HomeMy WebLinkAbout910 BakowiczIn re: John R. Bakowicz
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 88 -116 -C
Date Decided: December 7, 1993
: Date Mailed: December 10, 1993
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
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 filed and a hearing was waived. A consent agreement 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 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).
Bakowicz, 88 -116 -C
Page 2
I. " ALLEGATION:
That John R. Bakowicz, Engineer for the City of Sunbury, the
Sunbury Redevelopment Authority (SRA) and the Community Development
Program (CDP), violated the following provisions of the State
Ethics Act (Act 170 of 1978), when he used confidential information
from his position to purchase a parcel of SRA owned property
without an open and public "process; entered into a private business
relationship with Kenneth Pick in return for Pick's assistance in
obtaining the city property and CDP loan; and used his position to
alter plans for a propozad parking lot to be built by the SRA and
the City of Sunbury to benefit his private property which is
located adjacent to the parking lot; and as City and Authority
Engineer reviewed and approved his private plans:
65 P.S. 55403(a), (b)'.
II. FINDINGS
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 financial-gain
other than compensation provided by law for
himself, a member of his immediate family, or
a business with which he is associated.
(b) No person shall offer or give to a
public official or public employee or
candidate for public office or a member of his
immediate family or a business with which he
is associated, and 'no public . official or
public employee or candidate for public `office
shall solicit or accept, anything of value,
including _ a gift, loan, political
contribution, or promise of .future
employment based on any understanding that the
vote, official action or judgment of the
public official or public employee or
candidate' for public office, would be
influenced thereby.
1. John Bakowicz served " as City Engineer for Sunbury,
Northumberland County, Pennsylvania from 1976 until August 14,
1989.
a. He provided engineering services, primarily surveying
services, to the Sunbury Redevelopment Authority from
1979 to 1989.
Bakowicz, 88 -116 -C
Page 3
b.
He provided engineering services to the Sunbury Community
Development Program from 1979 to 1989. This status was
formalized by multiple year contract in the early 1980's
when the Pennsylvania Department of Community Affairs
assumed control of all block grant funding. Individual
contracts were negotiated for each project.
2. John Bakowicz is a licensed professional engineer.
a. He operates a private engineering firm under his name.
b. In addition to the City of Sunbury and the Sunbury
Redevelopment Authority, John Bakowicz also has other
municipal clients.
c. During the course of his private engineering practice,
Mr. Bakowicz employed the services of Kenneth Pick as a
consultant. (See Finding Nos. 55 -61).
3. Kenneth Pick has served as Executive Director of the
Redevelopment Authority and as Coordinator of`the Community
Development Program in the City of Sunbury, Pennsylvania from
March, 1982 to the present.
4. A position description of Pick's duties and responsibilities
with the Redevelopment Authority reflects that he performs as
follows:
a. Chief Administrative Officer of the Authority directly
responsible for the proper execution of board policy as
it relates to renewal activities in the City.
b. Coordinates all activities of the federal, state and
local agencies as they relate to renewal activities
generally and as required specifically. Responsible for
delineation of appropriate information to these bodies.
c. Provides technical assistance and directs the department
heads for information and direction to the department
staff. Organizes the training of the staff; attends all
board meetings; reviews and comments upon all third party
contracts and, together with the chairman, signs these;
recommends personnel adjustments, changes, etc.; provides
guidance, direction and interpretation where required of
the personal and administrative policies of the
authority.
d. Signs letters and performs similar tasks for the
authority within the limitations established by the board
of resolution and by standard practice; aids in planning
of urban renewal projects and the, elements thereof.
Bakowicz, 88 -116 -C
Page 4
5. In addition to serving the Sunbury Redevelopment Authority and
the City of Sunbury, Kenneth Pick also provided consulting
services to private clients.
a. Such services generally related to the field of community
and economic development and included the preparation of
income surveys, applications for state and federal
funding as well as housing inspections.
b. One of the clients to whom Pick provided such service was
John Bakowicz.
6. The Sunbury Department of Community Development (DCD) was
created by the City as a division of the municipal government
charged with the procurement and administration of Community
Development Block Grant Funds (CDBG) and other federal and
state grants intended for the enrichment of community life
through the enhancement of commerce, preservation of historic
structures, and revitalization of the public infrastructure.
a. A director and secretary comprise the DCD staff
complement and, traditionally, have been afforded wide
latitude in the performance of their duties.
b. There is no direct DCD accountability to or oversight by
a designated City Council person.
1) The Mayor had general oversight responsibility over
DCD.
2) When an activity of the DCD involved activities
relating to a department of City Cdunci -1, the
chairperson of that department was to have general
oversight activity with Council retaining
supervisory powers
Ultimate decision making authority was vested with
City Council.
c. Other administrative departments are directly responsible
to individual members of Council.
7. The Redevelopment Authority of the City of Sunbury is an
autonomous public entity which operates under the aegis of the
Pennsylvania Urban Redevelopment Act and a board of residents
appointed by "the City Council.'
a. The Authority serves as a conduit for federal and state
funds designated for urban renewal and related functions.
b. The Authority's programs are'clbsely attuned with those
Bakowicz, 88 -116 -C
Page 5
of the DCD.
c. The DCD Director also serves as executive director of the
Redevelopment Authority.
8. During late 1986, the City of Sunbury initiated the
construction of the Woodlawn Parking Lot at the Arch Street
redevelopment project site. The lot's boundaries were Arch
and Third Streets and Woodlawn Avenue.
a. The Sunbury Redevelopment Authority sold land for this
parking lot to the City.
John Bakowicz provided
parking lot project.
c. The parking lot was
Grant Program Funds.
engineering services for the
to be funded with Community Block
9. Sunbury City Mayor Charles Moll initially proposed
construction of this parking lot in May, 1986.
a. The Woodlawn Avenue site was initially recommended by
Pick's office.
b. Following this recommendation, Mayor Moll encouraged Pick
to investigate the feasibility of this site.
10. In relation to the parking lot design, by way of letter dated
August 7, 1986 to Bakowicz from Kenneth Pick in his capacity
as the Community Development Coordinator for the city,
Bakowicz was advised that the City is interested in acquiring
property for a parking lot.
a. Bakowicz is requested to provide legal descriptions and
a survey for the Woodlawn /Arch Street site.
11. Bakowicz was appointed by the City to act as engineer on the
parking lot project several days later on August 11, 1986.
