HomeMy WebLinkAbout842 VandervekenSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
In Re: Sanford F. Vanderveken : File Docket : 91- 055 -C2
: Date Decided: April 23, 1992
: Date Mailed : April 27, 1992
Before: Dennis C. Harrington, Chair
James M. Howley, Vice Chair
Daneen E. Reese
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, Act 9 of 1989, 65 P.S.
401 et. seq. 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
S2.38.
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. 408(h) 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).
Sanford F. Vanderveken
April 27, 1992
Page 2
I. ALLEGATION:
That Sanford F. Vanderveken, a member of the Lake Winola
Municipal Authority, violated the following provisions of the State
Ethics Act (Act 9 of 1989), when he contracted with the Authority
to repair pumps, at a total cost of over $500.00, without an open
and public process, including prior public notice and subsequent
public disclosure of all proposals and contracts awarded.
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
Section 3. Restricted Activities,.
(f) No public official or public
employee or his spouse or child or any
business in which the person or his spouse or
child is associated shall enter into any
contract valued at $500 or more with the
governmental body with which the public
official or public employee is associated or
any subcontract valued at $500 or more with
any person who has been awarded a contract
with the governmental body with which the
public official or public employee is
associated, unless the contract has been
awarded through an open and public process,
including prior public notice and subsequent
public disclosure of all proposals considered
and contracts awarded. In such a case, the
public official or public employee shall not
have any supervisory or overall responsibility
for the implementation or administration of
the contract. Any contract or subcontract
made in violation of this subsection shall be
voidable by a court of competent jurisdiction
if the suit is commenced within 90 days of the
making of the contract or subcontract.
Section 4. Statements of Financial Interests
required to be filed.
(a) Each public official of the
Commonwealth shall file a statement of
financial interests for the preceding calendar
year with the Commission no later than May 1
Sanford F. Vanderveken
April 27, 1992
Page 3
of each year that he holds such a position and
of the year after he leaves such a position.
Each public employee and public official of
the Commonwealth shall file a statement of
financial interests for the preceding calendar
year with the department, agency, body or
bureau in which he is employed or to which he
is appointed or elected no later than May 1 of
each year that he holds such a position and of
the year after he leaves such a position. Any
other public employee or public official shall
file a statement of financial interests with
the governing authority of the political
subdivision by which he is employed or within
which he is appointed or elected no later than
May 1 of each year he holds such a position
and of the year after he leaves such a
position. Persons who are full -time or part -
time solicitors for political subdivisions are
required to file under this section.
65 P.S. SS403(a),(f); 5404(a)
II. FINDINGS:
1. Sanford F. Vanderveken, Sr. is a member of the Lake Winola
Municipal Authority.
a. He has been an Authority Member for approximately 15
years, serving while the Authority was in the planning
and financing stages.
b. The Authority has been in operation for approximately 3
years.
2. Authority members are appointed to five (5) year terms by the
Overfield Township Board of Supervisors and are not paid for
their services.
3. The Authority Board is comprised of 5 members who oversee the
operation of the sewer system, for the Lake Winola community,
by hiring and supervising employees or contracting work out to
private firms.
4. The Authority has approximately 490 houses connected to the
sewer system with each home having a pump that cuts the waste
and sends it through a closed system to the sewerage treatment
plant.
Sanford F. Vanderveken
April 27, 1992
Page 4
5. The pumps require maintenance which calls for their removal
from the system so that they can be rebuilt.
6. James Rowland, an electrical contractor, contracts with the
Authority, at an hourly rate, to remove the pumps when they
require maintenance.
7. The Authority had a policy where they shipped the pumps to APS
Services in Connecticut or to Sani Services in Hamlin,
Pennsylvania, for repairs.
8. The Authority members felt the cost of the repairs, usually
$600 to $700 a pump, was too high.
9. Board Member Sanford F. Vanderveken Sr. offered to repair the
pumps at a cost of $350 per pump, but the offer was rejected
by other board members.
10. Vanderveken then proposed that Rowland remove the pumps from
the system and take them apart. Vanderveken added he would
ship the cores to a company where they would be rewound at a
cost of $175 per pump, plus $10.00 for the freight charge.
