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HomeMy WebLinkAbout854 CollinsSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Robert N. Collins : File Docket: 87 -108 -C . Date Decided: September 15, 1992 : Date Mailed: September 18, 1992 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was not filed and a hearing was waived. A Consent Order was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a -- public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). Collins, 87 -108 -C Page 2 I. ALLEGATION: That Robert Collins, a Councilman for Linesville Borough, Crawford County, violated the following provisions of the State Ethics Act (Act 170 of 1978) when he participated in borough decisions to require residents to repair sidewalks, subsequently contracted with borough residents to do the repairs and then, as a borough official, inspected his work; and when he contracted with the borough from 1987 through 1991 to perform backhoe work and excavating services without a open and public process; and when he failed to file Statements of Financial Interest for the 1987 and 1989 calendar years: Section 3. Restricted Activities (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than.. compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500.00 or more with a governmental body . 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. Any contract made in violation of this subsection shall be voidable by a Court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. SS403(a), (c). Section 4. Statements of Financial Interest required to be filed., (a) Each public employee employed by the Commonwealth shall file a Statement of Financial Interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1st of Collins 87 -108 -C Page 3 65 P.S.S404 (a). II. FINDINGS: Finding 1 through 17 relate to Allegation A. 1. Robert N. Collins has served as an elected Linesville Borough Council member since January 6, 1986. 2. Collins has served as Chairman of the Borough Sidewalk Committee from 1986 until September, 1991. a. On January 12, 1987, the Sidewalk Committee merged with the Streets Committee to form the Streets and Sidewalk Committee. b. each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a Statement of Financial Interests with the governing authority of the political subdivision by which he is employed no later than May 1st of each year that he holds such a position and of the year after he leaves such a position. 1. Collins continued to serve as Chairman. Members of the Sidewalk & Streets Committee included: 1. 1986 -1987 Robert Collins, Godsave. 2. 1988 -1989 Robert Collins, McGrath. 1. Whenever Council shall order constructed, reconstructed or portion of any street in the Wayne Garlick, Bob Wayne Garlick, Kevin 3. 1990 -1991 Robert Collins, Curt Gee, Robert Hunter. 3. Linesville Borough Ordinance #1985 -239 pertains to the construction, reconstruction or repair and removal of various materials and obstruction from the sidewalks in the borough. a. The effective date of this Ordinance, April 1, 1985, was prior to Collins becoming a council member. (See Finding #1). b. Provisions of the Borough's Sidewalk part: Ordinance include in that a sidewalk be repaired along any borough, and shall c o I 87 -108 -C Page 4 cause written notice to be served upon the persons effected, or posted upon the effected properties, every owner of real estate funding or abutting upon that portion of the street shall be required, within (30) days after receiving notice from Council, to construct, reconstruct or repair the sidewalk, as the case may be. The sidewalk shall be constructed, reconstructed or repaired according to specifications adopted by the Council and in force at the time of the work, it shall conform to the proper grade and line, and crosswalk markings whenever applicable. It is the obligation of the property owner to maintain their mowing strips. 2. All repairs, reconstruction, or removal of existing sidewalks shall be subject to supervision and approval of the borough council or it's authorized agent or representative. 3. All new and reconstructed sidewalks shall have curb cut ramps accessible to and usable by the handicapped where ever applicable. 4. Any property owner who fails, neglects or refuses to comply with any provision of this section or with any notice given by authority of it, within the required time limit, the borough shall have authority to construct, reconstruct or repair the sidewalk, as the case may be, or to complete, any work not completed or rectify any work not in conformity with the requirements of this section or the notice, and to collect the cost of the labor and materials, with an additional amount of ten percent (10 %), plus interest at the maximum rate approved for municipal claims, from the property owner in default, by filing a municipal lien against the effected property or in any manner provided by law for the collection of municipal claims. 4. On March 2, 1987, Section 2 (a) of the Borough Sidewalk Ordinance, 1985 -239 was amended changing the compliance time from 30 days to 120 days after Council notification. 5. Responsibilities for members of the Sidewalk Committee include: a. An annual spring inspection of the borough sidewalks. b. A subsequent Report of Findings to council with recommendations. Collins, 87 -108 -C Page 5 c. Reinspection for Ordinance after Council. 