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HomeMy WebLinkAbout1050 SpottsIn Re: Joseph F. Spotts, Jr. 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- 015 -C2 Order No. 1050 5/29/97 6/11/97 . 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. §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 allegations. 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 held. 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 §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. Spotts, 96- 015 -C2 Page 2 I. ALLEGATION: That Joseph Spotts, Jr., a public official /public employee, in his capacity as a Councilman for Cressona Borough, Schuylkill County, violated the following provisions of the Public Official and Employee Ethics Law, 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 discussions, decisions and other actions of the Borough in relation to the provision of snow removal services and when a business with which he is associated contracted with the Borough in relation to the provision of snow removal services 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). 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 Spotts, 96- 015 -C2 Page 3 member of his immediate family is associated. 65 P.S. §402. II. FINDINGS: A. Pleadings 1. On May 7, 1996, a letter was forwarded to Joseph Spotts, Jr., 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. Z 129 438 601. b. The domestic return receipt bore the signature of Joseph Spotts, Jr., with a delivery date of May 9, 1996. 2. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 3. Periodic notice letters were forwarded to Joseph Spotts, Jr., in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. • 4. The Investigative Complaint was mailed to the Respondent on October 31, 1996. 5. Joseph Spotts, Jr., served as a member of Cressona Borough Council, Schuylkill County, from January, 1992, through December, 1995. a. Spotts served as Council President in 1994 and 1995. 6. Spotts is employed on a full -time basis as a Regional Manager for Buckhead Chemical Company. a. Spotts is not employed in any capacity by Cressona Borough. 7. In January and February, 1994, the federal and state governments declared a state of emergency in Pennsylvania due to heavy snowfalls. a. Cressona Borough was one of the towns affected by the snow. 8. The Cressona Borough Road Department was unable to keep up with the snow removal of borough streets. 9. In January, 1994, Spotts began assisting clearing borough streets. a. Spotts plowed street intersections. b. Joseph Spotts, Jr., is the owner of a 1991 Dodge Dakota pick -up truck equipped with a snow plow. 10. Spotts plowed borough streets on various dates in January and February, 1994. SDotts, 96- 015 -C2 Page 4 a. Some members of council were aware that Spotts was assisting with the snow plowing. 11. Spotts was to provide the snow plowing services without a charge to the borough. a. Members of council had informally agreed that Spotts should be reimbursed for expenses and repairs to his vehicle. 12. In April, 1994, Cressona Borough decided to seek public disaster assistance from the Pennsylvania Emergency Management Agency (PEMA) as a result of the snowstorms. a. Funding would be provided through the Federal Emergency Management Agency (FEMA). 13. An application was submitted to PEMA dated April 18, 1994, for assistance due to emergency snow removal and ice control. a. A total of $37,838.40 in financial assistance was sought. b. The application was signed by Joseph Spotts, Jr., in his capacity as Council President and James Johns, Borough Secretary /Treasurer. c. The application was received by PEMA on April 22, 1994. 14. The application submitted to PEMA (PEMA -DAP -1 July 1991 revised 3/94) contained thirty (30) items for the applicant (Cressona Borough) to certify. a. No. 9 provided as follows: The Applicant agrees to establish internal personnel safeguards which will prohibit employees from using their positions for a purpose that creates, or gives the appearance of creating, a desire for private gain for themselves or for others, particularly those persons who have a family, business, or other tie to the employee. 15. Attachment C to the PEMA application contained Contractor Integrity Provisions which provided the following in Items No. 6 and 7. Except with the consent of the Commonwealth, neither the contractor nor anyone in privity with him shall accept or agree to accept from, or give or agree to give to, any person, any gratuity from any person in connection with the performance of work under this agreement except as provided therein. Except with the consent of the Commonwealth, the contractor shall not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material on this project. Saone, 96- 015 -C2 Page 5 16. Contractor was defined as the individual or entity that has entered into this agreement with the Commonwealth included [sic] directors, officers, managers, key employees, and owners of more than a 5% interest. 17. Attached to the Cressona Borough PEMA application were PEMA -DAP -6 forms (Activity Worksheet for Outside Contractor /Vendor Invoices) which detailed vendor services performed and vendor invoices. a. Included were Activity Worksheets and Invoices from Joseph Spotts, Jr., in relation to snowplowing services. b. The Activity Worksheets were dated April 12, 1994, and were prepared and certified by James R. Jones. 18. Activity Worksheet Forms (PEMA- DAP -6) submitted with the PEMA application confirm the following services performed by Joseph Spotts, Jr. January 1994 Date 01/04/94 01/12/94 01/13/94 01/18/94 01/24/94 01/26/94 01/27/94 01/28/94 19. Attached submitted a. The Type of Service Hours Rate Total Snowplowing Snowplowing Snowplowing Snowplowing Snowplowing Snowplowing Snowplowing Snowplowing February 1994 Date Type of Service Hours 02/08/94 Snowplowing 15.0 02/09/94 Snowplowing 12.0 02/10/94 Snowplowing 10.0 02/11/94 Snowplowing 13.0 02/23/94 Snowplowing 12.0 02/24/94 Snowplowing 10.0 02/25/94 Snowplowing 10.0 12.5 $30 /hour $ 375.00 10.0 $30 /hour $ 300.00 10.0 $30 /hour $ 300.00 15.0 $30 /hour $ 450.00 10.0 $30 /hour $ 300.00 12.0 $30 /hour $ 360.00 10.0 $30 /hour $ 300.00 10.0 $30 /hour $ 300.00 Rate $30 /hour $30 /hour $30 /hour $30 /hour $30 /hour $30 /hour $30 /hour TOTAL to the Activity Worksheets were Invoice by Spotts to Cressona Borough. Invoices contained information identical to Activity Worksheets. (See Finding No. 22). TOTAL $2,685.00 Total $ 450.00 $ 360.00 $ 300.00 $ 390.00 $ 360.00 $ 300.00 $ 300.00 $2,460.00 No. 1352 and 1353 that contained on the Spotts, 96- 015 -C2 Page 6 20. Prior to the preparation of the PEMA application Spotts did not submit any invoices to Cressona Borough for snow removal services. 21. On August 18, 1994, PEMA forwarded a check in an amount of $22,620 to Cressona Borough. a. This represented 75% federal share of the eligible costs plus the subgrantee administrative allowance (based on 100% of the eligible costs). 22. At the September 6, 1994, meeting of Cressona Borough Council action was taken by council meeting to approve bills for August, 1994. a. One of the listings was for snowplowing services (equipment and labor) at $ 5,154.00. b. The $5,154.00 [sic] bill for snowplowing was submitted by Joseph Spotts, Jr. 23. The August, 1994, bill listing was prepared by James Johns, Cressona Borough Secretary /Treasurer. 