Rowland would reassemble the pumps when the rewinding was
complete.
11. During a meeting of the Lake Winola Municipal Authority Board
of Directors on May 8, 1991 the issue of repairing the pumps
was discussed.
a. Mr. Vanderveken reported that the cost to rewind the pump
cores was $175 plus $10 freight.
b. Mr. Vanderveken recommended that the board spend no more
than $350 per pump repair.
c. Mr. Vanderveken suggested repairing ten (10) pumps to
keep in inventory.
d. Other board members suggested repairing 15 and by a vote
of 2 -1 the board decided to send 15 pumps for repair at
a cost not to exceed $350.00. Mr. Vanderveken abstained.
12. One pump was repaired using the above procedure and
Vanderveken submitted a bill to the Authority, dated June 12,
1991, for the amount of $190.30.
13. The invoice contained the heading "Sanford Vanderveken, Plant
Engineering Consultant, R.D. 1, Box 1223, Factoryville,
Pennsylvania 18419" and indicates it was for rewinding the
pump with the total coast for the work, parts and freight.
Sanford F. Vanderveken
April 27, 1992
Page 5
14. Lake Winola check #1765, in the amount of $190.30, payable to
Sanford Vanderveken, dated June 12, 1991, signed by Board
members William Miller and Robert Barber contains the
endorsement on the back, of Sanford Vanderveken.
15. The minutes of the Lake Winola Municipal Authority meeting
held on June 12, 1991 indicate the payment to Vanderveken was
approved by a 2 -1 vote with Vanderveken abstaining.
16. By way of letter dated July 1, 1991 to Sanford Vanderveken
from Authority Solicitor James C. Davis, Mr. Davis offered his
opinion as to Vanderveken's transactions with the Authority.
a. The letter notes that it is unclear as to what price
Vanderveken would pay for the repairs and what the total
costs would be.
b. He opined that such was prohibited under the
Municipalities Authority Act.
c .
d.
He also opined that bids may be required.
Mr. Davis also noted that Mr. Vanderveken could not be
involved even indirectly in Authority transactions.
17. Five more pumps were repaired using the same procedure and
Vanderveken submitted a bill to the Authority, dated July 8,
1991, for the amount of $1,074.80.
18. The invoice contained heading "Sanford Vanderveken, Plant
Engineering Consultant, R.D. 1, Box 1223 Factoryville,
Pennsylvania 18419" and indicates it was for rewinding (5)
pumps with the total cost for the work and parts.
19. Lake Winola check #114, in the amount of $1,074.80, payable to
Sanford Vanderveken, dated July 10, 1991, signed by Board
Members Robert Barber and Sanford Vanderveken does not contain
an endorsement on the back and was not cashed.
20. During a meeting of the Lake Winola Municipal Authority Board
of Directors on July 10, 1991 the issue of contracting for the
repair of the pumps was discussed.
a. The Authority Solicitor advised of the $10,000 bid
requirement.
b. Authority Member Pilchesky questioned whether Mr.
Vanderveken could submit a bid. The solicitor responded
that he could not as such would be a conflict of
interest.
Sanford F. Vanderveken
April 27, 1992
Page 6
c. Mr. Vanderveken questioned whether Mr. Rowland could
submit a bid and whether he (Vanderveken) could then work
through Mr. Rowland. The solicitor advised that he was
not sure.
d. During this meeting a bill for pump repairs was submitted
for approval. That bill was from Mr. Vanderveken.
The board approved payment of bills except Mr.
Vanderveken's because it was not accompanied by an
invoice from the company that he sends the pumps to.
e. The vote to pay Mr. Vanderveken was 2 -2. Mr. Vanderveken
did not vote.
21. The check for $1,094.80 was returned to the Authority by
Vanderveken.
22. By way of letter dated July 25, 1991 from the Auditor for the
Authority, it was advised that all invoices for services and
merchandise supplied to the Authority must contain documents
in support thereof.
