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HomeMy WebLinkAbout955 WalshSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Joseph A. Walsh File Docket: 93- 050 -C2 Date Decided: 02/23/95 Date Mailed: 03/10/95 Before: Daneen E. Reese, Chair Roy W. Wilt Austin M. Lee Allan M. Rluger John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq. Written notice of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served upon completion of the investigation which constituted the Complaint by the Investigation Division. An Answer was 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 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). Any person who violates confidentiality of the Ethics Law 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). Confidentiality does not preclude discussing this case with an attorney at law. Walsh, 93- 050 -C2 Page 2 I. ALLEGATION: That Joseph A. Walsh, Facilities Manager for the City of Hazleton, Luzerne County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when a company with which he is associated contracted with the City without an open and public process and when he failed to file Statements of Financial Interests for the years 1989, 1990, 1991 and 1992. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. §403(f). Section 4. Statement of .financial interests required to be filed (a) Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Walsh, 93- 050 -C2 Page 3 Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 P.S. §404(a). 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. II. FINDINGS: 1. A signed, sworn Complaint was received by the Investigative Division of the State Ethics Commission on or about February 22, 1993, (Complaint No. 24) alleging that Respondent, Joseph A. Walsh, violated the provisions of the Ethics Law. 2. Upon review of the Complaint by the Director of Investigations of the Investigative Division of the State Ethics Commission, a recommendation was made to the Executive Director of the Walsh, 93- 050 -C2 Page 4 State Ethics Commission to dismiss the matter based upon an insufficiency of information. 3. On or about May 4, 1993, additional information was received by of letter making the same allegations as noted above. a. Attached to said letter was various documentation in support of the allegation. 4. At the direction of the Executive Director of the State Ethics Commission, the Investigative Division of the State Ethics Commission instituted an own motion preliminary inquiry into said matter. a. That case was docketed on July 27, 1993. 5. The preliminary inquiry was completed within sixty days. 6. Upon completion of the preliminary inquiry, the matter was reviewed by the Executive Director of the State Ethics Commission. 7. On September 23, 1993, a letter was forwarded to Respondent by the Executive Director of the State Ethics Commission informing Respondent of the fact that a Complaint against him was received by the Investigative Division of the State Ethics Commission and that a full investigation was being commenced. a. Said letter was sent certified mail, return receipt requested. b. The domestic return receipt indicates that said letter was received on September 27, 1993. 8. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 9. On April 26, 1994, the Executive Director of the State Ethics Commission requested a ninety -day extension of time to complete the investigation and such request was granted on April 29, 1994. 10. On September 15, 1994, the Investigative Division of the State Ethics Commission issued the Investigative Complaint and Findings Report against Respondent and forwarded same to Respondent and /or Respondent's attorney. 11. Letters were forwarded to the Respondent and Complainant in this matter advising each as to the general status of the instant investigation on the following dates: Walsh, 93- 050 -C2 Page 5 a . b. c . d. December March 23, April 25, July 25, 23, 1993; 1994; 1994; and 1994. 12. Joseph A. Walsh has been the sole owner of Monarch Systems, Incorporated since January 6, 1980. a. Monarch Systems, Incorporated is a consulting company. computer sales and Quigley decided to 13. In 1989 City of Hazleton Mayor John computerize various City departments. 14. The City sought the services of a Facilities Manager to plan, organize, implement and supervise all aspects of the computerization of City government and advertised for proposals for that position on the January 3, 1990. 