24. Cressona Borough Check No. 40129, dated August 31, 1994, in an amount of $5,154 was issued to Joseph F. Spotts, Jr. a. The check is signed by James Johns, Secretary, and Joseph F. Spotts, Jr., council president. b. The check was endorsed by Spotts and cashed on September 7, 1994, the day after the council approved payment. 25. Joseph F. Spotts, Jr., had repairs to his truck and plow as a result of snowplowing for Cressona Borough. a. 02/08/94: Repair and reinforce snow plow $ 74.20 b. 02/25/94: Power Unit Weldment A- Frame, Bolt $1,052.58 c. 02/10/94: Transmission Service $ 117.85 d. 02/11/94: Washers, Nuts $ 1.94 e. 02/25/94: Power Unit Kit $ 95.67 f. 02/25/94: Battery $ 80.52 TOTAL $1,422.76 B. Testimony 26. James R. Johns (Johns) is the Secretary /Treasurer and Zoning Officer for Cressona Borough, having so served for approximately 13 years. Spotts, 96- 015 -C2 Page 7 a. During January and February, 1994, due to emergency conditions caused by snowfall, contractors were used to plow and remove snow from Cressona Borough. (1) None of the contractor hirings were approved at public meetings because of the emergency conditions. (2) Johns did not participate in selecting any of the contractors. b. Spotts participated in the snow removal for Cressona Borough. (1) Spotts was President of Cressona Borough Council at that time. c. Spotts initially told Johns that he (Spotts) intended to "forgive the bill" for his snowplowing services. (1) At some point, Spotts told Johns that due to his inability to work in 1994, he (Spotts) was advised by an attorney and by an accountant that he would have to pay taxes based upon the amount of the bills, that his income was not sufficient to forgive a bill of that size, and that he should take the money. d. Johns first became aware of the fact that the Borough would be applying for PEMA funding when Spotts gave Johns the forms to complete and submit to PEMA. (1) Johns completed the forms for the PEMA funding in April, 1994. e. Spotts told Johns to include his (Spotts') bills (ID -8, pages 3 -4) with the PEMA application. f. All of the contractors except for Spotts had already been paid by the Borough prior to the submission of the PEMA application. g. ID -8, pages 1 -4, consists of pages from the Borough's PEMA application which pertain to Spotts' bills. (1) ID -8, pages 1 -2, dated April 12, 1994, were completed and signed by Johns and identify Joseph Spotts as the contractor. (a) The information on these forms was obtained from ID -8, pages 3 -4. (2) ID -8, pages 3 -4 are copies of the actual bills submitted by Spotts, and are in the amounts of $2,685.00 and $2,460.00 respectively. (a) The name "Joseph F. Spotts, Jr." and an address appears at the top of each of these two bills. (b) The substantive information on the invoices (dates, hours, services, and dollar amounts) was already on the invoices when they were submitted to Johns. Spotts, 96- 015 -C2 Page 8 (c) Johns received these bills from Spotts prior to April 12, 1994. (d) These bills had not been paid by the Borough as of April 12, 1994. (e) Each of Spotts' bills bears the following notation in Johns' handwriting: NOTE: This bill has not been paid as of April 12, 1994. h. After Johns compiled all of the information that was required, the Borough's PEMA application was submitted and funding was approved by PEMA. (1) ID -11, pages 1 -26 are from the application that was submitted to PEMA by Cressona Borough. (2) A copy of the PEMA application was kept at the Borough as a public record. i. After the funding had been approved by PEMA and the money had been received from PEMA, the Borough approved payment of Spotts' bills (ID- 8, pages 3 -4) at the September 6, 1994 meeting of Borough Council, as part of the bill list that is in evidence as ID -7, page 5. (1) Spotts' bills had not been paid by Cressona Borough at any time prior to the September, 1994 meeting. (2) Johns prepared the bill list. (3) Spotts told Johns to submit Spotts' bills on the bill list. (a) Johns testified, "It was anticipated that it would be paid." (Tr. at 35). (4) The entry on the bill list for snowplowing services, equipment and labor, in the amount of $5,154.00 is for the Spotts' bills. (5) The entry for Spotts' bills does not identify Spotts by name. (a) The actual invoices that were submitted by Spotts do bear his name. (6) All other contractors on the bill list are identified by name. (7) It is unusual for Johns not to include on the bill list the contractor to whom payment is made. Sootts, 96- 015 -C2 Page 9 (a) Johns testified that Spotts may have instructed him to list his bills under "snowplowing services," but he (Johns) could not recall. The actual bills are in Johns' possession but are available to any Council Member upon request. (1) None of the Council Members asked to see any of the invoices either at the September 6, 1994 meeting or on the Friday before the September 6, 1994 meeting. k. As Secretary/Treasurer, Johns recorded the minutes of the September 6, 1994 meeting. (1) The minutes are in evidence as ID -7, pages 1 -4 (See, Finding 36). I. Johns testified that the approval of payment of the municipal bills occurred before rather than after the Council went into an executive session. m. The minutes reflect that the approval of payment of the municipal bills occurred before Council adjourned to executive session. (1) Although the minutes reflect that the meeting began only 5 minutes before the executive session was called and that numerous actions occurred in those 5 minutes, including the approval of the municipal bills, Johns testified that Spotts moved the meetings along and that some of the materials pertinent to such actions were provided in advance to the Council Members. n. The minutes reflect that the Cressona Borough Council voted 7 -0 in favor of paying the bills listed on ID -7, page 5. (1) There was no roll call vote on that motion. (2) Procedurally, Johns only calls out the names of those Council Members who oppose a motion. (3) Johns has instructed the Council Members that if nobody says anything, it is considered a "yes" vote, and that a Council Member must actually say "no" to be recorded as casting a "no" vote. (4) Johns stated that there are some members who don't say anything. (5) For this particular vote at the September 6, 1994 meeting on the motion to pay the municipal bills, there were Council Members who stated their votes in favor of the motion. (a) Johns stated he did not know who these Members were. (6) Johns recorded this particular vote as 7 -0 because he heard no "no" votes. Spotts, 96- 015 -C2 Page 10 (7) Johns stated that to his knowledge, there were no abstentions on this vote. (a) When there are abstentions, Johns records them. o. Johns is responsible for paying the bills of Cressona Borough. p. ID -9, pages 1 -2 is a journal listing of Cressona Borough's monthly bills from August, 1994. (1) The listing includes payment by check number 40129 to Joseph Spotts, Jr. in the amount of $ 5,154.00. (2) ID -9 was prepared by Johns after the September 6, 1994 meeting. q. ID -8, page 5 is the Borough's check that paid Spotts' invoices that are in evidence as ID -8, pages 3 -4. (1) Johns wrote the check on August 31, 1994 in anticipation of approval in September. (a) Johns normally writes out checks in advance of approval on the assumption that such bills will be paid. (2) At the September 6, 1994 meeting, none of the Council Members asked to see the check that had been written out for the snowplowing services. (3) The check was signed by Joseph Spotts and by Johns, and was endorsed by Spotts. 