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HomeMy WebLinkAbout1036 BumillerIn Re: Ronald Bumiller STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 96- 008 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn 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 et 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. Bumiller, 96- 008 -C2 Page 2 I. ALLEGATION: II. FINDINGS: That Ronald Bumiller (Bumiller), a public official in his capacity as a Member and Chairman of the Vanport Township Municipal Authority (VTMA), Beaver County, violated the following provision of the State Ethics Act (Act 9 of 1989) when he used the authority of his position for a private pecuniary benefit by purchasing items through the VTMA at the Pennsylvania Department of General Services Surplus Center for his personal use. 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). 1. Ronald Bumiller has served as a Member of the Vanport Township Municipal Authority (VTMA) since 1986. a. Bumiller also served as a Vanport Township Commissioner during the 1970's and early 1980's. 2. The VTMA provides sewer and water service for the community of Vanport. a. The VTMA also provides water and sewer service for Brighton Township. b. The Authority employs approximately three (3) to five (5) laborers for • physical plant operation and two (2) clerical personnel. 3. Materials utilized by the VTMA to operate the facility are purchased from product vendors and the Federal Surplus Property Program. 4. The Federal Surplus Property Program is administered by the General Services Administration under the Federal Property and Administrative Services Act of 1949, as amended. 5. The Pennsylvania Department of General Services (DGS), Bureau of Supplies and Surplus Operations, is the agency designated to distribute surplus federal property, and ensures compliance with Federal regulations within the state. 6. Federal law determines eligibility as "non- profit, tax - exempt organizations that serve the public good in the areas of health or education, and to government agencies, political subdivisions, and organizations funded by and under the direction of political subdivisions ". 7. The Federal Surplus Property Program is not open to the general public. 8. The VTMA has participated in the Federal Surplus Property Program since at least May 2, 1993. 9. VTMA Chairman Ronald Bumiller, completed a Department of General Services Representative Certificate for the purchase of Federal Surplus on June 7, 1993. Bumiller, 96- 008 -C2 Page 3 a. The Representative Certification "certifies that Ronald L. Bumiller is an authorized agent of this institution (VTMA) to select, receive, and sign for surplus federal property deemed useable and necessary in the conduct of this institution's approved program. This authorized signature binds this institution to all terms and conditions of the donee certification." 10. VTMA Board Members sign a distribution document for items obtained from the Federal Surplus Property Program, on behalf of the Authority. a. Only those individuals registered with the Department of General Services Federal Surplus Operations were permitted to sign for property. b. Board Members Ronald L. Bumiller, Gary Cable, and John Schwarz are all registered with DGS to sign for federal surplus property. 11. The distribution document utilized by the PA Department of General Services, Bureau of Supplies and Surplus Operations, Surplus Property Division, includes "Donee Certifications and Agreements" on the reverse side. The following requirements for purchasing from the program are contained therein: a. All items of properties shall be placed in use for the purpose for which acquired within one year of receipt and shall be continued in use for such purposes for one year from the date that the property was placed in use. b. In the event the property is not so placed in use, or contained in use, the donee shall immediately notify the state agency and, at the donee's expense, return such property to the state agency, or otherwise make the property available for transfer or other disposal by the state agency, provided the property is still useable as determined by the state agency. 12. This distribution document is utilized to record the items purchased from the Surplus Property Program. a. The form contains the following information: FSC number; serial number; description; acquisition cost by unit and total; total received; and service charge by unit and total. b. The donee's name, address, and donee number are included. 