HomeMy WebLinkAbout1047 BrennanIn Re: James Brennan
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Rev. Joseph G. Quinn
Julius Uehlein
96- 060 -C2
Order No. 1047
5/29/97
6/3/97
. 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. 5401 gt 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.
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 521.29(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.
Brennan, 96- 060 -C2
Page 2
I. ALLEGATION:
That James Brennan, a public official in his capacity as a supervisor for Carbon
Township, Huntingdon County, violated the following provisions of the State Ethics
Act (Act 9 of 1989) when he and /or a business with which he and members of his
immediate family are associated entered into contracts valued at $500 or more with
the township without an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and contracts awarded, and
when he participated in the approval of payments to himself and /or companies with
which he and members of his immediate family are associated.
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 aw- arded. 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).
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
Brennan, 96- 060 -C2
Page 3
1I. FINDINGS:
member of his immediate family is associated. 65 P.S.
§402.
1. The Investigative Division of the State Ethics Commission received information
alleging that James Brennan violated provisions of the State Ethics Act (Act 9
of 1989).
2. Upon review of the complaint by the Director of Investigations, a
recommendation was made to the Executive Director to commence an own -
motion preliminary inquiry.
3. At the direction of the Executive Director„ the Investigative Division initiated a
preliminary inquiry on August 12, 1996.
4. The preliminary inquiry was completed with sixty days.
5. On October 10, 1996, a letter was forwarded to James Brennan, by the
Executive Director of the State Ethics Commission informing him that a
complaint against him was received by the Investigative Division and that a full
investigation was being commenced.
a. Said letter was forwarded by certified mail, No. P 281 102 759.
b. The letter was returned as undeliverable on October 17, 1996, by postal
authorities with a stamp indicating there was a forwarding address which
expired on October 12, 1996.
6. On October 17, 1996, the returned letter, dated October 10, 1996, was
forwarded to James Brennan at the change of address.
a. Said letter was forwarded by certified mail, No. P 487 031 687.
b. The domestic return receipt bore the signature of James Brennan, with
a delivery date of October 29, 1996.
7. The full investigation was commenced at the direction of the Executive Director
of the State Ethics Commission.
8. The Investigative Complaint was mailed to Respondent on April 4, 1996.
9. James Brennan served as a supervisor for Carbon Township, Huntingdon
County, from January, 1988 through 1993.
a. Brennan served as chairman of the board of supervisors during his entire
term of office.
10. Carbon Township does not have a full -time road crew to maintain the roads and
bridges.
1 1 . The Carbon Township Supervisors are employed on a part-time basis for the
township performing labor for road related work on an as- needed basis.
Brennan, 96- 060 -C2
Page 4
Date of
Service
06/24/92
a. This has been a standard practice in Carbon Township prior to Brennan's
service as township supervisor.
b. Supervisors are appointed on an annual basis.
12. James Brennan was employed by Carbon Township on a part -time basis as a
laborer from 1988 through 1993.
a. His compensation in this capacity was not fixed by the township board
of auditors.
13. James Brennan has been employed as an Equipment Operator with the
Pennsylvania Department of Transportation since 1971.
14. James Brennan owns a Ford Diesel 3000 tractor.
a. Brennan's tractor has been used to cut grass at the township baseball
field and to grade township roads.
15. Carbon Township utilized the services of James Brennan to cut the grass and
grade the roads from 1992 through 1993.
a. The township also used the services of James Norris to cut the grass.
b. Norris had a lawnmower which was used for a smaller ballfield.
16. The Carbon Township Supervisors discussed using Brennan's services as a
matter of convenience and as a cost savings measure.
a. These discussions are not recorded in the minutes of township meetings.
b. The supervisors agreed to use Brennan's services because his rates were
competitive with rates charged by other businesses for similar services.
17. The services performed by Brennan was not put out for bid by the supervisors.
a. The decision to use Brennan was not approved by the supervisors at a
public meeting.