27. Arthur Kaplin (Kaplin) is the Emergency Management Coordinator for Schuylkill County, and he has served in that capacity since 1987. a. In responding to the snowfalls of January and February of 1994, Kaplin's office held a meeting on March 23, 1994 to help municipalities apply for federal disaster assistance money. (1) ID -14 is a "sign -in sheet" from the March 23, 1994 meeting. (2) During the meeting, Kaplin's office provided those in attendance with "notice of interest" forms and application forms with which to apply for the federal reimbursement money. (a) The "notice of interest" forms were completed by those in attendance and were collected by Kaplin's office that same evening. (b) ID -10 is a "notice of interest" form. 28. Robert Schaeffer (Schaeffer) was a Member of Cressona Borough Council from January, 1994 until April of 1996. Spotts, 96- 015 -C2 Page 11 a. Schaeffer was President of Cressona Borough Council from January of 1996 until April of 1996, when he resigned. Spotts arranged to get the contractors who dealt with the snow emergency in the Borough of Cressona in January and February, 1994. c. During the snow emergency, Schaeffer was aware that Spotts was participating and using his own vehicle in the snowplowing for the Borough. d. Other than with regard to paying for the repairs for Spotts' plow, Schaeffer was unaware of any discussion either formally or informally involving any compensation for Spotts. e. Schaeffer recalled the Solicitor stating that Spotts' accountant had raised tax concerns about Council paying for repairing Spotts' plow. (1) Schaeffer did not know whether this comment occurred at the September 6, 1994 executive session or not. f. Both Schaeffer and Spotts attended the March 23, 1994 meeting held by the Schuylkill County [Emergency] Management Agency regarding procedures for seeking reimbursement from PEMA. (1) At the meeting, a form was submitted stating the intent of the Borough of Cressona to go through the application process for reimbursement. g. (2) Spotts brought forms from that meeting to the Borough Secretary, Mr. Johns. Schaeffer did not see the final PEMA application paperwork. h. Schaeffer was present at the September 6, 1994 meeting. (1) When he voted to pay the bills on ID -7, page 5, Schaeffer did not notice that the bill list did not identify the contractor who had provided the snowplowing services. (2) The entry on the bill list for snowplowing services, without further identification, was unusual. (3) Schaeffer is not aware of any questions being raised on September 6, 1994 regarding the snowplowing bill. Schaeffer was not aware that Spotts had been paid for the snowplowing services that he had rendered in 1994 until 1996, when there was another snow emergency and Schaeffer needed to look through some Borough records. (1) Schaeffer discovered a 1099 Form identifying Spotts as the recipient of in excess of $5,000, which Schaeffer ultimately determined was for Spotts' snowplowing in 1994. Spotts, 96- 015 -C2 Page 12 j. Schaeffer never told Spotts to prepare invoices to submit to the Borough for snowplowing services. k. Schaeffer never told Spotts to attach invoices or bills to the PEMA application. 29. Charles Biertempfel (Biertempfel) is a Council Member for Cressona Borough, having served in that capacity since approximately 1988. a. Biertempfel was not involved in hiring any of the outside contractors who removed snow for the Borough of Cressona during the January- February, 1994 snow emergency. b. Biertempfel was not involved in the PEMA application process, and he did not receive any of the PEMA paperwork. c. Biertempfel was not aware that Spotts participated in the January - February, 1994 snow removal until the matter was brought up at a Council meeting after Schaeffer had become Council President. (1) Schaeffer became Council President in January, 1996 (Finding 28a). d. Prior to the meeting at which Schaeffer raised the issue, Biertempfel never participated in a meeting where an issue was raised about Spotts receiving money for services rendered or rental of his equipment. (1) Biertempfel stated that he never missed a Council meeting. e. Biertempfel was present at the September 6, 1994 meeting of Cressona Borough Council. (1) At the September 6, 1994 meeting, Biertempfel was not aware of the identity of the contractor who was being paid for the snowplowing services listed on ID -7, page 5. (2) Biertempfel testified that if he had seen Spotts' name on the bill, he would not have approved it. f. Biertempfel did not recall the September 6, 1994 executive session specifically, or whether Spotts' taxes and his health were discussed. Biertempfel never told Spotts to submit invoices to the Borough to receive compensation for the services he rendered. h. Biertempfel never told Spotts to submit his bills to PEMA so that he could be reimbursed. g- 30. Glen L. Ebert (Ebert) is currently a Member of Cressona Borough Council. a. In January, 1994, Ebert had just become a Cressona Borough Council Member. Spotts, 96- 015 -C2 Page 13 b. Ebert did not participate directly in the hiring of contractors to deal with the January- February, 1994 snow emergency. c. Ebert did not know that Spotts provided snow removal services for the Borough until some time after the snow emergency. d. Ebert was not involved in the PEMA application process. e. Ebert never saw the PEMA application. f. Before the PEMA application was submitted, Ebert heard Spotts indicate that he would be including the value of his snowplowing services in the PEMA application in order to get more money for the Borough from the State. g. j. (1) At that time, Spotts indicated that he wasn't going to take compensation, but was just going to include the value of his services in the PEMA application so that the Borough would get more money. (2) Ebert's testimony was inconsistent as to whether these comments were made during a Council meeting and as to whom they were made (compare Tr. At 133; 136; 139; and 140). Ebert was not aware that Spotts actually was compensated for the services he had rendered until January, _ 1996 when Schaeffer brought the matter before Council. (1) Until that time, it had been Ebert's understanding that the snow removal services that Spotts had performed for the Borough were for no charge. (2) There had been discussion about reimbursing Spotts for damages to his equipment. h. Ebert recalls some mention by Spotts at some point in time to the effect that Spotts was going to get a 1099 Form and have to pay income tax on "the money" and that Spotts' lawyer told him that he'd better accept the money. At the September 6, 1994 meeting of Cressona Borough Council, Ebert voted to approve the bills, but he did not look closely at the bill list. Ebert does not recall what was discussed at the executive session on September 6, 1994. k. Ebert never directed Spotts to submit bills to the Borough for his snowplowing services and equipment rental. I. Ebert never directed Spotts to include his bills with the PEMA application. Sootts, 96- 015 -C2 Page 14 31. Robert C. Brown (Brown) was a Member and Vice - President of Cressona Borough Council in 1994 and also served as Chair of the Borough's highway committee in 1994. a. Brown was not involved in getting the outside contractors to handle the snow emergency in Cressona Borough in January and February of 1994. b. At the time that the snow