23. By way of letter to Sanford Vanderveken from Authority Chair
William Miller dated July 25, 1991, Mr. Vanderveken is advised
that the Authority requires that all invoices submitted by
Vanderveken contain the amount paid for services and
identification of the service provider.
24. Vanderveken has refused to reveal the name of the company that
rewound the cores and also refuses to reveal the name of the
company that supplied the 0- rings, seals and bearings.
25. Lake Winola Municipal Authority Solicitor James E. Davis did
not know about Vanderveken repairing the pumps until after the
first bill was submitted at which time he notified the
Authority that he felt it was a conflict of interest for
Vanderveken to do the repairs.
26. Vanderveken intends to charge the Authority $160 per pump for
the remaining four (4) cores as that is the cost other
companies have stated they would charge for the work. He is
holding the cores until a decision is made concerning payment
of his bills.
27. Vanderveken denied making a profit on the rewinding of the
cores.
28. Vanderveken has not received payment for the rewinding of the
(9) cores.
Sanford F. Vanderveken
April 27, 1992
Page 7
29. Vanderveken denied that the cores were rewound by him, or a
member of his family, stating the work was done by a person
whom he has known for over forty (40) years. He added that he
has developed the relationship and shouldn't have to divulge
the person's name.
a. Vanderveken's son is employed by a tool and dye company.
30. Vanderveken did not timely file statements of financial
interests for the years 1987, 1988, 1989 and 1990 but
submitted the required statements on 12/31/91.
III. DISCUSSION:
As a Member of the Lake Winola Municipal Authority, Sanford F.
Vanderveken, hereinafter Vanderveken, is a public official as that
term is defined under Act 9 of 1989. 65 P.S. 5402. As such, his
conduct is subject to the provisions of the Ethics Law and the
restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 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
of the violation occurred prior thereto."
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989
as follows:
Section 2. Definitions
"Conflict" or "conflict of interest."
Sanford F. Vanderveken
April 27, 1992
Page 8
65 P.S. §402.
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. "Conflict" or "conflict
of interest" 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 or his immediate family or
a business with which he or a member of his
immediate family is associated.
The issue before us is whether Vanderveken violated Sections
3(a), 3(f) and 4(a) of Act 9 of 1989 regarding: contracting with
the Authority to repair pumps at a cost exceeding $500.00 which was
not awarded through an open and public process, participating in
the process as to the award of that contract and failing to file
Financial Interest Statements (FIS's).
Section 3(a) of Act 9 of 1989 prohibits the use of authority
of office or confidential information by a public official /public
employee 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.
Section 3(f) of Act 9 of 1989 provides that no public
official /public employee, spouse or child, or a business with which
the public official /public employee, spouse or child is associated
shall contract with the governmental body as to any contract valued
at $500.00 or more unless the contract is awarded through an open
and public process including prior public notice and subsequent
public disclosure. In addition, Section 3(f) prohibits the public
official /public employee from having any supervisory or
administrative responsibility over the contract.
Section 4(a) of both Act 9 of 1989 and Act 170 of 1978
requires that each public official and public employee shall file
FIS's for the preceding calendar year that they hold such position
as well as the year after they leave such position.
Vanderveken is one of the five Members of the Lake Winola
Municipal Authority which oversees the operation of a sewer system
Sanford F. Vanderveken
April 27, 1992
Page 9
for the Lake Winola community servicing approximately 490 homes
connected to the sewer system. Each home has its own pump that
sends waste through a closed system to the sewage treatment plant.
When any given pump required maintenance, the Authority contracted
with a James Rowland, an electrical contractor, to remove the pump
for servicing. The Authority then shipped the pump to one of two
companies for repairs which averaged between $600 to $700 per pump.
Since it was the consensus of the Authority Members that the
repair costs were too high, Vanderveken offered to repair the pumps
at a cost of $350 per pump but his offer was rejected by the other
Board Members. Thereafter, Vanderveken suggested that Rowland
remove and dissembly the pumps for shipment for core rewiring which
would cost approximately $175 per pump plus $10 freight charge. At
the May 8, 1991 meeting of the Authority, the matter of pump
repairs was considered wherein Vanderveken made his proposal to
repair pumps and further suggested that ten repaired pumps be kept
in inventory. After other Board. Members suggesting that fifteen
pumps be held in inventory, a vote was taken to proceed to repair
pumps according to Vanderveken's suggestion at a cost not to exceed
$350 per pump. The vote passed by 2 -1 vote with Vanderveken
abstaining.