(See Finding No. 23a).
a. The contract for this appointment was dated August 11,
1986, although actual performance began on August 5,
1986.
b. In this capacity, Bakowicz was responsible for performing
required survey work, for design and preparation of plans
and specifications for bidding, and for various contract
administration services.
12. The Sunbury Redevelopment Authority also sold land to John
Bakowicz, 88 -116 -C
Page 6
Bakowicz and Bakowicz's wife, acting in his private capacity,
for a projected office building which was to be constructed
adjacent to the parking lot.
a. This land was connected to the proposed parking lot being
constructed by the City.
b. The proposed office building was for John Bakowicz's
private engineering firm.
° 13. Construction of the parking lot was recommended to Sunbury
City Council by Kenneth Pick, -Community Development
Coordinator for the City's Community Development Block Grant
Program, and City Council approved construction of the parking
lot on September 8i 1986. -
a. Sunbury City Council Also approved a subdivision plan
submitted by the Redevelopment Authority allowing the
subdivision of land for the construction of a municipal
parking lot on one portion of the original parcel and the
sale df the other portion of the original parcel to John
and Mary Lou Bakowicz. .
b. Following City Council's 'approval of the subdivision
plan, the Redevelbpinent Authority conveyed: the parking
lot parcel to the City of Sunbury and .the development
parcel to the Bakowiczes.
14. As Community Development Coordinator, Kenneth Pick reported
directly to City Council or Council department head on .matters
pertaining to the construction of the parking lot•and'`sale of
the land to the City and Bakowicz.
a. Pick participated, in the Redevelopment Authority's
issuance of a'loan to Bakowicz to construct the proposed
office facility on the land. This included-)coordinating
the activities of the Redevelopment Authority.
15. City Counci heian Charles Schlegel was the department head who
was responsible for this project. He had oversight
responsibility for the activities of the streets - department
and public improvement projects.
a. City Council had the ultimate authority over all
Oro jec'ts . •
16. The Sunbury Redevelopment Authority had attempted to foster
the development of the Arch Street property since 1981.
a. Advertisements regarding the availability of this
property °were published in 1981
Bakowicz, 88 -116 -C
Page 7
b. Realtors were contacted in an effort to market the
property.
17. Several potential buyers expressed an interest in the
properties.
a. In 1983, Turkey Hill Mini Markets requested to know of
any available redevelopment property for the construction
of a convenience store.
b. In a letter dated November 16, 1983, Pick describes a
24,000 square foot property and also advises that another
mini market is a half block away.
c. Others also expressed an interest in this property.
18. At the time that Sunbury was attempting to sell the property
on Arch Street, no parking facility was under consideration.
a. An Urban Renewal Plan previously developed proposed a
parking lot as part of a courthouse relocation to Fourth
and Market Streets.
19. A parking analysis, dated April 20, 1985, conducted at the
request of Kenneth Pick, determined that there was no need for
. :_additional parking facilities in the City of Sunbury at that
time.
20. At a June, 1986 meeting with the City Council members, Pick
discussed the site for the lot on Woodlawn Avenue and the need
to condemn private property.
a. Bakowicz was not present at this meeting.
21. Pick addressed this meeting and discussed the need to change
the 1986 Community Development Block Grant Program to allow
for construction of the Woodlawn Parking Lot.
a. Bakowicz was not present at this meeting.
22. The amendment to the program was passed by City Council on
July 14, 1986.
23. Minutes of the City Council meetings reflect actions taken
with regard to the development and implementation of the
City's Community Development Program and sale of land to
Bakowicz.
a. Auaust 11. 1986:
By resolution, Council unanimously selected John Bakowica
Bakowicz, 88 -116 -C
Page 8
as Engineer for its FFY 1986 CDBG Program for the
Woodlawn Avenue Parking Lot project at a fee not to
exceed $5,000.
Council also unanimously adopted a resolution selecting
Eugene Brosius as Solicitor for the FFY 1986 CDBG Program
for the Woodlawn Avenue Parking Lot at a fee not to
exceed $6,000.
Ms. Schlegel =aquested Council's permission to advertise
bids for the Woodlawn Avenue Parking Lot project. Mr.
Schlegel moved, seconded by Mr. Packer, to authorize Mr.
Pick to advertise for bids for the Woodlawn Avenue
Parking Lot project. Vote was called for and motion
passed unanimously,
b. October 13, 1986:
Mr. Pick stated that the committee has met concerning the
Woodlawn Avenue Parking project bids, and it is the
committee's recommendation that Counci].accept the bids.
Low bidders were'Faylor - "Middlecreek for the general
construction work, and R4N Electric for the electrical
work. Mr. Heintzelman moved, seconded by Mr. Packer, to
dccept and award the blds Contract' 8 -86A (General)
and Contract 8 -86B (Electrical). Vote was called, and
motion passed unanimously.
Minutes do not reflect a motion being made to adopt the
following resolution:
RESOLUTION -
WHEREAS, the Redevelopment Authority of the City of
Sunbury completed an urban renewal project entitled the
Arch Street Urban Renewal Project; and
WHEREAS, Laid project contains certain parcels of
land which the Authority is desirous of selling in
accordance with, the, Redevelopment Proposal prepared for
the area; and
M WHEREAS, the City of Sunbury has undertaken a
project funded 'by the FFY 1986 Community Development
Program to construct a municipal parking lot and desires
to purchase from the Authority certain parcels of the
Arch Street Urban Renewal Area.
NOW, THEREFORE, be it resolved and it is hereby
resolved by the Council of the City of Sunbury that:
Bakowicz, 88 -116 -C
Page 9
1. The parcels of land shown as Parcels 8 & 9 on
drawing #09- 02 -86 -D -001 by John R. Bakowicz, P.E.,
and recorded in the Recorder's Office of
Northumberland County in Plan Book 8, Page 87 be
purchased from the Redevelopment Authority of the
City of Sunbury for $1.16 per square foot.
2. The Mayor, on behalf of Council, is authorized and
directed to execute all documents necessary to
consumma;41 said sale.
Mr. Brosius, City Solicitor, presented Bill No. 6,
Sessions of 1986, an ordinance amending Ordinance
No. 1076, an ordinance establishing and maintaining
a lot for the parking of motor vehicles in the area
between Third and Fourth Streets and North of
Woodlawn Avenue in the City of Sunbury.
Mr. Filer moved, seconded by Mr. Schlegel, that
Bill No. 6, Sessions of 1986, be passed at first
reading in its entirety. Vote was called, and
motion passed unanimously.
