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HomeMy WebLinkAbout1090 TerrizziIn Re: James Terrizzi 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- 041 -C2 Order No. 1090 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 seg., 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. Terrizzi, Number 97- 041 -C2 Page 2 I. ALLEGATION: That James A. Terrizzi, a public official /public employee, in his capacity as a member of the West Branch Sewer Authority violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his public office to obtain a private pecuniary benefit for himself and /or members of his immediate family when his son was employed by a contractor performing work for the Authority; when he allowed his spouse to utilize an Authority vehicle for personal purposes; and when he failed to file Statements of Financial Interests for the calendar years 1994 and 1996. 65 P.S. §403(a). 65 P.S. §402. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 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 4. Statement of financial interests required to be filed (a) Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves Terrizzi, Number 97- 041 -C2 Page 3 65 P.S. §404(a). II. FINDINGS: such a position. Persons who are full -time or part-time solicitors for political subdivisions are required to file under this section. 1. James Terrizzi has served as a member of the West Branch Sewer Authority Board of Directors, Cambria County, since March, 1990. a. Terrizzi is the representative of Susquehanna Township on the West Branch Sewer Authority. 2. West Branch Sewer Authority was formed in March, 1990, under a mandate from the Pennsylvania Department of Environmental Protection, to provide sewer service to the residents of the West Branch Pennsylvania area. 3. West Branch Sewer Authority is comprised of five municipalities; Spangler Borough, West Carroll Township, Susquehanna Township, Barr Township, and Barnesboro. 4. West Branch Sewer Authority Board is made up of a representative from each of the five municipalities. 5. Each Sewer Board member is appointed by the governing body in each of the municipalities that comprise the West Branch Sewer Authority. a. Board member positions are non- compensated. 6. The West Branch Sewer Authority's main responsibilities are to obtain funding for the installation of the sewer system, to hire an engineering firm to design the sewer system, and to hire, by bid, the contractors to perform the installation of the sewer system. 7. James Terrizzi was named Project Manager by the Authority board because of his construction experience. a. The Project Manager is a non - compensated position. 8. Terrizzi's responsibilities as Project Manager were to oversee the construction of the sewer system and solve small problems that occurred in the field. a. Any changes in the engineering plans that the contractors requested required the submission of change orders. b. Any change orders requested required the approval of the engineer and the Sewer Authority. 9. Due to a serious accident in 1994, Terrizzi's time spent in the field as Project Manager became limited. a. Terrizzi subsequently resigned from the position. Terrizzi, Number 97- 041 -C2 Page 4 10. In March, 1997, Jeff Stevens was hired by the West Branch Sewer Authority to assume the Project Manager's duties in the Sewer Authority Office. 11. In April, 1997, Jerry Mosey was hired to assume the Project Manager's responsibilities in the field. 12. On January 18, 1996, Miles Contracting & Developing, Incorporated, of Clarion, Pennsylvania, was awarded four contracts in the construction of the sewer system by the Authority. a. Miles Contracting was awarded Contract H for North Barnesboro; Contract K for North Spangler; Contract L for Central Spangler and Contract M for Allport. 13. Robert Chernicky is Miles Contracting's Project Manager for the sewer system installation. 14. In April or May, 1996, James Terrizzi inquired of Robert Chernicky if Miles Contracting would be hiring any temporary laborers for work on the sewer system installation. a. Terrizzi was inquiring on behalf of his son Ryan Terrizzi, a full -time college student, who was seeking summer employment. 15. Robert Chernicky advised James Terrizzi that additional workers were not needed at that time. a. Chernicky advised James Terrizzi to have Ryan submit an application to Miles Contracting, if he is interested. b. Because of the progression of the sewer system construction by the summer of 1997, Chernicky advised Terrizzi there may be additional laborers needed for the restoration crew at that time. c. Miles Contracting routinely hires local residents for laborers on construction project they are doing in particular communities. d. Ryan Terrizzi was not hired by Miles Contracting in the summer of 1996. 16. In the summer of 1997, a large part of the sewer system had been installed. a. Land restoration work had begun, including landscaping and seeding work. b. Temporary laborers for landscape restoration were needed. 17. In May, 1997, Ryan Terrizzi returned home for college summer break and contacted Miles Contracting about summer employment. a. Ryan Terrizzi still had an application on file, with Miles Contracting, from the previous summer. Terrizzi, Number 97- 041 -C2 Page 5 18. May 20, 1997, Ryan Terrizzi was hired by Miles Construction as a laborer on their restoration crew. a. Another local resident Daniel Brink was also hired by Miles Construction at this time. b. Other local laborers were hired for the restoration phase for other contract sites. c. All laborers hired were paid the same state prevailing wage. d. James Terrizzi was not project manager at the time of the hiring. 