15. The Request of Proposals outlined the following duties for the position of Facilities Manager: a. The selected Facilities Manager shall report directly to the Mayor and Director of Administration and shall be required to review project progress with City Council, as directed. 1. Meet with Administration and Council to establish project goals. 2. Survey all City Departments to assess all data processing needs. 3. Evaluate the current and processing needs for the City. 4. Develop generic specifications software based on the evaluation above; the specifications should possible number of bidders. 5. Review the bid specifications with Administration and City Council. 6. Assist the City with bid advertisement to assure maximum possible number of bidders. 7. Hold bidders conference to answer vendor questions. 8. Assist the City in evaluating bids. prospective data for hardware and listed in number 3 allow for maximum Walsh, 93- 050 -C2 Page 6 9. Perform vendor site reviews, as necessary, to assess applicability of hardware and software to City's needs. 10. Recommend purchase of hardware and software. 11. Oversee the delivery, installation, and start up of hardware and software. The Facilities Manager shall submit to the Administration a schedule for the completion of this work upon after the City selects hardware and software for purchase. 12. Obtain training from hardware and software vendor(s), coordinate vendor - provided training, if applicable, and provide training to appropriate City personnel on the operation of hardware and software. 13. Coordinate the computerization of all City Departments, establish and submit to the Administration a schedule for the completion of same. 14. Establish on -line computer communications, including, but not limited to, link -ups with appropriate governmental agencies (e.g. Luzerne County) and private firms (e.g. Don Wilkerson Agency) as appropriate. 15. Provide periodic written and /or oral progress reports to the Mayor, Administrator, and City Council, as directed. 16. Provide ongoing software maintenance, troubleshooting, and programming services for the duration of the contract. 16. The Request For Proposals also contained the following limitation: The selected Facilities Manager will not be allowed to submit bids to the City of Hazleton for hardware and software. 17. On January 10, 1990, Monarch Systems, Incorporated submitted a proposal for the position of Facilities Manager. a. The Proposal was signed by Joseph A. Walsh. b. Walsh acknowledged the duties outlined in the Request For Proposals and the limitation that Monarch Systems would not be allowed to submit bids on hardware and software. Walsh, 93- 050 -C2 Page 7 c. Joseph A. Walsh, President, was listed the person responsible for completion of the project. 18. On January 22, 1990, the City of Hazleton City Council passed Resolution 90 -10 providing that Monarch Systems, Inc., be awarded the contract of a Facility Manager at a salary to be negotiated. 19. On January 22, 1990, a contract was signed by City of Hazleton Mayor John Quigley and Joseph A. Walsh naming Monarch Systems, Incorporated as Facilities Manager for the City of Hazleton. a. The contract contained the same duties and limitations outlined in the Request For Proposals. 20. The contract was renewed on January 31, 1991, outlining the same duties as in the 1990 contract but eliminating the limitation on bidding on software and hardware. 21. In February of 1990 Walsh recommended the City purchase a small computer system for use with the City's payroll, budget and accounts payable. a. This recommendation was made following discussions with Mayor Quigley who wanted a system on -line as soon as possible. 22. In February of 1990, based on Walsh's recommendation, the City purchased a small computer system from Monarch Systems, Inc. 23. The purchase of the computer system was not put out for bids and there was no public disclosure that the purchase was being made from Monarch Systems, a firm owned by Joseph A. Walsh. a. The decision not to advertise was made by Mayor Quigley after consulting with the City Solicitor. 24. Mayor John Quigley approved the purchase based on the recommendation of Joseph A. Walsh. a. The making of such recommendations was part of the official duties and responsibilities of the facilities manager. 25. The City of Hazleton made a number of purchases from Monarch Systems under the same circumstances in 1990 and 1991. a. Purchases were authorized by Mayor Quigley. 