. On April 11, 2017, Wheeler filed amended Statement of Financial Interests forms for calendar years 2012 through 2015, to address deficiencies listed in the prior finding. Amended SFIs reported the following financial interests: Calendar Year: 2015 Amended Dated: 04/26/16 (Actual amended date 04111117) Position: Supervisor Occupation: Self Employed Real Estate Interests: None Creditors: N.B.T. Bank, 4% Direct/indirect income: Two Timers Cutting; Wheeler Excavating; Township income Office, Directorship, or Employment in any Business: Two Timers Cutting & Wheeler Excavating, 100 %; North Pocono Bagel, Vice - President, 50% Financial Interest in any Business: North Pocono Bagel, Vice - President; 541 Spring Hill Road, Moscow; 145 Woodland Drive, Moscow, owner All Other Financial Interests: None Calendar Year: 2015 Amended Dated: 04/26/16 (Actual amended Position: Supervisor Occupation: Self Employed Real Estate Interests: None Creditors: N.B.T. Bank, 4% Direct/indirect income: Two Timers income date 04111117) Cutting; Wheeler Excavating; Township Wheeler, 17 -009 age�T Office, Directorship, or Employment in any Business: Two Timers Cutting & Wheeler Excavating, 100 %; North Pocono Bagel, Vice - President, 50% Financial Interest in any Business: North Pocono Bagel, Vice - President; 541 Spring Hill Road, Moscow; 145 Woodland Drive, Moscow, owner All Other Financial Interests: None Calendar Year: 2014 Amended Dated: 04/11/17 on form SECA REV. 01117 Position: Supervisor Occupation: Self Employed Real Estate Interests: None Creditors: N.B.T. Bank, 4% Direct/indirect income: Two Timers Cutting; Wheeler Excavating; Sterling Township Office, Directorship, or Employment in any Business: Two Timers Cutting & Wheeler Excavating, 100 %., North Pocono Bagel, Vice -- President, 50% Financial Interest in any Business: North Pocono Bagel, Vice - President; 541 Spring Hill Road, Moscow; Two Timers Cutting & Wheeler Excavating, 100% API Other Financial Interests: None Calendar Year: 2013 Amended Dated: 04/30/14 (Actual amended date 04111117) Position: Supervisor Occupation: Self Employed Real Estate Interests: None Creditors: N.B.T. Bank, 4% Direct/indirect income: Two Timers Cutting; Wheeler Excavating; Sterling Township; North Pocono Bagel Office, Directorship, or Employment in any Business: Two Timers Cutting & Wheeler Excavating, 100 %; North Pocono Bagel, 50% Financial Interest in any Business: North Pocono Bagel, 50 %; Two Timers Cutting & Wheeler Excavating, 100% All Other Financial Interests: None e. Calendar Year: 2012 Amended Dated: 05/01/13 (Actual amended date 04111117) Position: Supervisor Occupation: Self Employed Real Estate Interests: None Creditors: N.B.T. Bank, 4% Direct/indirect income: Two Timers Cutting; Wheeler Excavating; Sterling Township; North Pocono Bagel Office, Directorship, or Employment in any Business: Two Timers Cutting & Wheeler Excavating, 100 %; North Pocono Bagel, 50% Financial Interest in any Business: North Pocono Bagel, 50 %; Two Timers Cutting & Wheeler Excavating, 100% All Other Financial Interests: None 40. Wheeler, in his official capacity as a Member of the Township Board of Supervisors, received a private pecuniary gain of no less than $12,441.151 as a result of events detailed in the Stipulation of Findings. Wheeler received a minimum financial gain of $1,684.00 through the non - payment of the Township's September 28, 2016, invoice to him for materials, labor, and equipment usage. 1 The sum of the amounts detailed in Fact Findings 40 a -c is $12,441.50. Respondent receives the benefit of the stipulated amount. Bartholomew v. State Ethics Commission, 795 A.2d 1073 (Pa. Cmwlth. 2002). Wheeler, 17 -009 Fa—ge27 b. Wheeler received a minimum financial gain of $1,780.00 through the receipt of material removed from the Township's recycling center project. Wheeler received a minimum financial gain of $8,977.50 through the use of Township equipment and the receipt of road materials delivered to property owned by himself and/or a member of his immediate family. III. DISCUSSION: As a Supervisor for Sterling Township ( "Township "), Wayne County, Pennsylvania, since approximately January 7, 2008, Respondent Melvin Wheeler, also referred to herein as "Respondent," "Respondent Wheeler," and "Wheeler," has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seg. The allegations are that Wheeler violated Sections 1103(a) 1104((x) '1104(d) 1105(b)43), 1105(b }(4 , 1105(b)(5), 1105(b) {8), and 1105(b} 9) of the Ethics Act�(Act 93 of 1998), 65 Pa.C.S. § 1103(a), 1104(a), 1'104(d ), 1105( (3), 1105(b)(4), 1105(b )(5), 1105(b)(8) , and 1105 {9), when as a Township Supervisor, he used the authority of his public position to ob ain a private pecuniary benefit for himself, a member(s) of his immediate family, and/or a business with which he /members of his immediate family is /are associated, when he directed and/or authorized Township employees to utilize Township men, equipment, time, etc. to deliver and /or provide topsoil and/or dirt/fill material(s) obtained from Township projects to him and/or members of his immediate family, resulting in a pecuniary benefit; when he removed and/or converted Township dirt/fill material for his personal use /pecuniary benefit; and when he failed to filelfiled deficient Statements of Financial