19. Ryan Terrizzi worked for Miles Construction from May 20, 1997, until August 23, 1997. a. Ryan Terrizzi was paid the state prevailing wage for laborers of $19.05 /hr. b. Total wages to Ryan Terrizzi for his work were $11,278.96. 20. In February, 1997, James Terrizzi; West Branch Sewer Authority Secretary Ann Hauzie; and Rob Matejczyk of L. Robert Kimball & Associates, Project Engineers, were asked by West Branch Sewer Authority President William Tomallo, to attend an Electrical Seminar in Harrisburg on February 28, 1997. a. All three agreed to attend the seminar. b. The trip was scheduled for one day on February 28, 1997. 21. The West Branch Sewer Authority's only mode of transportation is a Sewer Authority pickup truck. a. When traveling, employees generally use the authority truck or their personal vehicles. 22. West Branch Sewer Authority President William Tomallo, suggested that the three use Terrizzi's Jeep Grand Cherokee to drive Hauzie and Matejczyk to the Harrisburg Conference and authorize Terrizzi's wife to use the Sewer Authority pickup truck to drive to work that day. a. This was suggested due to the number of people riding to the conference, the cramped conditions of riding that far with three people in the front seat of a pickup truck, and Terrizzi's bad leg. b. James Terrizzi agreed with Tomallo's suggestion. 23. William Tomallo authorized James Terrizzi to use his personal vehicle to drive to Harrisburg for the Electrical Seminar and to permit Terrizzi's wife to use the authority truck to drive to work. 24. James Terrizzi and Hauzie and Robert Matejczyk attended the Electrical Seminar in Harrisburg on February 28, 1997. Terrizzi, Number 97- 041 -C2 Page 6 25. On March 17, 1997, James Terrizzi submitted travel reimbursement for 358 miles round trip from Barnesboro to Harrisburg and $7.90 in Turnpike tolls. 26. James Terrizzi was reimbursed $ .30 a mile for 358 miles claimed, and $7.90 in tolls for a total $ 115.30. a. James Terrizzi was reimbursed $115.30 on March 20, 1997. b. This expense was paid from the West Branch Sewer Authority account, check No. 1344. c. The check was signed by William Tomallo and Patrick Fresh. The check was deposited in James and Christine Terrizzi's United Federal Credit Union account on March 24, 1997. 27. Christine Terrizzi, Terrizzi's wife, works in Ebensburg, Pennsylvania. a. The round -trip mileage from the Terrizzi home to Ebensburg and back is approximately forty miles. b. Terrizzi's wife used the authority truck to travel from the home to work and back on February 28, 1 997. 28. On September 9, 1997, a Statement of Financial Interests Compliance Review at West Branch Sewer Authority, Barnesboro, Cambria County, Pennsylvania. a. Statements of Financial Interests were reviewed for the calendar years 1996, 1995 and 1994. b. James Terrizzi was required to file Statements of Financial Interests for the calendar years 1996 and 1994. c. James Terrizzi failed to file Statements of Financial Interests for the calendar years 1996 and 1994. 29. On October 30, 1997, James Terrizzi admitted to failing to file Statements of Financial Interests for the calendar years 1994 and 1996. a. Terrizzi advised that he had forgotten to file statements for those years. III. DISCUSSION: At all times relevant to this matter, the Respondent, James Terrizzi, hereinafter Terrizzi, 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_l se g. The allegations are that Terrizzi, in his capacity as a member of the West Branch Sewer Authority, violated Sections 3(a) and 4(a) of Act 9 of 1989 when he used the authority of his public office to obtain a private pecuniary benefit for himself or a member of his immediate family when his son was employed by a contractor performing work for the Authority; when he allowed his spouse to utilize an Authority Terrizzi, Number 97- 041 -C2 Page 7 vehicle for personal purposes; and when he failed to file Statements of Financial Interests for the calendar years 1994 and 1996. 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. Section 4(a) of the Ethics Law quoted above requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Having noted the issues and applicable law, we shall now summarize the relevant facts. Terrizzi has been a member of the Board of Directors of the West Branch Sewer Authority (Authority) since 1990. The Authority was formed by five municipalities to obtain funding for the installation of a sewer system, to hire an engineering firm to design the system, and to hire contractors to perform the installation of the system. Terrizzi was named Project Manager for the sewer installation by the Authority Board because of his construction experience. Both as a Board member and as Project Manager, Terrizzi received no compensation. As Project Manager, Terrizzi's responsibilities were to oversee the construction of the sewer system and to solve any minor problems that occurred. Due to a serious accident in 1994, Terrizzi's time in the field as a Project Manager became limited. On January 18, 1996, Miles Contracting & Developing, Inc. was awarded four contracts as to the construction of the sewer system by the Authority. In May, 1996, Terrizzi inquired of Robert Chernicky, Miles Contracting's Project Manager, as to whether the firm would be hiring any temporary laborers for work on the sewer system installation. Terrizzi made the inquiry on behalf of his son Ryan, who was a full -time college student seeking summer employment. Chernicky advised Terrizzi that additional workers were not needed at the time but suggested that Terrizzi's son submit an application to Miles Contracting. Ryan Terrizzi was not hired by Miles Contracting in the summer of 1996. Terrizzi resigned as Project Manager in March 1997. In the summer of 1997 with a large