Mr. Heintzelman moved, seconded by Mr. Packer, to
authorize Mr. Brosius, City Solicitor, to proceed
to file a Declaration of Taking in the event that
an amiable purchase price cannot be arrived at by
the time it is necessary to proceed with the
project. Vote was called for an motion passed
unanimously.
24. Minutes of the Redevelopment Authority meetings reflect the
following information pertaining to the Arch Street Project
which includes the Woodlawn Parking Lot:
a. August 7, 1986:
Mr. Pick gave the following reports:
The City allocated - funds from the 1986 Community
Development for a parking lot to be developed on a
portion of the Arch Street parcel and extending to
Woodlawn Avenue 230 feet. The lot will be 70 feet
fronting on Arch Street and would require the transfer of
a 70 x 120 foot parcel from the Authority to the City.
An option to purchase a 65'foot frontage on Arch Street
and approximately 120 feet in dept was received from Mr.
John R. Bakowicz, P.E. This would leave a 12 foot right -
of -way to get to the Third Street parcel. A long
discussion followed.
Bakowicz, 88 -116 -C
Page 10
b. September 4, 1986:
Mr. Walter made motion, seconded by Mr. Askew, to accept
the option from Mr. Bakowicz upon the condition that Mr.
Bakowicz place his driveway on the west side, and the
driveway would be subject to ingress and egress to the
remaining property of the Authority, its successors or
assigns; or that Mr. Bakowicz relinquish 5 feet, reducing
the width to a 60 foot frontage on Arch Street. Vote was
called for and motion passed with Mr. Albright, Mr.
Walter and Mr. Askew voting aye. Mr`. Deitrich did not
vote.
Mr. Pick reported that Mr. John Bakowicz, P.E., is
requesting a revision in the direction and location of
the parcel he is interested in acquiring from the Arch
Street parcel where he plans to build an office building.
The parcel would essentially be the same size - 120'
fronting on Arch Street x 53' deep and would be located
next to the, Metropolitan Insurance Building. His
original option was for 60'_ fronting .on Arch Street and
120' deep and would sit closer to the Aldine Hotel.
Mr. Deitrich commented that the Redevelopment Authority
lot has been vacant for a number of years and now the
City-desires to make it into a parking lot. He was
hoping the City just use a small portion of Parcel
No. 5 (adjacent to privately owned landrfor an exit and
use the Redevelopment Authority owned parcel for the
parking.. A lengthy discussion followed.
M Mr. Woodring made motion, seconded by 'lr Walter, to
modify the option received from Mr. Bakowicz as
requested. Vote was called for and voting was as
follows: Aye - Mr. Woodring, Mr. Walter and Mr.
Albright - Mr.: Deitrich abstained.
Mr. Pick Mr. prosius explained the proposed sub -
division of the Arch Street lot containing parcels 1, 8,
9 and 10 and requested permission to pass the proposed
subdivision. Question was raised if the City would be
inclined to purchase Parcel No 8 as well as No 9 and
combine the two into one parcel. Discussion followed.
Mr. Woodring made motion, seconded by Mr. Walter, to
approve the subdivision plan as, presented. Vote was
called for and voting was as follows: Aye - Mr.
Woodring, Mr.,Walter and Mr. Albright. Mr. Deitrich
abstained.
c. October 2. 1986:
Bakowicz, 88 -116 -C
Page 11
Mrs. Forbes reported that a resolution will be presented
under new business for the sale of Parcels No. 8 and No.
9 of the Arch Street parcel to the City.
Mr. Albright noted that with this last bond program
proposal, the total our Authority used to date will be
$730,000.
Mr. Jim Jaegers stated that, according to their deed, the
survey of the Arch Street parcel was off by 21 feet, and
he questioned what happened to this amount of land? Mr.
Brosius, Solicitor, explained that he has to assume the
surveyor is correct. If he is wrong, he has to answer to
that. Mr. Brosius will check with Mr. Bakowicz and then
get back to Mr. Jaegers.
Mr. Walters made motion, seconded by Mr. Askew, that
Parcels No. 8 and 9 be sold to the City with the
assumption all parties are satisfied, that Parcel No. 9
be checked for accuracy. Vote was called for and was as
follows: Aye - Mr. Albright, Mr. Walter and Mr. Askew.
No - Mr. Deitrich. The following resolution was
approved:
R E S O L U T I O N
WHEREAS, the Redevelopment Authority of the City of
Sunbury completed an urban renewal project entitled the
Arch Street Urban Renewal Project;
WHEREAS, said project contains certain parcels of
land which the Authority is desirous of selling in
accordance with the Redevelopment Proposal prepared for
the area; and
WHEREAS, the City of Sunbury has undertaken a
project funded by the FFY 1986 Community Development
Program to construct a municipal parking lot and desires
to purchase from the Authority certain parcels of land of
the Arch Street Urban Renewal Area.
Now, therefore, be it resolved, and it is hereby
resolved by the governing body of the Redevelopment
Authority of the City of Sunbury that:
1. The parcels of land shown as Parcels
drawing No. 09 -02 -86 D -001 by John R.
P.E., and recorded in the Recorder's
Northumberland County in Plan Book 8,
sold to the City of Sunbury for $1.16
foot.
8 & 9 on
Bakowicz,
Officer of
page 87 be
per square
Bakowicz, 88 -116 -C
Page 12
2. The Chairman and Sedretary are authorized and
directed to execute all documents necessary to
consummate said sale.
d. October 22, 1986:
Mr. Walter made motion, seconded by Mr. Askew, that
Parcel No. 1 of the Arch Street lot be sold to John R.
and March Lou A. Bakowicz for construction a two -unit
office facility. Vote was called for and motion passed
unanimously. The resolution is as follows:
R E S O L U T I 0.N
NOW, THEREFORE, be is resolved, and it is hereby
resolved by the governing body of the Redevelopment
Authority of the City of Sunbury that:
1. The parcel of land shown as Parcel No. 1 on drawing
No. 09- 02 -86 -D -001 by John R. Bakowicz, P.E., and
recorded in the Recorder's Office of Northumberland
County in Deed Plan Book 8, Page 87, be sold to
John R. and Mary Lou Bakowicz for the sum of
$7,350.
