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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