6. Recommendations by the 78 sidewalk notices to a. 1987 - 32 notices b. 1988 - 15 notices c. 1989 - 13 notices d. 1990 - 3 notices, a. March 2, 1987: compliance with the Borough Sidewalk written notification is given from Sidewalk Committee to Council prompted be sent out between 1987 and 1991. , Penn Street area. , Penn Street /Mercer Street area. , Mercer Street /Erie Street area. commercial properties Erie Street e. 1991 - 15 notices, Church /Erie /Mercer Streets. 7. Robert N. Collins is a contractor by trade. a. Collins owns and operates a business known as Robert N. Collins Builder, 146 N. Church Street, Linesville, PA 16424. b. Collins was in the contracting business the entire time he served on Council. 8. Robert N. Collins is not the only contractor in the Linesville area. Others include: a. David Oskin b. Bruce tiering c. Red Denmark 9. Minutes of the Linesville Borough Council meetings reflect the following discussion and action taken regarding the sidewalks on the Penn Street section of town. "A motion was made by Bob Collins to send Sidewalk Repair Notices to property owners on both sides of Penn Street, starting at the Little League Field on the South Side, going up to (the) Watsons (residence) and starting at the Sherretts Building on the North Side going up to Klines. Notices will be sent out March 15th, giving the property owners 120 days to repair. If they do not repair the sidewalk, then the borough will replace it, and put a lien against the owner's property. Notices will be sent out to others that have not complied in the past, Wayne Colli{, 87 -108 -C Page 6 Garlick seconded, and all council members present voted yes, except Byron Wheeler, motion carried." "Bob Collins asked the Solicitor if there would be any problem in changing the thirty days to 120 days in the Sidewalk Ordinance for the repair of the sidewalks. David Hotchkiss did not see any problem with this." Present: Mayor: Absent: Collins, Garlick, Godsave, Noble, Wheeler, Jost Kimple Kennedy b. April 6, 1987: "Five citizens living on Penn Street which all received sidewalk notices came with concerns about the sidewalk repair. Ed Kline stated his sidewalk was smooth with no cracks and was two inches above the curb. He didn't feel it was necessary to replace the sidewalk. Ed stated he could put a handicapped ramp in on the East side next to Provost. Ed also stated he didn't go along with these specifications because they were not a part of the ordinance. PennDOT specifications called for 8" above the curb. Byron Wheeler stated the council had the power to change and update the specifications. Bob Collins said the specifications that were sent out coincided with PennDOT specifications. Bob Collins told Ed Kline it wouldn't be fair to his neighbors if they replaced their sidewalks and Ed didn't and his would not match up. Jack Sindlinger said he knew his sidewalk was in bad need of being replaced and he would be more than willing to, after the ditch that ran between the sidewalk and the street was taken care of. Jack wanted to know what would hold the sidewalk up. Bob Collins said he had contacted PennDOT about taking care of the ditch. Bob said you can't get PennDOT out here in one day's time. Bob told the concerned citizens to contact him just before they were ready-to repair the sidewalks and he would be out to resolve the ditch problem. Bob said he felt having only five citizens come and complain out of thirty notices was a good percentage. Bob said most of the people he talked to were more than willing to work together on this. The citizens wanted to know why Penn Street was singled out. Bob Collins said because it was a main thoroughfare in town. Jack Sindlinger wanted to know why some of the newer homes did not have sidewalks in front on them. Citizens asked why some of the others on Penn Street did not get notices. Bob Collins explained that the Sidewalk Collins, 87 -108 -C Page 7 Committee would be sending out notices to anyone that had been involved in a project before and did not repair their walks. He also said they were going to send notices to residents who will have to have their sidewalks replaced next year. This will give the citizens more time to prepare for replacing their sidewalks. Bob said the council will be deciding tonight whether to send notices to the others on Penn Street. Jack Sindlinger wanted to know who would be doing the sidewalks for the borough if someone did not replace their own. Bob Collins said the borough would probably seeks bids and charge 10% over cost. Anyone who doesn't pay for the cost would have a lien put against their property. Mr. Gregg wanted to know why using wire mesh was necessary. He felt it was costly. Bob Collins told him that these sidewalks were intended to last 20 to 30 years. Bob said the wire mesh keeps the sidewalk from cracking and prevents one slab upheaving by itself. The slabs will also stay at the same level. Mr. Mitchell complained about heavy trucks driving on the sidewalk. Council suggested notifying these businesses and asking them to stay off the sidewalks." Bob Collins said Bietz, Whites, Harshaws, Furmans, and