HomeMy WebLinkAbout928 FirmstoneIn Re: James G. Firmstone
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 93- 054 -C2
Date Decided: 06/23/94
Date Mailed: 06/30/94
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
The Investigative Division of the State Ethics Commission
received a complaint regarding a possible violation of the State
Ethics Act, Act 9 of 1989, 65 P.S. S401 et seq. Written notice, of
the specific allegation(s) was served at the commencement of the
investigation. A Findings Report was issued and served, upon
completion of the investigation, which constituted the Complaint by
the Investigation Division. An Answer was 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
§21.29(b).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. §408(h) during the fifteen day period
and no one unless the right to challenge this Order is waived, may
violate confidentiality by releasing, discussing or circulating
this Order. However, confidentiality does not preclude discussing
this case with an attorney at law.
Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000
or imprisonment for not more than one year, 65 P.S. S409(e).
Firmstone, 93- 054 -C2
Page 2
1. .ALLEGATION:
That, James G. Firmstone, a Councilman for the Borough of
Honesdale, Wayne County, violated the following provisions of the
State Ethics Act (Act 9 of 1989) when his firm, Firmstone Service
Station and Firmstone Fuel Oil Company, contracted with the Borough
for the sale of gasoline and oil without an open and public
process; and when he participated in council decisions to approve
payments to that firm.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
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 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 of his immediate family or
a business with which he or a member of his
immediate family is associated. 65 P.S. §402.
Section 3. Restricted activities
employee or h ff a or child or
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
Firmstone, 93- 054 -C2
Page 3
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. S403(f).
II. FINDINGS:
1. James G. Firmstone has served as a Honesdale Borough
Councilman from January of 1980 to the present.
2. Firmstone is co -owner of Firmstone Oil Company / Firmstone
Service Station, 1210 Main Street, Honesdale, PA, with his
brother.
a. Each holds a 50% interest in the business
3. The Borough of Honesdale has purchased gasoline, oil, diesel
fuel, tires and parts from, and had vehicle maintenance
performed at Dean Fowler Service Station and Oil Company,
Highhouse Oil Company, Lakewood Oil Company and Firmstone
Service Station and Oil Company for approximately the past 25
years.
4. Maurice Brown, the Borough's Director of Public Works, made
these purchases from the vendors outlined in Finding No. 3 on
a rotating basis.
a. Broom believed that better prices could be obtained by
utilizing this method.
5. The purchases were not put out for bids nor were price quotes
obtained.
a. This procedure has been the practice for at least the
past twenty -five years.
6. Borough Records indicate the following payments were made to
the companies cited in Finding #3.
Fowler Oil Highhouse Oil Lakewood Oil Firmstone
Oil
Check
Number
2613
2614
2749
2815
2872
2873
2935
2936
3392
3418
3449
3258
3320
3528
3631
3581
3582
3695
3746
Firmstone, 93- 054 -C2
Page 4
1991:
1992:
a .
Company
7420.05
4741.84
2448.19
Date of Amount
Check
4 -14 -89
4 -14 -89
6 -13 -89
7 -13 -89
8 -15 -89
8-15-89.
9 -12 -89
9 -12 -89
10 -10 -89
11 -15 -89
12 -12 -89
1989 Totals - $5382.66
2 -15 -90
3 -13 -90
6 -14 -90
6 -13 -90
7 -12 -90
7 -12 -90
9 -12 -90
10 -11 -90
$1496.49
$ 8.50
$ 81.06
$ 146.25
$ 127.60
$2008.88
$ 10.00
$1458.00
$ 7.03
$ 34.58
$ 4.27
$1582.04
$ 35.19
$ 59.90
$ 75.00
$1878.00
$1434.00
$ 18.00
$ 6.56
Company
5977.13
5698.42
196.88
1993:
(6 mths)
Totals $14,610.08 $11,872.43
1991,
1992,
1993 (6 mths)
Bills are approved as part of a
8. Firmstone participated in actions of
listings.
Date and
Taken By
4 -10 -89
4 -10 -89
6 -12 -89
7 -10 -89
8 -14 -89
8 -14 -89
9 -11 -89
9 -11 -89
10 -9 -89
11 -13 -89
12 -11 -89
Company
5058.68
3266.70
3561.65
$11,887.03 $15,877.79
7. Payment of the individual invoices f or all vendors are
approved by Borough Council at their regular monthly meetings.
listing of invoices.