26. Walsh delivered and installed the purchased items. 8201 8201 8201 8201 8201 8201 8201 8201 8201 8201 8202 8202 8904 8904 8904 8906 8906 17301 17301 17301 17301 18103 18103 18103 Walsh, 93- 050 -C2 Page 8 27. The following is a list of the purchases made by the City of Hazleton from Monarch Systems during that period: Invoice Number Date 8201 03/23/90 03/23/90 03/23/90 03/23/90 03/23/90 03/23/90 03/23/90 8201 03/23/90 03/23/90 03/23/90 8201 03/23/90 03/23/90 03/23/90 03/23/90 8202 03/23/90 8202 03/23/90 03/23/90 03/31/90 03/31/90 03/31/90 03/31/90 8906 03/31/90 8906 03/31/90 03/31/90 06/22/90 06/22/90 06/22/90 06/22/90 06/30/90 18103 06/30/90 06/30/90 06/30/90 Description of Item 1 Unisys Computer System 1 Enhanced Keyboard 1 EGA Color Monitor 1 EGA Adaptor Card 1 4 MB Ram Memory 1 32 KB Cache Memory 1 320 MB fixed disk drive 1 Fixed Disk Controller Card 1 Tape Drive 1 3.50 Floppy Disk Drive & Cable 1 Okidata 24 Pin Dot Printer 1 Cable Shipping /Insurance 1 8 Port Terminal/ Modem /Adaptor 1 Phone /Fax /Modem Switch 1 Multi user operator system Shipping /Insurance 1 Terminal /Keyboard 1 Cable Shipping /Insurance 2 Boxes Magnetic Data Cartridges 2 Boxes 5.25" DS /DD Diskettes 2 Boxes 3.50" DS /HD Diskettes 1 Box Printer Ribbon 4 Display Terminal 1 Dot Matrix Print 2 Laser Jet Print Cables For Printers 2 8%" x 11" Paper Trays 2 8 x 14" Paper Trays 2 Ink Cartridges Shipping /Handling Cost to City of Hazleton $ 2,199.00 112.00 389.00 169.00 1,325.00 79.00 1,500.00 190.00 590.00 120.25 615.00 10.00 68.25 525.00 149.00 460.00 12.60 369.00 25.00 9.00 230.00 24.00 38.00 78.00 1,513.56 632.30 3,002.00 63.00 84.00 90.00 170.00 Amount Pd by Monarch Systems $ 2,199.00 112.00 389.00 169.00 1,325.00 79.00 1,500.00 170.00 590.00 120.25 615.00 10.00 68.25 525.00 149.00 460.00 12.60 374.00 19.00 9.39 230.00 24.00 38.00 78.00 1,513.56 632.30 2,982.00 60.00 78.00 78.00 154.00 8.00 Profit /Loss 0 0 0 0 0 0 0 20.00 0 0 0 0 0 0 0 0 0 (5.00) 6.00 (.39) 0 0 0 0 0 0 20.00 3.00 6.00 12.00 16.00 (8.00) Walsh, 93- 050 -C2 Page 9 27104 09/28/90 27104 09/28/90 3340 11/30/90 3340 11/30/90 3340 11/30/90 34401 12/14/90 34401 12/14/90 34401 12/14/90 103113 01/31/91 103113 01/31/91 103113 01/31/91 105906 02/28/91 108901 03/30/91 109501 04/05/91 110203 04/12/91 110203 04/12/91 110203 04/12/91 111905 04/29/91 122101 08/09/91 123201 08/20/91 125201 09/09/91 125202 09/09/91 201509 01/15/92 213901 05/18/92 230504 10/31/92 TOTAL 2 Enveloper Trays For Laser Printer Freight 1 Multitech V.32 9600 Compatible Modem 1 Modem Cable Freight 1 8.50" x 11.00" Envelope Tray 1 8.50" x 14.00" Shipping /Handling 1990 W2 Tax Forms Twin sets Fund Accounting Manuals & Demo Disk Payroll Tax Table Updates 2 LINK Display terminals /keyboards 3 Cases Carbonless Paper 4 Replacement Cartridges for HP 3,300 Continuous Payroll Checks 1 Time Charge for Designing /Printing Shipping /Insurance 18 Printer Ribbons 1 RPGII Program Compiler (Less $70) 1 WordPerfect Word Processing Package 5 Okidata Printers 1 Printer Option Inter. 12 Microline 84 Ribbons COD /Shipping /Insurance Total 10 Link Technologies terminals /keyboard 94.00 600.00 20.00 42.00 45.00 65.00 195.00 195.00 780.00 255.00 344.00 313.50 135.00 Checks 10.64 135.00 4,995.00 4,295.00 1,495.00 345.00 45.00 8.25 3,200.00 Total 4,000.00 Special updates and 270.00 program revision for preparation of 1991 W2 tax forms 10 Link Model MC5 4,100.00 Terminals /Keyboards 1 Replacement Okidata 59.00 86.00 4.50 587.00 20.00 4.15 39.00 43.00 60.72 195.00 180.00 749.62 178.10 293.00 250.50 135.00 10.64 91.15 2,862.50 3,260.75 752.25 728.07 1,981.50 3,461.82 248.35 8.00 (4.50) 13.00 0 (4.15) 3.00 2.00 4.28 0 15.00 30.38 76.90 51.00 63.00 0 0 43.85 1,257.75 3,037.25 938.75 556.25 (60.75) 538.18 21.65 3,716.94 383.06 36.70 22.30 $35,498.40 $30,632.59 $4,865.81 Walsh, 93- 050 -C2 Page 10 28. The total profit realized by Monarch Systems was $4,865.81. 29. Monarch Systems did not bill the City of Hazleton for delivery and services performed on hardware, such as assembly, testing and software installation and testing. 30. Monarch Systems estimated costs associated with delivery, assembly, testing and software applications to be approximately $3,870.00 31. Total profit realized by Monarch Systems: $4,865.81 - $3,870.00 $ 995.81 32. Monarch Systems was a Unisys Referred Authorized Value Added Reseller (RAVAR) from April of 1990 to April of 1991. 