HomeMy WebLinkAbout853 LongSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In re: Harold Long : File Docket: 92- 009 -C2
: Date Decided: September 10, 1992
: Date Mailed: September 10, 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 complaints regarding
possible violations of the State Ethics Law, Act No. 170 of 1978
and Act No. 9 of 1989. 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 deemed waived.
The record is complete. 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
§2.38.
The files in this case will remain confidential in accordance
with Section 8(a) of Act 170 of 1978 and Act 9 of 1989, 65 P.S.
S408(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. S409(e).
Lona, 92- 009 -C2
Page 2
I. ALLEGATION:
The Pennsylvania State Ethics Commission has reviewed the
allegations that Harold Long, a Supervisor for Drumore Township,
Lancaster County, violated the following sections of the Public
Officials and Employees Ethics Law, Act 170 of 1978, when he
participated in decisions to award contracts in excess of $500.00
to his company, Long's Asphalt Paving, without an open and public
process:
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 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).
That Harold Long, a Supervisor for Drumore Township, Lancaster
County, violated the following sections of the Public Officials and
Employees Ethics Law, Act 9 of 1989, when he participated in
decisions to award contracts in excess of $500.00 to his company,
Long's Asphalt Paving, without an open and public process:
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
(f) No public official or public
fig, 92- 009 -C2
Page 3
II. FINDINGS:
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. 65
P.S. §403(a),(f).
1. Harold G. Long has served as a supervisor for Drumore
Township, Lancaster County, Pennsylvania since `1979.
a. He has also served as Township Roadmaster since 1979.
2. Harold G. Long owns and operates Long's Asphalt Paving & Seal
Coating.
3. Long's Asphalt Paving & Seal Coating has been in business
since 1986.
a. The company is involved in oil and chip work as well as
hot mixing.
b. Harold G. Long owns the company and has three employees.
c. The company is not incorporated in the Commonwealth of
Pennsylvania.
4. Drumore Township has used Long's Asphalt Paving & Seal Coating
to pave various Township roads since Harold G. Long began
serving as a Township Supervisor.
a. These contracts were awarded to Long's Asphalt Paving
Lonc, 92- 009 -C2
Page 4
without prior public notice or bid procedures being
followed.
b. There was not official action taken by the Board of
Supervisors to approve the contracts with Long's Asphalt
Paving.
c. Long's Asphalt Paving was selected to pave Township roads
which were previously state maintained roads, but were
being "turned back" to Drumore Township.
1) The state would provide some funding for the paving
and maintenance of these types of roads.
5. Drumore Township received invoices from Long's Asphalt for the
following paving projects:
DATE
7 -6 -88
6 -10 -88
6 -11 -88
6 -14 -88
c. 4 -17 -90 Job #90 -32
Penny Hollow Road
4 -6 -90
d. 7 -5 -90
6 -28 -90
6 -29 -90
6 -30 -90
7 -2 -90
7 -3 -90
PROJECT AMOUNT
a. 11 -12 -87 Fishing Creek Road
10 -22 -87 $424.00
10 -23 -87 848.00
10 -26 -87 848.00
$2,210.00
Susquehannock Road
10 -30 -87 972.00
11 -02 -87 972.00
$1,944.00
TOTAL
Oregon Hollow Road
Prawls Hollow Road
TOTAL
Job #90 -56
Slate Hill Road
$560
1,118.00
672.00
$2,350.00
$972.00
840.00
$1,812.00
$2,250.00
2,250.00
1,125.00
1,125.00
925.00
Long, 92- 009 -C2
Page 5
e. 8 -31 -90
f. 11 -1 -90
g. 12 -12 -90 Job #90 -114
11 -6 -90
11 -5 -90
h. 4 -3 -91
DATE
a. 12 -31 -87
b. 07 -07 -88
c. 05 -03 -90
d. 07 -05 -90
e. 09 -06 -90
f. 11 -01 -90
g. 02 -07 -91
h. 04 -04 -91
TOTAL
Unknown
37 hrs. trucks
2 @ $40.00 /hr
9 1/2 hrs. labor
@ $6.75/hr.
TOTAL
Job #90 -102
Paving River Hill Road
Chestnut Level Road
30 hrs. River Hill
@ $235/hr.
9 hrs. C.L. @ $235/hr.