the Linesville Municipal Authority have not been issued Sidewalk Notices. These places do not have sidewalks in front of them at the present time. Bob wanted to know how the other members felt about sending these residents notices to put sidewalks in. A motion was made by Ralph Kennedy to (send) Bietz, Whites, and Harshaws notices to have sidewalks put in. Mary Noble seconded (the motion) and all council members present voted yes, except Byron Wheeler, the motion carried. Byron Wheeler was concerned about the cost of the fill for the sidewalks. He said 125 loads would cost $6,000.00. Bob Collins didn't agree with that figure and said he would get a quote on fill. Then members discussed what type of fill should be used. Byron Wheeler suggested getting bids for this amount of fill and asked the Solicitor if he agreed. The Solicitor said to be on the safe side, he would treat this (as) a project and seek bids. Present: Garlick, Collins, Noble, Wheeler, Kennedy Mayor: Kimple Absent: Godsave, Jost c. May 4, 1987: Collins, 87 -108 -C Page 8 "Ed Kline asked council why it wasn't in last month's minutes (that) the Solicitors opinion was that the sidewalk notices could be taken to court and beat. The secretary said it was not in the minutes (because) it (did) not pertain to any motion and was only an opinion. The tape of the meeting is available." "Dave Corey came to question the council on sidewalk matters. Mr. Corey had copies of outdated ordinances on sidewalks. He also had the Sidewalk Ordinance that (was) up to date. Dave Corey wanted to know how council could wipe away sections of past ordinances." 10. During the spring and summer months of 1988, Collins contracted with several Penn Street residents for the installation of sidewalks. a. Contractual Agreements were reached after Notification Letters were sent to residents. b. Collins was requested by residents to install sidewalks while installing ones for his family members on Penn Street. 11. Collins is known to have installed sidewalks for Penn Street residents: Robert Grimes b. Patricia Powers c. Edward Kline d. Henry Gregg e. Eugene Gillette f. William Medor a. 12. There is no indication that Collins coerced anyone to utilize his services. 13. In addition to the sidewalks Collins personally installed, he provided price quotes for repair work at: a. The Linesville Presbyterian Church. b. A property owned by James Schwartz, 574 Penn Street. 14. Sidewalks were installed at a pre - determined price per running Collins, 87 -108 -C Page 9 foot. a. Some properties also involved landscaping work. 15. Residents had their choice of contractors. a. Residents could install their own they met borough specifications. b. No lists of contractors were Notification Letter. sidewalks, provided provided with the 16. As a member of the Borough Sidewalk Committee (Finding #2), Collins was responsible for reinspecting properties which receive sidewalk repair notices. a. Collins inspected and reinspected sidewalks installed by him as listed in Finding (12) for compliance with the Borough's Sidewalk Ordinance. 17. Collins was the only member of the Borough's Sidewalk Committee with the technical knowledge to set specifications and install sidewalks. a. No engineer was ever consulted. b. The Borough Solicitor's sole involvement with the sidewalks was regarding the legality of the borough's ordinance. Finding 18 through 29 relate to Allegation B. Finding 1 through 17 are incorporated by reference. 18. Financial records of Linesville Borough include invoices from Robert Collins /Robert Collins Builder to the borough. a. Invoice date - October 2, 1986, in the amount of $475.00. This invoice is missing from borough records. b. Invoice date - April 27, 1987, in the amount of $50.00, for backhoe work, on the fire hydrant, behind the post office. c. Invoice date - April 27, 1987, in the amount of $179.14, for a 1/2" drive Milwaukee drill. A notation on the invoice states, "on sale at discount," with a retail price listed as $204.35. d. Invoice date - September 1, 1987, in the amount of $86.40. Invoiced items are listed as clay bricks at $ .12 Collins, 87 -108 -C Page 10 g- i each. e. Invoice date - September 1, 1987, in the amount of $26.24, for 4 1/2 cubic yards of 3500 PSI concrete for a sidewalk at the Brubaker residence. f. Invoice date - May 1, 1989, in the amount of $223.50. Billings listed as $277.50, with a notation, less personal donation of $54.00, for a total of $223.50. Invoice date - May 1, 1989, in the amount of $275.53, for materials. h. Invoice date - June 4, 1989, in the amount of $1,996.35. A break down is $650.00 for Bruce tiering; labor on the Erie Street Reservoir and $1,346.35 to Douglas Lumber for materials. A notation on the invoice states that the above were paid by Robert Collins in order to receive (his) discounts. i. Invoice date - February 27, 1990, in the amount of $931.20. A notation on the invoice indicates that windows were purchased at net cost, as per attached invoice. Attached to the invoice is a billing from R & S Metals Company, P. 0. Box 725, Clarion, PA 16214 to Robert Collins Construction, 146 North Church Street, Linesville, PA. This invoice indicates a 20% discount for a net cost to Collins of $931.20. The list price for these windows was $1,164.00. . Invoice date - May 5, 1990, in the amount of $1,094.93. Items invoiced included window trim, electrical supplies and lumber. Attached to this invoice is billings to Collins from the Douglas Company, the Hite Company, Meadville, R & S Metals Company, and an itemized list of materials used by Collins. k. Invoice date - May 4, 1990, in the amount of $113.00. Items invoiced consist of electrical supplies at various prices. 