After one pump was repaired under the above procedure,
Vanderveken submitted an invoice dated June 12, 1991, in the amount
of $190.30, captioned Sanford Vanderveken, Plant Engineering
Consultant, R.D. 1, Box 1223, Factoryville, Pennsylvania 18419.
Lake Winola Municipal Authority check number 1765 in the amount of
$190.30 payable to Vanderveken dated June 12, 1991, was duly issued
and endorsed by Vanderveken. The record does reflect that
Vanderveken abstained when the Authority voted to pay the above
bill.
The Solicitor for the Authority, James C. Davis, in a letter
dated July 1, 1991, expressed his opinion concerning the
Vanderveken transactions. The Solicitor was of the view that the
repair transaction was unclear regarding how much Vanderveken would
pay for the repairs as compared to the total cost and that, in any
event, such activity was prohibited by the Municipalities Authority
Act which would preclude Vanderveken from even being indirectly
involved in the transaction. Lastly, the Solicitor was of the view
that any such repair transactions would have to be put out on bid.
Subsequently, five more pumps were repaired through the
existing process followed by an invoice to the Authority dated July
8, 1991, in the amount of $1074.80 under the same caption.
Although Lake Winola check number 114 in the amount of $1074.80
payable to Vanderveken was issued on July 10, 1991, there was no
endorsement (cashing) of the check. At a July 10, 1991 Authority
Sanford F. Vanderveken
April 27, 1992
Page 10
Meeting, concerns about the transaction for repairing pumps were
raised by the Solicitor and an Authority Member. Thereafter,
Vanderveken returned the check for $1074.80 to the Authority.
The Auditor of the Authority in a letter dated July 25, 1991,
advised that all invoices for services would require support
documentation. The Chair of the Authority in a letter dated July
25, 1991, to Vanderveken reiterated the requirement that invoices
must be detailed as to services and provider identification.
Vanderveken responded that he intended to charge the Authority $160
per pump for the remaining four cores which is the cost other
companies would charge. However, Vanderveken did refuse to reveal
the name of the company that supplied the o -ring seals and bearings
and the name of the company that did the rewinding. Vanderveken
further denied making a profit on the rewinding and stated that he
did not receive payment for the nine cores.
Lastly, Vanderveken did not file FIS's for the 1987 through
1990 years but subsequently submitted the required Statements on
December 31, 1991.
As to Section 3(a) of Act 9 of 1989, the question before us is
whether Vanderveken's participation or advocacy for a change in the
procedure for repairing pumps constituted a use of authority of
office. We applied the definition of use of authority of office in
Juliante, Order No. 809, as follows:
A review of the term 'authority of office'
quoted above indicates the term extends to all
of the tasks needed to perform the functions
of a given position. The words, 'authority of
office or employment' mean the actual power
provided by law which must be exercised, and
the term 'unique' applies to the duties and
responsibilities of that position. Thus, the
'authority of office or employment' is the
actual power provided by law which must be
exercised to perform the unique duties and
responsibilities of any given position. The
'actual power provided by law' encompasses
every facet of that position.
Juliante, at 16.
In the instant matter, although Vanderveken did abstain on
votes, we believe that his participation and advocacy for the
change in procedure of repairing pumps was a use of authority of
office. &el Esposito, Order No. 832. Likewise, there was a
private pecuniary benefit to Vanderveken individually in terms of
the profit made on the repair of the first pump ($190.30).
Sanford F. Vanderveken
April 27, 1992
Page 11
Accordingly, we find a violation of Section 3(a) of Act 9 of 1989.