Interests, namely when he: • failed to identify, report and /or respond to listingg all applicable creditors, sources of income, office /di rectors hiplemployment in any business, and financial interests in any business — concerning his calendar year 2012 Statement of Financial Interests; • failed to identify, report and /or respond to listing all applicable real estate interests, creditors, sources of income, office /directorship /employment in any business, and financial interests in any business — concerning his calendar year 2013 Statement of Financial Interests; • failed to file /timely file a 2014 calendar year Statement of Financial Interests; • and failed to identify, report and/or respond to listing all applicable sources of income, office /directorship /employment in any business, and financial interests in any business — concerning his calendar year 2015 Statement of Financial Interests, as well as misidentifying the filing year. Per the Consent Agreement of the parties, the Investigative Division has exercised its prosecutorial discretion to not ros the allegations under Sections 1104(a), 1104(d), 1105(b)(3), 1105(b)(4), 1105(b)(5), 1105(b)(8), and 1105(b)(9 of the Ethics Act. Based upon the nol pros, we need only address the allegations under Section 1103(a) of the Ethics Act; we need not address the allegations no longer before us. 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: Wheeler, 17 -009 ap g�� § 1103. Restricted activities (a) Conflict of interest. ---No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, an member of his immediate family, or a business with which he or a member of his immediate family is associated. 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. Respondent Wheeler has served as a Township Supervisor since approximately January 7, 2008. The Township Board of Supervisors ( "Board ") consists of three Members. Township records reflect that Wheeler served as the Township's appointed Roadmaster during years 2008, 2009, 2010, and 2011, and as Assistant Roadmaster and Roadmaster during portions of years 2015 and 2016. In a private capacity, Wheeler owns and operates an excavating business hereinafter referred to as "Wheeler Excavating." Wheeler Excavating is currently operated by Wheeler from his private residence, which is located at a property referred to herein as Property 1. Property 1 is situated along a road referred to herein as Road A. Wheeler has owned Property 1 since approximately June 24, 1999. Wheeler's brother, Kenneth ( "Ken ") Wheeler, owns undeveloped land referred to herein as "Property 3" that is situated along Road A and adjoins Property 1. Ken Wheeler has owned Property 3 since approximately October 1, 1999. Ken Wheeler permitted Respondent to utilize Ken Wheeler's property on Road A to store, screen, and process Wheeler, 17 -009 aFage-1-4 soil -like materials. Ken Wheeler was not involved with Wheeler Excavating operations and did not receive any compensation for the use of his property. Since 2012, the Township has employed numerous individuals to perform road maintenance. Individual daily work assignments consisted of directives from Members of the Board and were generally overseen by Respondent, regardless of whether he was then serving as Roadmaster. During the normal course of business, Township employees would memorialize daily work activities on log sheets maintained by the Township Secretary. Employee work togs detail the date, number of hours worked, and a brief description of duties performed. Some of the road projects /maintenance completed resulted in leftover materials, including topsoil, road and berm gradings, and millings. The Township does not have a formal policy regarding the disposal of materials from Township - related projects. In 2014, a site was prepared for construction of a recycling center behind the Township building. Wheeler directed the Township employee preparing the site to excavate an additional three feet in depth from what was initially required for construction. The additional excavation was not necessary for construction; construction specifications required the surface material only to be leveled. At the direction of Wheeler, the material removed from the building site was deposited into piles at the Township complex. None of this material was made available to Township residents. All excavated material from the Township recycling center project was eventually removed by Wheeler for his personal use. Wheeler, in his capacity as a Township Supervisor, made the determination to remove this material without any prior approval or authorization from the Board. The parties have stipulated that Wheeler received a financial gain of at least $1,780.00 through the receipt of material removed from the Township's recycling center project. In 2015, questions were raised by Board Members and Township residents concerning Wheeler's receipt of leftover material from Township road projects. Wheeler continually was removing excess material and stockpiling for his personal business. Wheeler directed Township employees to transport Township material to Property 1 or Property 3. Neither Wheeler nor the Township maintained records detailing the quantity, dates, or hours involved in deliveries of such materials made by Township employees to