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HomeMy WebLinkAbout1076 CashmarkIn Re: James Cashmark STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 96- 064 -C2 X -ref: Order No. 1076 Date Decided: 4/30/98 Date Mailed: 5/11/98 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein Louis W. Fryman 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 sgg., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was waived. The record is complete. A Consent Agreement was submitted by the parties to 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. Cashmark, 96- 064 -C2 Page 2 I. ALLEGATION: That James Cashmark, a public official in his capacity as a Supervisor for Tunkhannock Township, Wyoming County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit of himself and /or a business with which he is associated by participating in actions and /or decisions of the board of supervisors regarding township paving projects resulting in his company's services being utilized as a subcontractor on such projects; and when he and /or a business with which he is associated entered into a subcontract valued at $500 or more with a company who was awarded a contract by the township for paving material without prior public notice or public disclosure. 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 Cashmark, 96- 064-C2 Page 3 H. FINDINGS: 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. 1. James Cashmark has served as a supervisor for Tunkhannock Township, Wyoming County, since January, 1994. a. Cashmark has been appointed Vice Chairman of the Board of Supervisors from 1994 until 1997. 2. Cashmark has been employed by the township since January, 1994. a. Cashmark was appointed roadmaster from January, 1994 until September 16, 1994. b. Cashmark has worked as a laborer for the township from 1995 until the. present. 3. Cashmark is also self - employed as a trucking contractor. a. Cashmark is the owner of Cashmark Trucking and Contracting. 4. Statements of Financial Interests filed by James Cashmark for calendar years 1995 and 1996 confirm Cashmark as the owner of Cashmark Trucking and Contracting. a. Cashmark disclosed this entity as a source of income in excess of $ 1,000. 5. Cashmark and his wife, Lavera Cashmark, own a 1972 Mack DM685 triaxle dump truck as part of the business. a. The vehicle is registered with the Pennsylvania Department of Transportation with a tag number of ZC95031 and a vehicle identification number of DM685310771. b. Cashmark purchased the truck in February, 1995. 6. James Cashmark began working as an independent trucker for American Asphalt Paving Company on May 1, 1995. a. Cashmark was hired to work on an as needed basis when work was available during the normal trucking season which runs from May through December of each year. b. James Cashmark was listed as the driver of the truck 310. c. Cashmark negotiated this employment between February and May, 1995. Cashmark, 96- 064 -C2 Page 4 7. Tunkhannock Township is responsible for maintaining 43.47 miles of roads in the township. 8. In 1995, the Tunkhannock Township Supervisors decided to pave a number of the roads in the township. a. The roads that were to be paved included Mt. View Terrace, Mile Road, Lee Lane, Brookside Road, Anderson Road, Sunnydale Road, Bardwell Road, Dixon Road, Lazybrook Lane, Shadow Brook Road, Cove Road and Hobbs Road. 9. During the February 7, 1995, meeting, the township supervisors voted to advertise for bids for the following paving materials for the planned road improvements /repairs. a. 1. 1500 T. 2A modified crushed stone 2. 1500 T. crushed gravel 3. 1500 T. asphalt 1 D2A 4. 200 T. #4 crushed stone 5. 400 T. gubion stone 6. 60 T. bulk calcium 7. 6000 gal. liquid calcium 8. 1500 T. bc-bc base binder b. Cashmark participated in the drafting of specifications and the unanimous vote to advertise. 