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HomeMy WebLinkAbout1081R AndzulisIn re: Michael Andzulis STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 96- 093 -C2 X -ref: Order No. 1081 -R Date Decided: 7/23/98 Date Mailed: 8/7/98 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Monsignor Joseph G. Quinn Boyd E. Wolff Julius Uehlein Louis W. Fryman The State Ethics Commission received a request for reconsideration on Andzulis, with respect to Order No. 1081 issued on May 11, 1998. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: §21.29. Finality: reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 15 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code §21.29(b), (c), (d), (e). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order is final and shall be made available with Order No. 1081 as public documents on the fifth (5th) business day following the date of issuance of this Order. Andzulis, 96- 093 -C2 Page 2 DISCUSSION On May 11, 1998, we issued Andzulis, Order No. 1081, following our review of the record in this case. The allegation was that Michael Andzulis, in his capacity as a Supervisor for Clifford Township, Susquehanna County, violated Sections 3(a) and 3(f) of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or businesses with which he and /or members of his immediate family are associated by participating in discussions and /or actions of the board of supervisors resulting in companies he and /or members of his immediate family are associated with — Holton, Inc. and Andzulis Brothers Construction — being selected for contracts with the township; when said contracts were awarded without an open and public process; and when he participated in actions to approve payments to Holton, Inc., and Andzulis Brothers Construction. In applying the allegation to the facts of record, we found that: Andzulis did not violate Section 3(a) when a business with which he was associated performed road restoration work on Sweatland Road because another supervisor selected Andzulis' Brothers Construction /Holton, Inc. to do that road work; Andzulis violated Section 3(a) when he used the authority of office to award road restoration work as to OId Schoolhouse Road and to Tinkerbrook Road to businesses with which he was associated; Andzulis technically violated Section 3(a) when he used the authority of office consisting of making motions, voting to approve bills lists or signing township checks to businesses with which he was associated in payment of services provided by those companies to restore township roads; Andzulis violated Section 3(f) when businesses with which he was associated contracted with the township to restore Sweatland, OId Schoolhouse and Tinkerbrook roads, which contracts were in excess of $500 and were not awarded through an open and public process. Restitution of $9,725.06 of the private pecuniary benefit received was also ordered. Following the issuance of Order No. 1081, Andzulis timely filed a request for Reconsideration as to our findings of violations of Sections 3(a) and 3(f). The Investigative Division filed an Answer with. New Matter to the request for Reconsideration arguing that Andzulis provided no legal or factual errors or new facts /evidence to meet the regulatory requirement for the exercise of our discretion to grant reconsideration. In the Request for Reconsideration, Andzulis argues that: he committed no violation of the Ethics Law; Supervisor Williams, not Andzulis, authorized, hired and oversaw the work of Holton, Inc. and Andzulis Brothers Construction; legal requirements for bidding did not apply because of the declared state of emergency; the Commission should grant reconsideration because of material errors of fact and law as well as new facts and evidence; and due process requires a hearing so that Andzulis can present the facts and confront his accuser. In his Brief in Support of Request for Reconsideration, Andzulis presents "Facts" which consist in part of allegations that are unsubstantiated by the record. As to the arguments in his Brief, Andzulis asserts that: Supervisor Williams assigned the OId Schoolhouse and Tinkerbrook road projects to Andzulis so that there was no use of authority of office by Andzulis; the excessive cost increase of the Old Schoolhouse Road project of $5,593 over the Damage Survey Report occurred because Williams ordered the height of the road to be raised; the bidding requirements were suspended due to the declared state of emergency as per 35 PCS 7501(b) and (d); the $13,695 paid by the township to the two companies with which Andzulis is associated is de minimis when compared to the total outlay by the township for the emergency road Andzulis, 96- 093 -C2 Page 3 work; and Andzulis filed an Answer to the Investigative Complaint and this Commission should schedule a hearing on the issue of whether Williams authorized the road work. In his Conclusion, Andzulis reiterates the arguments above but also asserts that: Andzulis' motions to pay the bills for Holton, Inc. and Andzulis Brothers Construction were de minimis; Andzulis' reputation has been damaged by accusations that are politically motivated; and due process and public policy mandate that Andzulis be given a hearing to present his account of the facts. First, there can be no material error of fact or new facts /evidence in this case because Andzulis failed to file an Answer to the Investigative Complaint. In so doing, Andzulis admitted the averments in the Investigative Complaint, 65 P.S. 408(e). Andzulis claims he filed an Answer but no Answer has ever been received. Andzulis has not even filed an Application to file an Answer nunc pro tunc. If Andzulis had filed an Answer (timely) and requested a hearing, he would have been accorded such right. However, by failing to do so, he has admitted the averments in the Investigative Complaint and waived a hearing. Andzulis cannot now come forward and challenge the facts of record by proferring his own version of what he alleges to have occurred. See, Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (1984). As to Section 3(a) of the Ethics Law regarding the Old Schoolhouse and Tinkerbrook road projects, the record establishes that it was Andzulis and not Williams who directed Andzulis' Brothers Construction /Holton, Inc. to those two roads. Williams had assigned the Old Schoolhouse Road work to another contractor and made no assignment as to Tinkerbrook Road. But for the fact that Andzulis was a supervisor, he could not have directed Andzulis' Brothers Construction /Holton, Inc. to work on the above two township road projects. Similarly, Andzulis used the authority of office through his participation as to making motions, voting and signing township checks. Such actions resulted in a private pecuniary benefit to the two businesses with which Andzulis is associated. Hence, there was no material error of law in our finding violations and technical violations of Section 3(a) of the Ethics Law. Regarding the finding of violations of Section 3(f) of Act 9 of 1989, the two businesses with which Andzulis is associated had contracts in excess of $500 with the township without an open and public process. Andzulis contends that bidding requirements were suspended due to the state of emergency. Such suspension of bidding requirements did not and could not nullify Section 3(f) of the Ethics Law. See, Section 12 of the Ethics Law, 65 P.S. 412: "If the provisions of this act conflict with any other statute, ordinance, regulation or rule, the provisions of this act shall control." As to the declared disaster area, we are not as much troubled by the transgression of Section 3(f) of the Ethics Law as we are with Andzulis in taking advantage of the situation regarding the use of federal /state disaster relief funds. What we find reprehensible is the blatant self - dealing of Andzulis (which he fails to mention in his Brief), specifically in light of the express legal prohibitions against self - dealing as to federal /state disaster relief funds. No argument has been raised by Andzulis which would meet the requisite standard for reconsideration. No material error of law has been established. No material error of fact has been established. No new evidence or facts have been provided which would lead to a reversal or modification of the Order. Andzulis has failed to meet his burden of proof to establish any need for reconsideration. See, Pennsylvania State Association of Township Supervisors v. State Ethics Commission, 499 A.2d 735 (1985). The Petition for Reconsideration is denied. In re: Michael Andzulis File Docket: 96- 093 -C2 Date Decided: 7/23/98 Date Mailed: 8/7/98 RECONSIDERATION ORDER 1081 -R The Petition for Reconsideration of Andzulis, Order No. 1081, is denied. BY THE COMMISSION, 4 1La41J 6 � DANEEN E. REESE, CHAIR