HomeMy WebLinkAbout1027 ThebesIn Re: Keith Thebes
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 95- 060 -C2
Date Decided: 11/4/96
Date Mailed: 11/13/96
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Boyd E. Wolff
This is a final adjudication of the State Ethics Commission.
Procedurally, the Investigative Division of the State Ethics Commission
conducted an investigation regarding a possible violation of the Public Official and
Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 el seq., by the above -
named Respondent. At the commencement of its investigation, the Investigative
Division served upon Respondent written notice of the specific allegation. Upon
completion of its investigation, the Investigative Division issued and served upon
Respondent a Findings Report identified as an "Investigative Complaint." An Answer
was filed and a hearing was waived. The record is complete. A consent agreement
was submitted by the parties to the Commission for consideration which was
subsequently approved.
This adjudication of the State Ethics Commission will be made available as a
public document thirty days after the mailing date noted above. However,
reconsideration may be requested. Any reconsideration request must be received at
this Commission within thirty days of the mailing date 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). A request for reconsideration will not affect the finality
of this adjudication but will defer its public release pending action on the request by
the Commission.
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.
Thebes, 95- 060 -C2
Page 2
I. ALLEGATION:
That Keith Thebes, a public official in his capacity as a Supervisor /Roadmaster
for Centre Township, Perry County, violated provision of the State Ethics Act (Act 9
of 1989), when he used the authority of his office for the private pecuniary benefit of
himself and /or members of his immediate family and /or a business with which he or
a member of his immediate family is associated by participating in discussions, actions
and /or decisions of the Board of Supervisors which resulted in companies owned by
his brothers being selected to work on Township projects.
Section 3(a) of Act 9 of 1989 provides:
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).
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. Keith Thebes has served as a Centre Township, Perry County, Supervisor from
January, 1986, to the present.
a. He has served as Chairman of the Board of Supervisors from January,
1986, to the present.
b. Thebes was appointed Township Roadmaster in January, 1995.
c. Thebes served an additional term as Township Supervisor from January,
1972, to December, 1977.
2. As an elected township supervisor, Keith Thebes had the statutory duties in part
to:
a. Provide general care and superintendence of township roads and bridges;
Thebes, 95- 060 -C2
Page 3
b. Keep township roads and bridges in repair and free from all obstructions;
c. Inspect township roads and bridges;
d. Employ or hire such persons as necessary for the general conduct of the
business of the township (including maintenance and repairs of township
roads and snow removal);
e. Construct and repair all sluices and culverts, and keep waterways,
bridges and culverts open.
3. As the elected township Roadmaster, Keith Thebes had the statutory duties to:
a. Inspect township roads and bridges.
b. Relocate, widen, deepen and straighten channels of streams, and rip rap
and otherwise protect the banks of streams to protect roads, prevent
erosion and prevent floods.
c. Carry out the duties of the board of elected supervisors with regard to
the various duties outlined generally in Paragraph 2 above.
4. Centre Township does not own heavy equipment necessary to repair and /or
maintain Township roads and bridges.
a. The Township has utilized the services of outside vendors for heavy
equipment.
5. Centre Township has obtained quotes for equipment rental when projects were
anticipated.
a. Most quotes sought are to rent heavy equipment with an operator.
b. The Township does not employ operators of its own.
6. It has been a policy in Centre Township for the Township Roadmaster to seek
quotes for equipment rental on projects between $4,000 and $ 10,000.
a. The Roadmaster would seek verbal quotes from various vendors.
b. The lowest price of equipment rental was considered to be the most
important factor in awarding the contract.
c. The Township Roadmaster would award the equipment rental contracts.
The other supervisors would be consulted if available.
d. The Township would try, when possible, to award bids to local
companies if they could perform the required work in a timely, good and
workmanlike manner and at a reasonable cost.
7. Eric and Fred Thebes are related as brothers to Keith Thebes.
a. Fred Thebes is a principal of Fred Thebes & Sons, Inc. (FTSI).
Thebes, 95- 060 -C2
Page 4
b. Eric Thebes is a principal of Perry County Construction Company (PCCC).
8. Both PCCC and FTSI are located in Centre Township.
9. Both PCCC and FTSI have submitted quotes to and have been awarded
contracts by Centre Township for equipment rental.