10. Bids were to be received by the township for opening at the March 7, 1995, meeting. a. The township delayed awarding bids until April 4, 1995. 11. American Asphalt Paving Company submitted a bid form dated March 7, 1995, for all of the items listed [above). 12. American Asphalt's bid for the material was as follows: a. The ID2A if picked up at the plant was $23.50 per ton with a total contract price of $35,250. The delivered price was $26.22 per ton with a total contract price of $39,330. b. The BC -BC base if picked up at the plant was $20.25 per ton with a total contract price of $30,375. The delivered price was $22.97 per ton with a total contract price of $34,455. 13. During of the Tunkhannock Township Supervisors' Meeting of April 4, 1995, American Asphalt was awarded the following bids for the following paving material: a. 1500 tons of ID2A asphalt top (item no. 3 from bid list). b. 1500 tons of BC -BC base (item no. 6 from bid list). Cashmark, 96- 064 -C2 Page 5 c. American Asphalt was the low bidder for these two items. 14. The motion to award the . bids to American Asphalt was seconded by Cashmark and approved by a 3 to 0 vote of the board of supervisors. a. James Cashmark's signature appeared on the bid proposal sheet for April 4, 1995, indicating the township accepted American Asphalt's bid. 15. On April 4, 1995, the board of supervisors discussed additional road improvements and authorized advertising for additional paving and road maintenance materials. a. Cashmark seconded the motion which was approved unanimously. 16. At the Tunkhannock Township Supervisors' Meeting of May 22, 1995, American Asphalt was awarded a bid for 1500 tons of ID -3 top at a price of $21.95 per ton and total contract price of $32,925. a. The paving material was to be picked up at the plant. b. Cashmark's signature appeared on the bid proposal sheet for May 22, 1995, indicating the township accepted American Asphalt's bid. c. The motion to award the bid to American Asphalt was seconded by Cashmark and approved by a 3 to 0 vote by the board of supervisors. 17. American Asphalt was the only company submitting a timely bid. a. One lower bid was received by the township after the bid deadline and was not considered. 18. The Tunkhannock Township Supervisors began the project to pave the township roads on July 10, 1995. a. The project was supervised by township supervisors James Cashmark and Ray Massacessi. b. The township employees and equipment were used as a way of saving money. c. There were three township trucks available to haul the paving material. 19. On July 11, 1995, Cashmark approached Massacessi and advised him that an additional truck was needed to haul the paving material. a. A decision was made by Cashmark and Massacessi to utilize an additional truck. b. Massacessi concurred with the decision based on Cashmark's comments. 20. Cashmark contacted American Asphalt to request another truck. Cashmark, 96- 064 -C2 Page 6 a. The truck assigned by American Asphalt to the Tunkhannock. Township project was the truck owned by James Cashmark. 21. It is a standard practice at American Asphalt that truck assignments are made based on the areas where the truck and /or driver lives. a. Cashmark was aware of this practice when he started as an independent truck driver for American Asphalt on May 1, 1995. b. Cashmark was the closest truck in the township. c. Cashmark knew or could reasonably anticipate that his company would be called for providing the hauling service when he took action as a township official /employee to request an additional truck. 22. When Massacessi became aware that Cashmark's truck was being used to haul material, he advised Cashmark it was a conflict of interest for his truck to be assigned to a job for the township. a. Cashmark took no action following Massacessi's statement. 23. - American% Asphalt owns 12 trucks and leases 55 other trucks that could have been used on the township job. a. The company would not have assigned Cashmark's truck if they would have been advised of a potential conflict of interest. 