HomeMy WebLinkAbout1059 GallagherIn Re: Robert W. Gallagher
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
Boyd E. Wolff
Julius Uehlein
96- 032 -C2
Order No. 1059
8/14/97
8/26/97
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 agg., 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 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.
Gallagher, 96- 032 -C2
Page 2
I. ALLEGATION:
That Robert Gallagher, a public official /public employee, in his capacity as a
Councilman for Brisban Borough, Clearfield County, violated the following provisions
of the State Ethics Act (Act 9 of 1989) when he used the authority of office for the
private pecuniary benefit of himself and /or a business with which he is associated by
participating in borough actions, discussions and /or decisions of council to award and
pay for contracts in excess of $500.00 to a business with which he is associated for
equipment rentals 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 member of his immediate family
is associated. 65 P.S. §402.
II. FINDINGS:
1. Robert W. Gallagher served as a Brisbin Borough Councilman from August 3,
1989, until resigning in October, 1995.
Gallagher, 96- 032 -C2
Page 3
a. Gallagher served as Chairman of the Roads Committee from January,
1990, until his resignation from office.
2. The president of borough council appoints council members to committees.
a. Gallagher agreed to serve as Chairman of the Roads Committee and was
appointed by the President on an annual basis beginning in 1990 because
no other council member would agree to so serve.
3. The Chairman of the Roads Committee is charged with organizing the
maintenance of three miles of borough roads, snow removal and part -time road
workers.
a. Two of the three miles of borough roads are dirt which are in need of
constant repair.
4. Brisbin Borough road machinery consists of a small dump truck.
a. Brisbin Borough contracts out or borrows heavy road equipment when
necessary.
5. Prior to 1990, Jack Haney performed backhoe work for Brisbin Borough when
street repairs were needed or projects authorized.
6. Prior to June, 1990, Brisbin Borough informally sought bids for a backhoe
operator.
a. Council would make an announcement for needed equipment at a
scheduled meeting which then was reported in the local newspaper.
b. Brisbin received limited response to these requests.
7. Gallagher is employed as a heavy equipment operator for Sky Haven Coal
Company, Inc.
a. Gallagher also owns heavy equipment, including a backhoe.
8. Beginning in June, 1990, and continuing through 1994, Gallagher agreed to
perform borough road repairs and snow removal at a rate of $25.00 per hour.
a. Gallagher agreed to maintain the roads and remove snow using his
equipment at the same rate the borough previously paid to Jack Haney.
b. Gallagher agreed to this arrangement during the council meeting of June
7, 1990.
c. Gallagher requested and obtained an increase in the rate to $28.00 per
hour in July, 1993.
9. The agreement entered into between Brisbin Borough Council and Gallagher was
done in a procedurally defective manner.
Gallagher, 96- 032 -C2
Page 4
a. No formal vote of council was taken at the June 7, 1990, or any
subsequent meeting to approve the agreement with Gallagher.
b. No formal vote of council was taken to approve Gallagher's increase in
1993 from $25.00 to $28.00 per hour.
10. Borough council delegated road work decisions and time allowed on road
projects up to Gallagher, in his capacity as Chairman of the Roads Committee.
a. Gallagher would discuss the need to perform road repairs at council
meetings.
11. In his capacity as Chairman of the Roads Committee, Gallagher made reports
on the status of the following road projects.
a. 07/05/90: Gallagher reported finishing ditches by Dipko's, Smith's and
Finney's.
b. 08/09/90: Gallagher reported the ditch next to borough building will be
fixed.
c. 09/06/90: Gallagher reported that road work will be finished in two
weeks.
d. 07/03/91: Gallagher reported that most of the road work has been
completed and work near Cardinals will be completed.
e. 10/03/91: Gallagher reported that most of the work on the roads is
finished with the exception of Rodkey, Shanky's and
Conrads. Work will need to be done in 1992, next to
Fraher's and Acey's. Discussion was held on building a
berm on the newly paved road by Cardinals.
f. 11/07/91: Gallagher informed council that work will be performed on
Rodkey's, Conrad, Berenbrok, Royer's and Sankey's.
g. 01/02/92: A complaint was received from Marshall regarding water on
the road. Investigated by Gallagher.
h. 05/07/92: Gallagher advised that spreader will be removed. Council
discussed the condition of some of the borough streets with
Gallagher and made up a priority list. Drainage problem is
discussed concerning road between Acey's and Baptist
Church. Gallagher is asked to fill pot holes in alley by
Evan's property, corner by Thompson's, alley past
Churner's and Hindu Avenue.
i. 06/04/92: Gallagher informed council that he must raise his rate to
$28.00 an hour due to increase in liability insurance.
