HomeMy WebLinkAbout1136 DzurkoIn Re: Anthony Dzurko
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- 043 -C2
Order No. 1136
9/30/99
10/13/99
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. 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 el 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 §21.29(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.
Dzurko, 98- 043 -C2
Page 2 -
I. ALLEGATION:
That Anthony Dzurko, a public official /public employee, in his capacity as
Assistant District Engineer- Construction for District 12 -0 of PennDOT, violated Section
3(a) of the Public Official and Employee Ethics Law (Act 9 of 1989 as codified by Act
93 of 1998, 65 P.S. § 1103(a)) when he used the authority of his office for the private
pecuniary benefit of a member of his immediate family and /or a business with which
a member of his immediate family is associated by approving supplemental work
orders and payments for Golden Eagle Construction Company, a business in which his
brother is a principle; and when he discussed work orders and /or changes for
construction projects with his brother.
II. FINDINGS:
1. Anthony Dzurko (Dzurko) served as the Assistant Highway District Engineer -
Construction, Engineering District 12 -0, Department of Transportation, from
April 1991 through November 1998, when he retired.
a. Dzurko had been employed by District 12 -0 for twenty -nine years.
b. Dzurko reported directly to the District Engineer, Michael Dufalla.
2. Dzurko's job description included, in part, the following duties which were'
carried out through employees within Dzurko's chain of command.
Directs work order preparation resulting from contract changes relating
to quantity or unit price adjustments;
- Directs the investigation and resolution of citizen complaints associated .
with construction projects;
Manages and administers activities associated with the District's
construction inspection, bridge structural control, soils and materials
inspection;
Directs, advises, and controls activities in supervision and inspecting
construction materials and workmanship;
- On a highway construction project, performs a variety of inspection and
testing duties to assure conformance with contract requirements and
established specifications.
3. Dzurko was responsible, along with other employees, for signing documents
relating to contract work, including the following:
Work Orders - authorization for additional or extra work (Form CS373);
Estimates - authorization for incremental payments (ID -055 Reports);
Contractor Performance Appraisals;
Correspondence;
Final Settlement Certificates releasing contractors of project
responsibility.
Dzurko, 98- 043 -C2
Page 3 -
4. As part of his responsibilities, Dzurko is required to sign Work Orders which
authorize the performance of additional or extra work on a force account basis.
a. Additional work is that of a type already provided by the contract and for
which a unit price is established in the contract.
b. Extra work is that arising from changes which result in a significant
increase or decrease in the cost of performing the work and work having
no quantity and /or price included in the contract which is determined by
the District Engineer to be necessary or desirable to complete the project.
c. Extra work on a force account basis is that work which is defined as
extra work (see (b) above) which the contractor and District Engineer
cannot agree on a tentative price, necessitating that force account
records be kept by both parties.
1. Force account requires records to be kept on wages, material, and
equipment.
5. Work Orders detail the type of work to be done and the prices and are generally
processed in the following manner:
a. The Project Engineer, usually after consulting with an inspector, initiates
the process by determining the extent of the change or addition of work
and identifies the potential cost factor.
b. The Project Engineer or Inspector notifies the Assistant Construction
Engineer assigned to the project for verbal approval. In the Assistant's
absence, Dzurko may be notified.
c. Each project has at least one Inspector and one Project Engineer,
approximately ten to fifteen projects are supervised by an Assistant
Construction Engineer, who, in turn, has authority for approval of work
order changes.
d. Maintenance verbally verifies the availability of the funds. If the funds
are not available, the Work Order is not generated.
e. The Project Engineer or Inspector completes the necessary paperwork
and signs off on it.
f. The Assistant Construction Engineer then reviews the Work Order for
clarity, accuracy, and cost justification.