33. The RAVAR contract with Unisys permitted Monarch Systems to purchase Unisys Computer hardware and software from Robec Distributors, a Unisys distributor, and entitled Monarch Systems to obtain back -up assistance from Unisys with all sales of Unisys products. 34. In February of 1991, the city of Hazleton, under the supervision of Joseph Walsh, sought bids on a mainframe computer. 35. Walsh drew up the specifications for the computer and oversaw the bidding process. 36. Walsh notified Robec Distributors of the City's request for bids and asked if Robec had a Unisys dealer in the area who would be capable of submitting a bid. 37. Robec Distributor notified Comput -Asyst of Allentown, Pennsylvania, also a Unisys RAVAR, owned by Charles Myers, who submitted a bid. 38. Other bidders included IBM, Hewlett Packard, and Pharmahouse Corporation for an Altos computer. 39. Walsh reviewed the bids and in his position as facilities manager recommended the purchase of the Unisys computer from Compute- Asys.t. a. At this time, Walsh' company, Monarch Systems, was also a Unisys dealer. 40. One of the reasons given by Walsh for his recommendation was Walsh, 93- 050 -C2 Page 11 that the Unisys computer was system he had sold the City. 41. In April of 1991, Hazleton City the purchase of the computer to $56,532. 42. Both Computer -Asyst and Unisys deny that Joseph Walsh or Monarch received any immediate or deferred consideration regarding the sale of this computer system. 43. Walsh oversaw the delivery and installation of the computer and approved payment to Compute -Asyst when the installation was completed. 44. In addition to the previously of Hazleton from Monarch following invoices for the provided to the City in 1990 Invoice No. Date 8905 3/31/90 12005 4/30/90 15105 5/31/90 18102 6/30/90 21203 7/31/90 21204 7/31/90 24302 8/31/90 27105 9/28/90 30405 10/31/90 33407 11/30/90 36503 12/31/90 compatible with the smaller Council awarded a contract for Compute -Asyst in the amount of noted purchases made by the City Systems, Walsh submitted the use of computer software he and 1991: Amount $ 300.00 $ 300.00 $ 300.00 $ 400.00 $1,131.10 $ 400.00 $ 400.00 $ 400.00 $ 400.00 $ 400.00 $ 400.00 45. Walsh estimated his profit on the lease of the software to the City at 50% of the cost. 46. Walsh did not charge the City for use of the software in 1991. a. Walsh received no funds for cost or profit for the 1991 sales. 47. Walsh submitted the following invoices to the City of Hazleton seeking payment for his services as Facilities Manager: Invoice No. 8907 33406 36502 Date 3/31/90 11/30/90 12/31/90 Amount $3,015.00 $3,420.00 $4,860.00 Walsh, 93- 050 -C2 Page 12 103114 105908 108902 112001 115102 127308 130404 133405 136502 203101 206005 209103 212106 218208 221305 227403 230505 233506 303101 305905 309001 312006 315104 318101 321202 1/31/91 $4,522.50 2/28/91 $4,095.00 3/30/91 $3,082.50 4/30/91 $4,117.50 5/31/91 $3,262.50 9/30/91 $2,970.00 10/31/91 $3,420.00 11/30/91 $2,430.00 12/31/91 $2,880.00 1/31/92 $2,092.50 2/29/92 $2,430.00 3/31/92 $2,092.50 4/30/92 $1,755.00 6/30/92 $3,062.50 7/13/92 $ 315.00 9/30/92 $1,170.00 10/31/92 $1,777.50 11/30/92 $ 810.00 1/31/93 $ 833.00 2/29/93 $ 833.00 3/31/93 $ 833.00 4/30/93 $ 833.00 5/31/93 $ 833.00 6/30/93 $ 833.00 7/31/93 $ 833.00 48. Joseph Walsh did not file Statements of Financial Interests with the City in 1990, 1991, 1992, 1993, and 1994. a. Walsh was never advised by anyone from the City of Hazleton that he was required to file a Statement of Financial Interests. b. Walsh was advised by George Hudzik, Solicitor for the City of Hazleton, that he was not required to file a Statement of Financial Interests. c. Walsh would have filed had he been directed to do so. d. Walsh believed that he was a consultant and not covered by the provisions of the State Ethics Act. 49. Total financial gain realized by Monarch Systems from business dealings with the City of Hazleton was $995.81. III. DISCUSSION: As a Facilities Manager for the City of Hazleton, Luzerne County, Joseph A. Walsh, hereinafter Walsh, is a public employee as Walsh, 93- 050 -C2 Page 13 that term is defined under Act 9 of 1989. 65 P.S. 5402. As such, his conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto. Since the occurrences in this case transpired after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 in the allegations. 