1. Invoice date - May 3, 1991, in the amount of $460.16. Items invoiced included, miscellaneous electrical fittings, a window lock and a fire proof filing cabinet for $300.00. This fire proof cabinet came from a bank building that Collins purchased. No bids were obtained by the borough for it. 19. Robert N. Collins business records include invoices for Collins, 87 -108 -C Page 11 supplies that Collins furnished the borough, but did not submit to the borough when invoicing the borough. a. Collin's invoice dated May 1, 1989, in the amount of $223.50 for an office water heater. Affixed to Collins invoice is a parts list statement from Kightlinger Supply, RD #1, Box 64A, Espyville, PA 16424, 412 927 -6515, dated 3/24/89, in the amount $20.47 for plumbing hardware. Invoice dated 3/23/89, from R. E. Mitchel Company, P. 0. Box 2318, Baltimore, Maryland 21203; Meadville Store, 177 Mercer Street, Meadville, PA 16335, 814 724 -8046, $108.12 for a water heater, and a statement dated April 27, 1989, on Robert N. Collins Builder letterhead, listing materials furnished from stock for the installation of an office water heater, $94.91. Items listed include electric materials and plumbing materials. Total parts cost: $222..75. Collins invoiced the borough $223.50 for a profit of $.75. b. Collin's invoice dated 5/1/89 in the amount of $275.53 for materials supplied for the park lighting. Invoices to Collins include a $35.00 charge for an electrical inspection on April 26, 1989, and invoices from the Rite Company, 138 Baldwin Street, Meadville, PA 16335, 814 336 -2071. Items on the invoice contain various wires, solder, electrical equipment and connectors for a total price of $212.85. Invoice dated April 11, 1989, from the Hite Company, 138 Baldwin Street, Meadville, PA 16335, 814 336 -2071 to Robert Collins for electrical accessories, $27.68. Total materials, $275.53. Collins invoiced the borough $275.53. Collins performed this work at his cost for the borough. c. Collin's invoice dated April 27, 1987, for a drill, the retail price is listed as $204.35. Collins charged the borough $179.14. An invoice from Venango Plumbing & Supply Incorporated to Robert Collins, dated 4/13/87, in the amount of $355.04. Of that is a $169.00 charge for a Milwaukee drill. The additional charge on the drill was for sales tax bringing the total to $179.14, which Collins invoiced the borough. d. Collin's invoice dated 6/4/89 in the amount of $1996.35 for repairs to the reservoir. $650.00 is listed a Colj,ins, 87 -108 -C Page 12 subcontractor charge to Bruce L. Giering while the remainder ($1,346.35) was from Douglas Lumber for materials. An invoice was included Bruce Giering Contractor, Linesville, PA 814 683 -5063. Invoice dated 5/19/89 in the amount of $650.00. The invoice indicated supply "labor only on water building" with a notation paid by Bob Collins, 5/15/89. The Douglas Company, 161 East Jefferson St., Jefferson, Ohio 44047, 216 - 576 -3010 Invoice dated 5/28/89 in the amount of $78.65 for seven (7) 4 x 8 x 1" blue dow boards. Invoice dated 5/28/89 in the amount of $1505.78 for nails, and lumber. A handwritten notation on this slip indicated Pd. check #520 6/6/89, $1346.35. This was the amount Collins invoiced Linesville Borough for, for the projects lumber. Douglas Company invoice dated 5/31/89 indicating a credit on tax charge of $85.23, for tax charged on their 5/28/89 invoice in the amount of $1505.78. 20. Financial records of Linesville Borough include payments to Robert N. Collins from " "their Public Utility System fund, maintained at Penn Bank, 201 Erie Street, Linesville, PA 16424; account #939722. Check 1886 drill 2051 2836 2890 21. Financial records of Linesville Borough include payments to Robert Collins from their General Fund Account maintained at Penn Bank, 201 Erie Street, Linesville, PA 16424; Account #000 -111. Check # 6039 6417 6478 Date Amount 5/5/87 $ 139.57 9/15/87 112.64 5/2/89 111.75 6/19/89 1196.35 Date 5/2/89 3/6/90 5/8/90 Amount $ 387.28 931.20 1094.93 Reason 4/27 billing, 9/1/87 bills 1/2 water heater Not listed Reason Not listed Not listed Office material Collins, 87 -108 -C Page 13 22. Linesville Borough records do not include any bid records for the items listed in Finding #19. a. No open or public process was followed for those items. b. Invoices provided by Collins to the borough indicate he provided materials at a discounted rate or his cost. 23. Robert Collins did not make a profit on the items purchased for borough projects or for the work performed thereon. 