HomeMy WebLinkAbout844 Frank JrSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
In re: Michael C. Frank, Jr.
File Docket:
Date Decided
Date Mailed:
89 -005 -C
: April 23, 1992
April 27, 1992
Before: Dennis C. Harrington,
James M. Howley, Vice
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, 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.
Chair
Chair
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
1 2.38.
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).
Michael C. Frank, Jr.
April 27, 1992
Page 2
I. ALLEGATION:
That Michael C. Frank, Jr., a Commissioner for Harmony
Township, Beaver County, violated the following provisions of the
State Ethics Act (Act 170 of 1978), when his firm, Mike's Auto
Service, performed repairs on township vehicles without an open and
public process; when he signed Purchase Orders and voted to pay
bills for services performed by Mike's Auto Service; and when he
used township employees and equipment to perform services on his
personal property:
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.
II. FINDINGS:
a.
(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 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).
1. Michael C. Frank, Jr., has served as an
Township Commissioner since January 6, 1986.
elected Harmony
Harmony Township, Beaver County, is a Township of the
First Class.
Michael C. Frank, Jr.
April 27, 1992
Page 3
2. Michael C. Frank, Jr., was appointed to serve as the Chairman
of the Harmony Township Road Committee during 1986 and 1987.
a. No job description exists for this position.
b. General duties include overseeing the township road
department activities and its employees.
3. Michael C. Frank, Jr., owned and operated a business known as
Mike's Auto Repair, 10 State Street, Baden, PA. 15005 during
the years 1986 - 1988:
a. Michael C. Frank was the sole proprietor of this
establishment.
b. Mike's Auto Repair at the aforementioned address was open
for operation during 1986, 1987 and 1988.
c. Mike's Auto Repair performed a wide range of general
automotive repairs and maintenance.
d. Mike's Auto Repair employed one full -time and several
part time employees.
e. Mike's Auto Repair was not incorporated in the State of
Pennsylvania.
4. During the years 1986 through 1988 Harmony Township utilized
Mike's Auto Repair and Vance's Auto Service for service that
was needed on township vehicles.
5. Between January 1, 1986 and December 31, 1988, Mike's Auto
Repair was utilized by Harmony Township on at least 47
occasions.
a.
Breakdown by year is as follows:
1. 1986 -
1987 -
1988 -
b. During the
utilized on
as follows:
eight times
twenty -three times
sixteen times
same time span, Vance's Auto Service was
eighty -nine occasions. Breakdown by year is
1. 1986 - thirty -one times
1987 - twenty -one times
1988 - thirty -seven times
Michael C. Frank, Jr.
April 27, 1992
Page 4
2. Vance's Auto discounted the parts they sold Harmony
Township by 10 %.
c. Prior to 1986, repairs to Harmony Township vehicles were
handled either by Vance's Auto Repair or Randa's Boron
Station.
6. Michael C. Frank Jr. submitted invoices for repairs performed
and for parts and supplies sold to Harmony Township as
follows:
Date Amount
Work Performed
1/17/86 $19.95 oil change
1/27/86 62.80 alternator (rebuilt)
1/28/86 123.99 batteries & ignition
switch
3/31/86 7.80 air filter
8/13/86 45.00 cutting pipes /drill holes
10/9/86 28.80 heater hose /spark plugs
11/18/86 19.00 brake fluid /W -D 40
11/20/86 34.20 antifreeze
1/23/87 68.20 starter
2/6/87 88.00 battery /air tank
conversion kit
3/3/87 75.00 battery
5/29/87 36.00 battery
6/3/87 10.50 filters (oil/air)
7/10/87 152.45 brake repairs
7/31/87 62.06 air filter /power steering
repairs /starter
7/20/87 110.50 battery /clean catalytic
convertor
8/14/87 206.60 brakes
9/21/87 97.90 tune up /wires /plugs
10/14/87 21.00 replace fuel lines
10/16/87 44.00 replace fuel pump
9/12/87 235.85 replace radiator /grill
support repair
10/23/87 290.34 brakes, fluid, one shock
absorber
10/26/87 173.78 ball joints, inspection
oil change -lube, tailpipe
11/17/87 185.50 brakes
11/15/87 260.49 brakes, oil change, lube
11/13/87 2618.27 replace transmission and
engine
12/21/87 148.23 starter cable, repair
wiring brakes
11/24/87 13.60 change oil, lube
Michael C. Frank, Jr.