24. Since being made aware of the potential conflicts for Cashmark, American Asphalt established a practice not to assign Cashmark's truck for any jobs for Tunkhannock Township. 25. American Asphalt billed the township as follows for material hauled by Cashmark's truck: Ticket Type of Cashmark Date Number Tons Materials Truck Charge 07/11/95 3572 22.70 BIDT $ 65.83 07/11/95 2603 22.56 BIDT $ 65.42 07/11/95 3634 22.61 BIDT $ 65.57 07/11/95 3662 22.55 BIDT $ 65.40 07/12/95 3674 22.46 BIDT $ 65.13 07/12/95 3708 22.59 BIDT $ 65.51 07/12/95 3769 23.20 BIDT $ 67.27 07/12/95 3836 22.66 BIDT $ 65.71 07/14/95 4017 22.85 BIDT $ 66.27 07/14/95 4058 22.68 BIDT $ 65.77 07/14/95 4113 22.76 BIDT $ 66.00 07/17/95 4217 23.08 BIDT $ 66.93 07/17/95 4237 22.91 BIDT $ 66.44 07/17/95 4255 22.82 BIDT $ 66.18 07/17/95 4272 22.69 BIDT $ 65.80 07/18/95 4283 22.63 BIDT $ 65.63 07/18/95 4298 22.83 BIDT $ 66.21 Cashmark, 96- 064 -C2 Page 7 07/18/95 4311 22.62 BIDT $ 65.60 07/19/95 4392 22.46 BIDT $ 65.13 07/19/95 4412 22.32 BIDT $ 64.73 07/28/95 5020 22.71 BIDT $ 65.86 07/31/95 5111 22.79 BIDT $ 66.09 07/31/95 5147 22.34 BIDT $ 64.79 07/31/95 5156 22.44 BIDT $ 65.08 08/01/95 5198 22.55 BIDT $ 65.40 08/01/95 5216 22.71 BIDT $ 65.86 08/01/95 5228 22.74 BIDT $ 65.95 08/03/95 5275 22.89 BIDT $ 66.38 08/04/95 5310 23.10 BIDT $ 66.99 08/04/95 5323 23.04 BIDT $ 66.82 08/07/95 5374 23.11 BIDT $ 67.02 08/07/95 5397 23.02 BIDT $ 66.76 08/07/95 5406 23.03 BIDT $ 66.79 08/07/95 5421 22.48 BIDT $ 65.19 08/08/95 5432 22.50 BIDT $ 65.25 08/08/95 5444 22.37 BIDT $ 64.87 08/08/95 5463 22.37 BIDT $ 64.87 08/09/95 5511 22.34 BIDT $ 64.79 - 08/09/95= 5530 22.54 BIDT $ 65.37 08/14/95 5689 22.65 BIDT $ 65.59 08/14/95 5723 22.70 BIDT $ 65.83 08/15/95 38004 22.44 BIDT $ 107.71 08/15/95 60122 22.46 BIDT $ 107.81 08/07/95 60188 22.69 BIDT $ 108.91 08/02/95 60215 19.00 BIDT $ 91.20 08/15/95 61134 22.00 BIDT $ 105.60 08/21/95 5940 22.40 BIDT $ 64.96 08/21/95 5955 22.32 BIDT $ 64.73 08/21/95 5977 22.26 BIDT $ 64.55 08/21/95 5990 22.62 BIDT $ 65.60 08/22/95 6010 22.86 BIDT $ 66.29 08/22/95 6021 22.71 BIDT $ 65.86 08/22/95 6031 22.72 BIDT $ 65.89 08/23/95 6040 22.75 BIDT $ 65.98 08/24/95 6069 22.68 BID3 $ 65.77 08/24/95 6090 22.50 BID3 $ 65.25 08/24/95 6102 22.52 BID3 $ 65.31 08/24/95 6123 22.52 BID3 $ 65.31 08/24/95 6141 22.43 BID3 $ 65.05 08/28/95 6207 22.52 BID3 $ 57.43 08/28/95 6213 22.54 BID3 $ 57.48 08/28/95 6219 22.56 BID3 $ 57.53 08/28/95 6229 22.51 BID3 $ 57.40 08/28/95 6238 22.30 BID3 $ 56.87 08/28/95 6250 22.38 BID3 $ 57.07 08/28/95 6261 22.35 BID3 $ 56.99 08/17/95 38023 22.50 BIDT $ 108.00 08/17/95 38033 22.63 BIDT $ 108.62 08/17/95 38044 22.40 BIDT $ 107.52 08/16/95 61212 22.49 BIDT $ 107.95 Cashmark, 96- 064 -C2 Page 8 08/16/95 61288 22.71 BIDT $ 109.01 08/17/95 61413 22.38 BIDT $ 107.42 08/18/95 61467 22.60 BIDT $ 108.48 TOTAL 1649.42 $ 5,227.74 26. American Asphalt also billed Tunkhannock Township for 7 1/4 hours on August 3, 1995, for a waiting period while Cashmark's truck waited to pick up material for the township. a. The township was billed by invoice number 81595 on August 15, 1995, in the amount of $290.00. 27. American Asphalt's policy is to not compensate their independent truck drivers when the driver performs hauling services without being notified to do so by the company. a. This process is referred to as self -haul. 28. There were occasions during the Tunkhannock Township job that Cashmark's truck was utilized by the township without being called out by American Asphalt. a. Cashmark, in his capacity as supervisor, called out his truck for hauling material without notifying American Asphalt. 