TOTAL
Spring Valley Road
Slate Hill Road
TOTAL
$7,675.00
$2,960.00
64.).;
$3,024.13
$7,050.00
2.115.00
$9,165.00
$1,260.00
840.00
$2,100.00
Job #91 -12
17 1/2 hrs.
Backhoe @ $27.00 /hr.
Slate Hill and River Road
Culverts and Laying Pipe
TOTAL $472.50
i. Total of a through h above $30,662.63
6. Drumore Township records confirm that payments were made to
Long's Asphalt Paving as follows:
CHECKS(account) AMOUNT
146 (D.E.F. Council Acct) $4,064.00
6198 (General Fund) 2,350.00
201 (Special State Fund Acct) 1,812.00
6837 (General Fund) 7,675.00
6895 (General Fund) 3,024.13
6958 (General Fund) 9,165.00
7062 (General Fund) 2,100.00
7115 (General Fund) 472.50
TOTAL $30,662.63
7. Minutes of Drumore Township Supervisor's Meetings confirm that
Harold Long participated in Board discussions to pay bills.
This included payments to Long's Asphalt Paving listed in
finding 6 above.
Lona, 92- 009 -C2
Page 6
a. The approvals to pay bills were unanimous.
b. Payments to Long's were approved at Board of Supervisors'
on the following dates:
December 28, 1987
July 7, 1988
May 3, 1990
July 5, 1990
September 6, 1990
November 1, 1990
February 7, 1991
April 4, 1991
8. The total amount paid to Long's Asphalt Paving by Drumore
Township was $30,662.63.
9. The Pennsylvania Department of Transportation, Bureau of
Municipal Services conducted an audit of Drumore Township's
Liquid Fuels Tax Fund Account for the period January 1, 1990
to December 3, 1990.
a. The audit was made in accordance with the policies and
procedures established by the Department of
Transportation as result of the powers and duties
imposed on the Department of Transportation by Act 655.
b.
An audit report was issued on August 9, 1991.
The report found that Drumore Township Supervisor/
Roadmaster Harold Long was an interested party in Long's
Asphalt Paving and as such was prohibited from entering
into contracts with the Township.
1) The report found that the Township entered into
contracts amounting to $21,676.13 with Long's
Asphalt Paving and that the contracts were entered
into without competitive bidding or advertising and
that the required bonds were not provided by the
contractor.
c .
2) This amount was the same as outline in finding 5c,
5d, 5e, and 5f and finding 6c, 6d, 6e, and 6f.
d. The report further found that expenditures by the
Township included $15,096.00 to Mcminns Asphalt for the
rental of a milling machine without the benefit of
advertising or billing.
e. The report also found that the Township did not maintain
fuel dispensation records to support the disposition of
$5,781.27 in diesel fuel.
f. The audit recommended that the Township reimburse the
Long, 92- 009 -C2
Page 7
Liquid Fuels Account for all of the above listed amounts,
which totaled $42,553.27.
10. Township records confirm that on November 22, 1990 the
Township Supervisors authorized a deposit of $8,511.13 from
the Township General Fund to the Township Liquid Fuels
Account.
a. On December 13, 1990, the Supervisors authorized an
additional $34,024.14 reimbursement to the Liquid Fuels
Account from the General Fund.
b. These reimbursements totaled $42,553.27, the amounts
listed in the Penn DOT audit report.
11. Prior to October, 1990, the Drumore Township Supervisors did
not obtain any bids for paving work to be completed in the
Township.
a. The Supervisors were unaware that paving work performed
by Long's Asphalt Paving had to go out on bid until they
were instructed by Penn DOT officials.
b. The Supervisors did not obtain bids because they were
satisfied with Long's work and it was a savings to the
Township.
12. Drumore Township also utilized the services of McMinns Asphalt
Paving for paving various Township paving projects.
a. The Board of Supervisors did not publicly
contracts awarded to McMinns.