was being removed from the Cressona Borough roads,. Brown was not aware that Spotts was participating in the snow removal. c. Brown first learned that Spotts had participated in the Borough's snow removal when, in the spring of 1994, another Council Member told Brown that Spotts' plow was broken from pushing snow. (1) This was the first and only instance that Brown recalls any discussion about paying Spotts for the damage to his snowplow. • d. To Brown's recollection, he never participated in any Council meeting, either public or executive, where compensation to Spotts for services rendered was discussed. e. Brown did not participate to any extent in the PEMA application process. f. At the time that the Borough applied to PEMA, Brown was not aware of whether invoices were submitted as part of the application for Spotts' labor and equipment rental. (1) Spotts never told Brown that bills for Spotts' services were going to be part of the PEMA application before it was submitted. (2) Brown did not look at the PEMA application before it was submitted. Brown did not learn that Spotts was actually compensated for the January- February, 1994 snow removal until after Brown was no longer on Council. (1) Brown ended his term on Council in December of 1995. h. When Brown voted to approve the bill list at the September 6, 1994 Council meeting, he did not know to whom the funds for snowplowing services were being paid. i. Brown did not recall any discussion at the September 6, 1994 executive session about the check for $5,154 to Spotts. Brown did not recall any conversation about Spotts' tax liability for any money obtained through the PEMA reimbursement process. k. Brown never directed Spotts to submit bills to the Borough for payment for services rendered on the snow removal. g. J. SDotts, 96- 015 -C2 Page 15 I. Brown never directed Spotts to include bills for his services with the PEMA application. 32. Karen L. Critchfield (Critchfield) is employed by the Pennsylvania Emergency Management Agency (PEMA) as Director of Recovery and Mitigation. a. The "Notice of Interest" form is a federal form that is used by Pennsylvania in the administration of the Public Assistance Program. (1) ID -10 is a "Notice of Interest" filed of record with PEMA which indicates "Joe Spotts /President of Council" as the agent for Cressona Borough. b. ID -14 is a copy of the sign -in sheet from the March 23, 1994 applicants' briefing held by the Schuylkill County Emergency Management Agency. (1) Joseph F. Spotts [Jr.] is listed as having been present at the meeting. c. ID -12, pages 1 -69, consists of copies of records kept on file by PEMA for the application made by Cressona Borough in 1994 for the snow emergency. (1) Cressona Borough was determined to be eligible to receive $22,620.00 as the 75% federal share (ID -12, page 1). (2) Joseph Spotts, President of Council, is listed on the Damage Survey report as the "local inspector" (ID -12, page 4). (a) The local inspector's only functions are to be the contact person to provide the back -up information, and, when required, to show the damaged sites to the federal and state inspectors. [1 ] The local inspector does not actually inspect anything or approve any reimbursement. (3) Spotts is also indicated in these documents as a private contractor who assisted with plowing and snow removal (ID -12, pages 7, 37, 38). (a) ID -12, pages 37 -38 are invoices for plowing snow which identify Joseph F. Spotts, Jr. as the person submitting the invoice. (b) On both of Spotts' invoices there is a handwritten note that the bill was not paid as of April 12, 1994. (4) Critchfield stated her belief that this dual role as local inspector and private contractor would have been questioned if noticed, and that it violates state or local procurement laws. Spotts, 96- 015 -C2 Page 16 d. The program under which Cressona Borough sought reimbursement for the 1994 disaster was a reimbursement program, such that if a municipal entity had not actually expended the funds, it could not seek reimbursement for what would be the value of the services rendered. e. As the recipient of federal "reimbursement moneys" that it had not previously disbursed to Spotts, the Borough did have the option of returning the money for Spotts' bills to the federal government. 33. Harold Schaffner (Schaffner) was a Member of Cressona Borough Council in 1994 and had previously served as President of Council for 12 years. a. Schaffner did not participate in the hiring of outside contractors to remove snow during the snow emergency in 1994. b. At the time the snow was being plowed, Schaffner was not aware that Spotts was helping in the snow removal. (1) Spotts subsequently made Schaffner aware of the situation and of the fact that his own equipment had been used and damaged. (a) Spotts did not indicate at that time whether he would seek to be paid for his services. c. Schaffner told Spotts his view that it would be only fair to reimburse Spotts for the use of his vehicle but that Spotts should have an executive session beforehand to get the authority from Borough Council. (1) Schaffner did not otherwise tell or direct Spotts to submit invoices or bills for his labor and equipment rental to the Borough. d. Schaffner did not tell or direct Spotts to submit bills for his labor and equipment rental as part of the PEMA application. e. Schaffner did not participate in the PEMA application process. f. Schaffner testified that until approximately 6 -8 months prior to his testimony (taken on March 13, 1997), Schaffner was not aware of whether Spotts received compensation for the services he had rendered in plowing the snow during the snow emergency of 1994. Schaffner testified that there was never any discussion by Council at a meeting, either executive session or public, about paying Spotts for his labor and the rental of his equipment for the services rendered. h. Schaffner was present at the September 6, 1994 meeting of Cressona Borough Council. (1) Schaffner made the motion to pay the bills on ID -7, page 5. he did not (2) know that it was Spotts h Spotts whowas being paid the forew snowplowing services. g. Spotts, 96- 015 -C2 Page 17 Schaffner did not recall whether, at the September 6, 1994 executive session, there were discussions about Spotts' snowplowing bill and related tax problems. Schaffner did not recall Solicitor Urban advising that Council was potentially in trouble if it didn't either pay Spotts or send the money back to PEMA. 34. Anthony Urban (Urban) was the Solicitor for Cressona Borough in 1993, 1994, and 1995. a. Urban was not involved with Cressona Borough's 1994 PEMA application. (1) Urban was not aware of the Borough's PEMA application until the evening of the meeting of September 6, 1994. b. Urban testified that on September 6, 1994, before the meeting began, Schaffner asked him questions about how to distribute the PEMA reimbursement money. (1) Urban testified that although he told Schaffner that there would be an obligation to distribute reimbursement moneys in accordance with representations that had been made, when he was told about Spotts' involvement as having performed work, he (Urban) told Shaffner to send the money back and not get involved in it. (Tr. at 200, 203, 211-212). c. Urban testified that R -1 is his copy of materials that he received at the September 6, 1994 meeting. d. In reviewing R -1 and his notes that appear thereon, Urban testified: that the meeting began at 7:00 p.m.; that the executive session began at 7:04 p.m. and ended at 7:26 p.m.; that the executive session preceded the voting oh the municipal bills; and that among other things, there was a. discussion at the executive session about distributing reimbursement moneys for snowplowing to Spotts. (1) Urban testified that all of the Council Members were present at the executive session. (2) Urban testified that there was a discussion about Spotts' health and tax concerns as related to his acceptance of the PEMA money. (3) Urban testified that he was not asked for a formal opinion, but that Schaffner repeated (and Urban confirmed) Urban's recommendation that Council send the money back. e. As Solicitor, Urban attended most of the Cressona Borough Council meetings and missed very few. SAotts, 96- 015 -C2 Page 18 To Urban's recollection, the Council never specifically discussed payment to Spotts in any public session. (1) The only public action as to paying Spotts was the general approval of bills at the September 6, 1994 meeting. 