The Work Order is sent to the Documentation Unit for review and
signature.
h. The Programmer for the Maintenance Unit (Fiscal Officer) receives the
Work Order and signs off on it.
i. It is then sent back to the Documentation Unit to be input into the
computer. A Work Order sheet is generated and sent to Dzurko. Backup
documentation does not accompany the Work Order sheet supplied to
Dzurko.
g.
Dzurko. 98- 043 -C2
Page 4 - •
j•
Dzurko signs off on the Work Order sheet, which is then forwarded to
the District Engineer for his signature.
k. A copy of the Work Order is sent to the Project Engineer or Inspector,
which serves as notice of approval to pay.
I. The Project Engineer or Inspector documents this in the field diary and
prepares an Estimate Binder (ID -055 Report) for payment which is
submitted to Dzurko for his signature.
m. The Estimate is sent to the Finals Unit where it is input into the system.
n. Dzurko's signature on the Estimate is the authorization for input into the
system, which occurs prior to Harrisburg preparing the payment.
6. Golden Eagle Construction Company, Inc., (Golden Eagle) is a paving contractor
located in Uniontown, PA, in District 12 -0.
7. Golden Eagle has regularly been awarded PENNDOT paving contracts in District
12 -0 through a bid process.
a. Highway construction contracts are awarded through a bidding process
handled out of the PENNDOT offices in Harrisburg.
b. All contractors must be precertified by PennDOT to bid on contracts.
c. District 12 -0 is not involved in the bidding process or awarding of
contracts.
8. Dzurko's brother, John Dzurko, has been employed by Golden Eagle
Construction Company, Inc., for approximately seventeen years.
a. John Dzurko is not a partner, owner, or stockholder in Golden Eagle.
9. John Dzurko holds the positions of Estimator (Engineer /Bidder); Safety Officer;
and EEO Officer. His duties include the following, in part:
Obtaining plans of upcoming jobs and working up the quantities, number
of days, and amount of materials for the job;
Hand carrying the bid to Harrisburg and staying for the bid letting;
Handling correspondence and phone calls;
Preparation of Daily Cost Reports for each job the company is working
on;
Tracking all invoices to verify materials used against quantities they are
billed for.
10. Pricing for all jobs worked by Golden Eagle is handled by William Snoddy and /or
his son based on the estimates compiled by John Dzurko.
a. Golden Eagle Superintendent, Robert Carcelli, negotiates the price for
extra or additional work the majority of the time.
Dzurko, 98- 043 -C2
Page 5 -
11.
Twenty -four contracts were awarded to Golden Eagle between January 1994
and October 1997, according to records of the PA Department of
Transportation, Bureau of Construction & Materials Contract Management
Division.
a. The majority of the contracts are for "group jobs" awarded to Golden
Eagle.
12. Any additions or deletions to a contract must be documented through a Work
Order.
13. Work Orders reflect the cost of the addition or deletion; total of previous Work
Orders; original contract amount; current contract amount; and the total
percentage of Work Orders.
14. Anthony Dzurko signed off on approvals for payment on 12 supplemental work
orders submitted by Golden Eagle in 1997 relating to work being performed on
five contracts; Nos. 125207, 121120; 121141; 12115 and 125202.
a. Some related documents submitted in the work orders were signed by
Dzurko's brother, John Dzurko.
b. Correspondence from Golden Eagle to Anthony Dzurko, in his capacity as
Assistant Highway Engineer, in relation to the Work Orders was signed
by John Dzurko.
15. Contract #125207 (Group #12- 97- SI1 -2), awarded July 18, 1997, was a
surface improvement contract calling for the construction of two inches of
bituminous wearing course ID -2 on all, or portions of, state roads in New
Alexandria Borough, Derry Township; Ligonier Borough, Ligonier Township; East
Huntingdon Township; Rostraver Township; North Belle Vernon Borough;
Allegheny Township; Rostraver Township; Hempfield Township; North
Huntingdon Township; and Penn, Salem Townships; and Belle Vernon Borough.