29. American Asphalt billed Tunkhannock Township for the use of Cashmark's truck when it was being used as a self -haul as follows: • Date Starting Time - Plant Location Amount 07/28/95 FALLS $ 65.86 07/31/95 6:45 a.m. FALLS $ 195.96 08/01/95 FALLS $ 131.81 08/02/95 7:15 a.m. CHASE $ 91.20 08/03/95 FALLS $ 66.38 08/04/95 FALLS $ 133.81 08/17/95 CHASE $ 324.14 08/18/95 CHASE $ 108.48 08/21/95 FALLS $ 259.84 08/22/95 6:30 a.m. FALLS $ 198.04 08/23/95 FALLS $ 65.98 08/24/95 5:45 a.m. FALLS $ 326.59 08/28/95 5:45 a.m. FALLS $ 400.77 TOTAL $2,368.96 30. At the time of billing the township for hauling services, American Asphalt did not realize that the billings included Cashmark's self -haul. Cashmark, 96- 064 -C2 Page 9 31 Cashmark did not drive his truck during the course of the paving job for the township. a. Cashmark hired three individuals and paid them between $8.00 to $10.00 per hour. 32. Cashmark incurred expenses to operate his truck for the township road projects. a. Driver Wages: $2,225.50 b. Fuel and Taxes: $1,010.93 c. Miscellaneous - Oil, Tires: $ 342.92 Total $3,579.35 33. American Asphalt issued payments to James Cashmark as follows which included amounts for hauling for Tunkhannock Township. Check Amount Related Dates of Date Check No. Amount to Township Service 07/27/951 17957 $2,744.10 $ 723.89 07/11/95 to 07/14/95 08/10/95 18238 $ 854.47 $ 854.47. 07/17/95 to 07/31/95 08/29/95 18589 $2,096.06 $1,641.06 08/01/95 to 08/15/95 09/14/95 18864 $2,709.19 $2.008.32 08/17/95 to 08/29/95 TOTAL $5,227.74 34. American Asphalt checks were issued to James Cashmark and endorsed by James Cashmark. a. The checks were deposited into an account controlled by James Cashmark. 35. Tunkhannock Township made the following payments to American Asphalt for the costs of the material and costs to haul the material when. Cashmark's truck was used: Meeting Check Check Amount of Date Number Date of Check - 06/06/95 7626 06/12/95 $ 475.60 07/05/95 7028 (State Fund) 07/05/95 $14,182.69 07/05/95 7651 07/05/95 $ 145.52 08/01/95 7698 08/28/95 $15,543.97 08/01/95 7710 08/28/95 $ 290.00 08/01/95 7715 08/28/95 $31,644.63 10/03/95 1041 (State Fund) 10/02/95 $10,000.00 10/03/95 7763 09/27/95 $ 26,312.48 TOTAL $98,594.89 36. Cashmark was present at each township meeting when disbursements were made to American Asphalt and participated in the votes relating thereto. Cashmark, 96- 064 -C2 Page 10 a. Cashmark approved and accepted the minutes for each meeting on the following dates: 06/12/95, 07/05/95, 08/01/95, 10/08/95. b. Cashmark signed check numbers 7698 and 7710 in his capacity as a township supervisor. 37. James Cashmark received payments from American Asphalt totaling $5,517.74 as a result of road projects for Tunkhannock Township. a. $5,227.74 (See Finding No. 33) + $ 290.00 (See Finding No. 26) $5,517.74 38. Cashmark's expenses for operating his truck for township related business totaled $3,579.35. (See Finding No. 32). 39. James Cashmark received a net profit of $1,938.39 as a result of his truck subcontracting with American Asphalt for the Tunkhannock road projects. Ill. DISCUSSION: At all times relevant to this matter, the Respondent, James Cashmark, hereinafter Cashmark, 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, gi seq. The allegations are that Cashmark violated Sections 3(a) and 3(f) of the Ethics Law when he as a supervisor participated in actions of the board of supervisors regarding township paving projects resulting in his company's services being utilized as . a subcontractor on such projects; and when his business entered into a subcontract valued at $500 or more with a. company which was awarded a contract by the township for paving material without prior public notice or public disclosure. Pursuant to Section 3(0) 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 quoted above. - Section 3(f) of the Ethics Law, quoted above, imposes certain restrictions as to contracting. Specifically, Section 3(f) of Act 9 of 1989 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 relevant facts. Cashmark, 96- 064 -C2 Page 11 Cashmark has served as a Supervisor for Tunkhannock Township since January of 1994. In