18. While serving as a township supervisor in 1992 and 1993, Brennan billed and
was paid by Carbon Township for use of his tractor for grass cutting and road
maintenance as follows:
1992
Type of
Service
Mowing Weeds
with Brusher /Hog
Number Hourly
of Hours Rate
6.0
TOTAL
$ 10.00
Check
Number
Total
Amount
$60.00 968
$ 60.00
Brennan, 96- 060 -C2
Page 5
1993
06/17/93
06/18/93
06/23/93
07/93
08/93
09/22/93
09/23/93
09/24/93
10/93
11/93
Meeting
D ate
06/25/92
06/24/93
07/93
08/26/93
09/30/93
10/28/93
11/24/93
Scrapping Road 8.0
Scrapping Road 4.0
Brush - Hogging 4.0
Cutting Grass &
Road Work
Mowing Weeds/
Brush Hog
Ballfield & Roads
Tractor Work/
Grading Roads 8.0
Tractor Work/
Grading Roads 8.0
Tractor Work/
Grading Roads 8.0
Tractor Work/
Power Saw &
Cutting Brush 16.0
Tractor Work /Power
Saw Work 12.0
TOTAL
$ 15.00
$15.00
$15.00
19. James Brennan was paid a total of $1,250.00 by the township for cutting the
grass and grading the roads:
20. As a Carbon Township Supervisor, Brennan participated in the process of
approving and dispensing payments to himself for services outlined in Finding
No. 18.
a. Brennan participated in the votes of the board of supervisors approving
payments to himself.
b. The votes to approve payments were always unanimous.
c. Brennan signed the checks in his capacity as Chairman of the Board of
Supervisors.
21. Carbon Township approved and issued checks to James Brennan as follows:
Check Check Amount of
Date Number Check
06/25/92
06/24/93
07/29/93
08/26/93
09/30/93
10/28/93
11/24/93
TOTAL
968 $ 60.00
1027 $ 240.00
1032 $ 120.00
1035 $ 90.00
1036 $ 320.00
1041 $ 240.00
1050 $ 180.00
$1,250.00
$ 240.00 1027
$ 120.00 1032
$ 90.00 1035
$15.00
$15.00
$ 15.00 $ 320.00 1036
$15.00 $ 240.00 1041
$15.00 $ 180.00 1050
$1,190.00
Vote By
Supervisors
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
3 -0
Brennan, 96- 060 -C2
Page 6
22. The township discontinued maintaining the baseball field in the summer of
1994.
a. Brennan's services were not needed after that time.
23. James Brennan has not performed any work for the township since his term of
office as a township supervisor was completed.
24. Leda Brennan is the mother of James Brennan.
25. James and Leda Brennan are the owners of a 350 G Bulldozer.
a. The dozer was utilized by the township to perform work on the township
roads in 1991 and 1993 while James Brennan served as a township
supervisor.
b. Bids or quotes were not solicited for this type of work.
c. The decision to use the Brennan's dozer was not approved at a meeting
of the board of supervisors.
26. James Brennan as a member of the board of supervisors, participated in the
board's decision to utilize the services of his and his mother's dozer.
27. James Brennan asserts that his brother, Frank Brennan, operated the dozer for
township road projects.
a. Frank Brennan served as a Carbon Township Supervisor from 1983 until
1995 and served as the township road master.
b. Frank Brennan denies operating the dozer for township projects.
28. The Carbon Township Supervisors, including James Brennan, discussed using
the Brennan's dozer as a matter of convenience and as a cost savings measure.
a. The rates the Brennan's charged were competitive with what other
businesses charged for the use of a dozer.