April 27, 1992
Page 5
12/3/87 220.28 inspection, emissions,
lower ball joint, wiper
control choke pull off
12/3/87 79.13 switch fan
12/3/87 56.00 battery, replace alt.
wiring
1/21/88 83.64 replace sway bar
1/18/88 6.06 air filter
1/19/88 102.86 gas, diesel add
2/15/88 36.60 change belts, hose
2/11/88 30.99 lube, oil
1/29/88 50.00 bearings, front rotors
2/9/88 31.20 repair clutch return
system
2/16/88 145.27 oil additive /balance
forward
3/15/88 379.16 lube, oil change,
st.insp., emissions,
upper control arm,
bushings, front brakes,
muffler, tailpipe
2/23/88 15.00 headlight
5/15/88 86.20 battery
7/2/88 179.90 brake shoes, disc rotor
repack bearings
8/13/88 - -- emissions
8/17/88 72.00 battery
8/27/88 145.37 rotor, air filter, belt,
battery
11/9/88 82.00 battery
7. On several occasions Harmony Township utilized purchase orders
to obtain services relating to the repair of township
vehicles.
a. Purchase orders are executed and issued in advance of the
services being performed.
8. Financial records of Harmony Township include the following
purchase orders to Mike's Auto Service:
a. Purchase Order #11760
Dated January, 1987, item purchased - a starter for the
Dodge truck.
1. This purchase order contained the signatures of
Lyla Swan as township secretary and Michael C.
Frank, Jr., as Department Chairman.
2. This purchase order related to services that were
Michael C. Frank, Jr.
April 27, 1992
Page 6
performed on invoice dated 1/23/87 (see Finding 6).
b. Purchase Order #11777
Dated February, 1987 for the purchase of a battery for
the Ford truck.
1. This purchase order was signed exclusively by
Michael C. Frank as Department Head.
2. This purchase order related to services that were
performed as evidenced on invoice dated 2/6/87 (see
Finding 6).
c. Purchase Order #11788
Dated March 3, 1987 for the purchase of a battery for the
Dodge police car.
1. This purchase order was signed exclusively by
Michael C. Frank, Jr., as Department Chairman.
2. This purchase order related to services that were
performed as evidenced by invoice dated 3/3/87 (see
Finding 6).
d. Purchase orders as referenced in Findings a, b, and c did
not include any prices for the items to be purchased from
Mike's Auto Repair.
e. No other purchase orders were used for the work Mike's
Auto Service performed for Harmony Township during 1986,
1987, or 1988.
f. Harmony Township does not have a formal written
guidelines on purchase orders or their required usage.
9. Invoices from Mike's Auto Service, 10 State Street, Baden, PA
15005 to Harmony Township indicate that Michael Frank did not
charge Harmony Township labor on the following mechanical
services. These services were included as part of other work
performed by Frank for the township:
Invoice Date Service Provided
1/14/86 Oil change & lube
1/28/86 Replace ignition switch and two
batteries
11/15/87 Lube & oil change
11/24/87 Oil change
12/26/87 Lubrication
Michael C. Frank, Jr.
April 27, 1992
Page 7
1/18/88
1/18/88
1/27/88
2/23/88
3/14/88
3/15/88
Clean spark plugs and replace starter
on the grader
Lubrication and check frame
Replace alternator and check battery
Replace headlight
Oil change and lubrication
Oil change and lubrication
Note: On an invoice dated 12/21/87, Michael Frank
did not charge Harmony Township for brake
fluid he used in the replacement of a
brake caliper under warranty.
10. Harmony Township pays bills on a monthly basis.
a. Bill lists are prepared by Secretary Lyla Swan and
distributed to board members approximately one week prior
to the Commissioner's Meeting.
b. Bill lists are voted on in their entirety.
c. Ample time is available for reviewing the bill lists
prior to any vote on them.