10. Prior to Respondent's election to the position of Roadmaster, Fred S. Thebes &
Sons, Inc., and Perry County Construction Co. were routinely engaged to
provide equipment and services to Township of Centre as available.
11. As Township Roadmaster, Keith Thebes is responsible for obtaining three oral
quotes on Township contracts between $4,000 and $10,000.
12. FTSI has provided services to and invoiced Centre Township for the number of
days and amounts indicated below:
a. This has occurred since at least 1987.
Year
1993*
1994*
1995
1996 **
Respondent was not a Roadmaster in these years.
Invoices for 1996 are marked "no bids received" and are signed by Keith
Thebes.
13. Centre Township records confirm that payments were made from the Township
General Fund to FTSI for equipment rental, snow plowing and hauling as
follows:
Check
Number Date
1386 04/06/93
1479 07/06/93
1993 TOTAL
1654
1687
1732
1967
2038
2065
2109
2178
No. Of Days
Services Rendered
4
7
11
9
02/08/94
03/01/94
04/05/95
1994 TOTAL
02/07/95
04/04/95
05/02/95
07/03/95
11/09/95
Amount
of Check
$4,007.50
$ 382.00
$4,389.50
$1,702.50
$2,010.00
$ 200.00
$3,912.50
$1,807.50
$ 397.50
$ 800.00
$ 400.00
$ 405.00
Amount
$ 4,389.00
$ 3,912.50
$ 5,837.50
$ 8,611.00
Total $22,750.50
Amount
of Invoice
$4,007.50
$ 382.00
$1,702.50
$2,010.00
$ 200.00
$1,807.50
$ 397.50
$ 400.00
$ 405.00
Thebes, 95- 060 -C2
Page 5
14. Keith Thebes participated in actions of the Centre Township Supervisors to
approve payments, including signing of checks, to FTSI.
Date of
Meeting
05/04/93
07/06/93
02/08/94
03/01/94
04/05/94
02/07/95
04/04/95
05/02/95
07/03/95
12/05/95
02/06/96
Check
Number Date
2218 12/05/95
2236 12/29/95
1995 TOTAL
2287 02/06/96
1996 TOTAL
Check
Number Vote
1386 Unanimous
1479 Unanimous
1654 Unanimous
1687 Unanimous
1732 Unanimous
1967 Unanimous
2038 Unanimous
2065 Unanimous
2109 Unanimous
2218 Unanimous
2287 Unanimous
15. PCCC has invoiced Centre Township for the number of days indicated below:
No. Of Days
Services Rendered
21
3
22
5
Year Amount
1993* $ 8,140.00
1994* $ 3,602.00
1995 $11,202.50
1996 $ 2,180.00
Total $25,124.50
Respondent was not a Roadmaster in these years.
16. Centre Township record confirm that payments were made from the Township
General Fund to PCCC for equipment rental, repairs, and snow removal.
Check
Number Date
1410 04/06/93
1492 07/06/93
1535 09/07/93
1615 12/07/93
1641 12/28/93
1993 TOTAL
Amount
of Check
$1,927.50
$ 100.00
$5,837.50
$8,61 1.00
$8,611.00
Amount
of Check
$1,650.00
$ 630.00
$2,056.00
$3,464.00
$ 340.00
$8,140.00
Amount
of Invoice
$1,927.50
$ 100.00
$8,61 1.00
Action by Thebes
Seconded, voted, signed check
Made motion, voted, signed check
Seconded, voted, signed check
Seconded, voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Amount
of Invoice
$1,650.00
$ 630.00
$2,056.00
$3,464.00
$ 340.00
Thebes, 95- 060 -C2
Page 6
Check
Number Date
1677 02/08/94
1711 03/01/94
1865 09/06/94
1994 TOTAL
1975 02/07/95
2012 03/07/95
2039 04/04/95
2132 08/02/95
2191 11/09/95
2247 12/29/95
1995 TOTAL
2288 02/06/96
1996 TOTAL
17. Keith Thebes participated in actions
approve payments to PCCC.