24. Collins participated in voting on bill lists which contain payments to himself and /or Robert N. Collins Builder six times between January, 1986 and July, 1991. a. Bill lists are voted on in their entirety. b. Votes generally pass unanimously with no abstentions noted on Collins part. 25. Collins voting practices as reference in Finding #24 are as follows: a. October 6, 1986: "A motion was made by Mary Noble to approve all checks written from the General Fund for September, 1986, and to pay all current bills due from the General Fund for October, 1986. Bob Godsave second it, all council members present voted yes and the motion carried." "A motion was made by Bob Godsave to approve all checks written from Federal Revenue Sharing Fund for September, 1986, and to pay all current bills due from the Federal Revenue Sharing Fund for October, 1986. Mary Noble seconded it, and all council members present voted yes." Present: Collins, Godsave, Garlick, Noble, Wheeler Mayor: Kimple Absent: Jost, Kennedy The bill list for October 6, 1986, includes two payments to Collins. Payments included $19.00 from the General Fund and $456.00 from the Federal Revenue Sharing Fund. b. May 4, 1987: "A motion was made by Ralph Kennedy to approve all checks written from the General Fund for April, 1987, (with the) except(ion) of check #5038 to Stan Jacobs. Byron Wheeler seconded it and all council members present voted yes. Collins,, 87 -108 -C Page 14 Present: Collins, Garlick, Godsave, Noble, Kennedy, Wheeler Mayor: Kimple The May, 1987 bill list contains an $89.57 payment to Robert Collins for 1/2" drill. c. September 14, 1987: "A motion was made by Mary Noble to approve all checks written from the Public Utility Fund for August, 1987, and to pay all current bills due from the Public Utility Fund for September, 1987." "Byron Wheeler questioned the payment to Robert Collins for bricks, and Lou Jost for reimbursement (of) water line work. After (some) discussion, Byron Wheeler made an amended motion to pay the public utility bills, noting (that) if the borough moves a property owner's curb box to the inside of the sidewalk, the property owner has the option of getting his water line to the house replaced at $1.00 per foot. Bob Godsave seconded it, all council members present voted yes, and the motion carried." Present: Collins, Garlick, Godsave, Noble, Wheeler, Jost Mayor: Kimple The September, 1987 bill list contained a $112.64 payment to Robert N. Collins with a notation next to it, brick, concrete. d. July 10, 1989: "A motion was made by Wayne Garlick and seconded by Kevin McGrath to approve all bills due from (the) General Fund, Public Utility and Highway Aide (Funds) for July and to approve all checks written (from) the funds needing approved for June, 1989. A verbal vote was taken, all present voted yes with the exception of Byron Wheeler who voted no. Motion carried." Present: Mayor: Collins, Gee, Garlick, Hunter, McGrath, Wheeler, Jost Noble The June, 1989 Public Utility Fund included check no. 2890 in the amount of $1,996.35 to Robert Collins for the Erie Street Reservoir Roof. Collins,, 87 -108 -C Page 15 e. March 5, 1990: "A motion was made by Lou Jost and seconded by Bob Hunter to pay all bills due (from) the General Fund, Highway Aide and Public Utility (funds) for the month of March and to approve all checks written from the funds needing approval. A verbal vote was taken, all present voted yes and the motion carried." Present: Collins, Garlick, Gee, Hunter, Jost, Wheeler, McGrath Mayor: Noble The March, 1990 bill list contained a $931.20 reimbursement to Robert Collins for windows. f. May 6, 1991: "A motion was made by Curt Gee, seconded by Carl Gulden to approve..(all) the checks written and to approve for payment all bills due the General Fund, Public Utility and Highway Aide for May. A verbal vote was taken, all present voted yes. The motion carried." Present: Collins, Gee, Gulden, Jost, Wheeler Mayor: Noble Absent: Hunter, Garlick The May, 1991 bill list contained a $460:16 payment to Robert Collins Construction for office material. 26. Meeting minutes of the Linesville Borough Council include a discussion regarding Collins performing work for the borough while serving as a council member. Meeting minutes from the borough's October 6, 1986, meeting, reflect Collin's addressing council and Solicitor David Hotchkiss, Esq., advice. Minutes of October 6, 1986 state in part: "Bob Collins reported that the Municipal Authority had put out the bids for the replacement of the Erie Street Reservoir, and bids will be opened October 14th, at the next Municipal Authority meeting. Bob had gone to the Municipal Authority Meeting when the engineer brought the blue prints and gave suggestions on the construction of the reservoir. Bob Collins asked the solicitor if there was any reason why he couldn't bid on the reservoir project. The solicitor read from the Borough Code Book and stated that no borough official can be directly or indirectly involved in any contract or money expenditure with the borough. The borough is contributing Collins,, 87 -108 -C Page 16 $17,000.00 to the project." Present: Collins, Godsave, Garlick, Noble, Wheeler Mayor: Kimple Absent: Jost and Kennedy a. Collins did not bid on this project. He volunteered labor and materials to expedite the projects completion preventing a borough water emergency. 27. After being made aware of the contracting .provision of the Borough Code, Collins continued to have business dealings with the borough. 