11. Minutes of the Harmony Township Board of Commissioners
indicate the following official action was taken relative to
paying bill lists which contained bills submitted by Mike's
Auto Service.
a. January 29, 1986:
"Mr. Bunger made a motion to accept the list of bills
payable for the period ending December 31, 1985 and for
January, 1986. Mr. Frank seconded the motion; all in
favor, motion carried.
Present: James Bunger, Ronald Churchin, Michael Frank,
August Antonini
b. April 16, 1986:
"Frank made a motion to accept the Treasury's Mr. Gandjos
seconded the motion. All in favor, motion carried."
Present: Bunger, Churchin, Frank, Gandjos, Antonini
c. August 20, 1986:
Mr. Frank made a motion to approve the list of bills
payable for August, 1986. Mr. Churchin seconded the
Michael C. Frank, Jr.
April 27, 1992
Page 8
motion. All in favor, motion carried."
Present: Bunger, Churchin, Frank, Gandjos, Antonini.
d. December 31, 1986:
g•
"Mr. Frank made a motion to approve the list of bills
payable for December, 1986. Mr. Bedalota seconded the
motion. All in favor, motion carried."
Present: Bedalota, Bunger, Churchin, Frank,Gandjos.
e. January 27, 1987:
"Mr. Bunger made a motion to approve the Treasurer's
Report. Mr. Churchin seconded the motion. All in favor,
motion carried."
Present: Bedalota, Bunger, Churchin, Frank, Gandjos
f. February 18, 1987:
"Mr. Frank made a motion to approve the list of bills
payable with the exception of Jim Essek's mileage
reimbursement. Mr. Churchin seconded the motion. All in
favor, motion carried."
Present: Bedalota, Bunger, Churchin, Frank, Gandjos
March 18, 1987:
"Mr. Frank made a motion to approve the list of bills
payable for March 8, 1987.
"Mr. Burger seconded the motion with the exceptions
mentioned. All in favor, motion carried."
"Mr. Frank made a motion to approve the Treasury's
Report. Mr. Bedalota seconded the motion. All in favor,
motion carried."
Present: Bedalota, Bunger, Churchin, Frank, Gandjos.
h. June 24, 1987:
"Mr. Frank made a motion to accept the list of bills
payable for June, 1987. Mr. Churchin seconded the
motion. All in favor, motion carried."
"Mr. Bedalota made a motion to approve the Treasury
Michael C. Frank, Jr.
April 27, 1992
Page 9
j
Report. Mr. Frank seconded the motion. All in favor,
motion carried.
Present: Bedalota, Bunger, Churchin, Frank,
i. July 15, 1987:
"Mr. Bunger made a motion to accept the list of bills
payable for July, 1987. Mr. Churchin seconded the
motion. All in favor, motion carried."
"Mr. Bedalota made a motion to accept the Treasury's
Report. Mr. Frank seconded the motion. All in favor,
motion carried."
Present: Bedalota, Bunger, Churchin, Frank, Gandjos.
August 19, 1987:
"Mr. Frank made a motion to approve the list of bills for
August, 1987. Mr. Bedalota seconded the motion, in
addition to commending P & P Disposal for a good job.
All in favor, motion carried."
"Mr. Bunger made the motion to accept the Treasury's
Report. Mr. Bedalota seconded the motion. All in favor,
motion carried."
Present: Bedalota, Bunger, Churchin, Frank, Gandjos.
k. October 21, 1987:
"Mr. Frank made a motion to approve the list of bills
payable for October, 1987. Mr. Bedalota seconded the
motion.
All in favor, motion carried. Mr. Churchin made a motion
to approve the Treasury's Report. Mr.Frank seconded the
motion. All in favor, motion carried."
Present: Bedalota, Bunger, Churchin, Frank.
1. November 18, 1987:
"Mr. Frank made a motion to approve the list of bills
payable for November, 1987. Mr. Bunger seconded the
motion. All in favor, motion carried."
"Mr. Bunger made a motion to approve the Treasury's
Report. Mr. Bedalota seconded the motion. All in favor,
motion carried."
Michael C. Frank, Jr.
April 27, 1992
Page 10
Present: Bedalota, Bunger, Churchin, Frank, Gandjos.
m. December 30, 1987:
q.
