HomeMy WebLinkAbout1042 ErwinIn Re: S. Dale Erwin
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 96- 048 -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 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(s). Upon
completion of its investigation, the Investigative Division issued and served upon
Respondent a Findings Report identified as an "Investigative Complaint." An Answer
was not filed and a hearing was deemed 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.
Erwin, 96- 048 -C2
Page 2
1. ALLEGATION:
That S. Dale Erwin, a public official in his capacity as a Supervisor for Cass
Township, Huntingdon County, violated the following provisions 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 a business with which he is associated by participating in
actions, discussions and /or decisions of the board of supervisors to award a contract
and make payments to Erwin Trucking and when a contract was entered into with
Erwin Trucking in excess of $500 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. §403(a).
Section 3. Restricted activities
(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).
II. FINDINGS:
1. S. Dale Erwin has served as a Supervisor for Cass Township, Huntingdon
County, since 1989.
a. Erwin was appointed to fill an unexpired term.
b. Erwin was subsequently elected to a full term.
2. Prior to his appointment as a township supervisor, Erwin worked on a part-time
basis for Cass Township.
a. Erwin began this part -time work in 1986 as a laborer and equipment
operator.
Erwin, 96- 048 -C2
Page 3
3. The Cass Township Supervisors
the township.
a. The supervisors provide
basis.
4. Cass Township does not have a full -time road crew to maintain the roads and
bridges.
a. The township employs two part-time road workers.
b. Township Supervisor Gail Forshey supervises the road workers.
5. Erwin has been a self - employed truck driver since approximately 1992.
a. Erwin owns two tri -axle trucks.
b. Erwin contracts with New Enterprise Stone and Lime Company
Incorporated to haul road materials.
6. New Enterprise has contracted with Cass Township for approximately thirty
(30) years to supply limestone and road materials.
a. The work has been awarded to New Enterprise through a bid process.
7. On May 21, 1992, the Cass Township Supervisors awarded a contract to New
Enterprise for road material and paving.
a. I.B. Stone
b.
Paving
$13,575.00
$12,145.05
have all been employed on a part-time basis for
labor for road related work on an as needed
c. Bids were awarded following a bid process.
d. New Enterprise was the low bidder.
e. Votes of the board were not recorded; however, Erwin is reported as
attending that meeting.
8. Also approved at the meeting of May 21, 1992, was an authorization for Erwin
to sign for an account with I.A. Construction so that materials for road work
could be obtained.
9. Cass Township utilized the services of S. Dale Erwin for hauling road material
from 1992 through 1994.
a. Quotes were not solicited from other companies for this type of work.
b. Prior to 1992 New Enterprise delivered the material to the township.
10. The Cass Township Supervisors discussed using Erwin's services as a matter
of convenience and as a cost savings measure.
1992
Erwin, 96- 048 -C2
Page 4
a. The three supervisors, including Erwin, discussed Erwin's availability to
deliver material to the township on his return trips from New Enterprise
facilities.
b. The supervisors believed using Erwin would be convenient because he
would be at the quarry sites.
c. The three supervisors, including Erwin, agreed upon a rate of
$40.00 /hour.
d. This was not done at a public meeting.
11. The services performed by Erwin for Cass Township included hauling road
material from the Orbisonia and Union Furnace quarry sites of New Enterprise.
a. The rates Erwin charged were $40.00 per hour from Orbisonia and
$50.00 per hour from Union Furnace.
b. These rates were competitive with other trucking companies in the area.
c. The rate was higher for Union Furnace because it was further away from
Cass Township than Orbisonia.
12. When the township needed materials, Erwin was contacted by Township
Supervisor Gail Forshey.
a. Forshey would contact the weighmaster at the Orbisonia and Union
Furnace quarry sites.
b. Forshey would instruct the weighmaster to have Erwin haul the road
material to the township.