2. The chairman and secretary are authorized and
directed to execute all documents necessary to
consummate said,sale.
e. December 4, 1986:
Mr. Pick presented a drawing of the plans and
specifications of the proposed building to be constructed
by Mr. and Mrs.John Bakowicz. Building will consist of
2,650 square feet for two offices; one for Mr. Bakowicz
and one for a prospective tenant. Plans include four
parking spaces plus the public parking lot is available
for further required parking.
Mr. Walter made motion, seconded by Mr Woodring, that we
accept the plan as submitted by Mr. and Mrs John R.
Bakowicz. Vote was called for, and motion passed
unanimously.
f. January 8, 1987
Mr. Pick reported that settlement with Mr. and Mrs.
Bakowicz for the Arch Street parcel has been completed.
From the proceeds of these two parcels, 50% will be
returned to the State. This completes the Arch Street
Program:
Bakowicz, 88 -116 -C
Page 13
25. Kenneth Pick had advised Bakowicz that the City had selected
a site for a parking lot and suggested that Bakowicz consider
building a new office facility at the same location.
a. Pick was aware through casual conversations with John
Bakowicz of the fact that Bakowicz was seeking an office
facility.
26. In relation to the sale of land to John Bakowicz, by way of
letter dated Aug 6, 1986 from John Bakowicz to the
Redevelopment Authority, Bakowicz requests an option to
purchase the property on Arch Street for the purpose of
constructing an office facility thereon.
a. The configuration of the parcel sought consisted of a 65
foot frontage on Arch Street and 120 feet deep.
b. On August 6, 1986, the three options had not yet been
prepared.
c. This letter was dated one day prior to Pick's letter to
Bakowicz requesting legal descriptions and surveys. (See
Finding No. 10).
27. Three design options were prepared in relation to the physical
layout of the City parking lot project.
a. The first option (A) was prepared by Kenneth Pick and
included by Mullin and Lonegran.
b. Options B and C were prepared by Mullin and Lonegran
Associates, Inc.
c. Mullin and Lonegran, Inc., served as a contract
consultant for the City of Sunbury in relation to the
development of a community development program. They
also acted as a consultant to the Redevelopment
Authority.
28. The three options entailed the configuration of the parking
lot, the number of spaces, the site of the office facility,
and the location of vacant parcels.
a. Option A involved a parking lot running parallel with
Fourth Street between Arch and Woodlawn. The lot would
be a straight run of 42 spaces. The office facility
would be on Arch Street with the lot to one side and a
vacant parcel to the other.
1) This option contained a long straight stretch that
could generate high -speed traffic.
Bakowicz,
Page 14
b.
88 -116 -C
Option B placed the lot in the shape of a reverse letter
"L" running parallel with Fourth (from Woodlawn) and then
up from Fourth to Third Street. The office would face
Arch and be bordered by the lot which contained 65
spaces.
1) Option B proposed the purchase of additional land
and development of more parking.
c. Option C pla - zed the office on Arch Street with the
entrance to the lot adjacent thereto. The lot would run
in the shape of a reverse letter "Z" from Woodlawn
parallel with Fourth up toward Third and across tp Arch.
The lot consisted of 42 spaces.
29. Option C was preferred by John Bakowicz for his private office
complex because his building would be situated closer to the
Metropolitan Building and further from the Aldine Hotel.
30. Parking lot design, Option A, presented certain egress
problems for Bakowicz.
a. A potential problem also would occur in securing parking
and turning around in the building site.
31. Option C did not present these problems and worked to the
benefit of Bakowicz.
32. On August 12, 1986 Pick met with James Walton of Mullin &
Lonergan Associates, Inc. to discuss preliminary design
options for the parking: lot site.
a. Options A,B and_ C. were prepared following Walton's
meeting with Pick on August 12, 1986,.,-,and forwarded to
Pick on August 18, 1986.
b. • Mr. Walton met with Pick in Sunbury on August 28, 1986 at
which time the various options were discussed in greater
detail.
c. Neither Option A nor B was prepared with.,specificity as
of September 4, 1986.
33. On September 4, 1986, a breakfast meeting was held with
Kenneth Pick, City Councilman Schlegel and John Bakowicz for
the .purpose of discussing ..design Options A, B and C.
a. Bakowicz sought to determine which option Schlegel would
accept and recommend to Council for approval because the
subdivision plan previously approved by Council was based
upon the design which later became Option A.
Bakowicz, 88 -116 -C
Page 15
b. Bakowicz was aware of the three options prior to that
time.
c. After reviewing the sketches and meeting with Pick and
Bakowicz, Schlegel decided to recommend Option C for
approval by Council.
d. Schlegel based his recommendation on his
Option C was the most desirable in terms
proposed traffic pattern in the parking
proposed location for construction of
building.
opinion that
of both the
lot and the
the office
34. A11 " design options suited Bakowicz's
potential buyer of an Arch Street parcel.
35. Bakowicz, during a sworn deposition, testified that he did not
know in what capacity he had been given the three design
options; that is either as a potential buyer or as an engineer
for the parking project.
36. By way of letter of September 4, 1986 from John Bakowicz to
the Sunbury Redevelopment Authority, Bakowicz requests to
amend his letter of August 6, 1986 whereby he proposed to
purchase the Arch Street property. (See Finding No. 26).
a. The amendment related to the configuration of the size of
the lot and requested a 120 foot frontage on Arch Street
and a depth of 53 feet.
b. This configuration was consistent with the parking lot
sketch C. (See Finding No. 28c).
c. The letter contained a legal description of the property
(revised) consisting of an exact metes and bounds
identification.
needs as a
37. On September 4, 1986, the Redevelopment Authority approved
Bakowicz's request. (See Finding No. 24b).
a. The approved subdivision was consistent with the concept
shown in Option C.
b. This decision occurred the evening of Bakowicz's meeting
with Councilman Schlegel. (See Finding No. 33).
38. Bakowicz had privately retained a draftsman sometime in
August, 1986 to perform drafting work on the subdivision plan
and the municipal parking lot facility.
a. Bakowicz paid the draftsman on September 12, 1986, on
Bakowicz, 88 -116 -C
Page 16
which date the subdivision plan, approved by City Council
on September 8, 1986, was recorded in the County
Courthouse.
b. The aforementioned subdivision plan submitted by the
Redevelopment Authority, approved by City Council on
September 8, 1986, and recorded in the County Courthouse
on September 12, 1986, was consistent with Design.Option
C.
39. During a sworn deposition, Pick testified that the only reason
that the configuration of the parking lot design was altered
was because of the desire of Bakowicz to change the
positioning of his building.