"Mr. Frank made a motion to approve the list of bills
payable for December, 1987. Mr. Bedalota seconded the
motion. All in favor, motion carried."
Mr. Bedalota made a motion to approve the Treasury's
Report. Mr. Churchin seconded the motion. All in favor,
motion carried."
Present: Bedalota, Bunger, Churchin, Frank
n. February 17, 1988:
"Mr. Kokoski made a motion to approve the Treasury's
Report. Mr. Bunger seconded the motion. All in favor,
motion carried."
Present: Bunger, Frank, Kokoski, Spagnolo, Churchin
o. March 16, 1988:
"Mr. Frank, abstaining from Item #16, made a motion to
approve the bills payable for March, 1988. Mr. Bunger
seconded the motion. All in favor, motion carried."
Present: Bunger, Frank, Kokoski, Churchin
Note: Item #16 on the March 16, 1988 bill list was a
$500.00 bill submitted by Attorney Gus Kwidis.
Item #15 on the March 16,1988 bill list was an
$880.37 bill to Mike's Auto Service for
headlight and vehicle repairs.
p. July 20, 1988:
"Mr. Frank made a motion to approve the list of bills
payable for July, 1988. Mr. Spagnolo seconded the
motion. All in favor, motion carried."
Present: Bunger, Frank, Kokoski, Spagnolo, Churchin
August 17, 1988:
"Mr. Frank made a motion to accept the Treasurer's
Report. Mr. Bunger seconded the motion. All in favor,
motion carried."
Michael C. Frank, Jr.
April 27, 1992
Page 11
Present: Bunger, Frank, Kokoski, Spagnolo, Churchin
r. September 21, 1988:
"Mr. Spagnolo made a motion to accept the list of bills
payable for September, 1988. Mr. Frank seconded the
motion. All in favor, motion carried."
Present: Bunger, Frank, Kokoski, Spagnolo, Churchin
s. November, 16, 1988:
"Mr. Frank made a motion to approve the bills payable for
November, 1988. Mr. Kokoski seconded the motion. All in
favor, motion carried."
Present: Bunger, Frank, Kokoski, Spagnolo, Churchin
12. Michael C. Frank voted on the bill lists as noted above that
included payments to himself or Mike's Auto Service as
follows:
RA U? Amount Reason
1/29/87 $ 19.95 Repairs to #332
4/16/86 7.80 Air Filter #331
8/20/86 45.00 Cut pipe for Monroe Alley
12/31/86 82.00 Parts for car #332
1/27/87 68.20 Truck starter
2/18/87 88.00 Truck battery
3/18/87 75.00 Police car battery
6/24/87 10.50 Truck filters
36.00 Battery reimbursement
12/30/87 517.24 Truck /car repairs
2/17/88 297.02 Vehicle repairs
3/16/88 880.37 Vehicle repairs
3/16/88 15.00 Headlight
7/20/88 266.10 Repairs /battery
8/17/88 80.00 Battery /Inspection
9/21/88 145.37
11/16/88 82.00 Battery
11/18/88 260.49 Brake repairs
173.78 Inspection & Repairs
290.34 Brake repairs
185.50 Grader Repairs
2,618.27 Engine /Transmission Repl.
764.26 Repairs
Michael C. Frank, Jr.
April 27, 1992
Page 12
Frank was aware that he was voting on bill lists that
contained payments to himself.
13. All of the above votes to approve the payment of bills were
unanimous.
1986
1987
1988
a. Michael Frank did not cast the deciding
meetings.
b. The bills were voted on as a group
individually.
14. Financial Records of Harmony Township indicate
payments were made to Mike's Auto Service:
Check No.
2181
2196
2304
2519
2639
2683
1986 Total $370.44
2736
2788
2836
2974
2975
3023
3067
3164
3180
3187
3191
3264
1987 Total $5275.51
3335
3368
3438
3633
3652
3687
3733
3839
1988 Total $2,008.17
Date
1/29/86
1/29/86
4/16/86
8/20/86
11/12/86
12/31/86
1/27/87
2/18/87
3/18/87
6/24/87
6/24/87
7/15/87
8/19/87
10/21/87
10/27/87
11/6/87
11/18/87
12/30/87
1/20/88
2/17/88
3/16/88
7/20/88
7/20/88
8/17/88
9/21/88
11/16/88
Amount
$ 143.94
62.80
7.80
45.00
28.90
82.00
68.20
88.00
75.00
10.50
36.00
152.45
379.16
420.58
464.12
2,300.00
764.26
517.24
224.36
297.02
913.32
179.90
86.20
80.00
145.37
82.00
vote in said
rather than
that following
Michael C. Frank, Jr.