35. Joseph Spotts (Spotts), the Respondent, was President of Cressona Borough Council in 1994 and 1995. f. Urban could not recall any discussion prior to the September 6, 1994 meeting where the issue of compensating Spotts for his services was discussed. a. During the snow emergency of January and February, 1994, Spotts used his own equipment to plow snow for the Borough. (1) Spotts testified, "Well, I had a truck and a plow, and I took it upon myself to try and help the guys." (Tr. at 222). (2) Spotts testified that all of the Council Members knew he was plowing snow. b. Spotts got outside contractors to help with the snow removal. (1) None of the other Council Members were involved in getting outside contractors. c. Spotts testified that he had no intention of turning any time in for any funding for his plowing. d. While plowing snow for Cressona Borough, Spotts broke his plow twice and damaged his truck. e. Spotts testified that the cost of repairs to his vehicle resulting from the snowplowing was exactly $2,631.77 (Tr. at 243). (1) Spotts was never paid by anyone for these damages. (2) Spotts did not submit the bills for repairs to the Borough Council. (3) Borough Council never voted at a meeting to pay Spotts for his damages. f. Spotts and Scheaffer attended the meeting held by Kaplin's office regarding how to apply to PEMA for reimbursement. g. Spotts testified that his role in preparing the PEMA application was conferring with the Secretary to make sure he had all of the information needed. (1) None of the other Council Members participated in the PEMA application process. Spotts, 96- 015 -C2 Page 19 h. Spotts testified that his bills became part of the PEMA application as a result of Harold Schaffner asking him (Spotts) "to put the bills in for my vehicle for the times that I was out ...." (Tr. at 227). i. Spotts testified that at that point in time, in April, 1994, he had no intention of taking any of the money that would have come back. j. For health reasons, Spotts was off work and had no income from March, 1994 until August, 1995. k. Spotts testified that when the PEMA check came in, he consulted with Ellwood as his attorney and asked what to do. (1) Spotts testified that he told Ellwood that "Jim" [Johns] wanted to issue a check to Spotts that would result in a 1099 Form for $5,154.00, and that he (Spotts) could not donate the money back without having an IRS problem, due to the amount of income he received for 1994. (a) Spotts testified that Ellwood told him he could have a major problem on his hands. (2) Spotts testified that next he went to "Harold" [Schaffner] and stated that he didn't want any reimbursement but that he was in a "situation." (Tr. at 229). Spotts testified that at the September meeting, there was some discussion by Schaffner and Urban at the beginning of the meeting, and then there was an executive session prior to the approval of the bill list. m. Spotts testified that there were two matters discussed at the executive session, one of which was the issue of payment to Spotts. (1) Spotts testified that everybody was in the room and that he (Spotts) explained that he had no intentions of being paid and explained what had happened. (2) Spotts testified that "Harold" insisted Spotts should get paid. n. Spotts testified that the vote at the September 6, 1994 meeting to pay the bills occurred after the executive session. (1) Spotts testified that Johns' testimony that the September 6, 1994 executive session took place after the bills were paid, was wrong. (2) Spotts testified that each month's minutes have the same categories at the top, regardless of the order in which business is conducted. o. Spotts testified that he did not pressure his fellow Councilmen to move for the payment of his bills. Spotts, 96- 015 -C2 Page 20 Spotts testified that Brown, Schaeffer, Biertempfel, Ebert, and Schaffner all had a "lapse of memory" when they testified that they were unaware that the bills paid in September were for Spotts' services. q. Spotts testified that Schaffner's testimony that he had no such discussions as Spotts referenced, was wrong. r. As to Schaffner's testimony that there was no mention of the $5,145.00 bill at an executive session in September, Spotts testified "I'm saying that he does not remember what he said." (Tr. at 234). s. Spotts testified that other individuals "forgot what they did." (Tr. at 234). t. Spotts was told that the PEMA money relative to his billings could be sent back to PEMA. u. Spotts testified that he was told and that it was his understanding that there were only two choices, to send the money back or pay Spotts. (1) Spotts testified that based upon the advice of his own counselor and advisor, because of IRS concerns, he could not give the money back to the Borough. (2) Spotts testified that it was his understanding that if he were not paid he would be liable and /or in trouble for having signed PEMA accounts and for signing certified documents. v. Spotts voted in favor of the motion to pay the bill list (ID -7, page 5) which included his own bills for snowplowing services. (1) It was the long- established practice of Cressona Borough that a Council Member must actually say "no" to be recorded as a "no" vote, and that absent an expressed abstention or "no" vote, the Council Member would be deemed to have voted in favor of the motion (See, Finding 26n). (2) Spotts testified that the minutes for the past 15 years reflect a 7 -0 vote unless someone "specifically says something about it." (Tr. at 230). (3) Spotts testified that during his tenure as Chair in 1994 and 1995, he never specifically voted on any item unless there was a contest. (4) On September 6, 1994, the Secretary/Treasurer (Johns) recorded the vote as 7 -0 in favor of the motion because he heard no "no" votes or abstentions. (Finding 26n). w. Spotts signed the $5,154 check from the Borough to himself in his capacity as Council President, in advance of the September 6, 1994 meeting. P. Spotts, 96- 015 -C2 Page 21 x. Spotts' testimony was inconsistent as to the circumstances under which he signed the check to himself. (1) Spotts initially stated that he signed the check to himself because he signed it as a blank check (Tr. at 247). (a) Spotts stated that he does not normally sign blank checks, but that he did sign three on that occasion (Tr. at 247). (2) Spotts subsequently testified that he did not know whether the check