13. The Pennsylvania Department of General Services, Bureau of Supplies and Surplus Operations, Surplus Property Division, submits invoices to the VTMA for payment for items received from the program. a. The invoices were paid from the Authority's General Fund. 14. VTMA Board Member Ronald Bumiller and Plant Superintendent David Brooks, would regularly go to the Federal Surplus Property Program distribution site, 2850 Industrial Road, Hermitage, Mercer County. a. VTMA representatives picked out clothing, tools, and miscellaneous items to be used in conjunction with Authority business. b. Bumiller would sign for items received. Bumiller, 96- 008 -C2 Page 4 c. Items purchased would be delivered to the VTMA by Bumiller and Brooks. 15. As a representative for the VTMA, Ronald Bumiller regularly signed for items obtained from the Federal Surplus Property Program between May 2, 1993, and July 26, 1995. 16. Invoices from DGS for surplus items were approved for payment by the VTMA at regular board meetings. a. The invoices approved were included with the Authority's monthly bill lists which are approved in their entirety. b. Bumiller participated in the action taken to approve these payments. 17. VTMA General Fund checks were issued to the Pennsylvania Department of General Services as payment for items obtained by the Authority from the Federal Surplus Program. 18. The majority of the items purchased by the VTMA from DGS surplus are still in use at the Authority. a. Many consumable items such as rope, hand cleaners, erasers, bandages, envelopes, wire, solder, and gasket remover, were already used by the Authority. 19. Some items purchased from Federal Surplus were stored by Ronald Bumiller in a file cabinet used by Bumiller located in the Authority office. a. No other board members maintained federal surplus items. 20. On June 6, 1993, Ronald Bumiller, as a representative of the VTMA, purchased a whirlpool bath along with six (6) other items from Federal Surplus. a. Surplus Property Division invoice #2853, dated 06/09/93 confirm the items purchased: (1) Whirlpool bath $132.00 (1) Desk 25.00 (1) Multi- tester 15.00 (3) Files 3.00 (1) Chisel 5.00 (1) Generator 75.00 (1) Blue paint 3.00 $258.00 b. These items were paid for by VTMA, check #3379, dated June 9, 1993. c. An adjustment was made by DGS to the invoice on June 14, 1993, reducing the price of the whirlpool to $131.25. 21. The VTMA retained ownership of the whirlpool from June 9, 1993, until June 27, 1994, although the VTMA never installed the unit. Bumiller, 96- 008 -C2 Page 5 22. Ronald Bumiller purchased the whirlpool from the VTMA on June 27, 1994. a. Bumiller issued personal check #1701, dated July 5, 1994, in the amount of $131.25, to the Authority for the whirlpool. b. Bumiller paid the Authority the same amount ($131.25) for the whirlpool that the Authority paid Federal Surplus for it. c. Bumiller purchased the whirlpool for the Authority in his capacity of Board Chairman. d. Bumiller still is in possession of the whirlpool. 23. The VTMA Board approved the sale of the whirlpool to Bumiller at the June 27, 1994, meeting. a. A "Motion by J. Schupay, second R. Diecks, carried to approve purchase of whirlpool in amount of $131.25, by Ronald L. Bumiller." Present: Ronald Bumiller, Randy Cable, Jack Schupay, Russell Diecks. Absent: Gary Cable 24. The VTMA did not solicit bids for the purchase of the whirlpool on the Advice of Counsel. a. Bumiller offered to pay the Authority the same amount it paid for the whirlpool. b. Bumiller did not believe that bids had to be solicited since the value of the whirlpool as set by DGS was under $200.00. c. That the aforesaid action by the VTMA Board was taken after consultation with its solicitor regarding the necessity for biding and after discussion with Mr. Scott E. Pepperman of the Department of General Services indicating that it would be appropriate to dispose of the whirlpool. 25. Collins and Fraser were earning the following hourly wages in 1994. a. Collins: $15.12 /hour b. Fraser: $14.00 /hour 26. The cost to rent a truck in the Vanport Township area from U -Haul is $29.95 per day, plus $ .49 per mile. 27. The distance from the nearest U -Haul facility to the VTMA and then Bumiller's home is three miles. 28. Pennsylvania Department of General Services placed a $400.00 market value on the type of whirlpool purchased by Bumiller from the VTMA. Bumiller, 96- 008 -C2 Page 6 29. The value of the items related to the whirlpool purchased from the VTMA was as follows: a. Whirlpool: Fair Market Value $400.00 (Finding No. 44) Bumiller's Cost - $131.25 TOTAL $268.75 III. DISCUSSION: At all times relevant to this matter, the Respondent, Ronald Bumiller, hereinafter Bumiller, 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, el . The issue before us is whether Bumiller, as a Member of the Vanport Township Municipal Authority (VTMA), violated Section 3(a) of the Ethics Law (Act 9 of 1989) as to the allegation that he used the authority of his position for a private pecuniary benefit by purchasing items through the VTMA at the Pennsylvania Department of General Services Surplus Center for his personal use. 