Date of
JVleetinq
05/04/93
07/06/93
09/07/93
12/07/93
12/28/93
02/08/94
03/01/94
09/06/94
02/07/95
03/07/95
04/04/95
09/05/95
12/29/95
02/06/96
Check
Number Vote
1410 Unanimous
1491 Unanimous
1535 Unanimous
1615 Unanimous
1641 Unanimous
1677 Unanimous
1711 Unanimous
1865 Unanimous
1975 Unanimous
2012 Unanimous
2039 Unanimous
2132 Unanimous
2247 Unanimous
2288 Unanimous
b. 1993 - $697.50
1994 - $ 0.00
Amount
of Check
$ 810.00
$ 727.00
$2.065.00
$3,602.00
$3,1 15.00
$1,742.00
$4,915.00
$ 985.00
$ 315.00
$ 135.00 $
$11,202.50
of the
Amount
9f Invoice
$ 810.00
$ 727.00
$3,110.00
$1,742.50
$4,915.00
$ 985.00
135.00
$2.180.00 $2,180.00
$2,180.00
Centre Township Supervisors to
Action by Thebes
Seconded, voted, signed check
Made motion, voted, signed check
Seconded, voted, signed check
Made motion, voted, signed check
Seconded, voted, signed check
Seconded, voted, signed check
Seconded, voted, signed check
Made motion, voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
Voted, signed check
18. In calendar year 1995, an increase of $8,599.50 in payments to PCCC occurred
after Keith Thebes was appointed Township Roadmaster.
19. In calendar year 1995, an increase of $1,925.00 in payments to FTSI occurred
after Keith Thebes was appointed Township Roadmaster.
20. The amount of road repairs in Centre Township increased in 1995.
21. Other contractors in Centre Township have been utilized by the Roadmaster for
equipment rentals and road related projects and /or snow plowing.
a. These contractors were not used to the extent of either FTSI or PCCC.
Thebes, 95- 060 -C2
Page 7
1995 - $ 60.00
1996 - $ 0.00 (through 3/96)
22. In May, 1995, the Centre Township Supervisors advertised for bids for 100
hours of equipment rental for a front end loader, crawler type, a backhoe, and
an operator.
a. The bidder was required to have both pieces of equipment available to
submit a proposal as well as a certified of insurance and a performance
bond.
b. The equipment was to be used on Mahanoy Road in the Township.
c. Bids were advertised after the Supervisors determined the cost would
exceed $ 10,000.
d. Keith Thebes drafted the bid specifications.
23. PCCC was the only bidder.
a. PCCC provided proof of insurance but did not provide a performance
bond.
24. At the June 6, 1995, meeting of the Centre Township Supervisors, action was
taken to award the contract to PCCC upon the condition that the performance
bond be received before any work be done.
a. The motion was approved by a 2 to 0 vote with Keith Thebes voting.
25. On June 7, 1995, a contract was sent to Eric Thebes of PCCC by the Centre
Township Secretary for the equipment rental.
a. The contract was prepared by the Secretary /Treasurer as directed by
Keith Thebes in his capacity as Roadmaster.
26. On August 1, 1995, the Centre Township Supervisors voted to void the
contract with PCCC for three reasons.
a. The vote was 2 to 0 to void the contract.
b. Keith Thebes abstained from the vote.
27. A letter was sent to Eric Thebes by the Centre Township Secretary on August
7, 1995, which outlined the reasons for the contract being voided.
a. Eric Thebes (PCCC) did not comply by forwarding a performance bond or
bank letter to the Township within the specified time period.
b. The Chairman of the Board (Keith Thebes) is not allowed to vote on your
contract since he is an immediate relative.
c. The Township did not prepare the contract as the current regulations
permit.
Thebes, 95- 060 -C2
Page 8
28. By letter of August 14, 1995, Township Solicitor Richard Wagner provided an
opinion that if Keith Thebes has no financial interests in the companies owned
by his brothers and otherwise gains no other benefits, then he is not prevented
from voting on a contract between the Township and either brother provided
that the contract is awarded to the lowest responsible bidder.
a. Wagner noted that when Keith Thebes filed Statements of Financial
Interests Thebes indicated he had no interest in the business of either
brother.
29. While Respondent, Fred Thebes and Eric Thebes may be related as siblings,
Respondent is not a member of the household of either of his brothers.
Respondent maintains a separate and independent home, and is in no way
dependent upon either of his brothers for the maintenance of his household or
for any other purpose.
30. Respondent has no business or financial interest of any sort in Fred Thebes &
Sons, Inc. or in Perry County Construction Co.