to himself was one of the blank checks he signed and that it was possible that he signed the check to himself knowing that it was to himself (Tr. at 248). y. Spotts received the funds in the amount of $5,154 from the Borough. z. Spotts testified that he paid approximately $1,000.00 in taxes on the money he received from the Borough through the PEMA reimbursement. aa. The difference between the $5,154.00 paid by Cressona Borough to Spotts as per Spotts' bills and the sum of the $2,631.77 in repairs for Spotts' equipment and the $1,000.00 in taxes paid by Spotts was a $1,522.23 financial gain to Spotts. bb. Spotts acknowledged that all of the actions that he took were taken in his position as Council President. (Tr. at 235). (1) As Council President, Spotts got the PEMA application and got the process going. (2) But for Spotts, the Borough never would have participated in the PEMA reimbursement program in a timely fashion. (3) But for Spotts, the Borough never would have gotten the PEMA reimbursement. (4) But for Spotts' actions, he never would have gotten the $5,154.00 payment to himself. cc. Spotts never obtained any written opinion from either Attorney Ellwood or Solicitor Urban telling Spotts that he should take the PEMA reimbursement money. dd. Spotts never asked Attorney Ellwood or Solicitor Urban whether there would be a conflict of interest. (1) Neither Attorney Ellwood nor Solicitor Urban ever offered, unsolicited, that type of advice to Spotts. ee. Spotts testified that he could not answer why the entry on the bill list for his services was just "snowplowing services." (1) Spotts testified that he did not instruct Johns to list it that way. Spotts, 96- 015 -C2 Page 22 C. Documents 36. ID -7, pages 1 -4 are the minutes of the September 6, 1994 Regular Meeting of Cressona Borough Council. a. The minutes reflect that the meeting was held at 7:00 p.m. b. Seven Council Members are recorded as having been present, specifically, President Joseph Spotts, Robert Brown, Harold Schaffner, Charles Biertempfel, Robert Schaeffer, Glen Ebert, and James McCaffrey. c. The minutes reflect that prior to 7:05 p.m., numerous actions were taken by Council, including the approval of the municipal bills. d. Under the heading, "Municipal Bills," the minutes state as follows: A list of municipal bills, with descriptions, for August 1994 had been distributed to borough officials for review prior to this meeting. Harold Schaffner suggested paying Systems Design Engineering, Inc. from the Aluminum Fund rather than the Highway Aid Fund as listed. Joseph Spotts said he reviewed the bills prior to the writing of the checks, due to the Secretary taking vacation time after tonight's meeting, and approved the payment. A transfer may be made later if needed. A motion by Harold Schaffner to pay the bills with the exception as noted was seconded by Robert Schaeffer. Council voted 7 -0 in favor. ID -7, page 1. e. The minutes reflect that at 7:05 p.m., Council approved a motion to go into executive session to discuss personnel issues. (1) The motion was neither made nor seconded by Spotts. f. The minutes reflect that after Council reconvened at 7:12 p.m., various personnel - related actions were taken. 37. ID -7, page 5 is the list of the municipal bills for August, 1994 . that were voted upon at the September 6, 1994 Regular Meeting of Cressona Borough Council. a. The following item appears on the list: Snowplowing services $5,154.00 (equipment & labor) (1) This particular entry does not identify the provider of these snowplowing services. (2) The other vendors on the bill list are identified by name. Sootts, 96- 015 -C2 Page 23 38. ID -8, pages 1 -4 are pages excerpted from the Borough's application to PEMA, which excerpts pertain to Spotts' bills for snowplowing during the blizzard of 1993 -1994 (See, Finding 26g). a. ID -8, pages 1 and 2 are labeled: "Activity Worksheet for Outside Contractor /Vendor Invoices." (1) Both documents are dated April 12, 1994. (2) Both documents were prepared and certified by James R. Johns. (3) The contractor /vendor is identified on each document as J.F. Spotts, Jr. (4) The description of services on each document is "snowplowing with 4 wh. Dr. Truck." (5) The dates, hours, rates, and totals for the services rendered are as set forth in Finding 18. (6) Each document reflects that the Borough had not paid for these services. b. ID -8, pages 3 -4 are two invoices, numbered 1352 and 1353, from Joseph F. Spotts, Jr. to the Borough of Cressona for snowplowing in the Borough at the dates, hours, rates, and totals reflected in Finding 18. (1) Invoice #1352 (ID -8, page 3) is in the total amount of $2,685.00. (2) Invoice #1353 (ID -8, page 4) is in the total amount of $2,460.00. (3) Together the two bills for snowplowing by Joseph F. Spotts, Jr. total $5,145.00. (4) Each bill bears a notation that it had not been paid as of April 12, 1994. c. ID -8, page 5 is check #40129, dated August 31, 1994, issued by the Treasurer of the Borough of Cressona payable to Joseph F. Spotts, Jr. in the amount of $5,154.00. (1) The check is signed by Joseph F. Spotts, Jr. as President of Borough Council. (2) The check is signed by James R. Johns as Secretary of Borough Council. (3) The check bears the notation, "For snowplowing services." Since the invoices totaled $5,145.00 and the check was in the amount of $5,154.00, it would appear that an error was made such that the check was made out for $9.00 more than the amount that was billed. Scotts, 96- 015 -C2 Page 24 (4) The check bears the endorsement of Joseph F. Spotts, Jr. (5) The check reflects that it was cashed on September 7, 1994. 39. R -1, pages 1 -2, is a copy of the agenda for the September 6, 1994 Regular Meeting of Cressona Borough Council. a. There are handwritten notes and calculations on this document. III. DISCUSSION: At all times relevant to this matter, the Respondent, Joseph F. Spotts, Jr., hereinafter Spotts, 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, et seq. The issues before us are whether Spotts, as a Councilman for Cressona Borough, Schuylkill County, violated Sections 3(a) and 3(f) of the Ethics Law as to the allegations that he used the authority of his office for the private pecuniary benefit of himself or a business with which he is associated by participating in actions of the Borough in relation to the provision of snow removal services and when a business with which he is associated contracted with the Borough in relation to the provision of snow removal services without an open and public process. 