Council approved increase.
Gallagher, 96- 032 -C2
Page 5
k. 09/08/92:
I. 10/01/92:
m. 04/01/93:
n. 08/05/93:
q.
Date
06/14/90
06/16/90
06/27/90
07/02/90
07/03/90
07/04/90
07/07/90
08/06/92:
Hours
3.0 hrs
3.0 hrs
2.0 hrs
3.5 hrs
3.5 hrs
2.0 hrs
3.5 hrs
Gallagher reported the Sankey area was completed and
most pot holes were filled. Gallagher asked for approval to
clean grass out of ditches for better run off.
Gallagher report continued work on Acey project, work was
scheduled for roads near Camberg's and Conrad's.
Gallagher reported that culverts have been cleaned and
work will be done at diverting water for ball field.
Discussion was held on blizzard and snow removal.
Gallagher reported he will begin work on opening the alley
next to Martin property, a request to remove the honor was
read, discussions for bridge repairs were held.
o. 04/07/94: Gallagher reported that roads and dirt alleys will need to be
fixed.
P. 07/07/94: Gallagher indicated that he would do some work on ditches.
10/06/94: Gallagher reports a new pipe being installed on Wilkes
property. Gallagher asked that two part-time positions be
advertised for snow removal.
r. 11/04/94: Gallagher noted that no applications were received for snow
removal and asked the Employment Office be contacted.
12. During the March 16, 1995, meeting of Brisbin Borough Council, Gallagher
advised council that all dirt roads were in poor condition and that a backhoe is
needed.
a. Gallagher asked that interested equipment operators submit their hourly
rate for consideration.
b. No formal advertisements were authorized by council.
13. On April 6, 1995, Gallagher reported during the council meeting that no
applications for backhoe work had been received.
14. Gallagher submitted the following invoices /time sheets to Brisbin Borough for
road work and snow removal which included notations of the location of the
work or the type of work performed.
Rate
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
Total
$75.00
$75.00
$ 50.00
$87.50
$87.50
$ 50.00
$87.50
Description on Invoice
Dipko's
Smith's
Dipko's
Finished Smith &
Dipko, start Finney
Finney's
Finney's
Finished Finney
Gallagher, 96- 032 -C2
Page 6
08/10/90
08/11/90
09/15/90
09/17/90
09/18/90
09/21/90
09/22/90
Undated
N/A
b.
05/15/91
05/21/91
05/29/91
06/04/91
06/05/91
06/08/91
06/10/91
06/17/91
06/25/91
06/27/91
c.
07/08/91
07/09/91
07/10/91
07/12/91
07/16/91
07/17/91
07/23/91
08/31/91
09/14/91
09/28/91
10/01/91
Total Hours
3.0 hrs
3.0 hrs
3.5 hrs
1.5 hrs
2.5 hrs
3.0 hrs
1.0 hrs
6.0 hrs
0.5 hrs
0.5 hrs
4.0 hrs
3.5 hrs
9.5 hrs
4.0 hrs
0.5 hrs
2.5 hrs
2.0 hrs
1.0 hrs
2.5 hrs
2.0 hrs
2.5 hrs
3.5 hrs
1.5 hrs
1.0 hrs
5.0 hrs
4.5 hrs
2.0 hrs
2.0 hrs
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
2.5 hrs $25.00
3 Bales of hay @ $2.25
Total Hours 40.5 Total $1,019.25
Total for 1990 $1,019.25
(The invoice contained the handwritten notation "Pay Gallagher Farms. ")
$ 25.00 $150.00
$25.00 $ 12.50
$25.00 $ 12.50
$25.00 $100.00
$25.00 $ 87.50
$25.00 $237.50
$ 25.00 $100.00
$25.00 $ 12.50
$25.00 $ 87.50
$ 25.00 $ 50.00
Total Hours 34.0 Total $850.00
(The invoice contained the handwritten notation "Ck To: Robert W. Gallagher. ")
$25.00 $ 25.00
$25.00 $ 62.50
$25.00 $ 50.00
$25.00 $ 62.50
$25.00 $ 87.50
$25.00 $ 37.50
$25.00 $ 25.00
$25.00 $125.00
$25.00 $113.00
$25.00 $ 50.00
$ 25.00 $ 50.00
27.5 Total $ 687.50
$75.00
$75.00
$87.50
$37.50
$62.50
$75.00
$25.00
$62.50
$ 6.75
Bermed Bigler Road
Finished Berm
Across from borough
Leveled two roads
Across from borough
Across from borough
Finished borough
5 Loads of Berming
Ditch
Load of dirt
Load of dirt
Brennon Ditch
Churner's Road
Smith's
Smith's & Dipko
Load of Dirt
Chumer's & Conrad's
Oswalts - Jeff
Smith's
Millers
Millers
Millers & Smiths
Cardinals
Cardinals
Davis
Fixed Roads
Fixed Roads
Fixed Roads
Fixed Roads
(The invoice contained the handwritten notation "Robert W. Gallagher. ")
Gallagher, 96- 032 -C2
Page 7
d.