31. Respondent has no business or financial arrangement with his brothers, Fred
Thebes and /or Eric Thebes, by which he receives anything of value from them
with relationship to any business matter involving either brother individually or
in or through any business enterprise in which said brothers, or either of them,
are interested.
32. Respondent has not received anything of value from his brothers, Fred Thebes
and /or Eric Thebes, or from any business enterprise in which said brothers are
interested as a result of any work performed for the Township of Centre.
33. When the Board of Township Supervisors realized that the equipment cost to
perform the Mahanoy Road project would exceed $4,000 but not $10,000,
Respondent, in his capacity as Roadmaster, obtained quotes from three
equipment contractors pursuant to Section 802 of the Township Code (53 P.S.
§65802). The Supervisors selected Perry County Construction Co. as the
lowest contractor.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Keith Thebes, hereinafter
Thebes, has been a public official subject to the provisions of the Public Official and
Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401,
.Q
The issue before us is whether Thebes, as a Supervisor /Roadmaster for Centre
Township, Perry County, violated Section 3(a) of the Ethics Law (Act 9 of 1989), as
to the allegation that he used the authority of his office for the private pecuniary
benefit of businesses with which members of his immediate family are associated by
participating in discussions, actions or decisions of the Board of Supervisors which
resulted in companies owned by his brothers being selected to work on Township
projects.
Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public
employee is prohibited from engaging in conduct that constitutes a conflict of interest.
Thebes, 95- 060 -C2
Page 9
facts.
The term "conflict of interest" is defined under Act 9 of 1989 as follows:
Section 2. Definitions
65 P.S. §402.
"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.
Having noted the issues and applicable law, we shall now summarize the salient
Thebes served as a Centre Township Supervisor from 1972 through 1977 and
from 1986 to the present. In addition, Thebes has been employed as Township
Roadmaster since January, 1995. Both as a Supervisor and Roadmaster, Thebes has
statutory duties as to Township roads, bridges and related areas.
Since Centre Township does not own any heavy equipment necessary to repair
or maintain Township roads and bridges, the Township utilizes services of outside
vendors. The Township obtains quotes for equipment rentals with an operator since
the Township does not employ any operators.
It has been the practice in Centre Township for the Roadmaster to obtain verbal
quotes for equipment rentals on projects within the range of $4,000 to $ 10,000. The
Township policy for reviewing bids is to consider the bidder with the lowest price but
allowance is given to consider local companies if the work can be performed in a
timely, good, and workmanlike manner at a reasonable cost. With the consultation of
the other Supervisors, if available, the Township Roadmaster awards the equipment
rental contracts.
As to Eric and Fred Thebes, who are brothers of Thebes, Fred Thebes is a
principle of Fred Thebes and Son, Inc. (FTSI) and Eric Thebes is a principle of Perry
County Construction Company (PCCC). Both PCCC and FTSI are located in Centre
Township and have been routinely engaged in providing equipment and services to
Centre Township since 1987 which was prior to Thebes appointment as Roadmaster.
The services which FTSI provided to Centre Township for the years 1993
through 1996 totalled $22,750.50. As to the above, we note that Thebes was not
the Roadmaster for the years 1993 and 1994. Furthermore, in 1996 some of the
invoices were marked with a notation of "no bids received." Lastly, the actions that
Thebes, 95- 060 -C2
Page 10
Thebes took as a Supervisor in approving invoice payments in terms of motions,
seconds, voting and signing checks are delineated in Fact Finding 14.
Similarly, as to PCCC, that business provided services to the Township from
1993 through 1996 totalling $25,124.50. The actions taken by Thebes as to those
invoice payments are set forth in Fact Finding 17.
The record reflects that in 1995 there was an increase of approximately $8,600
in payments to PCCC and an increase of over $1,900 to FTSI, which occurred after
Thebes' appointment as Roadmaster. However, the amount of road repairs in Centre
Township increased in 1995. Other contractors have been used in Centre Township
by the Roadmaster but not to the extent as FTSI and PCCC.
As to one particular bid advertisement which exceeded $10,000, Centre
Township only received a bid from PCCC which was awarded the bid in a 2 -0 vote
with Thebes voting. That contract was subsequently voided in a 2 -0 vote, with
Thebes abstaining, because PCCC did not comply by forwarding a performance bond
within a specified time period, Thebes as Board Chairman was not allowed to vote on
the contract as to his immediate relative and the Township did not prepare the
contract as per its current regulations.