Property 1 or Property 3. The Board contemplated enacting an ordinance to curtail Wheeler's continued receipt of excess material, and on September 14, 2015, the Township Solicitor was directed by the Board to draft a proposed ordinance regarding the "disposal of any, or all dirt, millings and an other road materials." Fact Finding 12. The motion authorizing the Solicitor to prepare the draft ordinance passed by a 2 -1 Board vote, with Wheeler casting the dissenting vote. By October 2015 the composition of the Board had changed, and at Board meetings held November 9, 2015, and December 14, 2015, Wheeler participated in 2 -1 Board votes to table and ultimately defeat a proposed ordinance that would have made Township officials ineligible to receive any excess road material unless such material was removed from a right -of -way adjoining lands owned by the Township official. Wheeler's actions enabled him to continue to acquire fill material from Township work sites without cost. Wheeler's participation in discussions and votes to defeat the proposed ordinance occurred contemporaneously with his benefitting from the receipt of road materials. The parties have stipulated that the minimum financial gain Wheeler realized through the use of Township equipment and the receipt of road materials delivered to property owned by himself and/or a member of his immediate family was $8,977.50, calculated as the sum of $4,252.50 for the value of the materials plus $4,725.00 for delivery of the materials. Wheeler, 17 -009 PgT6 In addition to the above, during the October 10, 2016, Board meeting, Supervisor Jeff Olsommer provided Wheeler with an invoice dated September 28, 20'16, in the amount of $1,684.00. This invoice accounted for costs associated with Township employees, materials and equipment, which were used on September 28, 2016, for three hours to load, transport, and unload materials at Wheeler's property, all of which occurred during normal Township working hours. To date, Wheeler has refused to pay the invoice. The parties have stipulated that Wheeler, in his official capacity as a Member of the Board, received a private pecuniary gain of no less than $12,441.152 calculated as the sum of: (1) a minimum financial gain of $1,780.00 through the receipt of material removed from the Township's recycling center project; (2) a minimum financial gain of $8,977.50 through the use of Township equipment and the receipt of road materials delivered to property owned b Wheeler and/or a member of his immediate family, and (3) a minimum financial gain of 1,684.00 through the non - payment of the Township's September 28, 2016, invoice for materials, labor, and equipment usage. Having highligghted 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 Wheeler's use of office to direct and use Township employees, equipment, time, etc. to deliver and/or provide topsoil and dirt/fill material(s) obtained from Township projects to himself and members of his immediate family; and when he removed and converted Township dirt/fill material for his personal use. b. That no violation of Sections 1104(a)(d) or 1105(b)(3)�4)(5)(8)(9) of the Public Official and Employee thics ct, 65 Pa.C.S. §§ 1104, 1105 occurred, as the Investigative Division has elected to no longer pursue those allegations as a result of this agreement and due to the fact that Respondent filed accurate amended forms. Wheeler agrees to make payment in the amount of $3,500.00 in settlement of this matter. Wheeler agrees to make a payment of $3,000.00 payable to Sterling Township and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. b. Wheeler agrees to make a payment of $500.00 representing a portion of the costs incurred by 2 See, Note 1, infra. Wheeler, 17 -009 aF'T the Commission in the investigation and enforcement of this matter, which shall be made payable to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. Wheeler agrees to not accept any reimbursement, compensation or other payment from Sterling Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 6. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 2 In considering the Consent Agreement, we agree with the parties' recommendation for a finding of a violation of Section 1103(a) of the Ethics Act. Wheeler used the authority of his public office when he directed a Township employee preparing the site for the Township recycling center to excavate an additional three feet in depth from what was initially required for construction. At the direction of Wheeler, the material removed from the budding site was deposited into piles at the Township complex, and all excavated material from the Township recycling center project was eventually removed by Wheeler for his personal use. Wheeler, in his capacity as a Township Supervisor, made the determination to remove this material without any prior approval or authorization from the Board. The resulting financial gain to Wheeler was at least $1,780.00. Wheeler used the authority of his public office when he continually removed excess material from Township oad projects and stockpiled it for his personal business. Wheeler used the authority of his office when he directed Township employees to transport Township materia to Property 1 or Property 3. Wheeler used the authority of office in 2015 when he