13. Records of Drumore Township indicate Statements of
Interests on file for Harold G. Long as follows:
a. Statement Date: April 12, 1987
Calendar Year: 1987
Source of Income: Drumore Township,
Long's Asphalt /Paving
Financial Interest in
Any Business Entity: Long's Asphalt Paving
b. Statement Date: February 24, 1989
Calendar Year: 1988
Source of Income: Drumore Township,
Long's Paving /Asphalt
Financial Interest in
Any Business Entity: none
c. Statement Date: April 5, 1990
advertise
Financial
Long, 92- 009 -C2
Page 8
d. Statement Date: May 30, 1991
Calendar Year: 1990
Source of Income: Drumore Township
Long's Asphalt Paving
Financial Interest. in
Any Business Entity: Long's Asphalt Paving, Owner
III. DISCUSSION:
Calendar year: 1989
Source of Income: Drumore Township,
Long's Asphalt Paving
Financial Interest in
Any Business Entity: none
Initially, it is noted that the allegations in this case
relate to both Act 9 of 1989 and Act 170 of 1978. In this regard,
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
of the violations occurred prior thereto."
Under both Act 170 of 1978 and Act 9 of 1989, as a.. Supervisor
for Drumore Township in Lancaster, Pennsylvania, Harold Long,
hereinafter Long, is a public official as that term is defined
under both acts. See also 51 Pa. Code. As such, his conduct is
subject to the provisions of both laws and the restrictions therein
are applicable to him.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official 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." 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
Lonc, 92- 009 -C2
Page 9
65 P.S. 5402.
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.
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 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).
Section 3(c) of Act 170 of 1978 quoted above provides in part
that no public official /public employee or a member of his
immediate family may contract with his governmental body if the
contract is $500.00 or more unless it is awarded through an open
and public process including prior public notice and subsequent
public disclosure.
In addition, Section 3(f) of Act 9 of 1989 specifically
provides in part that no public official /employee or spouse or
child or business with which he or the spouse or child is
associated may enter into a contract with his governmental body
valued at five hundred dollars or more or any subcontract valued at
five hundred dollars or more with any person who has been awarded
a contract with the governmental body with which the public
official /employee is associated unless the contract is awarded
through an open and public process.
The issue before us is whether Long as a Drumore Township
Supervisor violated either Sections 3(a) of Act 170 of 1978 or Act
9 of 1989, the conflict sections, or Section 3(c) of Act 170 of
Long 92- 009 -C2
Page 10
1978 or Section 3(f) of Act 9 of 1989, the contracting sections, as
to his participation in the award of contracts to Long's Asphalt
Paving and Seal Coating.
Factually, Long has served as Drumore Township Supervisor and
Roadmaster since 1979. In a private capacity, Long owns and
operates Long's Asphalt Paving and Seal Coating which has been used
by Drumore Township to pave various Township roads while Long was
serving as Supervisor. The contracts which were awarded to Long's
Asphalt Paving were done without prior public notice or bidding.
Although the Drumore Board of Township Supervisors did not take any
official action to approve the contracts with Long' s Asphalt Paving
and Seal Coating, the minutes of the Board do reflect that Long
participated in Board decisions to pay the invoices for the work
performed as to the contracts. The record further reflects that
the contracts in question were in excess of $500. (Fact Finding
5). The total amount received by Long for the approximately eleven
different contracts totalled $30,662.63.
PennDOT conducted an audit of Drumore Township's Liquid Fuels
Tax Fund account for the period January 1, 1990 to December 3,
1990, and issued an audit report on August 9, 1991. In that
report, it was determined that Long as a Township Supervisor was an
interested party-in the Long's Asphalt Paving contracts and as such
was prohibited from entering into the contracts with the Township.
In addition, the report noted other deficiencies and recommended
that the Liquid Fuels Account be reimbursed in the amount of
$42,553.27. (Fact Finding 9). The Township subsequently made the
reimbursements listed in the PennDOT audit report.
The record reflects that the Drumore Township Supervisors were
unaware that paving work performed by Long's Asphalt Paving had to
go out on bid until they were so advised by PennDOT. The
Supervisors did not obtain bids because they were satisfied that
Long's work constituted a savings to the Township. Finally,
Drumore Township did use the services of Mcminns Asphalt Paving for
other Township projects and likewise did not publicly-advertise the
Mcminns contracts.
As to the allegations before us, we find violations of
Sections 3(a) and 3(c) of Act 170 of 1978. As to Section 3(a), the
record does reflect that Long participated in the approval of
payments for the contracts with Long's Asphalt Paving which is a
use of office that resulted in a financial gain to him and the
business with which he was associated. Finally, the financial gain
is other than compensation provided for by law since there is no
provision in law which would authorize his contracting with the
Township under these circumstances; in fact, it appears that such
contracting is strictly prohibited. (Fact Finding 9c).
