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HomeMy WebLinkAbout1122 SmytheIn Re: Robert F. Smythe 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 Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 97- 015 -C2 Order No. 1122 2/26/99 3/10/99 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 g# seq., 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 the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 g Am., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and 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 the Ethics Act. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Smythe, 97- 015 -C2 Page 2 ALLEGATION: That Robert Smythe, a public official /public employee, in his capacity as Chief of Police for Darby Borough, Delaware County, violated Sections 3(a) and 3(f) of the Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by participating in actions /discussions and /or decisions to have Borough police cars repaired at a business with which he is associated; and when vehicle repairs in excess of $500 were performed without an open and public process. II. FINDINGS: 1. Robert F. Smythe has served as Police Chief for the Darby Borough, Delaware County, for approximately the past fourteen years. a. Smythe has been continuously employed by the Darby Police Department for the last twenty -eight (28) years. 2. Robert Smythe has been co -owner of Delco Auto Body, an auto body repair shop, since April, 1987. 3. Delco is located at 39 Mill Street, Darby, Pennsylvania. 4. Delco Auto Body was incorporated with the Pennsylvania Department of State on April 8, 1987. a. Incorporators were Thomas Foster, 324 South 3rd Street, Colwyn, Pennsylvania and Robert Smythe, 480 Pinecrest Road, Springfield, Pennsylvania. b. The aggregate number of shares issued was 1,000 shares with no par value. c. Two - hundred fifty (250) shares per incorporator were issued. 5. In 1987 and 1988, Delco Auto Body completed body repairs to Darby Borough police vehicles. a. This work was completed without an open and public process, including public solicitation for bids. 6. The work performed by Smythe's company, Delco Auto Body, was the subject of a State Ethics Commission investigation in 1987. a. The Commission issued Order No. 733 on December 4, 1989. b. Order No. 733 found that Smythe had violated Section 403(c) of the State Ethics Act (Act 170 of 1978) when the business with which Smythe was associated, Delco Auto Body, entered into contracts in excess of $ 500 with Darby Borough without an open and public process. c. No further action was taken by the Commission against Smythe. d. A reconsideration request by Smythe was denied by the Commission. Smythe, 97- 015 -C2 Page 3 7. As a result of Order No. 733, a joint decision was made by Darby Borough officials and Chief Smythe to no longer use Delco Auto Body to repair borough police vehicles. 8. It has been a policy in Darby Borough since at least 1987 for the borough to pay for repairs to borough police vehicles involved in automobile accidents where the borough is deemed to have liability. 9. A borough councilman who serves as Public Safety Commissioner, is responsible for determining how police vehicles are repaired. a. An accident report is submitted by the police chief to the Public Safety Commissioner and borough manager. b. The Public Safety Commissioner would then contact a body shop to obtain an estimate of the repairs. c. The Public Safety Commissioner would authorize the repairs. d. Council votes to issue payment to the body shop. 10. Robert W. Deaver has served as a Darby Borough Councilman since 1953. a. He has served as Public Safety Commissioner since 1989. 11. Following the Ethics Commission investigation of Chief Smythe in 1987, Deaver changed the way borough police cars would be repaired. a. Prior to Order No. 733, Deaver sought quotes from Delco or Suburban Collision. b. Deaver no longer solicited estimates from Delco Auto Body or Suburban Collision, the other auto body repair company used in 1986 to 1988. 12. Beginning in 1989 Deaver contacted Daniel Truitt to provide estimates to repair borough police cars. a. Deaver knew Truitt and Truitt's parents and was informed that Truitt could work on cars in the parents' garage located on Second Street in the Borough of Colwyn. 13. Daniel P. Truitt was hired by Robert Smythe and Thomas Foster to work for Delco Auto Body and has been employed by Delco from 1989 until the present time. a. Truitt's tasks included auto body repair work and the painting of the vehicles. b. Shortly after being hired by Delco, Deaver contacted Truitt concerning the repair of borough vehicles. 14. In 1989 Deaver authorized Truitt to repair damaged borough police vehicles. Smythe, 97- 015 -C2 Page 4 a. There were no other individuals or companies considered by Deaver prior to hiring Truitt to do the repair work on the borough police vehicles. 15. Truitt did not own an auto body repair shop prior to the borough awarding him the repair contracts and did not perform auto body repair work on his own, for financial compensation, prior to receiving the borough business. a. Truitt did perform repairs for family members and friends as a favor. 16. Truitt was to repair borough vehicles at a garage located at 109 South 2nd Street, Colwyn, Pennsylvania, owned by his father. a. The garage is located in a section of the Borough of Colwyn which is zoned residential. b. A commercial business such as auto body repairs, is not permitted in a residential zoned area. 17. The garage utilized by Truitt was not equipped with a "paint spray booth" which is normally used to paint vehicles. a. The garage also was not equipped with equipment, such as frame straightening tools, used frequently in the repair of vehicles. 