HomeMy WebLinkAbout879 PrebolaSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG. PENNSYLVANIA 17120
In Re: ANDREW L. PREBOLA File Docket: 92- 065 -C2
Date Decided: March 8, 1993
Date Mailed: March 10, 1993
Before: Daneen E. Reese, Vice Chair
Dennis C. Harrington
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, Act 9 of 1989, 65 P.S.
5401 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. The record is complete. This
adjudication of the Commission is hereby issued which sets forth
the individual Allegations, Findings of Fact, Discussion,
Conclusions of Law and Order...
This adjudication is final and will be made available as a
public document fifteen days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
§2.38.
The files in this case will remain confidential in accordance
with 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. 5409(e).
Prebola, 92- 065 -C2
Page 2
I. ALLEGATION:
That Andrew L. Prebola, a Supervisor for Franklin Township,
Luzerne County, violated the following provisions of the State
Ethics Act (Act 9 of 1989) when he used the authority of his office
to hire his son to do work for the Township without an open and
public process.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
S403(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. 5403(f) .
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
Prebola, 92- 065 -C2
Page 3
II. FINDINGS:
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. 5402.
1. Andrew L. Prebola has served as a supervisor for Franklin
Township, Luzerne County, since January of 1986.
2. Prebola also serves as Roadmaster for Franklin Township.
3. In April or May of 1992, the Pennsylvania Department of
Environmental Resources notified Prebola that Franklin
Township's policy of storing road salt and cinders outside was
causing a potential hazard to the local water table.
4. The idea of constructing a salt shed was discussed by Township
Supervisors Prebola, Robert Redmond and Timothy Dymond at the
May 4, 1992, and June 1, 1992, supervisors meetings.
5. The supervisors did not vote to approve building the salt shed
or expending any funds for its construction.
6. Supervisor Prebola recommended to Supervisors Redmond and
Dymond that his son, Jack Prebola, be hired to help construct
the salt shed.
7. Jack Prebola owns his own construction company.
8. Jack Prebola agreed to do the work for $12.00, an hour, which
was payment for his labor and the use of his tools.
9. The supervisors did not vote to hire Jack Prebola at an open
supervisors meeting.
10. Jack Prebola requested that no taxes be taken from his pay and
that his income be reported on Tax Form 1099.
11. Jack Prebola was not hired as an employee of Franklin Township
but as a private contractor doing business with the Township.
12. Construction of the salt shed began on approximately June 17,
1992.
Prebola, 92- 065 -C2
Page 4
13. Andrew Prebola supetvised the work of Jack Prebola and
Township employees Art Owens and Art Owens Jr. in the
construction of the salt shed.
14. Supervisor Prebola, as roadmaster, maintained Jack Prebola's
time records and informed Township Secretary Sandra L. Race of
the hours Jack Prebola worked.
15. Secretary Race prepared the following checks which were made
out to Jack Prebola as payment for his services:
Check Number Date Amount
1493 06/22/92 $ 288.00
1498 06/29/92 $ 480.00
1502 07/06/92 $ 480.00
1521 07/13/92 $ 480.00
1527 07/20/92 $ 480.00
1530 07/27/92 $ 480.00
1540 08/03/92 - $ 480.00
1564 08/10/92 $ 480.00
1567 08/17/92 $ 348.00
TOTAL $ 3.996.00
16. Check Numbers 1493, 1498, 1502,'1521, 1527, 1530 and 1540 were
signed by Sandra L. Race and Supervisor Andrew Prebola.
17. Check Numbers 1564 and 1567 were signed by Sandra L. Race and
Supervisor Timothy Dymond.
18. The checks were endorsed by Jack Prebola and were either
deposited into his account at the First Eastern Bank of Wilkes
Barre or cashed by him at the same bank.
19. A township resident, at the August 3, 1992, supervisors
meeting, questioned whether the salt shed project was put out
for bids.
20. On August 10, 1992, Supervisor Prebola was notified that the
payments to Jack Prebola amounted to almost $4,000.
21. On August 10, 1992, Solicitor Joseph Vullo advised the
supervisors not to place Jack Prebola on the payroll and to
obtain written quotes for the remainder of the project.
22. Supervisor Prebola made a list, on August 13, 1992, of the
work needed to complete the project.
23. Written bids were obtained from the following contractors for
the work, outlined on Supervisor Prebola's list, which was
Prebola, 92- 065 -C2
Page 5
needed to complete the salt sheds
Jack Prebola General Contractor
105 W. Brady Street
West Wyoming, PA
August 13, 1992
Labor Charges Only - $3,800.00
John M. 2imnicky
2289 Hillside Road
Shavertown, PA
Labor Only - $2,700.00
Hilton Lifetime Homes
Chasmar Construction
R.D. #1, Box 409
Falls, PA
Labor Only - $2,880.00
24. The supervisors reviewed the bids and then decided, at the
September 8, 1992, supervisors meeting, to have the Township
workers complete the remainder of the salt shed without
outside help.
25. The Township road crew completed the work, with the exception
of an outside concrete pad and six foot overhand.
26. The following costs were incurred by the Township when
building the salt shed:
Payments to Jack Prebola
Wages for Township Employees
Construction Materials
TOTAL
III. DISCUSSION:
- $ 3,996.00
- $ 8,256.25
- $18,083.10
$30,335.35
27. The Franklin Township Supervisors applied for
the amount of $27,500, to pay for the shed.
a. The Township has received information
have been approved but they have yet
money.
state grants, in
that the grants
to receive the
As a Supervisor for Franklin Township, Luzerne,County, Andrew
L. Prebola, hereinafter Prebola, 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.
Prebola 92-065-C2
Page 6
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
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 "conflicts
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. 6-5 P.S. 5402.