28. Minutes of the Linesville Borough Council meeting reflect Robert Collins volunteering his services to save the borough money. These are in addition to items Collins provided at cost, referenced in Finding #19 and 20. a. June 2, 1986 Collins offered to use his services and equipment for the sidewalk replacement at Triangle Park. b. February 2, 1987. Collins offered to get a better deal for the borough on a police cruiser. Collins believed that he could get a better price for the borough than they could purchase the vehicle from the state. By March 2, 1987, Collins reports back to Council that he could not get a better price. c. April 6,1987 Collins offered to take care of a ditch problem that arose over a dispute between PennDOT and a borough resident. Finding #29 through 31 relate to Allegation C. 29. Statements of Financial Interests on file with Linesville Borough include the following filings by Collins: a. Calendar year 1990: Filed: 3/3/91 on SEC Form 1/90 Position: Borough Councilman Real Estate Interest: $1,250,000.00 Creditors: Penn Bank, variable rate; Marquette Savings 9.5 %; Colonial Savings Bank; Collins, 87 -108 -C Page 17 9.25% Direct /Indirect Income: Rental Income; Social Security Office /Directorship in any Business: Robert Collins Rentals; Robert Collins Builder Financial Interest in any Business: None All other Financial Interest: None 1. Collins failed to list his financial interest in Robert Collins Rental or Robert Collins Builders. 2. Collins lists real estate interest as $1,250,000.00 worth. It is believed that this is his total real estate worth not real estate transferred to the Commonwealth of Pennsylvania. Collins does rent several post offices to the Federal Government in Northwestern Pennsylvania. 3. Collins failed to list income from Robert N. Collins Builder. b. Calendar Year 1989: No statement on file c. Calendar Year 1988: Filed January 8, 1989 on SEC Form 1/89 Position: Borough councilman Creditors: Colonial Savings Bank, 9.15 %; Marquette Savings, 9.25% Income: Robert Collins Builder, Robert Collins Rental Office /Directorship: Robert Collins Builder Financial Interest in Business: Robert Collins Builder 1. Collins lists this information as being for the calendar year January through December, 1989, but this form was dated January 8, 1989 as such the form must relate to 1988. d. Calendar Year 1988: Filed: May 22, 1989 on SEC Form 1/89 Position: Borough Councilman Creditors: Colonial Savings Bank, 8.75 %; Marquette Savings Association, 9.25 %. Direct /Indirect Income: Robert Collins Builder, Robert Collins Lease and Rental Property. Office /Directorship in any business: None Financial Interest in any business: Robert N. Collins, Builder Cgllin3 87 -108 -C Page 18 e. Calendar Year 1987: No statement on file f. Calendar Year 1986: Filed: April 21, 1987 Position: Councilman Creditors: Penn Bank, 2% over prime; Marquette Savings Association, 9 %; Colonial Savings Bank, 9% Direct /Indirect Income: Robert Collins Builder; Robert Collins Rental Office /Directorship in any business: R. N. Collins Builders; R. N. Collins Rentals Financial Interest in any Business: None 30. On March 24, 1992, Collins forwarded the following Statements of Financial Interest to the Ethics Commission: a. Calendar year: 1990 Filed: 4/11/90 on SEC Form 1/92 Real Estate Interests: $1,250,000.00 Creditors: Marquette Savings, Erie, 9.25 %; Colonial Savings Bank, Wexford, 9.25% Direct /Indirect Income: Rental income from various properties all located in Northwest Pennsylvania; Social Security Office Directorship in any business: Robert N. Collins Rentals; Owner and CEO; Robert N. Collins Builder Owner & CEO. All other Financial Interests: None 1. This form is dated 4/11/90 on SEC Form 1/92. Said form, however, could not have been filed on that date in that the form was not available for circulation until January of 1992, and he dated it April 11, 1990. Also, on the form is a notation stating, filed with County Election Board. b. Calendar year: 1988 Filed: 5/22/88 on SEC Form 1/89 Real Estate Interests: None Creditors: Colonial Savings Bank, Erie, 8.75 %; Marquette Savings, Meadville 9.25% Direct /Indirect Income: Robert N. Collins Builder; Robert N. Collins Lease & Rental Properties Financial Interest in any business: Robert N. Collins, Builder All other financial interest: None tolling, 87 -108 -C Page 19 1. This form is a copy of a previously filed form (See Finding 29 (d). However, one change has been made thereafter. The original form had the number 9 in the last digit of the year. The bottom half of the 9 on the resubmitted form is filled in with blue ink changing it to an 8. The result is to change the filing date to May 22, 1988. 31. Discrepancies noted on Statements of Financial Interests forms submitted by Collins include: a. Calendar year: 1990 (Finding 29 (a). Filed March 3, 1991 on SEC Form 1/90. 1. $1,250,000.00 listed as real estate interests. (No other specifics provided) 2. Failure to list complete sources of income from rental properties. 3. Failure to list his financial interest in Robert Collins Builder and Robert Collins Rental. b. Calendar year 1990 Filed: April 11, 1990 on SEC Form 1/92 1. This form was backdated given that the form was not available until January, 1992. 