As to Section 3(c) of Act 170 of 1978, the record reflects
Lora, 92- 009 -C2
Page 11
that Long through his company contracted with his governmental body
without prior public notice or bid procedures. In particular, the
contracts were not awarded through an open and public process and
the contracts exceeded the $500 threshold of Section 3(c).
Accordingly, we find a violation of Section 3(c) of Act 170 of
1978.
As to Act 9 of 1989, we find a violation of Section 3(a) for
the reason that there was a use of authority of office on the part
of Long in participating in the approval of the payments of the
contracts with his company which was a private pecuniary benefit to
himself and the business with which he was associated. In
addition, there was a violation of Section 3(f) of Act 9 of 1989
for the reasons noted above, namely, that the contracts were in
excess of $500 and were not awarded through an open and public
process.
Our decision is consonant with Pirolli, Order 804, wherein we
held that a member of a county joint municipal authority violated
the provisions of the Ethics Law when a firm with which he was
associated contracted with the authority to sell fuel oil without
an open and public process and when he utilized his position as an
authority board member to approve payments by the authority to his
fuel company.
As a postscript, we note that the Township awarded contracts
to other companies without an open and public process. The
Township contracted with Long because they were satisfied with his
work and believed it was a savings to the Township although the
consequences of such action resulted to the substantial detriment
of the Township whereby the Township had to repay $42,553.27 as a
result of the PennDOT audit, part of which report reflected the
$21,676.13 of the contracts awarded to Long's .Asphalt Paving.
(Fact Finding 9c(1)).
Although there is no allegation as to any violation for filing
deficient Statements of Financial Interests (SFI's), we do note
that Long failed to list his asphalt paving business in the
business entity category for the calendar years 1988 and 1989.
Accordingly, we direct Long to file amended SFI's for the 1988 and
1989 calendar years within thirty (30) days of issuance of this
Order listing his ownership in Long's Asphalt Paving under the
category of business entity.
IV. CONCLUSIONS OF LAW:
1. Harold Long as a Drumore Township Supervisor is a public
official as that term is defined under Act 170 of 1978 and Act
9 of 1989.
2. Long violated Section 3(a) of Act 170 of 1978 when he
Log, 92- 009 -C2
Page 12
participated in approving payments to his company, Long's
Asphalt Paving, as to contracts for paving certain Township
roads.
3. Long violated Section 3(c) of Act 170 of 1978 when he as owner
of Long's Asphalt Paving entered into contracts for paving
Township roads with the Township which contracts were in
excess of $500 and were not awarded through an open and public
process.
4. Long violated Section 3(a) of Act 9 of 1989 when he
participated in approving payments to his company, Long's
Asphalt Paving, as to paving certain Township roads.
5. Long violated Section 3(f) of Act 9 of. 1989 when he as owner
of Long's Asphalt Paving entered into contracts for paving
Township roads with the Township which contracts were in
excess of $500 and were not awarded through an open and public
process.
In res Harold Long s File Dockets 92- 009-02
s Date Decided: yeotember 10, 1992
s Date Mailed: September 10, 19$2
ORDER NO. 853
1. Harold Long as a Drumore Township Supervisor violated Section
3(a) of Act 170 of 1978 when he participated in approving
payments to his company, Long's Asphalt Paving, as to paving
certain Township roads.
2. Long violated Section 3(c) of Act 170 of 1978 when he as owner
of Long's Asphalt Paving entered into contracts for paving
Township roads with the Township which contracts were in
excess of $500 and were not awarded through an open and public
process.
3. Long violated Section 3(a) of Act 9 of 1989 when he
participated in approving payments to his company, Long's
Asphalt Paving, =as to paving certain Township roads.
4. Long violated Section 3(f) of Act 9 of 1989 when he as owner
of Long's Asphalt Paving entered into contracts for paving
Township roads with the Township which contracts were in
excess of $500 and were not awarded through an open and public
process.
• Long is directed within thirty (30) days of issuance of this
Order to file amended Statements of Financial Interests for
the calendar years 1988 and 1989 listing his ownership of
Long's Asphalt Paving and Seal Coating under the category of
business entity.
. Failure to comply with the provisions of Paragraph 5 will
result in a directive of this Commission to institute an order
enforcement action.
BY THE COMMISSION,
JAMES M. HOWLEY