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. Section 4(a) of the Ethics Law quoted above requires that each public official /employee must file a Statement of Financial Interests for the preceding calendar year of the year in which he is employed or served and for the year after he leaves such position. The issue before us is whether Walsh as the Hazleton Facilities Manager violated either Section 3(a) (conflict provision) or Section 3(f) (contracting provision) of Act 9 of 1989 regarding the allegation that the company with which he is Walsh, 93- 050 -C2 Page 14 associated contracted with the City without an open and public process and second, whether Walsh violated Section 4(a) (Financial Interests Statement (FIS) filing requirement) for the years 1989 through 1992. Mayor John Quigley of the City of Hazleton in 1989 decided to computerize various city departments. The services of a Facilities Manager were sought in order to aid in the planning, organization, implementation and supervision of all aspects of the computerization of city government. A request for proposals for the position of Facilities Manager was advertised which set forth the duties of the position. See Fact Finding 15. The advertised job description included the function of purchasing hardware and software and a conflict of interest provision that the Facilities Manager would not be allowed to submit bids to the City of Hazleton for such hardware /software. A bid was submitted by Monarch Systems, Inc., for the position of Facilities Manager under the signature of Walsh as President. Subsequently, Hazleton City Council passed a resolution awarding the contract of Facilities Manager to Monarch Systems, Inc. at a salary to be negotiated. In February, 1990, Walsh recommended that the City purchase a small computer system for the City's payroll, budget and accounts payable. Based upon Walsh's recommendation, Mayor Quigley gave his approval and purchased a small computer system from Monarch Systems, Inc., which was not put out for bids. Thereafter, the City made a number of other purchases from Monarch Systems under similar circumstances in the years 1990 and 1991, all of which purchases were authorized by Mayor Quigley. The purchased items were delivered and installed by Walsh. All purchases made by the City of Hazleton from Monarch Systems in the years 1990 through 1992 are delineated in Fact Finding 27. As to the numerous purchases made, the total profit for Monarch Systems amounted to $4,865.81. However, Monarch Systems did not bill the City for the delivery and services performed on the hardware such as assembly, testing and software installation which is estimated at $3,870.00. Therefore, the total profit realized by Monarch Systems was $995.81. Fact Finding 31. The City of Hazleton in February, 1991, under the supervision of Walsh, sought bids for a mainframe computer. Walsh drew up the specifications for the computer and oversaw the bidding process. Walsh contacted Robec Distributors, a Unisys Distributor and asked if Robec had a Unisys dealer in the area who would be capable of submitting a bid. Parenthetically, Monarch Systems was a Unisys Referred Authorized Value Added Reseller (RAVAR) from April, 1990 through April, 1991, which meant that under the RAVAR contract, Unisys permitted Monarch Systems to purchase Unisys computer hardware and software from Robec Distributors, thereby entitling Walsh, 93- 050 -C2 Page 15 Monarch Systems to obtain backup assistance from Unisys as to all sales of Unisys products. Robec Distributors notified COMPUT -ASYST of Allentown, another Unisys RAVAR, to submit a bid. Although there were other bidders which included IBM, Hewlett Packard and Farmhouse Corporation, Walsh reviewed the bids and recommended the purchase of the Unisys computer from COMPUT - ASYST. Walsh noted that his recommendation was based upon the compatibility of a Unisys computer with the existing smaller systems that he already sold to the City. In April, 1991, Hazleton City Council awarded the contract for the purchase of the computers to COMPUT -ASYST in the amount of $56,532.00. Both COMPUT -ASYST and Unisys deny that Walsh or Monarch received any immediate or deferred consideration for such sale. Walsh did oversee the delivery and installation of the computer and approved payment to COMPUT -ASYST when the installation was completed. Monarch Systems submitted invoices for the sale of computer software in the years 1990 and 1991. Fact Finding 44. In 1991, Walsh did not charge the city for the use of software and received