HomeMy WebLinkAbout1083 BowerIn Re: John R. Bower
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
Allan M. Kluger
Monsignor Joseph G. Quinn
Boyd E. Wolff
Julius Uehlein
Louis W. Fryman
97- 039 -C2
Order No. 1083
7/23/98
8/7/98
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., 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 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.
Bower, 97- 039 -C2
Page 2
1. ALLEGATION: That John Bower, a public official /public employee, in his
capacity as a Supervisor for Salem Township, Luzerne County, violated Section 3(a)
of the Ethics Law (Act 9 of 1989) when he used the authority of his office for the
private pecuniary benefit of himself and /or a member of his immediate family and a
business with which he and /or a member of his immediate family is associated by
participating in actions of the board to award contracts to a business controlled by
members of his immediate family for including, but not limited to, equipment rental,
snow removal and road construction projects.
11. FINDINGS:
1. John R. Bower has served as a Salem Township, Luzerne County,
supervisor since January, 1994.
2. In 1995, the Salem Township Board of Supervisors scheduled repairs for
Fowler Avenue.
a. Fowler Avenue is a Salem Township road which separates the township
from Berwick Borough.
b. Funding for the project came from both the township's liquid fuel fund
and general fund accounts.
3. Six (6) bids were opened and tabulated for the Fowler Avenue road project
at the supervisors July 14, 1995, meeting.
a. Bids were received from Don E. Bower, Inc., Robert C. Young, Inc.,
Vincent Construction, Barletta Materials, American Asphalt and Evans
Asphalt.
4. Donald E. Bower is the brother of John R. Bower.
5. Donald E. Bower owns and operates an asphalt paving and excavating
business with a principal business location of R.D. #3, Box 3355, Berwick,
PA 18603.
a. Donald E. Bower does business under the incorporated name of Don E.
Bower, Inc.
b. Don E. Bower, Inc., specializes in general construction including road
construction and paving.
6. At the supervisors July 25, 1995, meeting action was taken to award the
Fowler Avenue road project bid to Don E. Bower, Inc.
7. On August 1, 1995, correspondence was sent from Salem Township to
Don E. Bower, Inc., informing Don E. Bower, Inc., that they were awarded
the Fowler Avenue project at the Supervisors' July 25, 1995, meeting.
The letter requested performance bonds and proof of insurance be
submitted for the project.
8. On August 3, 1995, Don E. Bower, Inc., submitted a certificate of
insurance, performance bond and project agreement to the township.
a. Project work was to begin within ten days based on the agreement.
Bower, 97- 039 -C2
Page 3
9. The Fowler Avenue project started on August 18, 1995, and was
completed on or about October 27, 1995.
10. During the project, two change orders totaling $23,702.78 were added
increasing total project costs to $339,457.83.
11. On or about September 12, 1995, a meeting was held at Fowler Avenue
to discuss the need for a change order.
a. After Fowler Avenue was unearthed it was determined that some storm
water pipes were discharging into Berwick Borough's sanitary sewer
system.
b. Officials present for this meeting included Supervisors Bower and
Ashbridge, Contractor Donald Bower, his estimator Gregg Helsel and
representatives of Pasonick Engineering.
c. It was determined that a drainage sump was the only way to rectify the
problem.
12. Fowler Avenue project change order number one was dated September 12,
1995, and increase project costs by the sum of $8,986.00. The following
five (5) line items were included on this change order:
a. Item No. Description Cost
E -1 Reconstruct /Realign inlets (2) $1,100.00
E -2 Excavate, repair inlet, new frame $ 900.00
E -3 15" RCP 14LF (33.30) $ 466.20
E -4 10" C.L.D.I.P. 76LF (34.80) $2,644.80
E -5 Drywell $3.875.00
TOTAL $8,986.00
13. Included with change order number 1 was a transmittal letter from Don E.
Bower, Inc., to Pasonick Engineering detailing costs associated with the
installation of a drywell.
a. The transmittal was dated September 13, 1995, and signed by Gregg
M. Helsel on behalf of Don E. Bower, Inc.
b. Drywell costs detailed were labor, $950; equipment, $400; materials,
$1,855 and profit $670. Total Costs - $3,875.00.