In addition, we find a violation of Section 3(f) of Act 9 of
1989 in that Vanderveken engaged in transaction for the repair of
five pumps which exceeded the $500 threshold amount of Section
3(f). However, the repair for those five pumps was not put out on
bid. Thus, since Vanderveken entered into a contract with his
governmental body which was over $500 and which was not awarded
through an open and public process, we find a violation of Section
3(f) of Act 9 of 1989 regarding the contract for the repair of the
five pumps.
Lastly, as to the FIS allegation, we note that the record
reflects that Vanderveken did not file FIS's for the years 1987
through 1990 on or before May 1 as required by Section 4(a) of Act
170 of 1978 and Act 9 of 1989, and accordingly we find a violation
for the failure to timely file those Statements. However, we do
note that Vanderveken subsequently filed the FIS's on December 31,
1991.
The Ethics Law empowers this Commission to order a public
official /public employee who has obtained a financial gain in
violation of this Act to make restitution to his governmental body.
65 P.S. 8407(13). In this case, Vanderveken has received $190.30.
Accordingly, we direct Vanderveken, within thirty days of the
issuance of this Order, to forward a check or payment to this
Commission payable to the order of the Lake Winola Municipal
Authority in the amount of $190.30.
In the event that Vanderveken complies with this Order as to
restitution, he will have removed himself from the conflict and no
further action will be taken. Failure to comply with this Order
will result in a directive of this Commission to institute an order
enforcement action. Vanderveken, however, is reminded that as to
his future conduct, he must insure that his actions as a public
official do not create a conflict. 65 P.S. 8401. In addition,
Vanderveken is reminded to timely file FIS's for each year that he
serves on the Authority as well for the year after he leaves that
position.
IV. CONCLUSIONS OF LAW:
1. Sanford F. Vanderveken, Sr., as a Member of the Lake Winola
Municipal Authority is a public official subject to the
provisions of Act 9 of 1989.
2. Vanderveken violated Section 3(a) of Act 9 of 1989 when he
used the authority of office to obtain a private pecuniary
benefit for himself through participating and advocating, as
a Member of the Authority, to modify pump repair procedures
Sanford F. Vanderveken
April 27, 1992
Page 12
whereby Vanderveken would contract with the Authority for the
pump rewinding.
3. Vanderveken violated Section 3(f) of Act 9 of 1989 when he
entered into a contract exceeding $500 with the Authority for
the repair of five pumps which contract was not awarded
through an open and public process.
4. Vanderveken violated Section 4(a) of Act 170 of 1978 and Act
9 of 1989 when he failed to timely file Statements of
Financial Interests for the years 1987 through 1990.
In Re: Sanford F. Vanderveken : File Docket : 91- 055 -C2
Date Decided: April 23, 1992
: Date Mailed : April 27, 1992
ORDER NO. 842
1. Sanford F. Vanderveken, Sr., as a Member of the Lake Winola
Municipal Authority, violated Section 3(a) of Act 9 of 1989
when he used the authority of office to obtain a private
pecuniary benefit for himself through participating and
advocating, as a Member of the Authority, to modify pump
repair procedures whereby Vanderveken would contract with the
Authority for the pump rewinding.
2. Vanderveken violated Section 3(f) of Act 9 of 1989 when he
entered into a contract exceeding $500 with the Authority for
the repair of five pumps which contract was not awarded
through an open and public process.
3. Vanderveken violated Section 4(a) of Act 170 of 1978 and Act
9 of 1989 when he failed to timely file Statements of
Financial Interests for the years 1987 through 1990.
4. The financial gain received by Vanderveken as to the violation
referenced in Paragraph 1 is $190.30.
5. Vanderveken is directed within thirty (30) days of issuance of
this Order to forward a check or payment to this Commission
payable to the order of the Lake Winola Municipal Authority in
the amount of $190.30, and return the pumps to the Authority.
6. If Vanderveken fails to comply with the terms of Paragraph 5,
this Commission will direct that an order enforcement action
be instituted.
BY THE COMMISSION,
10 40~ - 4-
DENNIS C. HARRINGTON, CHAIR
Commissioner James M. Howley, Vice Chair, did not participate in
the decision of this matter.