no funds for 1991 sales. Fact Finding 46. As to the FIS's, Walsh did not file the forms in 1990 through 1994. Walsh states that no one advised him that he was required to file the forms and that he would have done so if directed. Walsh believed at the time that he was a consultant and not covered by the provisions of the Ethics Law. Finally, it is stipulated that the final financial gain realized by Monarch Systems in business dealings with the City of Hazleton was $995.81. Fact Finding 49. In applying the provisions of the Ethics Law to the above facts, we find a violation of Section 3(a) of Act 9 of 1989. In this case, Walsh as Facilities Manager was a public employee. 65 P.S. 402; 51 Pa. Code 11.1. As a public employee, Walsh did use the authority of office to obtain a private pecuniary benefit for the business for which he was associated, Monarch Systems, Inc. The use of authority of office consisted of his recommendations to Mayor Quigley or Hazleton City Council as to the computer hardware and software purchases. Even though Walsh did not make the actual purchases, the recommendations which he made as Facilities Manager were uses of authority of office. Juliante, Order 809. There was a private pecuniary benefit in this case consisting of the financial gain realized by Monarch Systems which amounted to $995.81. Lastly, the private pecuniary benefit inured to Monarch. Systems Inc. which was a business of which Walsh was President; accordingly, Monarch Systems is a business with which he is associated as that term is defined under the Ethics Law. 65 P.S. Walsh, 93- 050 -C2 Page 16 402; 51 Pa. Code 11.1. As to the allegation of Section 3(f) of Act 9 of 1989, we also find a violation of that provision of the Ethics Law. In this case, Monarch Systems, Inc., - a business with which Walsh is associated, contracted with Walsh's governmental body, the City of Hazleton, and did so in a process which was not open and public. Since the contracting was in excess of $500.00 and was not awarded through an open and public process, we find a violation of Section 3(f) of Act 9 of 1989. See Zangrilli; Order 946; Schweinsberq, Order 940. As to the FIS allegation, the parties, that Investigative Division and Respondent, have stipulated particular allegation will be resolved by the filing of for 1989 through 1992. Walsh is directed to make restitution in the amount through this Commission to the City of Hazleton in fashion. is, the that that the FIS's of $995.81 a timely IV. CONCLUSIONS OF LAW: 1. Joseph A. Walsh as the Facilities Manager of the City of Hazleton is a public employee subject to the provisions of the Ethics Law, Act 9 of 1989. 2. Walsh violated Section 3(a) of Act 9 of 1989 when he made recommendations to the Hazleton City Mayor to purchase computer hardware and software from a business with which he is associated, Monarch Systems, Inc. 3. Walsh violated Section 3(f) of Act 9 of 1989 when Monarch Systems, Inc., a business with which Walsh is associated, contracted with the City of Hazleton for the sale of computer hardware and software which was in excess of $500.00 and which was not awarded through an open and public process. 4. The private pecuniary benefit received by Walsh amounted to $995.81 In Re: Joseph A .Walsh ORDER NO. 955 File Docket: 93- 050 -C2 Date Decided: 02/23/95 Date Mailed: 03/10/95 1. Joseph A. Walsh as the Facilities Manager of the City of Hazleton violated Section 3(a) of Act 9 of 1989 when he made recommendations to the Hazleton City Mayor to purchase computer hardware and software from a business with which he is associated, Monarch Systems, Inc. 2. Walsh violated Section 3(f) of Act 9 of 1989 when Monarch Systems, Inc., a business with which Walsh is associated, contracted with the City of Hazleton for the sale of computer hardware and software which was in excess of $500.00 and which was not awarded through an open and public process. 3. The private pecuniary benefit received by Walsh amounted to $995.81. 4. Walsh is directed to make restitution in a timely manner in the amount of $995.81 though this Commission to the City of Hazleton. 5. Walsh is directed to file Financial Interest Statements for 1989 though 1992 with this Commission for filing and forwarding to the City of Hazleton. 6. Failure to comply with the provisions of paragraphs 4 and 5 will result in the institution of an order enforcement action by this Commission. BY THE COMMISSION, DANEEN E. REESE, CHAIR