14. Change Order No. 1 was submitted by Michael Amato on September 12,
1995.
a. It was signed by contractor Don E. Bower on September 20, 1995.
b. Supervisor John R. Bower approved the change order on September 26,
1995
c. Supervisor Ernest Ashbridge did not sign this change order until
December 13, 1995.
1. Ashbridge was aware of the change order but was not provided the
document until December 13, 1995.
Bower, 97- 039 -C2
Page 4
15. Supervisor John R. Bower was the only supervisor to sign Change Order
No. 1 prior to the work being completed.
a. His signature on September 26, 1996, authorized an increase of project
costs of $8,986.00.
b. No other supervisor approved this increase until the final project
documents were being completed.
16. Change order number 1 was never brought before the board of supervisors
for approval.
17. Fowler Avenue project Change Order No. 2 was dated December 1, 1995,
and increased project costs by the sum of $14,716.78. The following two
(2) line items were included on this change order:
a. Item No. 'Description Cost
E -6 Line Painting $ 1,400.00
E -7 Relocate existing pipe $ 1,414.00
Additional work /final quantities $11.902.78
TOTAL $14,716.78
18. Change Order No. 2 was submitted by Michael Pasonick with final project
documents on December 1, 1995.
a. It was signed by Don E. Bower on December 8, 1995.
b. Supervisor John R. Bower approved the change on December 12,
1995, and Ernest Ashbridge approved on December 13, 1995.
c. December 13, 1995, was the same date that Ashbridge signed the first
change order.
d. The change order was submitted after completion of the project.
19. Change order number 2 never was brought before the board of supervisors
for approval.
20. The work involved with the second change order was required because of
storm water drainage problems.
a. A change in road surface elevation required existing pipe be relocated.
b. Change order 2 also included charges for line painting and additional
materials.
21. None of the items contained in either change order were put out for bid by
Salem Township.
a. All additional work was handled as change orders previously detailed.
b. The problems requiring the change orders were not known to Salem
Township or Pasonick Engineering at the time the job was bid.
Bower, 97- 039 -C2
Page 5
22. Supervisor John Bower signed three (3) bill lists and participated in voting
on three (3) separate occasions to approve the four (4) payments totaling
$339,457.83 to Don E. Bower, Inc. Individual payments were approved
as follows:
65 P.S. §403(a).
a. Check No. Amount
Meeting Date Official ActionVote
12342 $ 32,218.83 09/26/95 Vote 3 -0
12379 $ 93,258.93 10/10/95 Vote 3 -0
2516 $ 60,000.00 10/10/95 Included Inc.
13082 $153.980.07 12/12/95 Vote 3 -0
TOTAL $339,451.83
23. The $339,457.83 paid to Don E. Bower, Inc., for the Fowler Avenue road
project exceeded their accepted bid of $315,755.05 by $23,702.78.
a. The additional $23,702.78 was the result of two project change orders
detailed in the Finding above.
24. John R. Bower in his official capacity as a Salem Township Supervisor
approved two (2) change orders authorizing additional payments totaling
$23,702.78 to his brother's company, Don E. Bower, Inc.
a. This created a profit of at least $670.00 for Don E. Bower, Inc.
25. Don E. Bower, Inc., realized an additional profit of at least $670.00 as a
result of actions taken by John Bower in his official capacity as a Salem
Township Supervisor.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, John R. Bower, hereinafter
Bower, 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,
e 04.
The allegation is that Bower, a Township Supervisor, violated Section 3(a) of
the Ethics Law when he used the authority of his office to participate in change orders
as to a township road construction contract resulting in a private pecuniary benefit to
his brother's business.
Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest.
Section 3. Restricted Activities
(a) No public official or public employee shall engage in
conduct that constitutes a conflict of interest.
Bower, 97- 039 -C2
Page 6
The term "conflict of interest" is defined under Act 9 of 1989 as follows:
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.
Having noted the issues and applicable law, we shall now summarize the
relevant facts.
Bower has served as a Salem Township Supervisor since January, 1994. In
1995, the Salem Township Board of Supervisors advertised for bids for a township
road project. Six bids were received, including one from Donald E. Bower who is
Bower's brother. Donald E. Bower owns and operates an asphalt paving and
excavating business known as Don E. Bower, Inc.