13. While serving as a township supervisor from 1992 through 1994, S. Dale Erwin
billed Cass Township for hauling road material and has been paid as follows:
Date of Type of Number Hourly Total Check
Service Service of Hours Rate Amount Number
11/18/92
10/28/92
11/04/92
11/09/92
11/12/92
11/14/92
11/16/92
1
1
1
1
1
1
oad pre -mix
oad pre -mix
oad pre -mix
oad pre -mix
oad pre -mix
oad PA No.
2A Stone
1 Toad select
granular mat. 2RC
1.5 $40.00 $60.00 2163
1.5 $40.00 $60.00
1.5 $40.00 $60.00
1.5 $40.00 $ 60.00
1.5 $ 40.00 $ 60.00
1.5 $40.00 $60.00
1.5 $40.00 $60.00
$ 360.00 2158
Erwin, 96- 048 -C2
Page 5
Date of
Service
1993
02/16/93
02/17/93
02/18/93
02/08/93
02/09/93
02/10/93
02/12/93
04/07/93
04/16/93
04/19/93
04/27/93
04/28/93
05/04/93
05/06/93
05/07/93
05/12/93
05/17/93 1 load pre -mix
05/10/93 1 load pre -mix
05/17/93
05/20/93
05/21/93
05/26/93
05/27/93
Type of
Service
1 load IB Stones
23.61 tons
1 load IB Stones
21.58 tons
1 Toad IB Stones
23.65 tons
TOTAL
1 load IB Stones
22.73 tons
1 load IB Stones
23.82 tons
1 load IB Stones
23.28 tons
1 load IB Stones
23.62 tons
TOTAL
1 Toad select granular
mat. 2 RC 22.26 tons
1 Toad pre -mix
1 load AASHTO
No. 1 22.24 tons
1 Toad AASHTO
No. 1 22.75 tons
1 Toad select granular
mat. 2 RC 22.86 tons
I load AASHTO
No. 8, NO1B 23.59 tons
1 load pre -mix
1 Toad pre -mix
1 load pre -mix
Number Hourly
of Hours Rate
1.25
1.25
1.25
1 load select granular 1.0
2 RC 22.93 tons
1 load pre -mix 1.25
1 Toad AASHTO 1.0
No. 8, No. 1B, 22.28 tons
1 load pre -mix - 1.25
1 load AASHTO 1.25
No. 8, 22.42 tons
1.25 $40.00
1.25 $40.00
1.25 $40.00
1.25 $40.00
1.25
1.0
Total
Amount
$ 40.00 $ 50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $40.00
$40.00 $ 50.00
$ 40.00 $ 50.00
Check
Number
$150.00 2265
$ 50.00
$ 50.00
$ 50.00
$ 50.00
$200.00 2256
1.25 $40.00 $50.00 2324
1.25 $40.00 $50.00
1.0 $40.00 $40.00
1.0 $40.00 $40.00
1.0 $40.00 $40.00
1.0 $40.00 $40.00
1.25 $40.00 $50.00
1.25 $40.00 $50.00
1.25 $40.00 $50.00
$40.00 $50.00
$ 40.00 $ 40.00
$450.00 2351
$40.00 $40.00
Date of
Service
05/28/93
06/01/93
06/07/93
06/08/93
06/08/93
06/25/93
07/15/93
07/15/93
07/16/93
07/20/93
07/21/93
07/22/93
08/05/93
08/27/93
08/31/93
08/31/93
09/03/93
09/08/93
09/09/93
09/14/93
09/23/93
10/05/93
12/22/93 1 Toad PA. No. 2A
Stone, 21.07 tons
1994
Erwin, 96- 048 -C2
Page 6
Type of
Service
1 Toad pre -mix 1.25
1 Toad AASHTO 1.0
No. 8, No. 1B, 23.41 tons
1 Toad AASHTO • 1.0
No. 8, No. 1B, 21.37 tons
1 Toad AASHTO 1.0
No. 8, No. 1B, 23.39 tons
1 Toad pre -mix 1.25
TOTAL
1 Toad pre -mix
1 Toad pre -mix
TOTAL
Number
of Hours
1.25
1.25
1 Toad pre -mix 1.25
1 Toad AASHTO 1.25
No. 1, No. 4, 21.56 tons
1 Toad AASHTO 1.25
No. 1, No. 4, 21.05 tons
1 Toad AASHTO 1.25
No. 1, No. 4, 20.29 tons
1 Toad PA No. 2A 1.25
Stone, 20.43 tons
1 Toad AASHTO 1.25
No. 1, No. 4, 22.00 tons
TOTAL
1 Toad AASHTO
No. 1, No. 4, 23.73 tons