council to approve bill
9. The following action was taken by Borough Councilman Firmstone
in relation to payments to Firmstone Oil Company or Firmstone
Service Station:
Action
Firmstone
Motion and Vote
Motion and Vote
Vote
Vote
Absent
Absent
Vote
Vote
Vote
Vote
Motion and Vote
2 -12 -90 Motion and Vote
3 -12 -90 Absent
6 -11 -90 Vote
6 -11 -90 Vote
7 -9 -90 Vote
7 -9 -90 Vote
9 -10 -90 Absent
10 -8 -90 Motion and Vote
Company
5053.57
6500.52
4323.70
Firmstone, 93- 054 -C2
Page 5
3780
3769
3796
3946
3947
1990 Totals
3830
3859
4104
4105
3894
3952
4161
4303
3987
4533
4563
4679
4206
4751
4752
4248
4905
4986
4987
5053
4413
4533
4579
5401
4663
5511
5622
4737
4772
4804
4882
4910
5726
5786
5849
5850
5911
10 -12 -90
11 -13 -90
12 -13 -90
12 -14 -90
12 -14 -90
- $9563.49
1 -16 -91
2 -13 -91
2 -13 -91
2 -13 -91
3 -13 -91
5 -14 -91
3 -12 -91
5 -15 -91
6 -11 -91
8 -13 -91
9 -11 -91
11 -12 -91
12 -11 -91
12 -10 -91
12 -10 -91
1991 Totals - $5053.53
1 -14 -92
2 -13 -92
3 -10 -92
3 -10 -92
4 -15 -92
5 -12 -92
8 -11 -92
9 -15 -92
9 -15 -92
11 -10 -92
11 -11 -92
12 -22 -92
1992 Totals - $ 6479.02
1 -12 -93
2 -11 -93
3 -9 -93
5 -11 -93
6 -15 -93
2 -9 -93
3 -10 -93
4 -13 -93
4 -13 -93
5 -11 -93
$2123.78
$ 16.00
$ 19.00
$2314.02
$ 2.00
$ 35.86
$ 59.95
$ 35.40
$ 77.95
$ 6.00
$ 16.00
$ 66.95
$ 16.00
$ 76.75
$1635.62
$ 812.59
$ 172.94
$ 18.00
$ 71.85
$1951.67
$ 20.68
$ 8.55
$1682.08
$ 79.59
$1805.89
$ 46.40
$ 45.96
$ 3.96
$1900.41
$ 56.90
$ 809.10
$ 19.50
$ 52.95
$ 29.98
$ 5.50
$ 197.36
$ 9.00
$2416.03
$ 83.95
$ 72.36
$ 58.50
$ 9.00
10 -8 -90 Motion and Vote
11 -12 -90 Vote
12 -10 -90 Vote
12 -10 -90 Vote
12-10-90 Vote
1 -14 -91 Vote
2 -11 -91 Absent
2 -11 -91 Absent
2 -11 -91 Absent
3 -11 -91 Vote
5 -13 -91 Vote
3 -11 -91 Vote
5 -13 -91 Vote
6 -10 -91 Vote
8 -12 -91 Vote
9 -9 -91 Vote
11 -11 -91 vote
12 -9 -91 Vote
12 -9 -91 Vote
12 -9 -91 Vote
1 -13 -92
2 -10 -92
3 -9 -92
3 -9 -92
4 -13 -92
5 -11 -92
8 -10 -92
9 -14 -92
9 -14 -92
11 -9 -92
11 -9 -92
12 -14 -92
1 -11 -93
2 -8 -93
3 -8 -93
5 -10 -93
6 -14 -93
2 -8 -93
3 -8 -93
4 -12 -93
4 -12 -93
5 -10 -93
Vote
Vote
Motion
Motion
Motion
Motion
Vote
Motion
Motion
Motion
Motion
Motion
Vote
Motion
Motion
Motion
Motion
Motion
Motion
Motion
Motion
Motion
and
and
and
and
and
and
and
and
and
and
and
and
and
and
and
and
and
and
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Vote
Firmstone, 93- 054 -C2
Page 6
5979 6 -16 -93 $ 764.09 6 -14 -93 Motion and Vote
6052 7 -13 -92 $ 13.60 7 -12 -93 Abstained
1993 Totals - $3712.32
a. All of the bills listed above were approved unanimously
as part of a "package" of bills at each council meeting.
10. There was no written notification or public disclosure of
Firmstone's interest in Firmstone Fuel Oil or Firmstone
Service Station until the July 12, 1993 meeting.
a. At the meeting Firmstone began abstaining from
participation in payment of bills.
b. Local newspaper articles questioned his participation.
11. It was common knowledge in the borough that Firmstone owned
Firmstone Service Station
III. DISCUSSION:
As a Councilman for the Borough of Honesdale, Wayne County,
James G. Firmstone, hereinafter Firmstone, is a public official as
that term is defined under Act 9 of 1989. 65 P.S. §402. As such,
his conduct is subject to the provisions of the Ethics Law and the
restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 provides, in part, as follows:
This amendatory act shall not apply to
violations committed prior to the effective
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto.
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest.
Firmstone, 93- 054 -C2
Page 7
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 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. 65 P.S. §402.
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 including prior public notice
and subsequent public disclosure.
