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HomeMy WebLinkAbout1125 MoyerIn Re: Roger Moyer 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 98- 039 -C2 Order No.1125 6/1/99 6/10/99 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 el 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 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 et seq., 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 §21.29tb). - 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. Mover, 98- 039 -C2 Page 2 I. ALLEGATION: That Roger Moyer, a public official /public employee, in his capacity as a supervisor for Adams Township, Snyder 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 by authorizing repairs to his personal vehicle at township expense; when he repaired township vehicles, submitted and approved bills for payments without an open and public process; when he hired his son and approved payments to him; and when he contracted with his wife for a tractor rental without an open and public process and approved payments to her. 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 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. Moyer, 98- 039 -C2 Page 3 I1. FINDINGS: 1. Roger Moyer served as a supervisor for Adams Township, Snyder County, from January, 1986, through December, 1997. a. Moyer began serving as roadmaster on or about April 1986 and served in that capacity until December 1997. 2. Moyer was appointed roadmaster during annual reorganization meetings of the board of supervisors. 3. Moyer's hourly wage of $7.50 per hour in 1993 and $8.00 per hour from 1994 through 1997 was set by the township auditors. a. The township had one other. permanent part -time employee besides Moyer. 4. Moyer worked an average of 20 hours per week as township roadmaster. 5. Moyer owns and operates a vehicle repair business known as Moyer's Garage, which has been in operation since 1982. 6. During his service as township supervisor Moyer occasionally made repairs to township equipment. a. When Moyer worked on the equipment, he was paid his hourly wage as township roadmaster. 7. On April 23, 1993, Moyer repaired the township truck at his garage. a. Moyer performed the work because he considered it an emergency situation. b. Moyer states that he attempted to have the vehicle in question repaired at two other locations, and completed the repairs himself because the other locations could not complete the repairs in a timely fashion. 8. The Board of Supervisors did not advertise the bids or quotes for the work. 9. Moyer billed the township as follows for repairs to a township truck: Description of Work Amount Regulator $ 86.69 Spacer $ 7.00 Brake Booster $224.50 Regulator $ 45.38 2 Gallons Anti - Freeze $ 10.00 5 Gallons Hydraulic Fluid Drums $197.52 Brake Fluid $ 8.00 Labor $168.00 TOTAL $ 747.09 The labor charged by Moyer was not in his capacity as township roadmaster. Mover, 98- 039 -C2 Page 4 10. The following confirms payment made by the township to Moyer for the repairs made to the township vehicle and the action taken by Moyer as a supervisor to approve the payment as part of the bill list. Check Date of Amount Meeting Action By Moyer Check of Check Date & Vote to Approve Bill List 2641 05/03/93 $747.09 05/03/93 3 -0 (unanimous) 11. Moyer co- signed the township check with the township secretary made payable to himself in his capacity as a supervisor. 12. Adams Township does not have full -time road department employees. a. Part-time workers are hired on an "as needed" basis except for one permanent part-time employee. 13. During emergency situations in 1993 and 1996, Adams Township hired additional personnel to help with road related work. 14. Roger Moyer, Jr., son of Roger Moyer, worked as a part-time employee for the township in 1996 and did work as an independent contractor for the township in 1993. a. Roger Moyer took part in the decision to hire his son on a part-time basis. 15. Roger Moyer, Jr., submitted an invoice to Adams Township dated March 16, 1993, in an amount of $250.00. a. The invoice described labor on township trucks and a loader on a Saturday, Sunday and Monday. 16. Roger Moyer, Jr., was employed on a part-time basis by Adams Township in 1996. a. Roger Moyer took part in the hiring of his son, which occurred without .. formal board approval. 17. Roger Moyer, Jr., was hired in 1996 to assist with snow removal. 18. The following payments were made to Roger Moyer, Jr., for the work he did for Adams Township and the action that was taken by Roger Moyer as a supervisor to approve the payments as part of the bill list: Check Date of Amount Meeting Action by Moyer & Vote Number Check of Check Date to Approve Bill List 2613 03/06/93 $250.00 04/01/93 3 -0 (unanimous) 3295 02/01/96 $507.61 02/01/96 - 3 -0 (unanimous) TOTAL $757.61 19. Moyer co- signed the township checks made payable to his son in his capacity as a supervisor. 