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, which is quoted in Section I above, provides in part that no public official /public employee, his spouse or child, or business with which the public official /public employee, his spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more unless 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 material facts. Spotts served as a Member of Cressona Borough Council from January, 1992 through December, 1995. Spotts served as Council President in 1994 and 1995. In January and February, 1994, the Federal and State governments declared a state of emergency in Pennsylvania due to heavy snowfalls. Cressona Borough was one of the towns affected by the snow. When the Cressona Borough Road Department was unable to keep up with the snow removal, Spotts unilaterally arranged to get outside contractors to do the work. Spotts also unilaterally decided to participate himself in clearing Borough streets, and he used his own truck and plow to do so. Some Members of Council were aware that Spotts was assisting with the snowplowing, but others were not aware of that fact. None of the contractor hirings were approved at public meetings because of the emergency conditions. Spotts, 96- 015 -C2 Page 25 Spotts was to provide his snowplowing services without charge to the Borough. However, because Spotts had broken his plow and damaged his truck while plowing snow for the Borough, Members of Council informally agreed that Spotts should be reimbursed for expenses and repairs to his vehicle. The parties' pleadings enumerate repairs to Spotts' truck and plow totaling $ 1,422.76 (see, Finding 25; paragraph 34 of Investigative Complaint as admitted in paragraph 34 of Answer to Findings Report). Spotts testified that the cost of repairs to his vehicle resulting from the snowplowing was actually $2,631.77. Spotts did not submit the bills for repairs to the Borough Council, and Spotts was never paid for them. On March 23, 1994, Spotts and another Cressona Borough Council Member, Robert Schaeffer, attended a meeting held by the Schuylkill County Emergency Management Agency to help municipalities with the procedures for applying for public disaster assistance from the Pennsylvania Emergency Management Agency (PEMA). At the meeting, a "Notice of Interest" form was submitted for Cressona Borough, stating the intent of the Borough to go through the application process for reimbursement. The form indicates "Joe Spotts /President of Council" as the agent for Cressona Borough. Spotts gave the PEMA application forms to the Borough Secretary, James Johns, for completion. Spotts gave Johns two bills for his own snow removal services and told Johns to include those bills with the PEMA application. Spotts' bills totaled $5,145. Spotts participated in the preparation of the PEMA application, and he was the only Council Member to do so. Spotts functioned as the Borough's "local inspector" for the PEMA application, a position which did not involve actually inspecting anything but did involve providing any back -up information that was needed for processing the application. Spotts signed the PEMA application in his capacity as Council President. The application was also signed by James Johns as Borough Secretary /Treasurer. There is various testimony by other Council Members that they did not receive or even see the PEMA paperwork. Cressona Borough's PEMA application was approved and on August 18, 1994, PEMA forwarded a check in the amount of $22,620 to Cressona Borough. Spotts testified that in April, 1994 (when the PEMA application was submitted), he had no intention of taking any of the money that the Borough would receive from PEMA. Spotts testified that subsequently, he was told and it was his understanding that there were only two choices: to pay Spotts or send the money back. Spotts testified that it was his understanding that if he were not paid, he would be liable and /or in trouble for having signed PEMA accounts and documents, and that if he were paid, based upon advice he had received, he could not give the money back to the Borough because of tax consequences. Karen L. Critchfield, the Director of Recovery and Mitigation for PEMA, testified that the program under which Cressona Borough sought reimbursement for the 1994 disaster was a reimbursement program. Cressona Borough would not have been entitled to reimbursement for the value of the services rendered by Spotts, where it had not actually paid Spotts. However, as the recipient of federal "reimbursement moneys" that it had not previously disbursed to Spotts, the Borough did have the option of returning the money for Spotts' bills to the federal government. Spotts, 96- 015 -C2 Page 26 There were some witnesses who testified to being aware of concerns that were raised with regard to the portion of the PEMA check that was attributable to Spotts' bills. Other witnesses testified that they did not recall any such conversations. Spotts' bills were approved for payment by Cressona Borough Council as part of the bill list (ID -7, page 5) that was approved at the public meeting of September 6, 1994. The bill list had been prepared by Johns, the Borough's Secretary /Treasurer. Spotts had told Johns to submit Spotts' bills on the bill list. The entry on the bill list for Spotts' bills did not name Spotts as the contractor /payee. Johns and numerous other witnesses testified that this sort of entry was unusual, but Johns testified that he could not recall whether Spotts instructed him to list the entry that way. The minutes from the September 6, 1994 meeting reflect that the bill list was approved by a 7 -0 vote, such that Spotts voted to approve his own bills. Johns testified that there was no roll call vote on the motion, and that he recorded this particular vote as 7 -0 because he heard no "no" votes. Johns testified that he has instructed the Council Members that if they don't say anything, it is considered a "yes" vote, and that a Council Member must actually say "no" to be recorded as casting a "no" vote. Spotts likewise testified to the fact that it has long been the practice in Cressona Borough to record votes as affirmative unless something is specifically said. Spotts testified that during his tenure as Chair in 1994 and 1995, he never specifically voted on any item unless there was a contest. There was conflicting testimony as to whether the payment of the bills took place before or after the executive session that was held in the early stages of the meeting on September 6, 1994, and as to whether the PEMA reimbursement for Spotts' bills was specifically discussed at the executive session. Former Solicitor Anthony Urban testified that the matter was discussed during the executive session and that he was not asked for a formal opinion, but that Council was advised that it was his recommendation that Council send the money back. Spotts testified that everybody was in the room during the executive session and that he (Spotts) explained that he had no intentions of being paid and explained what had happened. Spotts testified that Council Member Harold Schaffner (Schaffner) insisted Spotts should get paid. Shaffner and the other Council Members who testified — Schaeffer, Biertempfel, Ebert, and Brown — testified to the effect that they did not know at the time of the September 6, 1994 meeting that it was Spotts who was being paid for the snowplowing services listed on the bill list (ID -7, page 5). The Borough check which was drafted to pay Spotts, check no. 40129, dated August 31, 1994, was prepared August 31, 1994 by Johns in anticipation that payment of Spotts' bills would be approved at the September 6, 1994 meeting. Johns testified that he normally writes out checks in advance of approval on the assumption that such bills will be paid. Both Johns and Spotts signed the check in advance of the September 6, 1994 meeting. Spotts' testimony was inconsistent as to the circumstances under which he signed the check to himself. Spotts initially stated that he signed the check to himself because he signed it as a blank check (Tr. at 247). Spotts stated that he did not normally sign blank checks, but that he did sign three on that occasion (Tr. at 247). Spotts subsequently testified that he did not know whether the check to himself was one of the blank checks that he signed and that it was possible that he signed the check to himself knowing that it was to himself (Tr. at 248). Spotts, 96- 015 -C2 Page 27 Spotts cashed the Borough's check on September 7, 1994, the day after Council approved payment. Spotts acknowledged that all of his actions were taken as Council President. As Council President, Spotts got the PEMA application and got the process going. But for Spotts, the Borough never would have participated in the PEMA reimbursement program in a timely fashion, and never would have gotten the PEMA reimbursement. But for Spotts' actions, he never would have gotten the $5,154 payment to himself. Spotts testified that he paid approximately $1,000 in taxes on the money he received from the Borough through the PEMA reimbursement. Spotts acknowledged that the difference between the $5,154 paid by Cressona Borough to Spotts as per Spotts' bills, and the sum of the $2,631. 