18. Truitt provided estimates for work on borough police cars on a form using the name Truitt's Auto Body, 102 South Second Street, Colwyn, Pennsylvania. a. The form was prepared to specifically provide estimates to Darby Borough. 19. From November of 1989 to April of 1996, Darby Borough used Truitt's Auto Body to repair vehicles damaged during accidents. a. Truitt was to repair borough police cars during the evening, weekends or times when he was not working for Delco Auto Body. b. Truitt's Auto Body did not repair vehicles for any other entity or individual on a for - profit basis during this period. c. Chief Smythe was aware that Truitt was repairing vehicles for Darby Borough. 20. Truitt was not trained or licensed to prepare estimates for repairs to vehicles. 21. When submitting estimates to Darby Borough, Truitt relied on William Levin to prepare the estimates. 22. William Levin was employed by Delco Auto Body from 1989 until 1998 for the purpose of preparing estimates on damaged vehicles. a. Levin was not employed by Truitt Auto Body. Smythe, 97- 015 -C2 Page 5 23. A number of the estimates prepared by Levin were done at the curb outside of the Delco Auto Body shop on Mill Street. a. Levin utilized the "crash books" owned by Delco when preparing estimates for repairs on Darby Borough vehicles. b. Crash books are books which contain prices for replacement parts and the estimate of the time to replace the part. c. Crash books are prepared by vehicle manufacturers and used by body shops when preparing estimates. 24. Truitt did not maintain any records to confirm where parts, paint and other materials used in the repairs of the borough vehicles were purchased. 25. Truitt has no receipts for any purchases relating to the repairs to borough police vehicles. a. This would include parts, paint and all related supplies. 26. Approximately sixty (60) percent of all the paint used by Truitt when painting borough police vehicles came from Delco Auto Body. a. Truitt did not compensate Delco Auto Body for the paint. 27. A number of the vehicles repaired and painted by Truitt for Darby Borough were painted at Delco Auto Body. a. Truitt's garage at 102 South 2nd Street, Colwyn, Pennsylvania was not equipped to paint vehicles. 28. There is insufficient evidence to establish that Chief Robert Smythe was aware of the activities on the part of Truitt with regard to using materials from Delco Auto Body, or doing some repair work of vehicles at Delco Auto Body. a. Smythe asserts that he was unaware of Truitt performing any work at Delco Auto Body, and would not have approved of such a situation. b. Truitt states that Smythe was unaware of his performing such work at Delco Auto Body. 29. Truitt was not provided with Tax Form 1099 by Darby Borough for any of the repair work to borough vehicles. 30. Truitt did not list income from the above transactions on State and Federal Income Tax Returns until April 4, 1997, when he submitted amended income tax returns for the years 1993, 1994, 1995 and 1996. III. DISCUSSION: At all times relevant to this matter, the Respondent, Robert F. Smythe, hereinafter Smythe, has been a public employee subject to the provisions of the Public Smythe, 97- 015 -C2 Page 6 Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et se . /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, seq. The issue is whether Smythe violated Sections 1103(a) and 1103(f) as to the allegations that he participated in actions, discussions or decisions to have Borough police cars repaired at a business with which he is associated at a cost of $500 or more without an open and public process. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). Pursuant to Section 1103(a) of the Ethics Act, 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 the Ethics Act as follows: Section 1102. 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. The term 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 Pa.C.S. §1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103. Restricted activities. (f) Contract. - -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 Smythe, 97- 015 -C2 Page 7 65 Pa.C.S. §1103(f). 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. In addition, Section 1103(f) 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 relevant facts. Smythe has been employed by the Darby Borough Police Department for 28 years, and as Police Chief for the past 14 years. In a private capacity, Smythe is the co -owner of Delco Auto Body ( "Delco "), an auto repair shop located in Darby. In 1987 and 1988 Delco performed body repairs to Darby Borough Police vehicles without any solicitation for bids. Such action was subject to an investigation by this Commission, which resulted in Smythe, Order 733 wherein we concluded that Smythe violated the contracting provision of Act 170 of 1978 regarding contracts to repair Borough vehicles by Delco which were $500 or more and not awarded through an open and public process. Following Smythe, Order 733, Darby Borough officials and Smythe no longer used Delco to repair Borough vehicles. The Borough Councilman who serves as the Public Safety Commissioner is responsible for the process of repairing Borough Police vehicles. After an accident is reported by the Police Chief to the Public Safety Commissioner and Borough Manager, the Commissioner contacts a body shop to obtain an estimate for repairs, and then authorizes the repairs. Council subsequently votes to approve payment to the body shop. Robert Deaver, who has served as the Public Safety Commissioner since 1989, changed the way Borough Police vehicles were repaired following the Smythe investigation and issuance of Smythe, Order 733. Deaver no longer solicited estimates from Delco or Suburban Collision, another auto body shop used to repair Borough vehicles between 1986 and 1988. Beginning in 1989, Deaver contacted Daniel Truitt to provide estimates for Borough Police vehicle