11/24/91 6.0 hrs
(The invoice contained the handwritten notation "Robert W. Gallagher. ")
e.
01/22/92 3.0 hrs
(The invoice
9.
05/12/92
05/22/92
N/A
Total Hours
(The invoice
h.
06/10/92
06/11/92
06/18/92
06/29/92
Total Hours 9.5 Total $ 237.50
i.
07/06/92 3.5 hrs
07/30/92 3.0 hrs
Total for 1991
1.0 hrs
1.5 hrs
2.0 Total
3.0 hrs $ 25.00
2.5 hrs $25.00
2.5 hrs $25.00
1.5 hrs $25.00
$1,687.50
Total Hours 6.5 Total $162.50
$25.00 $150.00 Finished roadwork &
loaded snow spreader
on truck
$25.00 $75.00 Backhoe
(The invoice contained the handwritten name "Robert W. Gallagher. ")
f.
04/04/92 1.0 hrs
$25.00 $25.00 Leveled 2RC
contained the handwritten name "Robert Gallagher.")
$25.00
$25.00
$25.00
$27.50
$ 5.00
$67.50
Unload spreader off
of truck
Loaded truck 2RC
Concrete mix
contained the handwritten name "Robert W. Gallagher. ")
$75.00
$62.50
$62.50
$37.50
Evans Chumers Roads
Finished Churners &
Marshalls
Finney's Corner
Finney's Corner
(The invoice contained the handwritten name "Robert W. Gallagher. ")
$25.00 $87.50 Dam & Sankey's
$25.00 $75.00 Roads
Gallagher, 96- 032 -C2
Page 8
1•
08/04/92 4.5 hrs
08/12/92 3.0 hrs
08/24/92 1.5 hrs
08/25/92 2.0 hrs
08/26/92 2.5 hrs
08/27/92 3.0 hrs
08/29/92 8.0 hrs
08/31/92 2.0 hrs
Total Hours 26.5
(The invoice contained the handwritten name "Robert W. Gallagher.")
k.
09/01/92
09/02/92
09/03/92
09/05/92
09/09/92
09/10/92
09/11/92
09/13/92
09/19/92
09/26/92
2.5 hrs
2.5 hrs
2.5 hrs
8.5 hrs
2.5 hrs
2.5 hrs
1.5 hrs
5.0 hrs
5.5 hrs
7.0 hrs
Total Hours 40.0
(The invoice contained the handwritten name "Robert W. Gallagher. ")
10/02/92 2.0 hrs
10/03/92 6.5 hrs
10/21/92 2.0 hrs
Total Hours 10.5
Total
Total
$25.00 $ 62.50
$25.00 $ 62.50
$25.00 $ 62.50
$25.00 $212.50
$25.00 $ 62.50
$25.00 $ 62.50
$25.00 $ 37.50
$ 25.00 $125.00
$25.00 $137.50
$25.00 $175.00
$25.00
$25.00
$25.00
$662.50
$1,000.00
Total $262.50
(The invoice contained the handwritten name "Robert W. Gallagher.")
m.