April 27, 1992
Page 13
Total 1986 - 1988 $7,654.12
15. Michael C. Frank /Mike's Auto Service received payment from
Harmony Township in excess of $500.00 on the following
occasions:
a. November 6, 1987
Check #3187 for $2,300.00
b. November 18, 1987:
Check #3191 for $764.26
c. December 30, 1987:
Check #3264 for $517.24
d. March 16, 1988:
Check #3438 for $913.32
e. Total amount received in Finding #15 a, b, c and d is
$4,494.82.
f. The total labor charges received in Finding #15 a, b, c
and d is $1017.95, broken down as follows: a - $500.00;
b - $160.00; c - $89.00 and d - $268.95.
16. During the Harmony Township Commission's meeting on December
30, 1987 the owner of an auto body shop questioned the
propriety of a township commissioner performing services on
township vehicles and also questioned whether the township
should have obtained bids in relation to certain repairs
performed by Mr.Frank on such vehicles.
a. Mr. Frank was present at this meeting.
17. Testimony has been received that on October 6, 1987, township
road department employees, Rudy Colella and Michael Boring
spent approximately six hours each installing a window at
Mike's Auto Service, 10 State Street, Baden, PA
18. Testimony has been received that Frank Panzanella, another
township road department employee, also worked at Mike's Auto
Service on October 6, 1987.
a. He spent most of the day cleaning glass and debris from
the broken window.
19. In relation to the three township employees who worked at
Mike's Auto Repair on the window project on October 5, 1987:
Michael C. Frank, Jr.
April 27, 1992
Page 14
a.
On October 6, 1987, hourly wages for the above referenced
employee were:
Frank Panzanella - $20,500.00, salary /$10.51 per hour.
Rudy Colella - $6.00 per hour.
Michael Boring - $3.35 an hour.
Testimony has been received that this window was replaced
at the direction of Michael C. Frank, Jr. Michael C.
Frank, Jr. denies that township employees did any work at
his establishment or that he directed any township
employee to replace this window.
d. Frank had supervisory responsibility over Colella,
Panzanella and Boring at this time.
e. Panzanella, Colella and Boring did not have any union
protection at this time.
f. Harmony Township Police Officers James Essek and Andy
Gall personally witnessed this while on patrol in the
area.
b.
c .
All three employees were being paid by Harmony Township
when this occurred.
20. Testimony has been received that on November 11, 1988, Rudy
Colella and John Cercone spent approximately two hours
removing the stumps and leveling dirt at 403 Virginia Avenue,
Ambridge, Pennsylvania. Upon removing stumps, Cercone used
the township grader to level part of the aforementioned
property.
a. 403 Virginia Avenue is owned by Michael C. Frank, Jr.
b. Testimony has been received that this work was done at
Michael C. Frank's direction. Michael C. Frank, Jr.
denies that the township employees did work upon the
property at 403 Virginia Avenue, Ambridge, PA.
c. Rudy Colella's time card for November 11, 1988 confirmed
he received two hours overtime pay for work performed on
Monroe Alley.
Note: Monroe Alley runs directly behind and along
the side of Michael Frank's residence on
Virginia Avenue.
d. John Cercone's time card for this day is missing from
Harmony Township files.
Michael C. Frank, Jr.
April 27, 1992
Page 15
e. Frank had supervisory responsibility over Cercone and
Colella at this time.
f. Neither Cercone nor Colella had union protection at this
time.
g.
Hourly-wages for Cercone and Colella on November 11, 1988
were:
Rudy Colella - $6.00 per hour
John Cercone - $12.00 per hour
h. Michael C. Frank, Jr. denies directing any employee to do
this work.