16. Group jobs (surface improvement contracts) such as contract no. 125207
usually necessitated numerous Work Orders because the jobs did not include the
same amount of planning and detail that went into 3R projects (single highway).
a. Group jobs included many small paving projects were "grouped" together
under one contract.
b. 3R projects require more in -depth construction and, as a result, are
designed better than group jobs.
17. Work Orders for Contract #125207 included the following:
a. Some of the work was performed by subcontractors of Golden Eagle
Construction Company.
a. Work Order #1, dated 10/14/97 and initialed by Dzurko, approved
supplemental work in the amount of $372,349.19. The following items
were included:
Pavement base drain - extra depth
B.C.B.C. Special
Protective fabric membrane
172,961.40
52,366.30
126,321.49
Dzurko, 98- 043 -C2
Page 6 -
Additional M &P of traffic 14,800.00
Additional mobilization - SR 0022 5.900.00
TOTAL: 372,349.19
1. John Dzurko signed a 9/29/97 letter addressed to Dzurko in which
Golden Eagle submitted their Cost Justification For Additional
Maintenance & Protection of Traffic and Mobilization.
2. John Dzurko signed the Authorization For Contract Work, dated
8/25/97, which initiated the Work Order process.
b. Work Order #2, dated 10/15/97 and initialed by Dzurko, approved
supplemental work in the amount of $267,863.62. The following items
were included:
Milling of bituminous pavement surface 17,528.39
Hauling of milled material 5,240.45
Base replacement in rigid concrete pavement 3,834.93
Bituminous wearing course 5 -D, scratch 241.259.85
TOTAL: 267,863.62
1. John Dzurko signed the Final Summary along with the Daily Labor
Breakdown and Daily Equipment Breakdown as the additional work
was completed on a force account basis.
2. John Dzurko signed the Authorization For Contract Work, dated
8/10/97, which initiated the Work Order process.
c. Work Order #3, dated 1/6/98 and initialed by ADE - Maintenance, Charles
Thompson, approved supplemental work in the amount of $48,118.23.
The following items were included:
Shoulder backfill $34,012.60
Protective fabric membrane $ 2,121.12
Mill asphalt pavement at bridge deck $ 6,275.91
Expansion dams
Milling of high areas on SR0022 $ 3,603.65
Additional traffic control on SR 0022 $ 2,104.95
to place shoulder backup
TOTAL: $48,118.23
1. Three Final Summaries were submitted on the Work Order which
were signed by John Dzurko. The force account work included:
Milling of asphalt paving at bridge deck expansion dams;
Removal of high spots by milling;
Traffic control to base shoulder backfill.
2. John Dzurko also signed the Daily Labor and Equipment
Breakdown on behalf of Golden Eagle.
3. John Dzurko signed the Authorization For Contract Work, dated
8/14/97, which initiated the Work Order process.
Dzurko, 98- 043 -C2
Page 7 -
18. Anthony Dzurko signed off on nine of the twenty -one Estimates submitted on
Contract #125207, relating to payments to Golden Eagle totaling
$1,772,216.78. Estimates signed by Dzurko are as follows:
#1 08/19/97 528,214.04
2 09/05/97 330,948.93
4 10/07/97 2,050.00
5 10/16/97 770,470.21
6 10/31/97 76,883.99
7 11/21/97 9,029.44
8 12/18/97 8,803.91 (facsimile)
14 09/02/98 44,721.46
17 11/03/98 1,094.80 (co- signed by
Dufalla)
19. Contract #121115 (Group #12 -94 -511), awarded 9/16/94, was a surface
improvement contract calling for the milling of existing bituminous pavement,
construction of 1-1/2" bituminous wearing course, leveling course, SRL -G on
3" bituminous binder course, ID -2 leveling course, drainage improvements, and
pavement markings on state roads in Springfield and Saltlick Townships in
Fayette County.
20. Six Work Orders under Contract #121115 initialed by Dzurko included the
following:
a. Some of the work was performed by subcontractors of Golden Eagle
Construction Company.