12/11/92 5.0 hrs $25.00 $250.00 Dozer snow removal
12/12/92 12.5 hrs $25.00 $312.50 Backhoe snow
removal
12/13/92 6.0 hrs $25.00 $150.00 Backhoe snow
removal
Total Hours 23.5 Total $712.50*
$25.00 $112.50 Sankey's & Fixed
roads
$25.00 $ 75.00 Fixed roads
$25.00 $ 37.50 Trees
$ 25.00 $ 50.00 Acey's
$25.00 $ 62.50 Acey's
$25.00 $ 75.00 Acey's
$25.00 $200.00 Acey's
$ 25.00 $ 50.00 Acey's
Acey's
Acey's
Acey's
Acey's, Conrads &
Camberg's
Conrads
Acey's
Finished Acey's
Roads Chumers ditch
Roads
Roads
$ 50.00 Roads
$162.50 Roads and dam
$ 50.00 Roads
Gallagher, 96- 032 -C2
Page 9
*Total Hours do not correspond with hours on invoice
(The invoice contained the handwritten name "Robert W. Gallagher.")
n.
12/14/92
12/15/92
12/18/92
4.0 hrs
4.5 hrs
4.5 hrs
$25.00
$25.00
$25.00
$100.00
$125.00
$125.00
Cleaned roads (snow)
Cleaned roads (snow)
Cleaned roads (snow)
Total Hours 13.0 Total $325.00
(The invoice contained the handwritten name "Robert W. Gallagher.")
o.
03/05/93 2.0 hrs
03/14/93 12.5 hrs
03/15/93 10.5 hrs
03/16/93 1.5 hrs
03/17/93 1.5 hrs
03/18/93 1.5 hrs
q.
04/05/93 1.0 hrs
04/07/93 1.0 hrs
04/13/93 8.5 hrs
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
$25.00
$ 50.00
$313.00
$263.00
$ 38.00
$ 38.00
$ 38.00
Total Hours 29.5 Total $ 737.50
(The invoice contained the handwritten name "Robert W. Gallagher. ")
p.
03/30/93 1.5 hrs
03/31/93 4.5 hrs
Total Hours 6.0 Total $151.00
$25.00 $ 38.00 Dipko's
$25.00 $113.00 Churner's & Lutz's
(The invoice contained the handwritten name "Robert Gallagher.")
$ 25.00
$ 25.00
$212.50
Plowed snow
Plowed snow
Plowed snow
Plowed snow
Plowed snow
Plowed snow
Took spreader off,
ditch for pipes
Pipes at dame
Cleaned ditch
Total Hours 10.5 Total $262.50
(The invoice contained the handwritten name "Robert W. Gallagher. ")
r.
05/15/93 6.0 hrs $25.00 $150.00
05/26/93 2.5 hrs $25.00 $ 62.50
Fix dirt roads
Roads & ditch at
Dipko's
Gallagher, 96- 032 -C2
Page 10
Total Hours 8.5 Total $212.50
(The invoice contained the handwritten name "Robert Gallagher. ")
s.
07/03/93 2.5 hrs $28.00 $70.00 Road by Finneys,
cleaned ditches
07/10/93 2.0 hrs $28.00 $56.00 Fixed alley
07/15/93 3.0 hrs $28.00 $84.00 Cleaned ditch, put in
pipe
07/16/93 1.0 hrs $28.00 $28.00 Leveled dirt
07/27/93 3.0 hrs $28.00 $84.00 Roads shelled
Total Hours 11.5 Total $322.00
(The invoice contained the handwritten name "Robert Gallagher. ")
t.
08/03/93 3.0 hrs $28.00 $84.00 Hayward Street
08/07/93 3.0 hrs $28.00 $84.00 Conrad Road
08/11/93 1.0 hrs $28.00 $28.00 Marshall's, honor roll
down
08/14/93 3.0 hrs $28.00 $84.00 Jeff's driveway
Total Hours 10.00 Total $280.00
(The invoice contained the handwritten name "Robert Gallagher.")
u.
09/13/93 2.5 hrs
09/23/93 1.0 hrs
Total Hours 3.5
v.
Unk /93 2.0 hrs
01/02/94 2.0 hrs
Total Hours 4.0
$28.00
$28.00
Total $ 98.00
(The invoice contained the handwritten name "Robert W. Gallagher. ")
$28.00 $56.00 Unknown
$28.00 $56.00 Unknown
Total $112.00
$70.00
$28.00
Smith Road done
Went for wood for
bridge
(The invoice contained the handwritten name "Robert W. Gallagher" and "road
work. ")
Gallagher, 96- 032 -C2
Page 11
w.