part of the sewer system installed, Ryan Terrizzi contacted Miles Contracting about summer employment. On May 20, 1997, Ryan Terrizzi was hired by Miles Contracting as a laborer where he worked until August 23, 1997 at the prevailing wage of $19.05 per hour. Ryan Terrizzi received $11,278.96 for his summer work. In February 1997, Terrizzi, the Authority's Secretary, and a project engineer were asked by the Authority President to attend a seminar in Harrisburg. Since the Authority's only vehicle was a pick -up truck, the Authority President suggested that the three individuals use Terrizzi's own vehicle to drive to the seminar and the Authority President would authorize Terrizzi's wife to use the Authority pick -up for that day. Terrizzi agreed with the Authority President's suggestion. After the seminar, Terrizzi submitted a travel expense reimbursement for mileage and turnpike tolls which totaled $115.30. Lastly, in a Statements of Financial Interests ( SFI's) compliance review of the Authority in September 1997, the records establish that Terrizzi failed to file SFI's for the calendar years 1994 and 1996. Terrizzi admits failing to file, stating that he had forgotten to file for those two particular years. Having summarized the above relevant facts, we must now determine whether the actions of James Terrizzi violated Sections 3(a) or 4(a) of Act 9 of 1989. Terrizzi, Number 97- 041 -C2 Page 8 In applying 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. As to the first allegation, we find no violation as to the hiring of Terrizzi's son for summer employment by the contractor for the Authority. We do not find the requisite use of authority of office on the part of Terrizzi which is necessary to establish a violation of Section 3(a) of Act 9 of 1989. Although it is true that Terrizzi at one point talked to the Miles Contracting Project Manager about summer employment for his son, the facts of record do not establish that such action by Terrizzi was as a public official using the authority of office. The facts before us merely establish that Terrizzi, like any other citizen, approached Chernicky about the possibility of summer employment for his son. Therefore, there was no use of authority of office, and hence there was no violation of Section 3(a) of Act 9 of 1989 regarding the summer employment of Terrizzi's son. McGuire and Marchitello v. SEC, 657 A.2d 1346 (1995). As to the matter of Terrizzi's wife using the Authority's pick -up truck for her personal use on one particular day, there was a use of authority of office on the part of Terrizzi in that he concurred with the Authority President's suggestion to allow Terrizzi to drive to the seminar with his personal vehicle instead of the Authority truck. Further, it was agreed that Terrizzi's wife would then take the Authority's truck so that she could get to her employment for that day. There was a private pecuniary benefit to Terrizzi's wife in that she did have the expense of driving her or her spouse's vehicle to employment on that particular day. Lastly, Terrizzi's spouse is a member of his immediate family as that term is defined under the Ethics Law. 65 P.S. §402. However, the driving arrangements were made at the suggestion of the Authority President and Terrizzi merely expressed his agreement with that arrangement. Accordingly, based upon such facts and the Consent Agreement of the parties, we find a de minimis violation of Section 3(a) of Act 9 of 1989 regarding Terrizzi's spouse's use of the Authority's truck for the one day period. Cannon, Order 1068. As to the SFI's, the findings reflect that Terrizzi did not file for the calendar years 1994 and 1996. Accordingly, we find a violation of Section 4(a) of Act 9 of 1989 when Terrizzi failed to file SFI's for the calendar years 1994 and 1996. Terrizzi is directed to file SFI's within 30 days of the date of mailing of this Order for the calendar years 1994 and 1996. Compliance will result in no further action by this 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. Terrizzi, Number 97- 041 -C2 Page 9 IV. CONCLUSIONS OF LAW: 1. James Terrizzi, as a member of the West Branch Sewer Authority, is a public official subject to the provisions of Act 9 of 1989. 2. Terrizzi did not violate Section 3(a) of the Ethics Law in that he did not use the authority of office when his son was hired by the Authority contractor for summer employment. 3. A de minimis violation of Section 3(a) of the Ethics Law occurred when Terrizzi's wife used an Authority vehicle on one day to travel to her place of employment. 4. A violation of Section 4(a) of the Ethics Law occurred when Terrizzi failed to file Financial Interests Statements for the 1994 and 1996 calendar years. In Re: James Terrizzi ORDER NO. 1090 File Docket: 97- 041 -C2 Date Decided: 7/23/98 Date Mailed: 8/7/98 1. James Terrizzi, as a member of the West Branch Sewer Authority, did not violate Section 3(a) of the Ethics Law in that he did not use the authority of office when his son was hired by the Authority contractor for summer employment. 2. A de minimis violation of Section 3(a) of the Ethics Law occurred when Terrizzi's wife used an Authority vehicle on one day to travel to her place of employment. 3. A violation of Section 4(a) of the Ethics Law occurred when Terrizzi failed to file Financial Interests Statements for the 1994 and 1996 calendar years. 4. Terrizzi is directed to file Statements of Financial Interests for calendar years 1994 and 1996 within 30 days of the mailing of this Order. Compliance will result in no further action being taken by the State Ethics Commission. Non- compliance will result in the institution of an order enforcement action. BY THE COMMISSION, 6/Ya..)6 DANEEN E. REESE, CHAIR