40. Subdivision approval was required in order for the land to be
sold to Bakowicz and this approval was granted by City Council
on September 8, 1986.
41. In an effort to finance the construction of a private office
facility, Bakowicz sought funds .through the Sunbury
Redevelopment Authority.
a. The financing involved the issuance of authority bonds to
be secured by the lending institution.
42. On September 11, 1986, a public meeting was held by the
Sunbury Redevelopment Authority for the purposes of
considering the projects and solicit public comment therein.
a. One project was the Bakowicz office facility.
b. who also meeting lturned the f oorh Authority
overto Kenneth chairman
k
who al
who proceeded to describe the projects.
43. The financing issued as part of the Community, Development
Program was low interest.
44. The loan program was going to expire in December, 1986 and, as
such, Bakowicz had to complete his efforts to secure financing
prior thereto.
45. On October 22,1986, the chairman of the Sunbury Redevelopment
Authority executed a resolution- approving -the issuance of tax -
free bonds.
a. The resolution provides that the Authority is authorized
to borrow funds through the issuance of tax'free bonds to
area, lenders who have agreed to participate in the
Community Development Program.
Bakowicz, 88 -116 -C
Page 17
b. The authority makes these funds available to qualified
property owners.
c. The resolution authorizes the issuance of bonds totaling
in part $95,000.00.
46. On October 22, 1986, the Chairman of the Sunbury Redevelopment
Authority executed a resolution approving the issue of funds
from the sale of the tax -free bonds.
a. The funds were released on the part of John and Mary Lou
Bakowicz in the amount of approximately $12,000.00.
47. By way a memo dated November 18, 1986 to Eugene Brosius,
Esquire, Solicitor for the Sunbury Redevelopment
from Pick a bond tax opinion is requested in relation to the
Bakowicz loan.
a. The lender required an opinion regarding the tax free
eligibility of the bond.
48. Settlement whereby the Sunbury Redevelopment Authority
transferred the Arch Street property to John R. and Mary Lou
Bakowicz took place on December 9, 1986.
a. The consideration noted in the deed was $7,350.00.
49. On December 12, 1986, Pick forwarded an Industrial Development
Bond final allocation request to the Pennsylvania Department
of Commerce regarding the Bakowicz loan.
a. Pick also filed IRS Form 8038 information for private
activity bond issues on December 12, 1986.
50. Kenneth Pick advised the voting members of the Redevelopment
Authority on the loan approval to Bakowicz.
51. The members of the Redevelopment Authority were not advised by
Pick of his private business relationship with Bakowicz at the
time of the loan approval.
52. By letter of March 1, 1989, the Pennsylvania Department of
Community Affairs forwarded to Mayor Moll a Performance Review
Report of the City's Community Development Block Grant
Program. Pertinent portions of pages three through five,
relative to the Woodlawn Avenue projects, confirmed the
following:
a. Eligibility:
Based on the review of documentation contained within the
Bakowicz, 88 -116 -C
Page 18
City's files; and on -site inspections of each activity;
all activities are eligible, with the exception of the
Woodlawn Avenue Parking Lot.
b. Woodlawn Avenue Parking:
1) An amendment was submitted in July, 1986 and
approved by DCA to include in the 1986 program, the
acquisition and construction of the Woodlawn Avenue
Parking Lot. This lot was to benefit the Center
City Neighborhood City overall both of which
exceed 51% low and moderate income persons. The
City justified this activity based on slum and
blight removal. DCA qualified the activity based
on the low and moderate income benefit since it
apparently met both objectives.
2) DCA's research on -site indicates that this parking
lot is primarily utilized by government employees
and /or employees of other agencies or businesses
within the downtown.
3) Conflict of Interest Determination: Federal
Regulation 24 CFR Part 570.611(b) (regarding
conflicts of interest) provides:
no person is an employee, agent,
consultant, officer, or elected official or
appointed official of the recipient] who exercise
or have exercised any functions or responsibilities
with respect to CDBG assisted activity or have an
interest in any contract, subcontract or agreement
with respect thereto, or the proceeds thereunder,
either for themselves or those with whom they have
family or.business ties, during their tenure or for
one year thereafter."
4) Based on our monitoring of the City of Sunbury CDBG
program, we strongly believe that at least one City
official has violated the above provision and thus
obtained prohibited interest in the Woodlawn Avenue
Parking project.,.. a CDBG assisted project within
the
5) Our monitoring of the City program reveals the
following:
In June, 1986, City Council adopted a plan for the
construction of a rectangular parking lot in the
downtown area between 3rd and 4th streets. The
lot, as originally proposed, constituted 16,1000
Bakowicz, 88 -116 -C
Page 19
square feet and was to accommodate 42 parking
spaces. As finally constructed, the lot measured
18,260 square feet and accommodated 41 parking
spaces.
The square footage and space loss, based upon our
review of this project, was the result of
acquisition by the City Engineer, John Bakowicz, of
a purchase option to adjacent property; redesign of
the pr ^posed lot by Bakowicz as well as
modification of parking lot during its construction
phase.
August 6, 1986 - Bakowicz requested a purchase
option for land adjacent to the proposed Woodlawn
Avenue Parking Lot from the Sunbury Redevelopment
Authority.
August 11, 1986 - The City awarded Bakowicz a
contract to survey the proposed Woodlawn Avenue
Parking Lot area. The survey as performed included
the land described in Bakowicz's purchase option
from the. Redevelopment Authority.
During the design of the lot, the original
rectangular configuration was replaced with an L-
shaped lot comprised of 18,260 square feet.
The new L- shaped configuration provided Bakowicz,
as holder of a purchase option on the adjacent
property, with the following advantages:
- Bakowicz's frontage on Arch Street was
increased from 60 to 120 feet.
- The redesign enabled Bakowicz to move this
"planned office building" farther away from
the Aldine Hotel, a deteriorated structure,
and closer to the Metropolitan Life Building,
a modern office building in good repair.
September 4, 1986 - The Redevelopment Authority
approved a revised purchase option for Bakowicz,
consistent with the revision of the parking lot.
September 8, 1986 - The City approved Bakowicz's
subdivision plan for land adjacent to the proposed
Woodlawn Avenue Parking Lot.
October 22, 1986 - The Redevelopment Authority
adopted a resolution for the sale of its land
Bakowicz, 88 -116 -C
Page 20
adjacent to the Woodlawn Avenue Parking Lot to
Bakowicz.
November 5, 1986 - The City purchased the Woodlawn
Avenue site from the Redevelopment Authority.