20. In 1993 Adams Township was considering purchasing a tractor to be used to drag township roads. Moyer, 98- 039 -C2 Page 5 a. Adams Township has approximately a total of 23 miles of roads, 12 of which are dirt. 21. After pricing tractors, the Board of Supervisors decided to rent a tractor for use by the township. a. The average rental rate for a tractor in the vicinity of Adams Township was $30 per hour. b. The board took action to rent any tractor at the rate of $15 per hour. 22. Roger Moyer took part in the decision of the township board of supervisors to rent a tractor owned by his wife, Terry Moyer, at a rate of $15.00 per hour. 23. The following bills were submitted to Adams Township from Terry Moyer for the tractor rental: Invoice No. Date . Amount 2638 2757 3024 3139 3400 05457 05458 05459 05460 05461 Check Date of Num er Check 05/03/93 11/04/93 12/01/94 06/01/95 07/08/96 TOTAL 04/25/93 10/05/93 11/19/94 05/30/95 06/26/96 Amount Meeting of Check Date $ 300.00 05/03/93 $ 240.00 11/04/93 $ 255.00 12/01/94 $ 255.00 06/01/95 $ 300.00 07/08/96 $1,350.00 $ 300.00 $ 240.00 $ 255.00 $ 255.00 $ 300.00 TOTAL $1,350.00 24. The following confirms payments made to Terry Moyer and the action taken by Roger Moyer to approve the payments as part of the bill list: Action by Moyer & Vote to Approve Bill Lists 3 -0 (unanimous) Made Motion /3 -0 (unanimous) Second Motion /3 -0 (unanimous) Second Motion /3 -0 (unanimous) 3 -0 (unanimous) 25. Roger Moyer co- signed the township checks made payable to Terry Moyer in his capacity as supervisor. 26. In February 1994, Roger Moyer had an accident while operating the township front -end loader. a. The brakes on the loader malfunctioned causing Moyer to hit his vehicle a 1983 Subaru, which was parked in the lot. b. There was extensive damage done to Moyer's Subaru Brat, but it was not totaled. 27. Moyer advised the other supervisors about the accident. Moyer, 98- 039 -C2 Page 6 a. Moyer made arrangements to have his vehicle repaired at Van Horn's Auto Body after an estimate was taken to a township meeting and the board directed Roger Moyer to get it repaired. 28. The following repairs were made to Moyer's 1983 Subaru Brat at Van Horn's Auto Body: Description of Work Cost of Parts Labor Time Refinish Time Grille $106.25 0.4 Right Head Lamp Door $ 35.00 0.3 Left Head Lamp Door $ 35.00 0.3 - -- Right Front Fender $ 49.00 2.5 2.8 Hood $125.00 0.9 4.0 Radiator $198.00 0.9 Rear Bumper $140.57 1.0 1 Gallon Anti - Freeze $ 4.50 Paints & Materials $101.40 - -- --- 6.2 hours @ 6.8 hours @ $28 /hour $28 /hour $794.72 $173.60 $190.40 TOTAL: $1,228.24 29. Van Horn's Auto Body billed Adams Township by invoice dated March 1, 1994, for the work done to Moyer's Subaru Brat: invoice Number Date Amount 1083 03/01/94 $1,228.24 30. Although payment was made by the township for repairs to Moyer's vehicle, there is insufficient evidence to establish that Moyer realized a pecuniary benefit from the repairs made to his vehicle. 31. Adams Township is a rural township, with no municipal building. a. Township meetings are held at the secretary's private residence. 32. Roger Moyer's actions, in approving payments and co- signing checks as an Adams Township Supervisor, resulted in a private pecuniary benefit for himself and members of his immediate family (son and wife). 33. Moyer maintains that any violations of the Ethics Act which occurred by virtue of his actions were unintentional in that he had no knowledge that he should not participate in votes approving the payments and that he could not co -sign the checks. 111. DISCUSSION: At all times relevant to this matter, the Respondent, Roger Moyer, hereinafter Moyer, has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, seg. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et seq. The issue is whether Moyer violated Sections 1103(a) and 1103(f) of the Ethics Act as to the allegation that he used the authority of his office for a private pecuniary Mover, 98- 039 -C2 Page 7 benefit by authorizing repairs to his personal vehicle at township expense; when he repaired township vehicles, submitted and approved bills for payments without an open and public process; when he hired his son and approved payments to him; and when he contracted with his wife for a tractor rental without an open and public process and approved payments to her. Section 1103(a) quoted above 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) quoted above 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. Moyer served as an Adams Township Supervisor and Roadmaster from 1986 through December 1997. In a private capacity Moyer owns and operates a vehicle repair business known as Moyer's Garage. During his service as a Township Supervisor, Moyer occasionally made repairs on Township equipment for which he was paid his hourly wages as Road master. In April 1993, Moyer repaired a Township truck at his garage. Moyer did the repairs at his garage because it was an emergency situation and two other repair businesses that he contacted could not complete the work in a timely fashion. The work was done without any advertisement for bids by the Board of Supervisors. Moyer performed repairs on the Township truck and submitted a bill which totaled $747.09. At a meeting at the Township Board of Supervisors on May 3, 1993, Moyer participated in approving the payment of $747.09 to his business and co- signed the Township check made payable to himself. Because the Township does not have full -time road department employees, part- time workers are hired on an as- needed basis. During emergency situations in 1993 and 1996, Moyer's son Roger Jr. was hired to work as a part-time employee or as an independent contractor. Such hiring was done with Moyer's participation and without formal Board approval. Moyer participated in Board actions to approve payments as part of bill lists to his son. In addition Moyer co- signed the Township checks made payable to his son which totaled $757.61. In 1993 Adams Township considered purchasing a tractor for dragging Township roads. Due to the expense of purchasing a tractor, the Board of Supervisors then decided to rent a tractor. Moyer took part in the decision of the Township Board to rent a tractor owed by his spouse at a rate of $15 per hour. The average rental rate for a tractor in that vicinity was $30 an hour. The tractor was used approximately five times and bills were submitted to the Township. No bill equaled or exceeded the $500 contracting threshold of the Ethics Act. The total amount billed the Township for the Moyer, 98- 039 -C2 Page 8 tractor rental was $1350. Moyer participated in Board actions to approve payments including the invoices for the tractor rentals. In addition, Moyer co- signed the Township checks made payable to his spouse. Moyer's actions in approving payments and co- signing checks for himself, his son or his spouse resulted in private pecuniary benefits. Moyer maintains that any violations of the Ethics Act were unintentional and that he had no knowledge that he should not participate in voting to approve payments or in co- signing checks. Having summarized the above relevant facts, we must now determine whether the actions of Moyer violated Section(s) 1103(a) of the Ethics Act. In applying the provisions of Section 1103(a) of the Ethics Act of the instant matter, there were uses of authority of office on the part of Moyer. But for the fact that Moyer was a Supervisor, he could not have participated in actions of the Board to approve payments to himself, his son and his spouse. In addition, Moyer co- signed checks in payment to himself and members of his immediate family. Such actions constituted uses of authority of office. See, Juliante, Order 809. The uses of authority of office resulted in private pecuniary benefits consisting of the payments made by the Township for the services rendered by Moyer, his son and spouse. Lastly, the private pecuniary benefits inured to Moyer individually, his son and spouse who are members of his immediate family as that term is defined under the Ethics Act. See 65 Pa.C.S. 1102. Accordingly, Moyer violated Section 1103(a) of the Ethics Act when he participated in votes to approve payments and co- signed checks to himself, his son and his spouse for services provided to the Township. Regarding Section 1103(f) of the Ethics Act, we find no violation of the contracting provision of the Ethics Act based upon an insufficiency of evidence. As to the services provided, the record does not reflect a breakdown on a contract basis as to the provision of such services. Consequently, it cannot be discerned whether any particular contract equaled or exceeded the $500 threshold of Section 1103(f). On that basis we find no violation of Section 1103(f). The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding a violation of Section 1103(a), no violation of Section 1103(f); and a payment of $1000.00 by Moyer through this Commission to Adams Township. Accordingly, Moyer is directed to make such payment of $1,000 in a timely manner. 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. Lastly, as to the Stipulation of Findings and Consent Agreement filed by the parties, 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. Roger Moyer, as a Supervisor in Adams Township, Snyder County, was a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Moyer violated Section 1103(a) of the Ethics Act when he participated in votes of the Board of Supervisors to approve payments and co- signed Moyer, 98- 039 -C2 Page 9 checks payable to himself, his son and his spouse for services provided to the Township. 3. Moyer did not violate Section 1103(f) of the Ethics Act regarding the provision of services by himself and members of his immediate family to the Township based upon an insufficiency of evidence. In Re: Roger Moyer ORDER NO. 1125 File Docket: 98- 039 -C2 Date Decided: 6/1/99 Date Mailed: 6/10/99 1. Roger Moyer, as a Supervisor in Adams Township, Snyder County, violated Section 1103(a) of the Ethics Act when he participated in votes of the Board of Supervisors to approve payments and co- signed checks payable to himself, his son and his spouse for services provided to the Township. 2. Moyer did not violate Section 1103(f) of the Ethics Act regarding the provision of services by himself and members of his immediate family to the Township based upon an insufficiency of evidence. 3. As per the Consent Agreement of the parties, Moyer is directed to make payment in the $ 1,000 through this Commission to Adams Township, Snyder County in a timely manner. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, 066 etta.L.) DANEEN E. REESE, CHAIR