addition, he has been employed by the Township both as an appointed roadmaster and currently as a laborer. In a private capacity, Cashmark, who is the owner of Cashmark Trucking and Contracting, is a self - employed trucking contractor. In addition, Cashmark has been employed as an independent trucker for American Asphalt Paving Co. since May 1, 1995. Cashmark and his wife, Lavera, own a 1972 Mack tri -axle truck which is used in his business. In 1995, after the Tunkhannock Township Board of Supervisors decided to pave a number of roads in the. Township, bids were solicited through advertising for various paving materials. Cashmark participated in the drafting of the bid specifications and voted to advertise for bids. Of the eight different bids that were advertised by the Township, American Asphalt Paving Co. was awarded two contracts. The motion to award the contracts to American Asphalt was seconded by Cashmark and the motions were approved unanimously by a 3 -0 vote with Cashmark participating. Cashmark signed the bid proposal sheets which indicated the Township's acceptance of the bids by American Asphalt. After the Board of Supervisors discussed the need for additional road improvements, advertising for additional bids was unanimously approved with Cashmark seconding that motion. The bid for the additional paving was awarded to American Asphalt which was the only company that submitted a timely bid. When the Township paving project began in July 1995, Cashmark and Supervisor Ray Massacessi supervised the project. Township employees were used for the project to save money. Three township trucks, that were available to haul paving materials, were also used. In July 1995, Cashmark advised Massacessi that an additional truck was needed to haul paving materials. Following a discussion, Cashmark and Massacessi decided to utilize an additional truck. Cashmark contacted American Asphalt to request another truck and American Asphalt assigned the truck owned by Cashmark and his spouse to the Township project. It was not unusual for American Asphalt to assign a truck based upon the location of the truck or residence of the driver. Cashmark's truck was the closest in proximity to the Township paving project. Cashmark knew or could have reasonably anticipated that American Asphalt would call him to provide the hauling services. When Massacessi became aware that Cashmark's truck was being used, he advised Cashmark that a conflict existed but Cashmark took no action. There were also occasions on the Township project when Cashmark utilized his own truck without being called by American Asphalt. Once American Asphalt was made aware of the potential conflicts by Cashmark, American Asphalt established a practice not to assign Cashmark's truck for any Township projects. American Asphalt received payments totaling $98,594.89 from Tunkhannock Township for work on the Township paving project. Included in the foregoing amount were costs for hauling materials by American Asphalt's trucks and Cashmark's truck. American Asphalt issued payments to Cashmark totaling $5,227.74 for hauling as to the Tunkhannock road project. Since Cashmark did not drive his truck for the Township paving jobs, he hired individuals and paid them wages ranging from $8 -$10 Cashmark, 96- 064 -C2 Page 12 per hour. Cashmark also incurred expenses for fuel and taxes and miscellaneous items. Cashmark's total expenses for the Township road project vis -a -vis his truck amounted to $3,579.35. Cashmark's net profit from the subcontract with American Asphalt on Tunkhannock Township projects amounted to $1,938.39. In applying the provisions of Section 3(a) of Act 9 of 1989 to instant matter, Cashmark used the authority of his office as to the Township paving projects. In particular, Cashmark participated in drafting specifications as to the solicitation for bids, as well as voted to advertise for bids. More significantly, Cashmark