November 7, 1986 - The City awarded a contract for
construction of the Woodlawn Avenue Parking Lot.
Bakowicz, as City Engineer, supervised the
construction.
During the construction, spaces 35 and 36 were
eliminated, and the curbing separating the parking
lot from Bakowicz option area was altered; drop
curbing was installed giving Bakowicz's option area
direct access to the City's parking lot.
December 8, 1986 - City approved right -of -way to
Bakowicz's option area at Bakowicz's request.
December 9, 1986 - Bakowicz exercised his option
and purchased , lot . adjacent to Woodlawn Avenue
Parking Lot.
6) Our investigation of this matter shows that the
Community Ceveiopment Director, Kenneth Pick,
advised Bakowicz concerning the acquisition of the
purchase option; beneficial revisions; and
probability of success in his endeavors.
Pick failed to advise City Council of Bakowicz's
interest in the Woodlawn Avenue site and the
redesigning of the parking :lot to accommodate
Bakowicz's interests.
8) It does not appear .that Pick has received any
financial benefit for ,.providing assistance to
Bakowicz in this project. No contract, subcontract
-or agreement is evident.
9) Finding of Noncompliance has been made as per
Section 105(a) of the Housing and Community
-Development Act of 1974; as amended 24CFR Part
570.201, and Federal OMB Circular A -102, Attachment
0. This activity is not eligible due to the
apparent conflict of interest underlying its
q;ecution, and because the parking lot is not a
public facility.
Corrective Action:
Bakowicz, 88 -116 -C
Page 21
The City is prohibited from using CDBG funds for
this activity. Any CDBG funds drawn down from DCA
for this activity must be returned to DCA, to then
be made available for some other eligible and
fundable activity.
53. In response to the Pennsylvania Department of Community
Affairs letter dated March 1, 1989, (see Finding No. 52),
Bakowicz cited the following:
a. There was gain in square footage of 14 percent when
Option C was selected. There was no actual loss of
- parking spaces because the original sketch was a designed
concept and did not necessarily accurately reflect the
number of spaces that would be constructed.
b. The design of the lot occurred after Option C was
selected. There was only one design prepared by
Bakowicz.
d.
Bakowicz's job was to observe the construction to make
sure that work was performed according to specifications.
Spaces 35 and 36 were eliminated but, spaces 35 and 36
were set forth on the Mullin & Lonegran plan. They were
added as a concept by Bakowicz as he laid out the parking
lot, and eliminated at the request of Schlegel because of
concerns with regard to snow plowing. The curbing was
not altered, but eliminated from the design by Schlegel.
There was no access to the lot because it was one way
out.
e. Bakowicz denied that Pick advised him as alleged by DCA.
f. Bakowicz denied that Pick failed to advise City Council
of Bakowicz's interest in the Woodlawn Avenue site.
Bakowicz alleged that Council was advised of the original
option on August 11, 1986, and the revised option and
building plans on September 8, 1986. Bakowicz's interest
in the Woodlawn Avenue site was, in fact, known by
Council, readily available, and on the public record. It
is denied that the parking lot was redesigned to
accommodate Bakowicz's interests, since Bakowicz already
held a legally enforceable option for the layout as
initially proposed by Pick.
54. During June 1989, in a letter. to the Pennsylvania Department
of Community Affairs, the City of Sunbury concurred with the
Pennsylvania Department of Community Affairs determination
that Bakowicz benefited financially when he purchased a lot
next to the Woodlawn Parking Lot. That letter noted as
Bakowicz, 88 -116 -C
Page 22
follows:
a. The applicable Federal Regulation states, "no person, who
is an employee, agent, consultant, officer, or elected
official, or appointed elected official of the recipient,
may obtain a personal or financial interest or benefit
from a Community Development Block Grant assisted
activity ".
b. The Woodlawn Parking Lot was developed and constructed
with Federal Community Development Grants which were
supervised by the Pennsylvania Department of Community
Affairs.
55. John Bakowicz discussed the conflict of interest issue with
the Solicitor, Eugene Brosius, and was advised that no
conflict of interest existed.
56. In relation to the private consulting services provided by
Kenneth Pick to John Bakowicz (See Finding Nos. 2c and 5b),
Pick and Bakowicz first discussed such services in 1985.
57. Pick did not perform any services until 1986.
58. Mr. Pick assisted Mr. Bakowicz in the filing of letters of
intent for several municipal clients by which Mr. Bakowicz was
employed including Lewis Township Ringtown Borough, Snydertown
Borough and Zerbe Township.
a. Mr. Pick also assisted in applying for grant funds for
these municipalities.
59. Pick considered Bakowicz an important client for his private
consulting business because of Bakowicz's extensive contacts
and representation with-municipalities.
60. Pick felt that it was important to maintain a good rapport
with Bakowicz because.he was an important client.
61. : .The compensa paid,to Pick by Bakowicz was contingent upon
the successful receipt of funding by the municipality
-62. Pick received payment for .performing private consulting
services for Bakowicz as follows:
a. Check #4863, dated February 24, 1987, in the amount of
$1,000.
b. Check #1094, dated May 18, 1987, in the amount of $2,300.
c. Check #1077, dated May 21, 987, in the amount of $500.
Bakowicz, 88 -116 -C
Page 23
III. DISCUSSION:
TOTAL $3,800.00.
As the Engineer for the City of Sunbury, the Sunbury
Redevelopment Authority (SRA) and the Community Development Program
(CDP),- John R. Bakowicz, hereinafter Bakowicz, was a public
employee as that term is defined in the Ethics Act, 65 P.S. 5402;
51 Pa. Code S1.1. 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.17. 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 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).
Section 3(b) provides in part that no person shall solicit or
accept anything of value based on the understanding that the vote,
official action or the judgment of the public official or employee
would be influenced thereby.
Bakowicz, 88 -1f6 -C
Page 24
The issue before us is whether Bakowicz violated either
Section 3(a) or 3(b) of Act 170 of 1978 regarding the allegation
that he used his position and confidential information to purchase
Sunbury Redevelopment Authority (SRA) property, entered into -a
business relationship with SRA Executive Director Kenneth Pick
(Pick) in return for Pick's assistance in obtaining city property
and a loan, used his position to alter a proposed parking lot built
by SRA f na benefit
inally and approved Yhsown private parking lot
and as
finally
municipal engineer.