01/06/94 2.0 hrs
01/23/94 1.0 hrs
01/30/94 2.0 hrs
Total Hours 5.0
x.
02/13/94
03/03/94
03/04/94
03/05/94
03/06/94
03/07/94
03/08/94
z.
04/19/94
04/20/94
04/22/94
Total Hours 9.0
1.0 hrs
3.0 hrs
1.0 hrs
4.0 hrs
4.0 hrs
3.5 hrs
3.5 hrs
3.0 hrs
3.0 hrs
3.0 hrs
$28.00
$28.00
$28.00
Total $140.00
$28.00 $ 28.00
$28.00 $ 84.00
$28.00 $ 28.00
$28.00 $112.00
$28.00 $112.00
$28.00 $ 98.00
$28.00 $ 98.00
$28.00
$28.00
$28.00
Total $252.00
$56.00
$28.00
$56.00
$84.00
$84.00
$84.00
Ice on Wallace
Firelane at dam
Cleaned roads of
snow & ice
(The invoice contained the handwritten name "Robert W. Gallagher. ")
Loaded truck
Removed snow
Removed snow
Removed snow
Removed snow
Removed snow
Removed snow
Total Hours 20.0 Total $ 560.00
(The invoice contained the handwritten name "Robert W. Gallagher.")
Y.
03/12/94 2.5 hrs
Total Hours 2.5 Total $ 70.00
(The invoice contained the handwritten name "Robert W. Gallagher. ")
$28.00 $70.00 Removed snow
Fixed pot holes
Fixed pot holes
Fixed pot holes,
removed pipe
(The invoice contained the handwritten name "Robert W. Gallagher. ")
aa.
06/10/94 3.5 hrs $28.00 $98.00 Scota, Albion &
Jefferson St
06/22/94 1.0 hrs $ 28.00 $ 28.00 Persian Avenue
Total Hours 4.5 Total $126.00
(The invoice contained the handwritten name "Robert W. Gallagher. ")
Gallagher, 96- 032 -C2
Page 12
bb.
07/23/94 4.0 hrs $28.00 $ 112.00 Worked on ditch
Total Hours 4.0 Total $ 112.00
cc.
Unknown Date: Invoice
Missing \check issued $378.00
dd.
Unknown Unknown Unknown $572.00 Sanitary sewer
(The invoice was a typed "Gallagher's Sewer Service" invoice)
ee.
Unk Date
1994
2.0 hrs
Total Hours 2.0 Total $ 56.00
Total for 1994 $2,378.00
15. Brisbin Borough paid Gallagher a total of $10,678.25 between 1990 and 1995,
for backhoe work that he performed related to the roads as follows:
1990
1991
1992
1993
1994
1995
$28.00
$1,019.25
$1,687.50
$3,530.00
$2,063.50
$2,322.00
$ 56.00
$56.00 Put spreader on fixed
driveway
16. Brisbin Borough records confirm the following borough checks issued to Robert
W. Gallagher for road work and snow removal and his actions to approve those
payments.
Date on Check Check Number Official Action Check Amount
10/04/90 686 2nd /Vote $1,019.25
07/03/91 728 Vote $ 850.00
10/03/91 2940 Motion /Vote $ 687.50
12/05/91 739 Not at Meeting $ 150.00
01/22/92 746 2nd /Vote $ 75.00
10/29/92 760 Motion /Vote $2,350.00
10/29/92 3126 Motion /Vote $ 67.50
12/17/92 764 No Minutes $ 712.00
01/07/93 767 Vote $ 325.00
03/31/93 780 Motion /Vote $ 737.50
05/07/93 783 Vote $ 262.50
06/04/93 794 2nd /Vote $ 212.50
Gallagher, 96- 032 -C2
Page 13
08/05/93 800 Vote $ 322.00
09/09/93 801 Unknown $ 280.00
10/06/93 3317 No Minutes $ 98.00
01/03/94 3356 Vote $ 112.00
02/03/94 811 Motion /Vote $ 140.00
03/10/94 819 2nd /Vote $ 560.00
04/07/94 825 Vote $ 70.00
05/02/94 827 Vote $ 252.00
07/07/94 834 Motion /Vote $ 162.00
08/04/94 837 Not at Meeting $ 112.00
10/06/94 840 2nd /Vote $ 378.00
11/03/94 3495 Motion /Vote $ 572.90
01/05/95 851 Vote $ 56.00
17. Checks drawn on the account of Brisbin Borough Road Fund were paid to
Gallagher and were endorsed by Gallagher.