- b. Work Order #1, initialed and dated by Dzurko on 1/17/95, approved
supplemental work in the amount of $51,059.50. The following items
were included:
Class 1 excavation
18" perforated corrugated polyethylene
Culvert pipe, type SP, includes
excavation and backfill
Type M inlet
6" pipe underdrain
Type S inlet
TOTAL:
$ 1,449.00
$32,312.50
$ 1,475.00
$ 2,548.00
$13,275.00
$51,059.50
1. The Authorization For Contract Work was signed by John Dzurko
on behalf of Golden Eagle on 1/3/95. Included were the items
noted above.
c. Work Order #2, initialed and dated by Dzurko on 2/11/95, approved
supplemental work in the amount of $4,217.39. The following item was
included:
Additional M &P of traffic 1994(subcontractor) $4,217.39.
1. John Dzurko signed the Authorization For Contract Work on
12/9/94 as Project Manager for Golden Eagle. Included was the
item noted above.
Dzurko, 98- 043 -C2
Page 8 -
d. Work Order #3, initialed by Dzurko on 4/14/95, approved supplemental
work in the amount of $4,500.00. The following item was included:
Inspectors Field Office and facilities, Type C $4,500.00.
1. John Dzurko signed the Authorization For Contract Work on
11/29/94. Included was the item noted above.
e. Work Order #4, initialed by Dzurko on 5/4/95, approved supplemental
work in the net amount of $7,780.93, including $66,559.40 in additions
and $58,778.47 in deductions. The following items were included:
Additions:
Bituminous wearing course, ID -2, leveling $40,275.00
course, SRL -G' •
Bituminous tack coat $ 87.16
Heavy duty membranes $ 5,694.30
Patching joint $ 1,926.00
Accelerated concrete pavement patching $ 9,618.75
Type A, 9" depth
Subgrade drains $ 525.00
Milling of bituminous pavement surface $ 8,433.19
6" depth
TOTAL: $66,599.40
Deletions:
Bituminous concrete base course $54,625.00
Milling of bituminous pavement surface $ 1,922.82
variable depth
18" reinforced cement concrete pipe, $ 150.00
Class I1 (open joint), includes
excavation and backfill
4" pavement base drain $ 1,503.80
Hauling of milled material $ 576.85
TOTAL: $58,778.47
1. John Dzurko signed the Authorization For Contract Work on
3/20/95 for the work identified above as "additions."
f. Work Order #5, initialed by Dzurko on 5/23/95, approved supplemental
work in the net amount of $29,743.95, including additions of
$45,328.60 and deletions of $15,584.65. The following items were
included:
Additions:
Class 1 excavation
Bituminous wearing course, ID -2, leveling
course, SRL -G
Milling of bituminous pavement surface
variable depth
Sawing and sealing of bituminous overlays
Shoulder backfill
Short -term pavement markings, paint and
beads, yellow
Hauling of milled material
Asphalt adjustment
$ 568.75
$ 14,024.56
$ 153.07
$ 2,025.00
$ 4,631.55
$ 7,895.04
$ 45.92
$ 15,984.71
Dzurko, 98- 043 -C2
Page 9 -
g.
TOTAL:
Deletions:
Cleaning existing ditches
Bituminous concrete base course
Bituminous binder course, ID -2, leveling
course
Cleaning existing pipe culverts, diameters
up to and including 36"
Standard pavement markings, paint and
beads, yellow
Standard pavement markings, paint and
beads, yellow
TOTAL:
$ 45,328.60
$ 360.00
$ 3,623.36
$10,495.39
$ 549.50
$ 504.72
$ 51.68
$ 15,584.68
1. No supporting documentation accompanied Work Order #5.
Work Order #6, initialed by Dzurko on 6/5/95, approved supplemental
work in the amount of $20,429.85. The following item was included:
Shoulder backup $ 20,429.85
TOTAL: $20,429.85
1. John Dzurko's name does not appear on any of the supporting
documentation.