Bakowicz served as engineer for Sunbury, from 1976 to 1989 and
provided engineering services to the SRA from 1979 to 1989 and the
Community Development Program (CDP) from 1979 to 1989. Pick served
as the Executive Director of the SRA and Coordinator of the CDP for
the City of Sunbury from March;, 1982 to the present. As to the
SRA, Pick was the chief administrative officer who coordinated all
activities with federal, state and local agencies :as they related
to renewal activities. In a private capacity, Pick- provided
private consulting services to clients, one of whom was Bakowicz.
Bakowicz is a licensed. professional engineer who operated a private
engineering firm with private and municipal clientele including
Sunbury, the SRA and. other municipal clients.
In 1986, Sunbury initiated the construction of the Woodlawn
Parking Lot project. The SRA sold the land to the City the
construction of a parking lot which was to be funded with Community
Development Block Grant (CDBG) Program funds. The project was
originally proposed by Sunbury Mayor Charles Moll following a
recommendation from Pick's office. By letter dated August 7, 1986,
to Bakowicz from Pick,_as Community Development Coordinator for
Sunbury, Bakowicz was requested to provide legal descriptions and
a survey for the parking lot site. Four days later on- August 11,
1986, Bakowicz was appointed by Sunbury to act as engineer for the
parking lot project. Bakowicz was responsible for performing
survey work, plan preparation and design, bid specification and
various' contract,administratiQn services:
In a private capacity Bakowicz purchased land from the SRA for
a office building which was to be constructed adjacent to the
parking site. Bakowicz intended to erect an office building which
would contain his private engineering firm. As Community
Development Coordinator, pick reported to Sunbury City Council as
to matters pertaining to the lot and the sale of-the land
both to the City and Bakowicz. Pick also had-involvement in the
SRA's.issuance,of a loan to Bakowioz to construct his proposed
office facility
Consideration had been given in 1981 to sell the land in
question' for - .a parking facility but a parking analysis done in
April of 1985 at the direction of Pick determined that there was no
Bakowicz, 88 -116 -C
Page 25
need for additional parking facilities in Sunbury at that time. In
a 1986 meeting with City Council Members, Pick discussed the need
to change the 1986 CDBG Program to allow for the construction of
the Woodlawn Parking lot which amendment was passed by City Council
on July 14, 1986.
The Sunbury City Council meeting minutes may be summarized as
to the Community Development Program and sale of land to Bakowicz:
On August 11, 1986, by unanimous resolution Bakowicz was
selected as engineer for the Woodlawn Avenue Parking lot
with his fee not to exceed $5,000 and Pick was directed
to advertise for bids for the parking lot project;
On October 13, 1986, a resolution was adopted, which was
not reflected in the minutes, that the City purchase
certain parcels of land from the SRA and that the
ordinance be amended so as to establish and maintain the
lot for parking vehicles at Woodlawn Avenue;
On August 7, 1986, Pick reported that City funds were
allocated for the development of the parking lot project
and that Bakowicz was seeking an option to purchase
frontage on Arch Street which option was accepted with a
modification by Council as to the location of Bakowicz's
driveway or the relinquishment of a specific amount of
property footage;
On September 4, 1986, Pick reported that Bakowicz was
requesting a further revision whereby his desired parcel
would be located next to the Metropolitan Insurance
. Building rather than closer to the Aldine Hotel which
revision was accepted by Council through the passage of
a- motion;
On' October 2, 1986, a resolution was passed for the
implementation of the purchase by the City of various
parcels of land as shown on a drawing prepared by
Bakowicz as to the parking lot project;
On October 22, 1986, a motion was passed to sell property
on Arch Street to Bakowicz and his spouse for the
construction of a two -unit office facility which motion
passed unanimously;
On December 4, 1986, Pick presented a drawing of plans
and specifications for the proposed Bakowicz office
building which included four parking spaces plus the
space in the new parking lot which was accepted by City
Council through the passage of a unanimous motion; and
Bakowicz, 88 -116 -C
Page 26
On January 8, 1987, Pick reported that settlement
occurred as to conveyance of the Arch Street property to
Bakowicz with 50% of the proceeds being returned to the
state.
Pick advised Bakowicz that the City selected the site for the
parking lot and suggested that ,Bakowicz consider building a new
office facility at that same location. Pick was aware that
Bakowicz was seeking an office facility. Bakowicz then requested an
option to purchase the property on Arch Street which was contained
in a letter dated August 6, 1986, which predated by one day Pick's
letter to Bakowicz requesting a legal description and surveys as to
the property. Three design options were prepared relative to the
physical layout of the parking lot project:
Option A would involve a straight run parking lot with 42
spaces with the office facility being on Arch Street with
the parking lot on one side and the vacant lot on the
other;
Option B would be for an L -shape parking lot with the
office facility facing Arch Street and bordering
parking lot with 65 spaces; and
Option C would be-with the office on Arch Street with
entrance to the lot adjacent to it with the parking lot
in the form of a Z with 42: spaces.
Bakowicz favored Option- C for his private office complex because
his building would be closer to the Metropolitan Building and
farther away from the Aldine Hotel. Option A presented certain
egress problems for Bakowicz which did not exist as to Option C
which worked to Bakowicz's benefit.
In mid - August, 1986 Pick met with Mullen and =elation
Associates, Inc., the contract consultant for Sunbury
to the development of a Community Development Program, to discuss
the preliminary options design o tions for the parking lot site. This
occurred prior to the recommendation of a Council Member to adopt
Option C. Neither Option .A or B was prepared with specificity
prior to the September 4,1986 meeting among Pick, City Councilman
Schlegel and Bakowicz wherein the three Options were discussed and
wherein Schlegel decided on Option C over the other two options
subject to. Council's approval. In, this regard, Schlegel based his
recommendation on his opinion that Option C was most desirable as
to the parking lot traffic pattern and of f iae he i location.
h
Bakowicz:_ admitted in a sworn deposition that e did' not know in
what capacity he had been given the three design options, that is,
whether as a potential buyer or as engineer for the parking lot
project,
Bakowicz, 88 -116 -C
Page 27
The September 4, 1986 amendment by Bakowicz as to his August
6, 1986 letter for the proposed purchase is consistent with the
configuration as proposed for parking lot design Option C. The
September 4, 1986 approval by the SRA of Bakowicz's request was
also consistent with design Option C. In August, 1986, Bakowicz
hired a draftsman to prepare a construction design which was filed
in the County Courthouse on September, 1986, which was consistent
with design Option C and which was not approved by Council until
September 8, 1986. Bakowicz paid the draftsman on September 12,
1986. Pick, when depos:.:�, admitted that the reason for the change
in design of the parking lot configuration was because of the
desire of Bakowicz to change the position of his proposed office
building. At September 11, 1986, public meeting of the SRA where
Pick described various projects, all projects including Bakowcz's
were considered.