a. Check No. 686 was paid . to the order of Gallagher Farms. On the
endorsement section a stamp read "FOR DEPOSIT ONLY Gallagher Farms
Act. 45- 143- 864."
b. On check no. 728 the endorsement section contained the handwritten
notation "Payment for material for garage" and the signature of Robert
W. Gallagher and John E. Gallagher (father).
c. On check numbers 760, 794, 801, 819, 827, and 837, the endorsement
section contained the signature of Robert W. Gallagher and Sherry
Hewett.
d. All other checks contained the signature of Robert Gallagher in the
endorsement section of the check.
18. Checks drawn on the Brisbin Borough General Fund account were paid to
Gallagher and were endorsed by Gallagher.
a. Check No. 3126, 3356 and 3495, were endorsed by Robert W. Gallagher
and Sherry Hewett.
19. Gallagher voted to approve all bills at council meeting which included payments
to himself. (See Finding No. 16).
a. Gallagher submitted his invoices to the secretary /treasurer the day of the
monthly meeting.
b. Gallagher was actually paid the day he submitted his invoice.
20. Votes to pay bills passed unanimously with no recorded roll call vote.
a. No abstentions were recorded.
b. Gallagher participated in actions to pay bills.
c. Gallagher confirmed that he never abstained from a vote to pay bills.
Gallagher, 96- 032 -C2
Page 14
21. Gallagher stopped doing road work for the borough approximately one year
before leaving office.
a. Gallagher resigned from council in October, 1995.
b. Gallagher stopped performing road related services for the borough
following an audit by the Office of Auditor General.
22. The Office of Auditor General conducted an audit of Brisbin Borough's Liquid
Fuels Account in January, 1995.
a. The audit covered the period from January 1, 1992, through August 31,
1993.
b. The borough was required to return $5,277.00 of Liquid Fuels Funds to
the Commonwealth.
c. The borough was ordered to make this reimbursement as a result of
Gallagher performing road work for the borough.
23. On October 25, 1995, Gerald Kerpich, Director of Municipal Services,
Pennsylvania Department of Transportation, acknowledged receipt of Brisbin
Borough's reimbursement in an amount of $5,277.00 to its Liquid Fuels Tax
Fund.
a. The reimbursement was a transfer from the Borough General Fund to the
Liquid Fuels Fund.
24. Investigation conducted by officials of the Investigative Division reveals that the
prevailing rate for the type of work performed by Gallagher in the area during
this time frame was approximately $35 -$50 per hour.
a. Gallagher was paid at a rate below the prevailing wage for such work,
being compensated at $28 per hour at his highest point of compensation.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Robert W. Gallagher,
hereinafter Gallagher, 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, gt sag.
The issue before us is whether Gallagher violated Sections 3(a) and 3(f) of the
Ethics Law (Act 9 of 1989) when he used the authority of office for the private
pecuniary benefit of himself or a business with which he is associated by participating
in borough actions to award and pay for contracts in excess of $500.00 to a business
with which he is associated for equipment rentals 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" is defined under Act 9 of 1989 as follows:
Gallagher, 96- 032 -C2
Page 15
65 P.S. §402.
facts.
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.
Section 3(f) of the Ethics Law, quoted above, imposes certain restrictions as to
contracting.
In addition, 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.
Having noted the issues and applicable law, we shall now summarize the salient
Gallagher served as a Brisban Borough Councilman from August, 1989 through
October, 1995. Because no other Council Member would serve as the Chairman of
the Roads Committee, the President of Council appointed Gallagher to that position.
As Roads Committee Chairman, Gallagher was charged with organizing and
maintaining the Borough roads, removing snow, and overseeing the part-time road
workers.