29. Leda Brennan billed Carbon Township in 1991 and 1993 for the use of the
dozer and was paid as follows:
1991
Date of Type of Number Hourly Total Check
Service Service of Hours Rate Amount Number
06/05/91 Dozer Work 8.0 $25.00
06/15/91 Dozer Work 8.0 $25.00 $400.00 915
09/04/91 Dozer Work 8.0 $25.00
09/05/91 Dozer Work 8.0 $25.00 $400.00 920
TOTAL $800.00
1993
Brennan, 96- 060 -C2
Page 7
Date of Type of Number Hourly Total Check
Service Service of Hours Rate Amount Number
02/93 Dozer Rental
& Operator 12.0 $30.00 $ 360.00 1003
03/14/93 Dozer Rental
& Operator
03/15/93 Dozer Rental
& Operator 12.0
11/22/93 Dozer Work 8.0
TOTAL
$30.00
$35.00
$ 360.00 1004
$ 280.00 1048
$1,000.00
30. Leda Brennan was paid a total of $1,800.00 by Carbon Township for the Dozer
Rental and Operator.
1991: $ 800.00
1993: $1,000.00
TOTAL: $1,800.00
31. As a Carbon Township Supervisor, James Brennan participated in the process
of approving and dispensing checks to his mother, Leda Brennan.
a. James Brennan participated in the votes of the board of supervisors
approving payments to Leda Brennan.
b. The votes to approve payments were always unanimous.
c. James Brennan signed the checks in his capacity as Chairman of the
Board of Supervisors.
32. Carbon Township approved and issued checks to Leda Brennan as follows:
Meeting Check Check Amount of Vote by
Date Date Number Check Supervisors
06/91 06/29/91 910 $ 400.00 3 -0
09/28/91 08/31/91 920 $ 400.00 3 -0
02/25/93 02/25/93 1003 $ 360.00 3 -0
03/25/93 03/25/93 1004 $ 360.00 3 -0
11/24/93 1 1 /24/93 1048 $ 280.00 3 -0
TOTAL $1,800.00
33. James Brennan confirms that he received about half of the money Leda Brennan
was paid by the township from the use of the dozer.
a. Leda Brennan admitted giving James Brennan about half of the money for
the dozer rental.
34. The Auditor General of the Commonwealth of Pennsylvania conducted an audit
of the Carbon Township Liquid Fuels Fund for 1993 and 1994 and questioned
payments made from that fund to James Brennan.
Brennan, 96- 060 -C2
Page 8
a. The Auditor General determined that payments from the Liquid Fuels
Fund totaling $1,190.00 in 1993 to Brennan (See Finding No. 18)
violated provisions of the Second Class Township Code regarding a
supervisor transacting business with the township.
b. It was recommended in the report that the Department of Transportation
review the matter and make a determination if any or all of the
$1,190.00 should be reimbursed to the Liquid Fuels Tax Fund.
35. James Brennan participated in actions of the board resulting in payments
totaling $3,050 being paid to him and a member of his immediate family.
$1,250 (See Finding No. 18) - James Brennan
$1,800 (See Finding No. 32) - Leda Brennan
$3,050 - TOTAL
36. - James Brennan estimated that he made a profit of $600.00 from the use of the
tractor to cut the grass and grade the roads.
a. James Brennan estimates being paid $900.00 by Leda Brennan for the
use of the dozer. (See Finding No. 32, 33).
37. A financial gain of $1,500 was realized by James Brennan for the use of his
tractor and operating the dozer.
I11. DISCUSSION:
At all times relevant to this matter, the Respondent, James Brennan, hereinafter
Brennan, 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,
ems•
The issue before us is whether Brennan violated Sections 3(a) and 3(f) of Act
9 of 1989 as to the allegation that he or a business with which he or a member of his
immediate family is associated entered into contracts valued at $500 or more with the
township without an open and public process and that he participated in the approval
of payments to himself or a business with which he or a member of his immediate
family is associated.
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" as defined under Act 9 of 1989, is quoted in Section
I above.
Section 3(f) of the Ethics Law, quoted in Section I above, imposes certain
restrictions as to contracting. 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
Brennan, 96- 060 -C2
Page 9
the contract is awarded through an open and public process including prior public
notice and subsequent public disclosure.