In an effort to finance the construction of this private
office facility, Bakowicz sought funding through the SRA. Since
the loan program would expire in December, 1986, Bakowicz had to
complete his efforts to secure financing prior to that time. On
October 22, 1986, the Chairman of the SRA executed a resolution
approving the issuance of tax free bonds totaling $95,000 with
$12,000 being released to Bakowicz and his spouse. Settlement on
the Arch Street property with the SRA occurred on December 9, 1986,
for a stated consideration of $7,350 paid by Bakowicz. On December
12, 1986, Pick forwarded an Industrial Development Bond final
allocation request to DCA regarding the Bakowicz loan. Although
Pick advised the SRA members of the loan approval by Bakowicz, he
did_ not disclose to the members his private or business
relationship with Bakowicz at the time of the loan approval.
By letter of March 1, 1989, the Pennsylvania Department of
Community Affairs (DCA) forwarded to Mayor Moll a performance
review report of the City's CDBG Program which stated in part that
the activities relative to the Woodlawn Avenue Parking lot were not
eligible noting the conflict of interest determination under
Federal•Regulation, 24 CFR Part 570.611(b). In particular, it was
noted that there was a square footage and space loss in the project
due to the acquisition by City Engineer Bakowicz of a purchase
option as to adjacent property concomitant with the redesign of the
proposed lot by Bakowicz and the modification of the parking lot.
The report reflected that their monitoring indicated that at least
one city official (Bakowicz) violated federal law by the
acquisition of the purchase option and beneficial revisions which
constituted obtaining a prohibited interest. The report set forth
the private advantages obtained by Bakowicz. It was also noted
that Pick failed to advise City Council of Bakowicz's interest in
the Woodlawn Avenue site. The report concluded with a finding of
non - compliance as to the Woodlawn project noting ineligibility due
to the conflict of interest underlying the execution and due to the
fact that the parking lot was not considered a public facility.
Bakowicz, 88 -116 -C
Page 28
Bakowicz responded to the DCA letter by denying or challenging o
he findings therein. However, by letter of June, 1989, Mayor
responded to DCA, and stated that the City concurred that Bakowicz
benefitted financially as to the purchase of the lot next to the
Woodlawn parking lot noting the Fede Regulation which prohibits
public officials /employees and others from obtaining a personal
financial benefit.
As to the relationship between Pick and Bakowicz, the idea of
Pick providing private ^ onsulting services to Bakowicz was first
discussed in 1985 but no services were performed by Pick until
1986. Further, Pick assisted Bakowicz in filing letters of intent
with several other municipal clients. Pick considered Bakowicz an
important client for his private. consulting business. and sought to
maintain a good rapport with Bakowicz due to Bakowicz's extensive
contacts and representation as to municipalities.
Lastly, the
compensation paid to Pick from Bakowicz was contingent upon the
successful receipt of funding in any given municipality.
In applying the provisions of Section 3(a) and 3(b) of Act 170
of 1978 quoted above to the instant matter, we cannot find that a
violation of the Ethics Law occurred in the instant matter. As to
the purchase of the SRA owned property and obtaining- a loan,
Bakowicz was not in a position to make such decisions. Likewise,
we cannot say that Bakowicz used confidential information as to the
SRA property since such information was in the public chase domain.
tA
to the business relationship with Pick, the purchase
and obtaining the loan, the alteration of the parking lot
plans to the benefit of Bakowicz and finally the review of his own
private plans, we believe that there was self dealing by Bakowicz;
however, we are unable to conclude on this record that there was a on
quantifiable financial violation of Section 3(a use of
of Act 170
that basis we find no 1978
based upon an insufficiency of evidence.
Likewise, we find no violation under Section 3(b) because
there is no evidence establishing an understanding which is a
requisite element for a violation of that section of the Ethics
Law. In this regard, the record is replete with actions of Pick
and Bakowicz as to the purchase of the property and as to the
modification of the Woodlawn Parking lot plan which would be
advantageous to Bakowicz. However, what is absent from the record
is constrained to find no violation understanding 1 S Section 3 (b that basis we are
of Act 17 0 of
1978.
As a postscript to the above, we must state that our ruling in
this matter should not be construed as countenancing the actions of
Bakowicz in this matter. It is patently clearly that Bakowicz did
not act so as to insure that there was no conflict between his
public and private interests. It also appears that Bakowicz though
Bakowicz, 88 -116 -C
Page 29
his self dealing, violated certain federal laws as noted in the
Findings. However, in reaching our decision, we may only find a
violation if all of the required elements of Act 170 of 1978 exist.
As noted above, all of the requisite elements are not present based
upon the record before us and for that reason we find no violation
of Section 3(a). Similarly, since the evidence does not establish
the required "understanding" needed in order to sustain a Section
3(b) violation, we likewise find no violation of that provision of
the Ethics Act.
IV. CONCLUSIONS OF LAW:
1. John R. Bakowicz as the engineer for the City of Sunbury, the
Sunbury Redevelopment Authority (SRA) and the Community
Development Program (CDP) was a public employee subject to the
Ethics Law, Act 170 of 1978.
2. Bakowicz did not violate Section 3(a) or 3(b) of Act 170 of
1978 as to the use of office or confidential information to
obtain SRA property and a loan in a private capacity, as to
his business relationship with Pick, as to his action in
altering a parking lot plan to the benefit of his private
property and as to the official review of his own private plan
based upon an insufficiency of evidence.
In re: John R. Bakowicz 88-116-C
Date Decided: December 7. 1993
Date Mailed: December 10, 1993
ORDER NO. 910
1. John R. Bakowicz as the engineer for the City of Sunbury, the
Sunbury Redevelopment Authority (SRA) and the Community
Development Program (CDP), did not violate Section 3(a) or
3(b) of Act 170 1978 as to the use of office or
confidential information to obtain SRA property and a loan in
a private capacity, as to his business relationship until
Pick, as to his action in altering a parking lot plan to the
benefit of his private property and as to the official review
of his own private plan based upon an insufficiency of
evidence.
BY THE COMMISSION
JAMES M. HOWLEY, CHAIR