At a July 25, 1995 meeting of the Township Board of Supervisors, the road
construction contract was awarded to Don E. Bower, Inc. During the road construction
project which began on August 18, 1995 and ended on or about October 27, 1995,
there were two change orders which increased the cost of the .road project.
The first change order was considered in September 1995 after it was learned
that some storm water pipes were discharging into the adjacent municipality's sanitary
sewer system. Change Order #1 from Don E. Bower, Inc. offered to remedy the
problem at a cost of $8,986. Bower as Supervisor approved the change order on
September 26, 1995. However, Supervisor Ashbridge did not sign the change order
until December 13, 1995. Ashbridge was aware of the change order but was not
provided with the document until the date that he signed it. Thus, Bower was the only
Supervisor to sign Change Order #1 prior to the work being completed. Change Order
#1 was never brought before the Board of Supervisors for approval.
Change Order #2 was submitted on December 1, 1995. The work for Change
Order #2 was necessary because it involved storm water drainage problems. Change
Order #2 increased the project cost by an additional $14,716.78 and involved line
painting, relocating existing pipe and additional work /final quantities. Bower and
Ashbridge approved the change order on December 12, 1995 and December 13, 1995
respectively. Change Order #2 was never brought before the Board of Supervisors for
approval. None of the items contained in either of the two change orders was put out
for bid by Salem Township. Lastly, Don E. Bower, Inc., realized a profit of $670 as a
result of actions taken by Bower in his official capacity as a Salem Township
Supervisor relating to the change orders.
Bower, 97- 039 -C2
Page 7
Having summarized the above relevant facts, we must now determine whether
the actions of John R. Bower violated Section 3(a) of Act 9 of 1989.
In applying the above provisions of Section 3(a) of the Ethics Law, a public
official /public employee is prohibited from using the authority of public
office /employment or confidential information received by holding such a public
position for the private pecuniary benefit of the public official /public employee himself,
any member of his immediate family, or a business with which he or a member of his
immediate family is associated.
In this case, there were uses of authority of office on the part of Bower when
he signed and approved the change orders as Township Supervisor. Juliante, Order
' 809. But for the fact that Bower was a Supervisor, he could not have participated and
approved the change orders in question. The uses of authority of office on the part of
Bower resulted in a private pecuniary benefit consisting of the two additional change
orders that were added to the township contract awarded to Don E. Bower, Inc.
Lastly, the private pecuniary benefit inured to a business with which a member of
Bower's immediate family is associated. In this regard, Donald E. Bower is the brother
of Bower and hence a member of his immediate family. Further, Donald E. Bower is
the owner of Don E. Bower, Inc. Hence, a technical violation of Section 3(a) of Act 9
of 1989 occurred when Bower used the authority of office as to change orders to
obtain a private pecuniary benefit for Don E. Bower, Inc., a business with which a
member of his immediate family was associated.
The parties have entered into a Consent Agreement for finding a technical
violation together with a payment of $670 to Salem Township. Accordingly, Bower
is directed to make payment of $670 in a timely manner through this Commission to
Salem 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.
As noted above, 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. John R. Bower, as a Supervisor for Salem Township, Luzerne County, is a
public official subject to the provisions of Act 9 of 1989.
2. Bower technically violated Section 3(a) of the Ethics Law when he signed and
approved change orders related to a road construction project being performed
by his brother's business, with said change orders authorizing additional work
and payments by Salem Township to the business.
In Re: John R. Bower
File Docket: 97- 039 -C2
Date Decided: 7/23/98
Date Mailed: 8/7/98
ORDER NO. 1083
1. John R. Bower, as a Supervisor for Salem Township, Luzerne County,
technically violated Section 3(a) of the Ethics Law when he signed and approved
change orders related to a road construction project being performed by his
brother's business, with said change orders authorizing additional work and
payments by Salem Township to the business.
2. As per the Consent Agreement of the parties, Bower is directed to make
payment in a timely manner through this Commission to Salem Township in the
amount of $670. 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,
euka
DANEEN E. REESE, CHAIR