2. Listing real estate interests of $1,250,000.00 (no other specifics provided) 3. Failure to list specific sources of income from rental properties. 4. Failure to list his financial interest in Robert N. Collins Rentals and Robert N. Collins Builder. c. Calendar year: 1989 (Finding 29 (c) Filed: January 8, 1989 on SEC Form 1/89 1. Direct and indirect income: Failure to list specific sources of income from rental properties. 2. Office directorship and employment: Failure to list Robert Collins Rentals. 3. Financial Interest in any business: Failure to list Robert N. Collins Rentals. d. Calendar year: 1988 (Finding 29 d); 30 (b) Collins, 87 -108 -C Page 20 e . f. As a Robert N. that term $1.1. As Ethics Act Filed: May 22, 1988 on SEC Form 1/89 1. Collins failed to list specific sources of income from rental properties. 2. Collins failed to list his office /directorship in Robert N. Collins Builder and Robert N. Collins Rental. 3. Collins failed to list his financial interest in Robert N. Collins Rental. Calendar year: 1986 (Finding 29 (f). Filed: April 21, 1987 on SEC Form 1/87 1. Collins failed to list specific sources of income from rental properties. 2. Collins failed to list his financial interest in Robert N. Collins Builder and Robert N. Collins Rentals. There are no statements on file with the borough for Filing year 1988 (Re 1987 interests) Filing year 1990 (Re 1989 interests) 1. There is a 1990 form that was provided to the SEC by Robert Collins which was purportedly filed with the county board of elections (See Findings 30(a)I 31 (b) DISCUSSION: Councilman for Linesville Borough, Crawford County, Collins, hereinafter Collins, is a public official as is defined in the Ethics Act, 65 P.S. S402; 51 Pa. Code such, his conduct is subject to the provisions of the and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of 1989, P.L. 26, provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements June 26, Collins, 87 -108 -C Page 21 of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). In addition, Section 3(c) of Act 170 of 1978 specifically provides in part that no public official or member of his immediate family or business with which he or a member of his immediate family is a director, officer, owner or holder of stock exceeding five percent of the equity at fair market value may enter into a contract with his governmental body valued at five hundred dollars or more unless the contract is awarded through an open and public process. Section 4(a) of the Ethics Act quoted above requires that each public employee and each public official (Kremer v. State Ethics Commission, 56 Pa. Commw. 160, 424 A.2d 968 (1981)) must file a Statement of Financial Interests for the preceding calendar year of the year in which he is employed or served and for the year after he leaves such position. The issue before us is whether Collins violated Sections 3(a), 3(c) and 4(a) of Act 170 of 1978: regarding his involvement in borough decisions for residents to repair sidewalks and his contracting with residents to do sidewalk work followed by his inspection of that work as a borough official; regarding contracting with the borough from 1987 through 1989 as to backhoe work and excavation services without an open and public process and for failing to file Statements of Financial Interests (SFI) for the 1987 and 1989 calendar years. Collins has served as a member of Linesville Borough Council from January 6, 1986, and also as Chairman of the Borough Sidewalk Committee which was merged with the Streets Committee. Linesville Collins 87 -108 -C Page 22 Borough has an ordinance, No. 1985 -239, which provides in part that the Borough may direct an owner of real estate to either install or repair a sidewalk and, if there is a failure to comply, the Borough may take action to do the work and assess the costs against the real estate owner by collection or the filing of a municipal lien. The members of the Sidewalk Committee had duties and responsibilities of performing an annual spring inspection of Borough sidewalks, preparing a findings report with recommendations to Council and lastly re- inspecting for compliance after written notification is issued to the property owner. From 1987 to 1991 there were seventy -eight sidewalk notices issued by the Borough as a result of recommendations from the Sidewalk Committee. As a member of Council, Collins did participate in the process of issuing Sidewalk Repair Notices to certain owners of property. (Fact Finding 9). Although Collins was a contractor by trade and did install sidewalks for several Borough residents, there is no evidence to indicate that Collins coerced anyone to utilize his services. (Fact Findings 7, 12). Collins, as a member of the Sidewalk Committee, did inspect sidewalks, including those that he personally installed, but he was the only member of the Committee with the technical knowledge as to sidewalk specifications and installations. (Fact Findings 13, 16, 17). However, residents had their choice of contractors since no lists of contractors were provided when notice letters were sent. (Fact Finding 15). In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the facts of record, we find no violation of