21. Anthony Dzurko signed off on nine of the Estimates submitted on Contract
#121115, relating to payments to Golden Eagle totaling $1,036,653.60.
Estimates signed by Dzurko are as follows:
#1 01/03/95 $116,734.10
2 01/26/95 $ 51,059.50
3 02/28/95 $ 4,217.39
4 04/04/95 $104,030.31
5 04/19/95 $116,620.93
6 05/01/95 $272,669.06
7 05/15/95 $306,463.86
8 06/09/95 $ 20,429.85
9 06/30/95 $ 45,328.60
TOTAL $1,036,653.60
22. On 5/22/95, Anthony Dzurko advised Golden Eagle of a Semi -Final Inspection
conducted on Project #12- 94 -S11 (Contract #121115).
a. Golden Eagle was represented at the meeting by John Dzurko.
b. District 12 -0 was represented by Anthony Dzurko; John Knapik; Robert
Randolph; B. Hart; Joyce Susa; an R. Janoski.
c. The ACE and Project Manager confirmed that all items were completed
and accepted on 5/26/95.
d. Dzurko. advised Golden Eagle that they were relieved of any further
maintenance responsibilities as of 5/26/95.
Dzurko, 98- 043 -C2
Page 10 -
23. On 7/21/95, a Contract Time Extension Request on Contract #121115 for 24
additional days to allow Golden Eagle to complete the work without penalty was
prepared by District 12 -0.
a. The Extension Request was filed by George Kaiser and reviewed by
Dzurko.
d. The Extension Request must be approved by PennDOT's main office in
Harrisburg.
24. Contract #121120, awarded 7/5/95, was a surface improvement contract
calling for the construction of bituminous surface courses, including concrete
patching, drainage, and traffic line painting, on state roads in Georges and
South Union Townships; Bullskin and Upper Tyrone Townships; the City of
Uniontown; Wharton and Stewart Townships; North Union Township; Dunbar
and North Union Townships; Washington Township and Belle Vernon Borough;
Saltlick Township.
25. Under Contract #121120, 27 Work Orders were authorized by Anthony Dzurko,
including $1,084,825.62 in additions, $614,110.64 in deductions, resulting in
net additions of $470,714.98.
b. The Extension Request, required to be approved by the District Engineer,
reflected the signature of Michael Dufalla.
c. On 7/21/95, Dzurko signed off on the Acceptance Certificate, indicating
that the project was completed in accordance with the requirements of
the contract.
a. The Authorization for Contract Work on 17 of the 27 Work Orders was
signed by John Dzurko on behalf of Golden Eagle.
b. Robert Carcelli signed four of the Authorization for Contract Work Forms
on behalf of Golden Eagle.
c. Six of the Work Orders did not include Authorization for Contract Work
forms.
26. Work Orders for Contract #121120, authorized by Dzurko's for Contract Work
on behalf of Golden Eagle are as follows:
27. Correspondence in relation to Contract #121120 was generated by John Dzurko
and William Snoddy on behalf of Golden Eagle.
28. Anthony Dzurko signed off on twenty -three of the twenty -six Estimates
submitted on Contract #121120, relating to payments to Golden Eagle totaling
$3,871,382.31. Estimates signed by Dzurko are as follows:
#2 10/03/95 $352,523.37
3 10/17/95 358,343.13
4 11/01/95 575.082.90
5 11/21/95 266,245.59
7 01/10/96 36,567.63
8 01/24/96 19,565.17
9 02/09/96 7,226.60
10 03/05/96 18,052.15
Dzurko, 98- 043 -C2
Page 11 -
11 03/29/96 60,111.75
12 04/18/96 141,383.49
13 05/01/96 179,536.06
14 05/21/96 125,074.54
15 06/05/96 25,538.05
16 07/01/96 396,146.20
17 07/10/96 179,491.07
18 07/12/96 155,327.13
19 08/08/96 -- (Funding source adj.)