21. Statements of Financial Interests are on file with Harmony
Township for Michael C. Frank, Jr. as follows:
a. Calendar Year 1985:
Filed: February 13, 1986 on SEC Form 11/81 Position:
Harmony Township Commissioner Occupation: Self employed
- mechanic
Creditors : None
Direct /indirect income: Mike's Auto Service, 10
State Street, Baden, PA
Other Financial Interest: None
b. Calendar Year 1986:
Filed: February 17, 1987 on SEC Form 7/84
Position: Harmony Township Commissioner
Occupation: Self employed mechanic
Creditors: None
Direct /indirect income: None listed.
Directorship in any business: Owner, Mike's Auto Service
Other Financial Interest: None
c. Calendar Year 1987:
No Statements of Financial Interest are on file with the
Township for calendar year 1987.
d. Calendar Year 1988:
Filed: March 1, 1989 on SEC Form 1/87
Position: Harmony Township Commissioner /Candidate
Occupation: Diesel Mechanic
Creditors: Ambridge Teacher's Credit Union
Ambridge, PA 12%
Michael C. Frank, Jr.
April 27, 1992
Page 16
Direct /indirect income: P A D e p a r t m e n t o f
Transportation, Rochester, PA
and Harmony Township, Ambridge,
PA
Other Financial Interest: None
e. Calendar Year 1988:
Filed: July 1, 1989 on SEC Form 1/89
Position: Harmony Township Commission /Candidate
Occupation: Diesel Mechanic for PennDOT
Creditors: Ambridge Area Teacher's Credit Union,
no percentage, rate listed.
Direct /indirect income: PA Department of
Transportation, Rochester, PA
and Harmony Township, Ambridge,
PA
Other Financial Interest: None
f. Calendar Year 1989:
g.
III. DISCUSSION:
No Statements of Financial Interest are on file with the
township for calendar year 1989.
Calendar Year 1990:
Filed: April 18, 1991 on SEC Form 1/90
Position: Harmony Township Commissioner
Occupation: Mechanic
Creditors: None
Direct /indirect income: U.S. Air, Pittsburgh
Other Financial interests: None
As a Commissioner for Harmony Township, Beaver County, Michael
C. Frank, Jr., hereinafter Frank, is a public official as that term
is defined in the Ethics Act, 65 P.S. 402; 51 Pa. Code 1.1. As
such, his conduct is subject to the provisions of the Ethics Act
and the restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
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
Michael C. Frank, Jr.
April 27, 1992
Page 17
Since
effective
provisions
Ethics Act
not in force. For the
section, a violation was
the effective date of this
of the violation occurred
the occurrences in this
date of Act 9 (June 26
of Act 170 of 1978, P.L.
was violated.
purposes of this
committed prior to
act if any
prior thereto."
case transpired prior to the
, 1989), we must apply the
883, to determine whether the
Under Section 3(a) of Act 170 of 1978, 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); Yocabet 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).
Section 3(c) of Act 170 of 1978 specifically provides in part
that no public official or public employee may enter into any
contract valued at $500.00 or more with his governmental body
unless the contract has been awarded through an open and public
process which would include prior public notice and subsequent
public disclosure of all proposals considered and contracts
awarded.
The issue in this case is whether Frank violated either
Section 3(a) or 3(c) of Act 170 of 1978 regarding the utilization
of Mike's Auto Service, a business operated by Frank as a sole
proprietorship, for repairs to township vehicles. The allegation
also contains a charge that Frank violated Section 3(a) of Act 170
of 1978 regarding the usage of township employees and equipment to
perform services on his private property.
In reviewing the facts of this case, Frank has served as a
First Class Township Commissioner in Harmony Township since January
6, 1986, and as Chairman of the Harmony Township Road Committee
during 1986 and 1987 with oversight duties in that latter office in
the Township Road Department. In a private capacity, Frank owned
and operated Mike's Auto Repair, a sole proprietorship, with one
full -time and several part -time employees. From 1986 through 1988,
Harmony Township utilized both Mike's Auto Repair and Vance's Auto
Service for automotive repair work on township vehicles. In that
Michael C. Frank, Jr.