As to the relationship between Thebes and his brothers' companies, the
Township Solicitor by letter of August 14, 1995, opined that as long as Thebes had
no financial interest in the companies owned by his brothers and did not gain any
benefit, he would not be prevented from voting on contracts between the Township
and his brothers' companies provided they were the lowest reasonable bidder.
Although Fred and Eric are siblings of Thebes, they maintain separate and independent
households so that Thebes is not dependent upon his brothers. Thebes has no
business or financial interest in either of the companies and has received nothing of
value from his brothers.
Having summarized the above relevant facts, we must now determine whether
the actions of Thebes violated Section 3(a) of Act 9 of 1989.
In order to establish a violation, Section 3(a) requires a use of the authority of
office or confidential information by a public official /employee for the private pecuniary
benefit of businesses with which members of his immediate family are associated. In
this case we find technical violations when Thebes took action to engage the services
of PCCC and FTSI for equipment rental, repair services and snow removal in Centre
Township as well as when he participated in invoice approval actions of the Centre
Township Board and signed checks for services rendered by FTSI and PCCC. There
was both a use of authority of office on the part of Thebes as Roadmaster in making
the selection and also in approving the payment of the invoices by making motions or
seconding motions or voting to approve or signing checks as to payment. Such use
of authority of office resulted in a private pecuniary benefit consisting of the award of
the services and the payments for the services performed. Lastly, the private
pecuniary benefit enured to businesses with which members of Thebes' immediate
family are associated. The terms "immediate family" and "business with which . . .
associated" are defined as follows:
Thebes, 95- 060 -C2
Page 11
Section 2. Definitions
"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.
"Immediate family." A parent, spouse, child, brother
or sister.
65 P.S. §402. Clearly, PCCC and FTSI are businesses with which members of
Thebes' immediate family, his brothers, are associated. Our decision in this case is
consistent with prior Commission precedent. See, Murray, Order 808; Brink, Order
953. As to these technical violations, the record reflects that there was no specific
intent to violate the Ethics Law.
Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this
Commission to impose restitution in those instances where a public official /employee
has obtained a financial gain in violation of the Ethics Law. In this case, the parties
through a Consent Agreement have determined that Thebes make a payment of $800.
Thebes is directed to pay $800 in a timely manner through this Commission to Centre
Township. Compliance with the foregoing will result in the closing of this case with
no further action by the Commission. Non - compliance will result in the institution of
an order enforcement action.
Lastly, we note that the parties have filed a Consent Agreement and Stipulation
of Findings which set forth a proposed resolution of the allegations. We believe that
the Consent Agreement is the proper disposition for this case based upon our review
as reflected in the above analysis and the totality of the facts and circumstances.
IV. CONCLUSIONS OF LAW:
1. Keith Thebes, as a Supervisor /Roadmaster in Centre Township, Perry County,
is a public official subject to the provisions of Act 9 of 1989.
2. Thebes technically violated Section 3(a) of Act 9 of 1989 when he took action
to engage the services of PCCC and FTSI, which are businesses with which
members of his immediate family are associated, for equipment rental, repair
services and snow removal duties in Centre Township.
3. Thebes technically violated Section 3(a) of Act 9 of 1989 when he made
motions, seconded motions, voted to approve or signed checks as to the
payment of invoices for PCCC and FTSI.
In Re: Keith Thebes
ORDER NO. 1027
File Docket: 95- 060 -C2
Date Decided: 11/4/96
Date Mailed: 11/13/96
1. Keith Thebes technically violated Section 3(a) of Act 9 of 1989 when he took
action to engage the services of PCCC and FTSI, which are businesses with
which members of his immediate family are associated, for equipment rental,
repair services and snow removal duties in Centre Township.
2. Thebes technically violated Section 3(a) of Act 9 of 1989 when he made
motions, seconded motions, voted to approve or signed checks as to the
payment of invoices for PCCC and FTSI.
3. Thebes is directed to make payment to Centre Township through this
Commission in the amount of $800 in a timely manner pursuant to a Consent
Agreement of the parties. Compliance with the foregoing will result in the
closing of this case with no further action. Failure to comply will result in the
institution of an order enforcement action.
BY THE COMMISSION,
OlittS/VU a./4.0
DANEEN E. REESE, CHAIR