77 in repairs for Spotts' equipment and the $1,000 in taxes paid by Spotts was a financial gain to Spotts. That financial gain was in the amount of $1,522.23 (see, Finding 35aa). Having summarized the above relevant facts, we must now determine whether the actions of Spotts violated Sections 3(a) and 3(f) of Act 9 of 1989. Certainly there is clear and convincing evidence to support a violation of Section 3(a) of the Ethics Law and we do find such a violation by Spotts. Spotts repeatedly used the authority of his office when he: (1) unilaterally selected himself as one of the contractors to do the Borough's snow removal work; (2) attended the meeting on PEMA procedures and acted as agent for the Borough in the submission of the "Notice of Intent" form advising PEMA of the Borough's intent to apply for funds; (3) participated in the preparation of the PEMA application; (4) functioned as the Borough's "local inspector" for the PEMA application; (5) instructed the Borough Secretary /Treasurer, James Johns, to submit his (Spotts') invoices as part of the PEMA application; (6) signed the PEMA application on behalf of the Borough; (7) told Johns to include his (Spotts') bills on the bill list for the September 6, 1994 meeting; (8) signed, as Council President and in advance of the September 6, 1994 meeting, the check that paid his own bills; and (9) voted in favor of the motion to approve the bill list which included his own bills, either by expressly stating his affirmative vote or by failing to expressly abstain or state a "no" vote which, per the practice of the Borough, resulted in the recording of an affirmative vote. We would specifically note as to the signing of check number 40129, that even if the check was blank when Spotts signed it, he knew he was signing the checks for the bills on the bill list, which, at his specific direction, included his own bills. The element of a private pecuniary benefit has been established by clear and convincing evidence as well. Spotts' numerous uses of the authority of office resulted in his being paid $5,154 by the Borough. If we accept Spotts' figures for the cost of the repairs to his plow and truck ($2,631.77) and the taxes that he paid on the Borough's payment ($1,000), a private pecuniary benefit of $1,522.23 was received by Spotts. Each element of a Section 3(a) violation has been met, and we find that Spotts did in fact violate Section 3(a) when he used the authority of his public office as a Member and President of Cressona Borough Council for the aforesaid private pecuniary benefit to himself in the amount of $1,522.23. Sootts, 96- 015 -C2 Page 28 Intent is not a requisite element for a violation of Section 3(a) of the Ethics Law, Yocabet v. SEC, 531 A.2d 536 (1987), but to the extent Spotts has stressed that his initial intentions were to not accept any compensation for his snowplowing services, ultimately that is exactly what he chose to do. To the extent Spotts has sought to establish that the payment of his bills was knowingly voted upon by other Council Members, even if we were to believe that such was true, it is Spotts' own participation in matters in which he had a private pecuniary interest that establishes the Section 3(a) violation. See, Snyder v. SEC, Slip Opinion filed in Commonwealth Court on December 18, 1996 at 817 C.D. 1996, allocatur petition pending. As for Section 3(f), it is clear based upon a review of the evidence that Spotts contracted with his former governmental body for an amount in excess of $500 without an open and public process. Because of the emergency conditions, ordinary procedures were not followed. Spotts unilaterally selected the contractors to do the snow removal, and he selected himself to be one of those contractors. None of the contractor hirings were approved at any public meeting, and most of the Council Members did not even know Spotts was performing the services at the time. There was clearly no "open and public process" such as is mandated by Section 3(f) in situations where a public official contracts with his own governmental body. Consequently, we find that Spotts violated Section 3(f) when he contracted with the Borough of Cressona to perform snow removal services in January- February, 1994, which services were in excess of $500, without an open and public process. We shall now consider the issue of restitution. Section 7(13) of the Ethics Law, 65 P.S. §7(13), provides that an Order of this Commission may include recommendations to law enforcement officials, and that, "Any order resulting from a finding that a public official or public employee has obtained a financial gain in violation of this act may require the restitution plus interest of that gain to the appropriate governmental body." We conclude that restitution by Spotts to the Borough of Cressona is appropriate and warranted under the facts and circumstances of this case. Spotts is ordered to pay restitution to Cressona Borough through this Commission payable in the amount of $1;522.23 within thirty days of the date of mailing of this Order. IV. CONCLUSIONS OF LAW: 1. Joseph F. Spotts, Jr. ( Spotts), as a Councilman for Cressona Borough in Schuylkill County, has at all times relevant to this matter been a public official subject to the provisions of Act 9 of 1989. 2. Spotts violated Section 3(a) of the Ethics Law when, from January through September, 1994, he used the authority of his public office for a private pecuniary benefit in the amount of $1,522.23. 3. Spotts violated Section 3(f) when he contracted with his governmental body, Cressona Borough, to perform snow removal services in January- February, 1994 for an amount in excess of $500 without an open and public process. In Re: Joseph F. Spotts, Jr. ORDER NO. 1050 File Docket: 96- 015 -C2 Date Decided: 5/29/97 Date Mailed: 6/11/97 1. Joseph F. Spotts, Jr. (Spotts), as a Councilman for Cressona Borough in Schuylkill County, violated Section 3(a) of the Ethics Law when, from January through September, 1994, he used the authority of his public office for a private pecuniary benefit in the amount of $1,522.23. 2. Spotts violated Section 3(f) when he contracted with his governmental body, Cressona Borough, to perform snow removal services in January- February, 1994 for an amount in excess of $500 without an open and public process. 3. Spotts is directed to pay restitution to Cressona Borough through this Commission in the amount of $1,522.23 within thirty days of the date of mailing 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, 4 DANEEN E. REESE, CHAIR