1 Toad pre -mix
1 Toad pre -mix
1 Toad PA No. 2A
Stone, 20.75 tons
1 Toad pre -mix
1 Toad pre -mix
1 Toad pre -mix
TOTAL
1 Toad pre -mix
1 load pre -mix
TOTAL
01/24/94 1 Toad AASHTO
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
Hourly Total
Rate Amount
$40.00 $50.00
$40.00 $40.00
$40.00 $40.00
$40.00 $40.00
$40.00 $50.00
$450.00 1103
$40.00 $50.00
$40.00 $50.00
$100.00 1110
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$ 300.00 1116
$40.00 $50.00
$40.00 $ 50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$ 350.00 1120
$40.00 $50.00
$40.00 $ 50.00
$100.00 1128
1.25 $40.00 $50.00 1141
1.0 $ 40.00 $ 40.00
Check
Number
Erwin, 96- 048 -C2 ss
Page 7
Date of
Service
01/25/94
01/29/94
01/31/94
02/02/94
02/07/94
02/08/94
02/10/94
14. The following amounts have been paid to S. Dale Erwin by Cass Township for
hauling road material.
Meeting
Date
Type of
Service
No. 8, No. 1B, 23.14 tons
1 Toad anti -skid stone 1 25
22.45 tons
1 Toad anti -skid stone 1.25
22.07 tons
1 Toad anti -skid stone 1.25
22.29 tons
1 Toad anti -skid stone 1.25
22.22 tons
1 Toad anti -skid stone 1.25
21.67 tons
1 Toad anti -skid stone 1.25
19.15 tons
1 load anti -skid stone 1.25
20.72 tons
TOTAL
11/92
11/92
02/18/93
02/18/93
04/15/93
05/20/93
06/17/93
07/15/93
08/19/93
09/16/93
10/21/93
01/20/94
1992:
1993:
1994:
TOTAL
Check
Date
11/19/92
11/19/92
02/15/93
02/18/93
04/15/93
05/17/93
06/14/93
07/15/93
08/19/93
09/23/93
10/21/93
01/18/94
Number
of Hours
$ 420.00
$2,200.00
$ 390.00
$ 3,010.00
Hourly Total
Rate Amount
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $50.00
$40.00 $ 50.00
$40.00 $50.00
$40.00 $50.00
Check
Number
$ 390.00 1149
15. As a Cass Township Supervisor, S. Dale Erwin participated in the process of
approving and dispensing checks to himself.
a. Erwin participated in the votes of the board of supervisors approving
payments to himself.
b. The votes to approve payments were always unanimous.
16. Cass Township approved and issued checks to S. Dale Erwin as follows:
Check Amount
Number of Check
1263 $ 60.00
2158 $ 360.00
2256 $ 200.00
2265 $ 150.00
2324 $ 50.00
2351 $ 450.00
1103 $ 450.00
1110 $ 100.00
1116 $ 300.00
1120 $ 350.00
1 128 $ 100.00
1141 $ 50.00
Vote by
Supervisor
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
Erwin, 96- 048 -C2
Page 8
Meeting Check Check Amount Vote by
Date Date Number of Check Supervisor
02/17/94 02/17/94 1149 $ 390.00 3 -0
TOTAL $3,010.00
17. Sometime after February 17, 1994, Timothy Black, a Municipal Services
Consultant with the Pennsylvania Department of Transportation, advised the
township supervisors that Erwin should not haul for the township without the
work being put out for bid.
a. The township discontinued using Erwin after they were notified by Black.
b. Since that time the township has utilized the services of New Enterprise
for delivery of road material.