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. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions 65 P.S. §402. facts. "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. Having noted the issues and applicable law, we shall now summarize the salient Since 1986 Bumiller has served as a Member of the Vanport Township Municipal Authority (VTMA) which provides sewer and water services. In the operation of its facility, VTMA utilizes some materials purchased from the Federal Surplus Property Program (Program). The Pennsylvania Department of General Services (DGS) is the agency designated to distribute federal surplus property in conformity with federal regulations. Eligible non - profit tax exempt organizations, Bumiller, 96- 008 -C2 Page 7 government agencies, or political subdivisions may purchase property from the Program which is not available to the general public. VTMA has participated in the Program since at least 1993 with Bumiller as an authorized agent of VTMA to select and receive federal surplus property. The Program requires that purchased items be placed in use within one year after acquisition and then be continued in such use for at least one year thereafter. Bumiller routinely visited the Mercer County Program Distribution Center and acquired items on behalf of VTMA, the majority of which items remain in use at VTMA. On June 6, 1993, Bumiller as VTMA representative purchased a whirlpool for $131.25 from DGS. VTMA retained ownership of the whirlpool but never installed it. Bumiller purchased the whirlpool from VTMA on June 27, 1994 for $131.25. The whirlpool remains in Bumiller's possession. At a VTMA Board meeting on June 27, 1994, a motion was made to approve the purchase of the whirlpool by Bumiller for $131.25 which motion carried 4 -0 with Bumiller voting. The whirlpool was not sold through a solicitation of bids but simply through the acceptance of Bumiller's offer. Such action was taken by the VTMA Board after consultation with its Solicitor who discussed the matter with an individual from DGS. The Solicitor was advised by the DGS representative that it would be appropriate to dispose of the whirlpool in that fashion. Having summarized the above relevant facts, we must now determine whether the actions of Bumiller 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 himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In this case, we find a technical violation of Section 3(a) of Act 9 of 1989. There was a use of authority of office in this case because Bumiller voted in favor of the motion to sell the whirlpool to himself. Juliante, Order 809. In addition, the use of authority of office resulted in a private pecuniary benefit. In this regard, although the whirlpool was purchased by Bumiller at the same price acquired by VTMA, that price was less than its fair market value. Saurman, Opinion 94 -004. Lastly, the private pecuniary benefit enured to Bumiller himself. We believe that a finding of a technical violation is appropriate. First, our decision in this case is in conformity with Robertson, Order 767, wherein we found a technical violation by a township supervisor who purchased a tractor with his own funds from state surplus through the Township for his own personal use. Second, in this case we note that there was a consultation with the Solicitor who discussed the matter with a DGS representative who indicated that it was appropriate to dispose of the whirlpool in that fashion. Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which sets 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. No further action will be taken in this case which is closed. Bumiller, 96- 008 -C2 Page 8 IV. CONCLUSIONS OF LAW: 1. Ronald Bumiller, as a Member of the Vanport Township Municipal Authority (VTMA) in Beaver County, is a public official subject to the provisions of Act 9 of 1989. 2. A technical violation of Section 3(a) of the Ethics Law occurred when Bumiller participated in VTMA's actions to buy a whirlpool obtained by VTMA through the Federal Surplus Property Program for his personal use. In Re: Ronald Bumilier • ORDER NO. 1036 File Docket: 96- 008 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 1. Ronald Bumilier, as a Member of the Vanport Township Municipal Authority (VTMA) in Beaver County, technically violated Section 3(a) of the Ethics Law when he participated in VTMA's actions to buy a whirlpool obtained by VTMA through the Federal Surplus Property Program for his personal use. 2. Based upon the totality of the facts and circumstances, this case is closed and we shall take no further action. BY THE COMMISSION, 61YoAlp,(J DANEEN E. REESE, CHAIR