The issues before us are whether Firmstone, as a Honesdale
Borough Councilman, violated Section 3(a) of Act 9 of 1989, the
conflict provision, and Section 3(f), the contracting provision,
regarding his alleged participation in Council decisions to approve
payments to Firmstone Oil Company /Firmstone Service Station
( FIRCO), a company in which he holds a 50% ownership interest.
Firmstone has served as Honesdale Borough Councilman from the
January, 1980 to the present.
For the past twenty -five years, Honesdale Borough has
purchased fuel, oil, tires, parts and maintenance services from
FIRCO and other companies on a rotational basis. Maurice Brown,
the Publics without bid based upon utilized
a belief that better prices could
purchasing ould
be obtained.
Firmstone, 93- 054 -C2
Page 8
Although the minutes of Council do not reflect any action to
utilize FIRCO, the records do reflect invoices from FIRCO which
were presented to Borough for payment. The minutes of Honesdale
Borough Council reflect those instances where Firmstone took action
to approve payments to FIRCO which bills were part of a package of
bills submitted to Council. The bills in question were approved
unanimously by Council. On or about 12, 1993, Firmstone began
abstaining after local newspaper articles questioned his
participation. It was common knowledge that Firmstone had an
ownership interest in FIRCO.
In applying the provision of the Ethics Law to the instant
matter we find technical violations of both Section 3(a) and 3(f)
of Act 9 of 1989. Regarding Section 3(a), Firmstone, as a
Councilman, did use the authority of office in voting to approve
the payment of bills by FIRCO. Such action was a use of authority
of office. See Juliante, Order 809. In addition, the use of
authority of office resulted in a private pecuniary benefit
consisting of the profits received by FIRCO. Lastly, a private
pecuniary benefit inured to a business with which Firmstone is
associated. The terms business with which associated is defined
as follows:
"Business with which he is associated." Any
business in which the person or a member of the
person's immediate family is a director, officer,
owner, employee or has a financial interest
65 P.S. §402.
Thus, since FIRCO is 50% owned by Firmstone, it is clearly a
business with which he is associated. Hence, in this case, there
was a use of authority of office which resulted in a private
pecuniary benefit to a business with which Firmstone is associated.
We are aware of our decision in Krushinski, Order 168, wherein
we held that a public official who voted to approve invoices of a
business with which he was associated did not violate the Ethics
Law where the invoices were routine and related to preset cost
items. Krushinski is inapposite to the instant matter since the
services and sales FIRCO made could not be characterized as routine
or of a preset amount.
We note that FIRCO was performing services and making sales at
a point in time before Firmstone came on Council. Thus, the action
of Firmstone as to the FIRCO business was limited to voting to
approve the FIRCO invoices for payment. Accordingly, we find a
technical violation of Section 3(a) of Act 9 of 1989. Bartorillo,
Order 889.
As to the matter of Section 3(f) of Act 9 of 1989, FIRCO is a
Firmstone, 93- 054 -C2
Page 9
business with which Firmstone is associated. FIRCO entered into
contracts with the Borough in excess of $500 for certain sales and
service which contracts were not awarded through an open and public
process. Therefore, as to these contracts which occurred during
the time that Firmstone was on Council, we find a technical
violation of Section 3(f) of Act 9 of 1989. Chermak, Order 887.
As to such contracting, we note .that was the historical practice
of the Borough not to advertise for bids. Further, the sales and
services in this case started at a point in time before Firmstone
was on Council. Therefore, based upon the totality of facts and
circumstances in this case, we will take no further action.
IV. CONCLUSIONS OF LAW:
1. James G. Firmstone, as a Honesdale Borough Councilman, was a
public official subject to the provisions of Act 9 of 1989.
2. A technical violation of Section 3(a) of Act 9 of 1989
occurred when Firmstone voted in favor of motions to approve
a list of bills which included invoices for sales and services
by a business with which he is associated.
3. A technical violation of Section 3(f) of Act 9 of 1989
occurred when contracts in excess of $500 were awarded without
an open and public process to a business with which Firmstone
is associated regarding sales and service as to Honesdale
Borough.
In Re: James G. Firmstone File Docket: 93- 054 -C2
Date Decided: 06/23/94
Date Mailed: 06/30/94
ORDER NO. 928
1. A technical violation of Section 3(a) of Act 9 of 1989
occurred when James G. Firmstone, as a Honesdale Borough
Councilman, voted in favor of motions to approve a list of
bills which included invoices for sales and services by a
business with which he is associated.
2. A technical violation of Section 3(f) of Act 9 of 1989
occurred when contracts in excess of $500 were awarded without
an open and public process to a business with which Firmstone
is associated regarding sales and services as to Honesdale
Borough.
3. Based upon the totality of facts and circumstances of this
case we will take no further action.
BY THE COMMISSION,
JAMES M. HO , CHAIR