Having noted the issues and applicable law, we shall now summarize the salient
facts.
Brennan served as a Supervisor and Chairman of the Board in Carbon Township
from January, 1988 through 1993. In addition, Brennan was employed by the
Township on a part-time basis as a road laborer but his compensation as a Township
employee was not set by the Township Board of Auditors.
Brennan owns a tractor which he used to grade township roads and cut grass.
The Supervisors agreed to use Brennan's services as a matter of convenience and as
a cost savings measure since his rates were competitive with those charged by other
businesses. However, the decision to use Brennan was not approved by the
Supervisors at a public meeting, was not recorded in the minutes and was not
awarded through a bid process. In 1992, Brennan received $60 and in 1993 $ 1,190
for cutting grass and grading roads. Brennan participated in the process of approving
and dispensing payments to himself for such services. Brennan also signed the checks
in his capacity as Chairman of the Board. After the Township discontinued maintaining
its baseball field, it no longer utilized Brennan's services.
Brennan and his mother, Leda Brennan, are the co- owners of a bulldozer which
was utilized by the Township to perform various work on Township roads in 1991 and
1993. Bids were not solicited for the dozer and the decision to use Brennan's dozer
was not approved at a meeting of the Board of Supervisors. Brennan, as a Member
of the Board, participated in the Supervisors' decision to rent the dozer. It is unclear
who operated the dozer for Township projects since Brennan asserts it was his brother
Frank who denies operating the dozer. The Brennan dozer was selected by the
Supervisors based upon convenience and cost savings in that the rates charged were
competitive with other businesses. The Township paid $800 in 1991 and $1,000 in
1993 to Leda Brennan for the use of the dozer. Brennan participated as a Supervisor
in the process of approving and dispensing checks to his mother. Brennan also signed
the checks in his capacity as Chairman of the Board. Of the $1,800 which Leda
Brennan received from the rental of the dozer by the Township, she gave Brennan
approximately half of the money or $900.
The Auditor General conducted an audit of the Carbon Township liquid fuels
fund for the years 1993 and 1994 and questioned the payments made from the fund
to Brennan. It was determined by the Auditor General that the $1,190 paid in 1993
to Brennan violated the Second Class Township Code in that he as a Supervisor
transacted business with his Township. The Auditor General made a recommendation
to PennDOT to review the matter and make a determination if any of the $1,190
should be reimbursed to the liquid fuels tax fund.
As a result of the use of the tractor and dozer by Carbon Township, Brennan
received a total financial gain of $1,500.
Having summarized the above relevant facts, we must now determine whether
the actions of Brennan 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
Brennan, 96- 060 -C2
Page 10
benefit of himself, a member of his immediate family, or business with which he or a
member of his immediate family is associated.
We find a violation of Section 3(a) of Act 9 of 1989 regarding Brennan's
conduct as a Supervisor as to the use of his tractor for the grass cutting and road
grading in the Township. There was a use of authority of office on the part of Brennan
in that he participated in the informal decision of the Board to utilize himself and his
tractor for such services. In addition, Brennan participated in the process to approve
and dispense payments to himself as well as to sign Township checks in his capacity
as Chairman of the Board. The use of authority of office resulted in a pecuniary
benefit consisting of the payments received for providing such services. The pecuniary
benefit was private in that there was no authorization in law for such payments.
Lastly, the private pecuniary benefit enured to Brennan himself. Erwin, Order 1042.
We also find a violation of Section 3(f) of Act 9 of 1989 regarding the utilization
of the tractor services in 1993. The record reflects that the award of such services
was not put out to bid and was, in fact, not done at a public meeting of the Board.
The services exceeded the $500 contracting threshold of Section 3(f) of Act 9 of
1989 and the contract was not awarded through an open and public process as
required by the Ethics Law. Accordingly, Brennan violated Section 3(f) of Act 9 of
1989 regarding the utilization of the tractor services for the Township in 1993.
Povich, Order 1043.