Prior to June, 1990, whenever Brisban Borough needed to have road work done
in the Borough, bids were informally sought for a backhoe operator. Although the
announcements for such bids were reported in the local newspaper, there was typically
a limited response to such requests. From June, 1990 through 1994, Gallagher, who
is a heavy equipment operator and the owner of a backhoe, agreed to perform the
Borough road repairs and snow removal at a rate of $25 per hour. Gallagher received
$25 per hour because that was the rate charged by an individual who previously
performed backhoe work for the Borough. In July, 1993, Gallagher requested and
received a rate of $28 per hour due to an increase in his liability insurance. Although
Gallagher charged $25/$28 per hour, it was less than the prevailing rate for that type
of work which was approximately $35 -$50 per hour. The agreement between
Gallagher and Council was never formalized through official action. Even though
Gallagher, 96- 032 -C2
Page 16
Council informally delegated roadwork decisions and projects to Gallagher as Chairman
of the Roads Committee, Gallagher discussed the necessity of performing road repairs
at Council meetings. See, Fact Finding 11.
In March, 1995, after Gallagher advised Council that all the roads in the Borough
were in poor condition and that further backhoe work was needed, Gallagher asked
interested equipment operators to submit an hourly rate to Council. No one submitted
applications for backhoe work. Gallagher himself stopped doing the roadwork for the
Borough approximately one year before he left office in October, 1995 because of an
audit by the Office of Auditor General as to Brisban Borough's liquid fuels account for
the period January, 1992 through August, 1993. As a result of the audit, the Borough
was ordered to make reimbursement to the Liquid Fuels Fund in the amount of
$5,277.
The details of the road and snow removal work that Gallagher performed for
Brisban Borough as to dates, number of hours worked, rates, and descriptions are
delineated in Fact Finding 14. A breakdown on a yearly basis of the payments that
Gallagher received from Brisban Borough are set forth in Fact Finding 15. Gallagher
voted to approve payments to himself as part of the bills at Council meetings. The
votes to pay the bills passed unanimously without any recorded role call votes.
Having summarized the above relevant facts, we must now determine whether
the actions of Gallagher 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 /public employee for the private
pecuniary benefit of himself, a member of his immediate family, or business with
which he or a merrrber of his immediate family is associated.
In applying Section 3(a) of Act 9 of 1989 to the instant matter, we find a
separate violations by Gallagher as to his participation in the award of the road /snow
removal contracts to himself in the years 1992 -1994; as to his participation in 1993
as to the increase in his rate from $25 to $28 per hour; and as to his participation in
the Borough's action to pay bills to himself as to road services for the years 1992-
1995. Brittenburg, Order No. 977. Such actions on the part of Gallagher were clearly
uses of authority of office. Juliante, Order No. 809. But for the fact that Gallagher
was a Council Member, he could not have taken action as to the award of contracts
to himself, the increase in his hourly rate of compensation and the payment of bills to
himself. Such uses of authority of office resulted in a pecuniary benefit to Gallagher
consisting of the payments he received for doing the road work as per the contract
with the Borough. The pecuniary benefit was private because there is no authorization
in law under these facts for Gallagher to receive such compensation. In this regard,
the audit of the Office of Auditor General concluded that the Borough had to make
repayment as to the Liquid Fuels Fund due to its contracting for road services with
Gallagher. Lastly, the private pecuniary benefit enured to Gallagher himself.
We find no violations for the years 1990 and 1991 in that such actions occurred
more than five years prior to the initiation of the instant investigation. In this regard,
Section 8(m) of the Ethics Law provides:
Gallagher, 96- 032 -C2
Page 17
Section 8. Investigations by the commission
(m) The commission may conduct an investigation
within five years after the alleged occurrence of any
violation of this act.
65 P.S. §408(m). Since the occurrences in this case in 1990 and 1991 are beyond
the above statute of limitations, there is no violation of the Ethics Law for Gallagher's
activities in such time periods. See, also, 51 Pa.Code §11.3.
As to the above violations of Section 3(a) of Act 9 of 1989, the facts of this
case reflect that there was no intent on the part of Gallagher to violate the Ethics Law.
Gallagher did the backhoe work because there was little or no interest by equipment
operators to perform such road services for the Borough. Further, Gallagher performed
such services at the rate which was paid to the prior individual. Finally, we note that
Gallagher's rate of pay of $25/$28 per hour was lower than the going rate of $35 -$50
per hour.