April 27, 1992
Page 18
period of time, Harmony Township utilized Mike's Auto Repair on 47
occasions and Vance's Auto Service on 89 occasions. Frank
submitted invoices for the repairs and parts for the township
vehicles (Fact Finding 6). On some occasions, the township
utilized purchase orders, which were signed or co- signed by Frank,
to obtain services for the repair of its vehicles (Fact Findings 7,
8). There were certain mechanical services performed by Mike's
Auto Service wherein Harmony Township was not charged for labor
(Fact Finding 9). As to bill payments, Harmony Township pays on a
monthly basis whereby bill lists are prepared by the Secretary and
distributed to the Board members who vote to approve bill lists as
a group.
The minutes of the Harmony Township Board of Commissioners
reflect action by Frank of either making, seconding or voting to
approve bill lists which contained bills from Mike's Auto Service
(Fact Finding 11). It is noted that Frank did not cast the
deciding vote as to the payment of any bill and bill approvals were
voted by group rather than individually.
The total amount of payments from Harmony Township to Mike's
Auto Repair for the period between 1986 and 1988 amounted to
$7,654.12. Various payments made to Frank or Mike's Auto Service
did exceed the $500.00 threshold amount of Section 3(c) of Act 170
of 1978 (Fact Finding 15). Questions were raised about the
propriety of a township commissioner performing services on
township vehicles in a private capacity and about the propriety of
failing to put repair contracts out for bids at a December 30, 1987
township meeting wherein Frank was present.
Turning to the second part of the allegation that Frank used
township employees and equipment to perform personal services, the
facts reflect that on October 6, 1987, Township Road Department
employees Rudy Colella and Michael Boring were utilized for six
hours to install a window at Mike's Auto Service. In addition,
Frank Panzonella, another Township Road Department employee, worked
on that date at Mike's Auto Service cleaning glass and debris.
These employees were paid by Harmony Township, the work was done on
township time and such activity was even observed by two Harmony
Township police officers. In addition, on November 11, 1988, two
township employees, Colella and John Cerone, removed stumps and
leveled dirt for two hours at 403 Virginia Avenue, a property which
is owned by Frank. The township grader was also utilized in the
leveling process.
Although there is no allegation as to failure to file
Financial Interest Statements ( FIS's) or the filing of deficient
FIS's, we do note that Frank did not file FIS's for 1987 and 1989
calendar years. Further, in terms of possible deficiencies, the
calendar year 1986 FIS does not list any source of income, the 1988
Michael C. Frank, Jr.
April 27, 1992
Page 19
calendar year FIS does not list Mike's Auto Body as a source of
income and the 1990 calendar year FIS does not list Harmony
Township as a source of income; none of the statements on file list
Mike's Auto Repair in the category "Financial Interests in Any
Legal Entity in Business for Profit."
In applying the provisions of Section 3(a) and 3(c) of the Act
170 of 1978 to the facts of this case, we find violations of both
provisions. As to Section 3(a), there has been a use of office on
the part of Frank as Harmony Township Commissioner relative to his
making motions, seconding motions or voting in favor of the payment
of bills to his sole proprietorship, Mike's Auto Repair, that
performed services as to township vehicles. The sales of parts and
the charging of labor in certain instances does constitute a
financial gain which was received by Frank. Finally, such
financial gain is other than compensation provided for by law
because there is no provision in the First Class Township Code
which specifically authorizes a commissioner to provide repair
services on township vehicles in a private capacity.
As to Section 3(c) of Act 170 of 1978, it is unclear from the
record as to whether the township voted to award a specific
contract for a time certain to Mike's Auto Body and, if so, for
what period of time. However, we do note that various services and
payments exceeded the $500.00 threshold limit of Section 3(c).
Thus, the record sustains a 3(c) violation in this case because
whether there was one contract for a period of time or whether
there were individual contracts; in both instances the yearly
amount for such services as well as certain individual repairs
within those calendar years exceeded the $500.00 threshold amount.