repairs. Deaver was informed that Truitt could work on vehicles in his parents' garage. Shortly after Truitt was hired by Smythe and Thomas Foster, a co -owner of Delco, to perform auto body repair work Smythe, 97- 015 -C2 Page 8 and painting of vehicles at Delco, he was authorized by Deaver to repair damaged Borough vehicles. Truitt did not own an auto body repair shop prior to the Borough awarding him the Borough vehicle repair contracts. Up to that time, Truitt performed repairs for family members and friends as a favor. The garage at which Truitt was to repair Borough vehicles was not equipped with a paint spray booth, nor with equipment such as frame - straightening tools frequently used to repair vehicles. Truitt provided estimates for Borough vehicle repairs on a form using the name, "Truitt's Auto Body." Truitt was to repair the Borough Police vehicles during evenings, weekends, or at times when he was not working at Delco. Truitt's Auto Body did not repair vehicles for any other entity or individual on a profit basis. Smythe was aware that Truitt was repairing . vehicles for Darby Borough. Since Truitt was not trained or licensed to prepare estimates for repairs to vehicles, he relied upon William Levin who was employed by Delco to prepare such estimates. Levin, who was not employed by Truitt Auto Body, made a number of estimates at curbside of Delco, utilizing Delco's cash books, which contain prices for replacement parts and estimates of the time to replace such parts. Truitt did not maintain any records to confirm where the parts, paint, and other materials used for the repair of Borough vehicles were purchased. Similarly, Truitt has no receipts for any purchases relating to repairs of Borough Police vehicles. Approximately 60% of the paint used by Truitt in repairing Borough Police vehicles came from Delco. Truitt did not compensate Delco for such paint. A number of the Borough vehicles repaired or painted by Truitt were painted at Delco. Truitt was not provided with 1099 tax forms by Darby Borough for any work performed on Borough vehicles. Truitt did not list his income from such transactions for state or federal income tax purposes until April 4, 1997 when he submitted amended tax returns for the calendar years 1993 through 1996. Lastly, it is stipulated that there is insufficient evidence that Smythe was aware of Truitt's activities regarding use of materials from Delco in performing repairs to Borough Police vehicles. Smythe claims that he was unaware that Truitt was performing such work at Delco and would not have approved of such action. Truitt likewise states that Smythe was unaware of his activities as to repairs of Borough vehicles at Delco. Having summarized the above relevant facts, we must now determine whether the actions of Smythe violated Section(s) 1103(a) of the Ethics Act. In applying the provisions of the Ethics Act to the facts stipulated by the parties, it is necessary that there be clear and convincing proof in order to find a violation. Further, all of the component elements of both Section 1103(a) and (f) must be present in order to establish a violation of these Sections of the Ethics Act. In applying the facts to Section 1103(a), we do not discern any use of authority of office, that is, actions by Smythe as Police Chief, regarding the repairs of Borough Police vehicles. The actions in this case were taken by Public Safety Commissioner Deaver in awarding the contracts to Truitt and by Truitt in performing the repairs. The record before us is devoid of any action and hence use of authority of office by Smythe. Accordingly, we find that Smythe did not violate Section 1103(a) of the Ethics Act as to the repair of the Borough vehicles based upon an insufficiency of evidence. As to Section 1103(f) of the Ethics Act, the contracts, which were $500 or more, in this case were not awarded through an open and public process. However, as to the stipulated findings, there is no showing that such contracting was done by Smythe, 97- 015 -C2 Page 9 Smythe or Delco, the business with which he is associated. Once again, the contracts were made by Public Safety Commissioner Deaver to Truitt. Accordingly, since the facts do not establish any contracting between Smythe or the business with which he is associated and the Borough as to the repair of Borough Police vehicles, we find no violation of Section 1103(f) of the Ethics Act based upon an insufficiency of evidence. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding no violations of Sections 1103(a) and (f) due to insufficient evidence. Upon review, we agree that the Stipulation of Findings does not provide clear and convincing proof of violations and accordingly, this case is closed. IV. CONCLUSIONS OF LAW: 1. Robert F. Smythe, as Chief of Police for Darby Borough, is a public employee subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Smythe did not violate Section 1 103(a) of the Ethics Act as to the repair of Borough police vehicles, due to an insufficiency of evidence. 3. Smythe did not violate Section 1103(f) of the Ethics Act as to contracts for the repair of Borough police vehicles which contracts were $500 or more and not awarded through an open and public process, due to an insufficiency of evidence. In Re: Robert F. Smythe File Docket: 97- 015 -C2 ▪ Date Decided: 2/26/99 ▪ Date Mailed: 3/10/99 ORDER NO. 1122 1. Robert F. Smythe, as Chief of Police for Darby Borough, did not violate Section 1103(a) of the Ethics Act as to the repair of Borough police vehicles, due to an insufficiency of evidence. 2. Smythe did not violate Section 1103(f) of the Ethics Act as to contracts for the repair of Borough police vehicles which contracts were $500 or more and not awarded through an open and public process, due to an insufficiency of evidence. BY THE COMMISSION, frams.)06 DANEEN E. REESE, CHAIR