Turning to the matter of contracting under Section 3(f) of Act 9 of 1989, the
contracts between Gallagher and the Borough were not awarded through an open and
public process. All contracts except for the year 1995 exceeded $500. We find no
violations of Section 3(f) for the years 1990 and 1991 for the reason that the statute
of limitations has expired as noted above. In addition, we find no violation of Section
3(f) for 1995 in that the contract was less than $500. However, for the years 1992-
1994 we find violations of Section 3(f) of Act 9 of 1989 since Gallagher as a public
official entered into contracts with the Borough which exceeded $500 but were not
awarded through an open and public process. Kupchella, Order No. 975.
The parties, the Investigative Division and the Respondent, have stipulated that
Gallagher will make a payment of $750 to Brisban Borough in settlement of this case.
We believe the $750 amount agreed upon by the parties is appropriate given that the
$2,378 in payments which Gallagher received is not adjusted to reflect his costs, such
as vehicle wear /repairs, transport, fuel, insurance and like expenses. Gallagher is
directed to make payment of $750.00 in a timely manner through this Commission to
Brisban Borough. Compliance with the foregoing will result in the closing of this case
with no further action by the Commission. Non - compliance will result in the institution
of an order enforcement action.
Lastly, we note that the parties have filed a Stipulation of Findings and Consent
Agreement which sets forth a proposed resolution of the allegations. We believe that
the Consent Agreement is the proper disposition for this case based upon our review
as reflected in the above analysis and the totality of the facts and circumstances.
IV. CONCLUSIONS OF LAW:
1. Robert W. Gallagher, as a Councilman for Brisban Borough, Clearfield County,
was a public official subject to the provisions of Act 9 of 1989.
2. Gallagher violated Section 3(a) of the Ethics Law when he participated in the
Borough's award of a contract to himself to privately perform road maintenance
and snow removal service for the Borough during the years 1992 -1994.
Gallagher, 96- 032 -C2
Page 18
3. Gallagher violated Section 3(a) of the Ethics Law in 1993 when he participated
in the Borough's authorization to increase the rate of compensation paid to
himself for services rendered.
4. Gallagher violated Section 3(a) of the Ethics Law when he participated in the
Borough's actions to pay bills related to services rendered by himself during the
years 1992 -1995.
5. Gallagher violated Section 3(f) of the Ethics Law as to the award of Borough
contracts to himself during the years 1992 -1994 which contracts exceeded
$500 but were not awarded through an open and public process.
6. No violation of Sections 3(a) or 3(f) of the Ethics Law occurred for any actions
in 1990 -1991 as said actions transpired more than five years prior to the
initiation of the instant investigation.
7. Gallagher did not violate Section 3(f) of the Ethics Law regarding a contract to
provide services to the Borough in 1995 in that such contract did not exceed
$ 500.
In Re: Robert W. Gallagher
ORDER NO. 1059
File Docket: 96- 032 -C2
Date Decided: 8/14/97
Date Mailed: 8/26/97
1. Robert W. Gallagher, as a Councilman for Brisban Borough, Clearfield County,
violated Section 3(a) of the Ethics Law when he participated in the Borough's
award of a contract to himself to privately perform road maintenance and snow
removal service for the Borough during the years 1992 -1994.
2. Gallagher violated Section 3(a) of the Ethics Law in 1993 when he participated
in the Borough's authorization to increase the rate of compensation paid to
himself for services rendered.
3. Gallagher violated Section 3(a) of the Ethics Law when he participated in the
Borough's actions to pay bills related to services rendered by himself during the
years 1992 -1995.
4. Gallagher violated Section 3(f) of the Ethics Law as to the award of Borough
contracts to himself during the years 1992 -1994 which contracts exceeded
$500 but were not awarded through an open and public process.
5. No violation of Sections 3(a) or 3(f) of the Ethics Law occurred for any actions
in 1990 -1991 as said actions transpired more than five years prior to the
initiation of the instant investigation.
6. Gallagher did not violate Section 3(f) of the Ethics Law regarding a contract to
provide services to the Borough in 1995 in that such contract did not exceed
$ 500.
7. As per the Consent Agreement of the parties, Gallagher is directed to make
payment of $750.00 in a timely manner through this Commission to Brisban
Borough. Compliance with the foregoing will result in the closing of this case
with no further action by the Commission. Non - compliance will result in the
institution of an order enforcement action.
BY THE COMMISSION,
0Y0AtisAu6 Pop
DANEEN E. REESE, CHAIR