took official action to avoid the enactment of a proposed Township ordinance that would have curtailed his continued receipt of such excess material. Wheeler's actions enabled him to continue to acquire fill material from Township work sites without cost. Wheeler's participation in discussions and votes to defeat the proposed ordinance occurred contemporaneously with his benefitting from the receipt of road materials. At a minimum, the resulting financial gain to Wheeler was $8,977.50. In addition to the above, Wheeler used the authority of his public office when, on September 28, 2016, Township employees, materials and equipment were used to load, transport, and unload materials at Wheeler's propperty, all of which occurred during normal Township working hours at a cost to the Township of $1,684.00. To date, Wheeler has refused to pay a �I ownship invoice dated September 28, 2016, in that amount, thereby receiving an additional resulting financial gain in the amount of $1,684.00. The parties have stipulated that Wheeler, in his official capacity as a Member of the Board, received a private pecuniary gain of no less than $12,441.153 calculated as the sum of: (1) a minimum financial gain of $1,780.00 through the receipt of material removed 3 See, Note 1, infra. Wheeler, 17 -009 ai from the Township's recycling center project; (2) a minimum financial gain of $8,977.50 through the use of Township equipment and the receipt of road materials delivered to property owned b Wheeler and/or a member of his immediate family; and (3) a minimum financial gain of 1,684.00 through the non - payment of the Township's September 28, 2016, invoice for materials, labor, and equipment usage. With each element of a violation of Section 1103(a) established, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. 1103(a), occurred in relation to Wheeler's use of office to direct and use Township employees, equipment, time, etc. to deliver and/or provide topsoil and dirt/fill material(s) obtained from Township projects to himself and members of his immediate family; and when he removed and converted Township dirt/fill material for his personal use. As part of the Consent Agreement, Wheeler has agreed to make payment in the amount of $3,000.00 a able to Sterling Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Wheeler has further agreed to make payment to this Commission in the amount of $500.00, representing a portion of the costs incurred by this Commission in the investigation and enforcement of the instant matter, made payable to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. Wheeler has 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. 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, Wheeler is directed to make payment in the amount of $3,000.00 payable to Sterling 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, Wheeler is further directed to make payment to this Commission in the amount of $500.00, representing a portion of the costs incurred by this Commission in the investigation and enforcement of the instant matter, made payable to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this adjudication and Order. Wheeler 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. 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 Sterling Township ("Township "), Wayne County, Pennsylvania, since approximately January 7, 2008, Respondent Melvin Wheeler ( "Wheeler ") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et sew. Wheeler, 17 -009 Page 8 Wheeler violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), in relation to Wheeler's use of office to direct and use Township employees, equipment, time, etc. to deliver and/or provide topsoil and dirt/fill material(s) obtained from Township projects to himself and members of his immediate family; and when he removed and converted Township dirt/fill material for his personal use. In Re: Melvin Wheeler, Respondent File Docket: 17 -009 Date Decided: 4110118 Date Mailed: 4116118 ORDER NO. 1735 1. As a Supervisor for Sterling Township ( "Township "), Wayne County, Pennsylvania, Melvin Wheeler ( "Wheeler ") violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), in relation to Wheeler's use of office to direct and use Township em loyees, equipment, time, etc. to deliver and /or provide topsoil and dirt/fill material s) obtained from Township projects to himself and members of his immediate family; and when he removed and converted Township dirt/fill material for his personal use. 2. Per the Consent Agreement of the parties, Wheeler is directed to make payment in the amount of $3,000.00 payable to Sterling Township and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this Order. 3. Per the Consent Agreement of the parties, Wheeler is further directed to make payment to the Pennsylvania State Ethics Commission in the amount of $500.00, representing a portion of the costs incurred by this Commission in the investigation and enforcement of the instant matter, made payable to the Pennsylvania State Ethics Commission by no later than the thirtieth (30111) day after the mailing date of this Order. 4. Wheeler 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. 5. Compliance with paragraphs 2, 3, and 4 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, a �c o as o a e a, Chair