20 08/06/96 105,249.60
21 08/19/96 83,1 11.57
22 08/28/96 200,434.53
23 11/2 /96 194,618.01
24 12/1B/96 38,783.14
25 02/04/97 1,218.60
29. Contract #125202, awarded 4/10/97, was a surface improvement contract
calling for the widening of existing pavement; surfacing of the new widening
and existing pavement; and construction of drainage on State Route 3031,
South Huntingdon, with an overall project length of 0.89 miles (4,714 feet).
30. Ten of the eleven Work Orders under Contract #125202 were signed off by
Anthony Dzurko and resulted in net additions of $29,738.55 and net deductions
of $19,006.60 for a total increase over the contract amount of $10,731.95.
The ten Work Orders are as follows:
a. Work Order #1, initialed and dated by Dzurko on 5/23/97, approved
supplemental work in the amount of $4,944.75. The following item was
included:
Class 1 excavation $ 4,944.75
1. The Authorization for Contract Work was signed by John Dzurko
on behalf of Golden Eagle on 5/16/97. Included was the item
noted above.
b. Work Order #2, initialed and dated by Dzurko on 6/11/97, approved
supplemental work in the amount of $13,537.65. The following items
were included:
Class 1 excavation
Class 2 excavation
Bituminous concrete base course 4" depth
Subbase 8" depth
18" perforated thermo- plastic pipe
8` -2' fill includes excavation and
backfill
Type S inlet
TOTAL:
$ 99.75
$ 115.00
$ 38.70
$ 34.30
$10,350.00
$ 2,900.00
$13,537.65
1. The Authorization for Contract Work was signed by John Dzurko
on behalf of Golden Eagle on 5/19/97. Included were the items
noted above.
Dzurko, 98- 043 -C2
Page 12 "
c. Work Order #3, initialed and dated by Dzurko on 6/19/97, approved
supplemental work in the amount of $4,320.00. The following item was
included:
Topsoil $ 4,320.00
1. The Authorization for Contract Work was signed by John Dzurko
on behalf of Golden Eagle on 5/27/97. Included was the item
noted above.
2. John Dzurko signed a 6/4/97 letter on behalf of Golden Eagle
agreeing to perform the extra work as noted above. The letter
was addressed to the attention of Anthony Dzurko.
d. Work Order #4, initialed and dated by Dzurko on 7/1/97, approved
supplemental work in the amount of $3,284.72. The following item was
included:
18" solid plastic pipe $3,284.72
1. The Authorization. for Contract Work was signed by John Dzurko
on behalf of Golden Eagle on 5/20/97. Included was the item
noted above.
e. Work Order #5, initialed and dated by Dzurko on 7/1/97, approved
supplemental work resulting in a net deduction of $5,868.11, including
$2,466.36 in additions and $8,334.47 in deductions. The following
items were included:
Additions:
Class 1 excavation
Class 2 excavation
Bituminous concrete base course,
4" depth
Subbase, 8" depth
Deletions:
Unforeseen water pollution control
Silt barrier fence, 18" height
Standard inlet protection
18" perforated plastic pipe
Bituminous binder course, leveling
course
f. Work Order #6, initialed and dated by Dzurko on 7/25/97, approved
supplemental work resulting in a net deduction of $2,002.55, including
$2,921.30 in deductions and $918.75 in additions. The following items
were included:
Additions:
Bituminous tack coat
Plain cement concrete pavement,
TOTAL:
TOTAL:
$ 942.64
$ 20.24
$ 1,096.50
$ 406.98
$ 2,466.36
$ 500.00
$ 3,877.50
$ 250.00
$ 241.50
$ 3,465.47
$ 8,334.47
128.79
240.00
Dzurko, 98- 043 -C2
Page 13 -
g.
j•
6" depth
Rock, Class R -4 $ 261.96
Topsoil $ 288.00
TOTAL: $ 918.75
Deductions:
Class 1 excavation $ 8.55
Subbase, 8" depth $ 36.25
Bituminous wearing course $ 2,523.16
Seeding and soil supplements $ 167.34
Mulching hay $ 186.00
TOTAL: $ 2,921.30
Work Order #7, initialed and dated by Dzurko on 7/25/97, approved
supplemental work in the amount of $285.01. The following item was
included:
Remove bituminous curb (force account) $285.01 .