18. The Auditor General of the Commonwealth of Pennsylvania conducted an audit
of the Cass Township Liquid Fuels fund for 1992 and questioned payments
made from that fund to Erwin.
a. The Auditor General found that payments from the Liquid Fuels Fund
totaling $1,300.00 in 1993 and $440.00 in 1994 to Erwin violated
provisions of the Second Class Township Code regarding a supervisor
transacting business with the township.
b. The report noted that the supervisors reimbursed the Liquid Fuels Fund
in an amount of $1,740.00 on March 31, 1994.
19. Erwin estimated he was making a profit of approximately $10 to $20 per hour
from the $40 hourly rate he charged Cass Township.
a. Erwin worked a total of 75.25 hours for the township between 1992 and
1994 hauling material for the township.
20. The profit made by Erwin can be calculated by multiplying the low profit per
hour estimate of $10, times the number of hours which was 75.25.
a. $10 x 75.25 = $752.50
III. DISCUSSION:
At all times relevant to this matter, the Respondent, S. Dale Erwin, hereinafter
Erwin, 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,
The issues before us are whether Erwin, a public official in his capacity as a
Supervisor for Cass Township, Huntingdon County, violated Sections 3(a) and 3(f) of
the State Ethics Act (Act 9 of 1989) as to the allegation that he used the authority of
his office for the private pecuniary benefit of himself by participating in actions of the
Board of Supervisors to award a contract and make payments to Erwin Trucking as to
a contract which was in excess of $500 and not awarded through an open and public
process.
Erwin, 96- 048 -C2
Page 9
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
"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.
Section 3(f) of Act 9 of 1989 specifically provides in part that no public
official /public 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 /public employee is associated unless the contract is awarded through
an open and public process including prior public notice and subsequent public
disclosure.
facts.
Having noted the issues and applicable law, we shall now summarize the salient
Erwin has served as a Cass Township Supervisor in Huntingdon County since
1989. Erwin had been previously employed by the Township as a part-time labor and
equipment operator in 1986. In a private capacity, Erwin is a self - employed truck
driver.
Since the Township does not have full time road crew, the Township contracts
for road maintenance projects through a bid process. In May, 1992, the Township
awarded a contract for road material and paving through a bid process to New
Enterprise as the low bidder. The Township utilized the services of Erwin for hauling
road materials from 1992 through 1994. No quotes were solicited from other
companies for road hauling services; Erwin was selected after the Supervisors,
including Erwin, discussed his services based upon criteria of convenience and cost
savings. The three Supervisors, including Erwin, agreed upon a road hauling rate
which was competitive with other trucking companies but was not done at a public
meeting.
Erwin, 96- 048 -C2
Page 10
When the Township needed material, Supervisor Forshey, who supervised the
road workers, contacted Erwin to provide such services. The services provided by
Erwin and the payments received are detailed above (Fact Findings 13, 14, 16).
Erwin as a Cass Township Supervisor participated in the process of approving
and dispensing checks to himself for the road hauling services he provided to the
Township. Such actions of the Township Board were always unanimous. In 1994,
after a PennDOT Municipal Services Consultant advised that the Township Supervisors
should not utilize Erwin for road hauling services because the work was not awarded
through a bid process, the Township discontinued using Erwin for such services. In
addition, the Pennsylvania Auditor General conducted an audit in 1992 and questioned
the payments to Erwin. The Auditor General concluded that the payments to Erwin
violated the provisions of the Second Class Township Code in that a supervisor was
transacting business with his Township. The Supervisors reimbursed the Liquid Fuels
Fund in the amount of $1,740 in March, 1994.