Section 3(a) because there is no evidence to establish that Collins used public office to obtain a financial gain for himself as to sidewalk installations. Although it is true that Collins did do sidewalk installations, such action was taken by him in a private capacity and not as a public official. Thus, since the requisite use of public office is absent in this case, we must find no violation as to the first allegation. As to the second allegation involving Section 3(c) of Act 170 of 1978, the contracting provision, we do note that Collins performed various services for the Borough which are enumerated in Fact Findings 19 and 20. The Borough records reflect that the items, listed in Fact Finding 19, were not put out on bid. (Fact Finding 22). However, Collins did not make a profit on the materials purchased for Borough projects or for the work performed on these projects. (Fact Finding 23). Further, although Collins did participate by voting in favor of motions to pay bill lists which included payments to himself as to six items, bill lists were voted as a group in their entirety by Council and votes were recorded as passing unanimously with no abstentions. (Fact Finding 24). Collins, 87 -108 -C Page 23 As to the 3(c) allegation, we find no violation for the reason that the operative facts do not meet the requisite elements of a Section 3(c) violation or do not relate to the allegation. In this regard, we note that many of the services performed do not relate to the specific allegation that Collins contracted to perform backhoe work and excavation services without an open and public process. To the extent that such activities are beyond the scope of the allegation, we therefore find no violation as to such services. In addition, as to the services that did relate to backhoe /excavation work, the contracts were under the $500 threshold limit of Section 3(a). Parenthetically, we also note that Collins was performing activities at cost with no profit or gain to himself. Therefore, since the activities Collins performed were either beyond the ambit of the allegation or did not meet the requisite elements as to Section 3(c), we find no violation of the second allegation. As to the third and final allegation that Collins violated Section 4(a) of Act 170 of 1978 regarding the SFI filing requirements, we find a technical violation in this case in light of the fact that Collins did not file SFI's for the 1987 and 1989 calendar years although there is a 1989 calendar year SFI which was apparently filed with the County Board of Elections. Collins is directed to file SFI's for the 1987 and 1989 calendar years. The Findings reflect certain deficiencies by Collins as to other calendar year SFI's which he filed which deficiencies are enumerated in Fact Finding 31. Accordingly, Collins is directed within thirty days of issuance of this Order to not only file the 1987 and 1989 calendar year SFI's but also file amended SFI's to correct the deficiencies set forth in Fact Finding 31 of this Order. IV. CONCLUSIONS OF LAW: 1. Robert N. Collins as a Member of the Linesville Borough Council and Chairman of the Borough Street Committee is a public official subject to the provisions of Act 170 of 1978. 2. Collins did not violate Section 3(a) of Act 170 of 1978 regarding installing sidewalks for Borough residents in a private capacity since there was no use of public office on his part to obtain a financial gain for himself. 3. Collins did not violate Section 3(c) of Act 170 of 1978 regarding performing backhoe /excavation services for the Borough in that the services performed were less than the $500 requirement for an open and public process or did not relate to matters within the allegation. 4. A technical violation of Section 4(a) of Act 170 of 1978 occurred when Collins failed to file Statements of Financial Interests for the calendar years 1987 and 1989. In re: Robert N. Collins : File Docket: 87 -108 -C Date Decided: September 15, 1992 . Date Mailed: September 18, 1222 ORDER NO. 854 1. Robert N. Collins as a Member of the Linesville Borough Council and Chairman of the Borough. Street Committee did not violate Section 3(a) of Act 170 of 1978 regarding installing sidewalks for Borough residents in a private capacity since there was no use of public office on his part to obtain a financial gain for himself. 2. Collins did not violate Section 3(c) of Act 170 of 1978 regarding performing backhoe /excavation services for the Borough in that the services performed were less than the $500 requirement for an open and public process or did not relate to matters within the allegation. 3. A technical violation of Section 4(a) of Act 170 of 1978 occurred when Collins failed to file Statements of Financial Interests for the calendar years 1987 and 1989. 4. Collins is directed within thirty (30) days of issuance of this Order to file Statements of Financial Interests for the 1987 and 1989 calendar years as well as file amended Statements of Financial Interests correcting the deficiencies noted in Fact Finding 31. Failure to comply with the provisions of Paragraph 4 of this Order will result in a directive of this Commission to institute an order enforcement action. BY THE COMMISSION, ifrsw /� JAMES M. HOWL R