1. The Final Summary sheet was submitted under the signature of
John Dzurko, on behalf of Golden Eagle, certifying the labor and
equipment costs of the work identified above which was
performed as a force account.
h. Work Order #8, initialed and dated by Dzurko on 8/6/97, approved
supplemental work in the amount of $3,237.60. The following item was
included:
Plain cement concrete pavement, $3,237.60
6" depth
i. Work Order #9, initialed and dated by Dzurko on 11/21/97, approved
supplemental work resulting in a deduction of $11,135.94, including
$5,776.56 in additions and $16,912.50 in deductions. The following
items were included:
Additions:
Price adjustment for geotextile
Price adjustment for pavement
base drain
Deletions:
Geotextile, Class 1
Pavement base drain
Subsurface drain outlets
Rebate for concrete pavement,
6" depth
TOTAL:
TOTAL:
$ 1,708.56
$ 4,068.00
$ 5,776.56
$ 2,651.60
$13,486.20
$ 370.00
$ 404.70
$16,912.50
Work Order #10, initialed and dated by Dzurko on 1/16/98, approved
supplemental work in the amount of $128.82. The following item was
included:
Class 1 excavation $ 128.82
Dzurko, 98- 04 -C2
Page 14 -
k. Work Order #11 was not authorized by Dzurko.
31. Anthony Dzurko signed off on six of the nine Estimates submitted on Contract
#125202, relating to payments to Golden Eagle totaling $297,375.30.
Estimates authorized by Dzurko are as follows:
06/02/97 $130,741.74
06/10/97 $ 83,596.69
06/30/97 $ 57,049.07
07/09/97 $ 16,462.58
10/15/97 $ 4,153.36
02/02/97 $ 5,371.86
a. The three Estimates not signed by Dzurko totaled $1,758.39.
32. Contract #121141 awarded 7/29/97 was a surface improvement contract
calling for the construction of 1.5" bituminous wearing courses, including minor
shoulder work, milling, concrete pavement patching, and pavement markings,
on all or portions of state roads in Dunbar Township; Franklin Township;
Bullskin Township; North Union Township; Stewart Township; Henry Clay
Township; Saltlick Township; Perryopolis Borough and Rostraver Township.
33. All five Work Orders under Contract #121141 were signed by Dzurko and
resulted in net additions of $1,014,528.20 and net deductions of $394,568.19,
for a total increase over the contract amount of $619,960.01.
34. Work Orders reviewed under Contract #121141 included the following:
a. Work Order #1, dated 10/16/97 and initialed by Dzurko, approved
supplemental work in the amount of $497,810.51, including
$539,635.47 in additions and $41,824.96 in deductions. The following
items were included:
Additions:
Bituminous concrete base course
Patching joint
Concrete pavement patching, Type B
Concrete pavement patching, Type C
Milling of bituminous pavement
surface, 4"
Bituminous wearing course ID -3,
leveling
Bituminous milling 4' to 6' width,
4" depth
B.C.B.C. backfill of 4' to 6' milled
area
Subbase No. 2A (C.Y.)
Subgrade drains
Class 1B excavation
Deductions:
New pavement joint
Concrete pavement patching,
Type A, 9" depth
TOTAL:
$226,579.92
$ 4,986.00
$ 21,992.50
$ 18,974.40
$ 46,003.70
$197,100.00
$ 3,921.00
$ 18,186.30
$ 596.02
$ 682.08
$ 613.55
$539,635.47
$ 200.00
$ 41,624.96
TOTAL: $ 41,924.96
Dzur ko, 98- 043 -C2
Page 15
1. John Dzurko signed the Authorization for Contract Work as a
Golden Eagle representative on or about 3/25/97. The extra work
included: Subbase No. 24 (C.Y.); subgrade drain; Class 1B
excavation.