As to the activity of the utilization of the dozer by the Township, we find a
violation of Section 3(a) of Act 9 of 1989 by Brennan. There was a use of authority
of office on his part in participating in the informal Board decision to utilize the dozer
as well as his participation in the approval and payment process for the rental. The
pecuniary benefit was the $1,800 for the rental of the dozer. The pecuniary benefit
was also private because there was no authorization in law for such payments.
Finally, the private pecuniary benefit enured to both Brennan and his mother who is a
member of his immediate family as that term is defined under the Ethics Law. 65 P.S.
§402.
We find no violation of Section 3(f) of the Ethics Law as to the dozer rental.
Although the record establishes that the dozer was co -owned by Brennan and his
mother, it is unclear from the record as to who entered into the contract with the
Township. The findings reflect that Brennan's mother billed the Township and
received payment. Even if we were to assume (which we cannot) that Brennan's
mother was the contracting party, there could be no violation of Section 3(f) which is
limited in its application to a public official /employee, spouse or child, but not a parent.
Oesterling, Order 941 -2. Since we do not know the circumstances of the contracting
as to the dozer, we find no Section 3(f) violation based upon a lack of clear and
convincing proof. 65 P.S. §408.
Turning to the matter of restitution, 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, since it has been determined that the financial gain
amounted to $1,500, restitution of $1,500 by Brennan is warranted. Therefore,
Brennan is directed to make restitution of $1,500 through this Commission to Carbon
Township within thirty days of the date of issuance of this Order. Compliance with
the foregoing will result in the closing of this case with no further action by the
Brennan, 96- 060 -C2
Page 11
Commission. Non - compliance will result in the institution of an order enforcement
action.
IV. CONCLUSIONS OF LAW:
1. James Brennan, as a Supervisor in Carbon Township, is a public official subject
to the provisions of Act 9 of 1989.
2. Brennan violated Section 3(a) of Act 9 of 1989 when he participated in the
Township process to utilize and pay for tractor services as to cutting Township
grass and grading Township roads which resulted in a private pecuniary benefit
to himself.
3. Brennan violated Section 3(f) of Act 9 of 1989 when he contracted to provide
grass cutting and road grading services to the Township in 1993 which contract
was in excess of $ 500 and not awarded through an open and public process.
4. Brennan violated Section 3(a) of Act 9 of 1989 regarding his participation in the
Township process to rent a dozer co -owned by himself and his mother for
Township projects which resulted in a private pecuniary benefit payable to his
mother and then to him.
5. Brennan did not violate Section 3(f) of Act 9 of 1989 regarding the Township's
use of a dozer owned by Brennan and his mother based upon a lack of clear and
convincing proof.
6. The private pecuniary benefit received by Brennan totaled $1,500.
In Re: James Brennan
ORDER NO. 1047
File Docket: 96- 060 -C2
Date Decided: 5/29/97
Date Mailed: 6/3/97
1. James Brennan, as a Supervisor in Carbon Township, violated Section 3(a) of
Act 9 of 1989 when he participated in the Township process to utilize and pay
for tractor services as to cutting Township grass and grading Township roads
which resulted in a private pecuniary benefit to himself.
2. Brennan violated Section 3(f) of Act 9 of 1989 when he contracted to provide
grass cutting and road grading services to the Township in 1993 which contract
was in excess of $500 and not awarded through an open and public process.
3. Brennan violated Section 3(a) of Act 9 of 1989 regarding his participation in the
Township process to rent a dozer co -owned by himself and his mother for
Township projects which resulted in a private pecuniary benefit payable to his
mother and then to him.
4. Brennan did not violate Section 3(f) of Act 9 of 1989 regarding the Township's
use of a dozer owned by Brennan and his mother based upon a lack of clear and
convincing proof.
5. Brennan is directed to make restitution to Carbon Township through this
Commission in the amount of $1,500 within thirty days of the date of issuance
of this Order. 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,
cO E atm_d
DANEEN E. REESE, CHAIR