Erwin estimates that he made a profit of approximately $10 to $20 per hour for
the 75.25 hours that he charged to Cass Township from 1992 through 1994, so that
his total profit was approximately $752.50.
Having summarized the above relevant facts, we must now determine whether
the actions of Erwin violated Sections 3(a) and 3(f) 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.
As to Section 3(a) of Act 9 of 1989, Erwin used the authority of office in this
case when he participated in Township actions to utilize his truck hauling services and
to approve payments to himself for such services rendered. The use of authority of
office resulted in a pecuniary benefit consisting of the payments that Erwin received
for providing the road hauling services to the Township. Further, the pecuniary benefit
was private in that there was no authorization in the Township Code for such action.
See, Patterson, Order 1023. Lastly, the private pecuniary benefit enured to Erwin.
Accordingly, we find that Erwin violated Section 3(a) of Act 9 of 1989 when
he used the authority of office to obtain a private pecuniary benefit for himself by
participating in Township actions to employ his truck hauling services in the Township
during the years 1992 through 1994. In addition, we find that Erwin violated Section
3(a) of Act 9 of 1989 when he used the authority of office to obtain a private
pecuniary benefit for himself when he participated in actions by the Board of
Supervisors to approve the payment of Township funds to himself for the road hauling
services that he provided.
As to Section 3(f) of Act 9 of 1989, we find a violation for only year 1993
as to the road hauling services in that the contract for that year alone was $500 or
more and was not awarded through an open and public process. There was no open
and public process in 1992 and T 994 but the contracts in those two years were Tess
than $500.
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
Erwin, 96- 048 -C2
Page 11
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.
Erwin is directed to make a payment through this Commission to Cass Township
in the amount of $300 in a timely manner as per the Consent Agreement. Compliance
with the foregoing will result in the closing of this case with no further action on the
part of the Commission. Non - compliance will result in the initiation of an order
enforcement action.
IV. CONCLUSIONS OF LAW:
1. S. Dale Erwin (Erwin), as a Supervisor in Cass Township, Huntingdon County,
is a public official subject to the provisions of Act 9 of 1989.
2. Erwin violated Section 3(a) of Act 9 of 1989 when he used the authority of
office by participating in Township actions to employ his services to haul road
materials for the Township during the years 1992 through 1994.
3. Erwin violated Section 3(a) of Act 9 of 1989 when he used the authority of
office by participating in the approval and payment of Township funds to
himself for road hauling services rendered.
4. Erwin violated Section 3(f) of Act 9 of 1989 as to a contract in 1993 to provide
hauling services to the Township which contract was in excess of $500 and not
awarded through an open and public process.
ti
In Re: S. Dale Erwin File Docket: 96- 048 -C2
Date Decided: 2/20/97
Date Mailed: 3/7/97
ORDER NO. 1042
1. S. Dale Erwin (Erwin), as a Supervisor in Cass Township, Huntingdon County,
violated Section 3(a) of Act 9 of 1989 when he used the authority of office by
participating in Township actions to employ his services to haul road materials
for the Township during the years 1992 through 1994.
2. Erwin violated Section 3(a) of Act 9 of 1989 when he used the authority of
office by participating in the approval and payment of Township funds to
himself for road hauling services rendered.
3. Erwin violated Section 3(f) of Act 9 of 1989 as to a contract in 1993 to provide
hauling services to the Township which contract was in excess of $500 and not
awarded through an open and public process.
4. Erwin is directed to timely make payment in the amount of $300 through this
Commission to Cass Township pursuant to a Consent Agreement of the parties.
Compliance with the foregoing will result in the closing of this case with no
further action. Non - compliance will result in the initiation of an order
enforcement action.
BY THE COMMISSION,
�onua,�v iPu
DANEEN E. REESE, CHAIR