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
Prebola,, 92- 065 -C2
Page 7
dollars or more or any subcontract valued at five hundred dollars
or more with any person who has been awarded a contract with the
governmental body with which the public official /employee is
associated unless the contract is awarded through an open and
public process.
The issue before us is whether Prebola violated either Section
3(a) or 3(f) of Act 9 of 1989 regarding the hiring of his son to
perform work for Franklin Township.
Factually, Prebola, who is a Franklin Township Supervisor,
also serves as the Township road master. In the spring of 1992
when DER notified the Township of a potential hazard to the local
water table due to the storage of road salt and cinders outside of
a containment building, a discussion ensued among the Supervisors
as to the possibility of constructing a salt shed.
Although the Supervisors did not vote to approve the building
of the salt shed or any expenditure of funds for its construction,
the record does reflect that Prebola did recommend to the other
Supervisors that his son, Jack, be hired to construct the salt shed
for a charge of $12.00 per hour. Jack Prebola, who is the owner of
a construction company, did work on the salt shed. The record does
not reflect the details as to how Jack Prebola was actually hired
to perform the work. It is clear that the Supervisors did not vote
to hire Jack Prebola nor put the contract out for bid.
Jack Prebola who was hired as an independent contractor rather
than a Township employee began work on the shed in June, 1992 under
the supervision of Prebola. Prebola as road master maintained Jack
Prebola's time records and informed the Township Secretary of the
hours that Jack Prebola worked. Jack Prebola received $3,996 for
his services as to the_ construction of the salt shed through his
receipt of approximately nine checks, many of which were cosigned
by Prebola.
In August, 1992, after a Township resident complained about
the salt shed project not being put out for bids and after Prebola
was notified that Jack Prebola received almost $4,000 in payments,
the Solicitor advised the Supervisors not to, place Jack Prebola on
the payroll and to obtain written records for the remainder of the
project. Specifications were made regarding the completion of the
project and bids were obtained from various contractors including
Jack Prebola. However, after a review of the bids by the
Supervisors, it was decided that the Township" workers would
complete the remainder of the salt shed Lastly, the record
reflects that the Township Supervisors applied for state grants in
the amount of $27,500 regarding the of the . shed; the
grant has been approved but the money has not been disbursed to the
Township.
Prebola, 92- 065 -C2
Page 8
In applying the provisions of Section 3(a) and 3(f) of Act 9
of 1989 to the above facts, we must conclude that violations of
both Sections 3(a) and 3(f) of Act 9 of 1989 occurred in this case.
As to Section 3(a), it •ist clear that there was a use of
authority of office on the part of Prebola in that he recommended
the hiring of his son to the other Supervisors and also cosigned
certain checks and payments to Jack Prebola. Clearly such is a use
of authority of office. Juliante, Order No. 809. The use of
authority of office did result in a private pecuniary benefit
consisting of the $3,996 in payments made to Jack Prebola for his
services. Lastly, the private pecuniary benefit was to a member of
Prebola's immediate family. The term immediate family is defined
under Act 9 of 1989 as follows:
Section 2. Definitions
"Immediate family." A parent, spouse,
child, brother or sister.
65 P.S. §402. Since Jack Prebola is the son of Prebola, Jack
Prebola is a member of Prebola's immediate family. Given the use
of authority of office to obtain a private pecuniary benefit for a
member of his immediate family, Prebola violated Section 3(a) of
Act 9 of 1989 regarding the award of the shed construction project
to his son Jack Prebola. See, Rankin, Order 806; Caliean, Order
860.
As to the matter of Section 3(f) of Act 9 of 1989, it is clear
that Jack Prebola, through the business with which Prebola's son is
associated, entered into a contract with the Township for the
construction of the shed which was valued in excess of $500 and
which was not awgrded through an open and public process. Once
again, the necessary elements requisite for a violation of Section
3(f) of Act 9 of 1989 occurred and on that basis we find a
violation of Section 3(f). See, Lona, Order 853.
As a postscript, we must note the potential of a violation of
the Second Class Township Code, as amended, 53 P.S. S65802(f). In
addition, we also note the potential legal problem regarding the
state grant for the construction of the shed since such grants
typically restrict a public official /employee or a member of the
immediate family from having a direct or indirect interest in such
contracts. However, since such matters are not adjunct to our
determinations of violations under the Ethics Law, we need only
reference the potential legal problems as to these other areas of
law.
prebola 92- 065 -C2
Page 9
IV. CONCLUSIONS OF LAW:
1. Andrew L. Prebola as a Supervisor of Franklin Township is a
public official subject to the provisions of Act 9 of 1989.
2. Prebola violated Section 3(a) of Act 9 of 1989 when he used
the authority of office to obtain a private pecuniary benefit
for a member of his immediate family regarding the award of a
Township shed construction project.
3. Prebola violated Section 3(f) of Act 9 of 1989 regarding the
award of a Township shed construction project to a member of
his immediate family which contract was over $500 and was not
awarded through an open and public process.
In Re: ANDREW L. PREBOLA
File Docket: 92- 065 -C2
:._. Date Decided: March 8, 1993
Date Mailed: March 10, 1993
ORDER NO 879
1. Andrew L. Prebola as a Supervisor of Franklin Township
violated Section 3(a) of Act 9 of 1989 when he used the
authority of office to obtain a private pecuniary benefit for
a member of his immediate family regarding the award of a
Township shed construction project.
2. Prebola violated Section 3(f) of Act 9 of 1989 regarding the
award of a Township shed construction project to a member of
his immediate family which contract was over $500.00 and was
not awarded through an open and public process.
BY THE COMMISSION,
6
: PENNIS C. HARRINGTON, COMMISSIONER