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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