approached Massacessi regarding the need for the additional truck to haul paving materials. Cashmark participated in the votes of the Township board relating to such disbursements to American Asphalt and signed some of the checks to American Asphalt in his capacity as Township Supervisor. The use of authority by Cashmark resulted in a private pecuniary benefit consisting of the profit that Cashmark made through the utilization of his truck by American Asphalt for the Tunkhannock road project. Finally, that private pecuniary benefit inured to Cashmark himself who is the owner of Cashmark Trucking and Contracting and the co -owner of the truck that was used on the Township project. Hence, Cashmark violated Section 3(a) of Act 9 of 1989 when he participated in actions to approve payments to American Asphalt which subcontracted with Cashmark for truck services on the Township contract. As to Section 3(f) of Act 9 of 1989, it is clear from the facts in this case that the Township contracts which were awarded to American Asphalt were in excess of $ 500 and awarded by bid following an advertisement. Although Section 3(f) of Act 9 of 1989 requires an open and public process for contracts of $500 or more with the governmental body, a subsequent open and public process is not required where a subcontract is involved. Because the contract as to the award of the Township paving project was over $500 and awarded through an open and public process, we find no violation of Section 3(f) by Cashmark as to his subcontract with American Asphalt relative to the Township project. See, Sayers, Order No. 1075. Section 3(f) contains a prohibition that "the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract." Cashmark should not have had any supervisory or overall responsibility as to the implementation or administration of the contracts as to the Township paving project. Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /public employee has obtained a financial gain in violation of the Ethics Law. In this case, since it has been determined that a financial gain has been obtained in violation of the Ethics Law, restitution is warranted. Therefore, Cashmark is directed to pay restitution in the amount of $1,938.39 in a timely manner through this Commission to Tunkhannock Township. 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. Cashmark, 96- 064 -C2 Page 13 IV. CONCLUSIONS OF LAW: 1. James Cashmark, as a Supervisor for Tunkhannock Township, Wyoming County, is a public official subject to the provisions of Act 9 of 1989. 2. Cashmark violated Section 3(a) of Act 9 of 1989 when he participated as a Supervisor in Township actions to approve payments to American Asphalt, a business which received a Township paving contract and awarded a subcontract to Cashmark's business. 3. Cashmark did not violate Section 3(f) of Act 9 of 1989 when his business subcontracted with American Asphalt which received a contract through an open and public process to provide trucking services for the Township. In Re: James Cashmark ORDER NO. 1076 File Docket: 96- 064 -C2 Date Decided: 4/30/98 Date Mailed: 5/11/98 1. James Cashmark, a Supervisor in Tunkhannock Township, violated Section 3(a) of Act 9 of 1989 when he participated as a Supervisor in Township actions to approve payments to American Asphalt, a business which received a Township paving contract and awarded a subcontract to Cashmark's business. 2. Cashmark did not violate Section 3(f) of Act 9 of 1989 when his business subcontracted with American Asphalt which received a contract through an open and public process to provide trucking services for the Township. 3. As per a consent agreement of the parties, Cashmark is directed to make restitution in the amount of $ 1,938.39 in a timely manner through this Commission to Tunkhannock Township. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. BY THE COMMISSION, 4 ua4u & &AL.) DANEEN E. REESE, CHAIR