We also find a violation Section 3(a) of Act 170 of 1978
regarding the utilization of township employees to do work at
Mike's Auto Body and also the utilization of township employees and
equipment to remove a stump and level dirt at a property owned by
Frank. Such is clearly a use of office by Frank in that he has
supervisory control over these employees and directed them to do
such work. The use of office resulted in financial gain to Frank
in that he did not have any out of pocket expenses to pay these
employees for their work or the rental of equipment in that those
costs were borne by the township. Finally, such financial gain is
other than compensation for by law because the First Class Township
Code does not authorize a commissioner to use township equipment or
employees for personal use. lee Foster, Order No. 749; Julian,
Order No. 472 -R; Pellearini, Order No. 471 -R.
Concerning Frank's FIS's, it is clear that he has not filed in
the 1987 and 1989 calendar years. In addition, as to the FIS's he
has filed, there may be possible deficiencies as noted above.
Accordingly, we direct Frank within thirty (30) days of issuance of
Michael C. Frank, Jr.
April 27, 1992
Page 20
this Order to complete and file FIS's for the 1987 and 1989
calendar years with Harmony Township and send a copy of same to
this Commission to verify compliance. In addition, Frank is also
directed within the same period of time to file amended FIS's j
said statements are deficient in failing to list certain financial
interests as noted above.
The power of this Commission to impose restitution of a
financial gain has been upheld by the Commonwealth Court in
Yacobet, supra. In this case we find the financial gain amounts to
$1,173.11 computed as follows: $1017.95 in labor charges for the
vehicle work performed (Fact Finding 15f); $119.16 for 6 hours
works each on a window replacement by Colella (at $6.00 /hour),
Boring (at $3,35 /hour), and Panzanella (at $10.51 /hour) (Fact
Findings 17, 18, 19) ; and finally $36.00 for two hours of work each
as to stump removal by Colella (at $6.00 /hour) and Cercone (at
$12.00) (Fact Finding 20).
Therefore, Frank is directed within thirty (30) days of
issuance of this Order to forward a check or payment to this
Commission in the amount of $1,173.11 payable to the order of
Harmony Township. Failure to comply will result in a directive of
this Commission to institute an order enforcement action. However,
compliance through the payment of restitution will conclude this
case with no further action being taken.
IV. CONCLUSION OF LAW:
1. Michael C. Frank, Jr., as a Harmony Township is a public
official subject to the provisions of Act 170 of 1978.
2. Frank violated Sections 3(a) and 3(c) of Act 170 of 1978
regarding the utilization of Mike's Auto Service, a sole
proprietorship owned by Frank, to provide vehicle repair
services to Harmony Township.
3. Frank violated Section 3(a) of Act 170 of 1978 regarding using
township employees for performing private work at Mike's Auto
Body and using Harmony Township employees and equipment for
removing a stump and leveling ground at a property owned by
Frank.
4. The financial gain received by Frank relative to the
violations of Section 3(a) and 3(c) referenced in Paragraphs
2 and 3 above is $1,173.11.
In re: Michael C. Frank, Jr. : File Docket: 89 -005 -C
: Date Decided: April 23, 1992
: Date Mailed: April 27, 1992
ORDER NO. 844
1. Michael C. Frank, Jr., as a Harmony Township violated Sections
3(a) and 3(c) of Act 170 of 1978 regarding the utilization of
Mike's Auto Service, a sole proprietorship owned by Frank, to
provide vehicle repair services to Harmony Township.
2. Frank violated Section 3(a) of Act 170 of 1978 regarding using
township employees for performing private work at Mike's Auto
Body and using Harmony Township employees and equipment for
removing a stump and leveling ground at a property owned by
Frank.
3. The financial gain received by Frank relative to the
violations of Section 3(a) and 3(c) referenced in Paragraphs
1 and 2 above is $1,173.11.
4. Frank is directed within thirty (30) days of this Order to
file Financial Interest Statements for the 1987 and 1989
calendar years with Harmony Township together with a copy to
this Commission as well as file amended Statements as to any
possible reporting deficiencies.
5. Failure to comply with Paragraph 4 will result in a directive
of this Commission to institute an order enforcement action.
6. Frank is directed within thirty (30) days of issuance of this
Order to send a check or payment to this Commission payable to
the order of Harmony Township in the amount of $1,173.11 in
restitution of the financial gain received.
7. Failure to comply with Paragraph 6 will result in a directive
of this Commission to institute an order enforcement action.
BY THE COMMISSION,
DENNIS C. HARRINGTON, CHAIR