2. A second Authorization for Contract Work dated 3/27/97 does not
contain the signature of a Golden Eagle representative. The
addition work included: milling of bituminous pavement surface,
4" depth; ID -3 wearing, leveling; B.C.B.C.
a. This work related to a project that was added to the
contract after it was awarded, with authorization from the
Deputy Secretary for Highway Administration, under District
Engineer Michael Dufalla's signature.
b. Work Order #2, initialed and dated by Dzurko on 1 2/2/97, approved
supplemental work in the amount of $92,25.55, including $$402,473.30
in additions and $310,347.75 in deductions. The following items were
included:
Additions:
Bituminous wearing course, $168,826.41
ID -3 leveling
Bituminous milling 4' to 6' width, $ 36,067.32
4" depth
B.C.B.C. backfill of 4' to 6' milled $181,978.29
area
Concrete patching price adjustment $ 8,832.92
Mountable curb $ 5,153.96
Rebuilt inlet $ 1,200.00
4" plain cement concrete pavement $ 414.40
TOTAL: $402,473.30
Deductions:
Bituminous concrete base course $170,516.50
Bituminous wearing course, $106.721.25
ID -2 leveling course SRL -L
Milling of bituminous pavement $ 33,1 10.00
surface, 4" depth
TOTAL: $310,347.75
1. John Dzurko signed the 9/29/97 letter in which Golden Eagle
agrees to perform extra work, including: rebuilding inlets; and
mountable curb repairs.
a. The letter is addressed to Dzurko, ADE- Construction.
2. John Dzurko signed the 8/15/97 letter addressed to Dzurko in
which Golden Eagle agreed to perform extra work, including:
milling of bituminous pavement 4" depth, 4' -6' width; and
B.C.B.C. (To backfill areas of millings).
c. Work Order #3, initialed and dated by Dzurko on 11/21/97, approved
supplemental work and deduction which resulted in a net change of $-
17,440.47. The following items were included:
Dzurko. 98- 043 -C2
Page 16
d.
Additions:
Concrete pavement patching, Type C $11,047.68
9" depth
Subbase No. 2A (C.Y.) 1,938.00
Class 1B excavation 1,995.00
Mountable curb 5,040.00
4" plain cement concrete pavement 157.60
Concrete patch price adjustment 4,776.73
TOTAL: $24,955.01
Deductions:
Patching joint $11,544.00
New pavement joint $ 1,060.00
Concrete pavement patching, Type A, $27,988.48
9" depth
Concrete pavement patching, Type B, $ 1,803.00
9" depth
TOTAL: $42,395.48
1. John Dzurko signed the 9/29/97 letter to Dzurko in which Golden
Eagle agreed to perform extra work, including: rebuilt inlets;
mountable curb repairs.
2. John Dzurko signed the Authorization for Contract Work on or
about 3/25/97 for extra work, including: Subbase No. 24 (C.Y.);
Class 1B excavation.
Work Order #4 initialed and dated by Dzurko on 12/19/97, approved
supplemental work in the amount of $32,035.02. The following items .
were included:
Bituminous wearing course, ID -2,
Scratch course, SRL -H
Standard pavement markings, paint
and beads, white
Grade adjustment of existing
Type C inlet
Snowplowable recessed pavement marker
Shoulder repair - force account
TOTAL:
1. John Dzurko signed the Authorization for Contract Work on
10/6/97.
2. John Dzurko signed the Final Summary on behalf of Golden Eagle.
Work Order #5, initialed and dated by Dzurko on 12/19/97, approved
supplemental work in the amount of $15,429.40. The following items
were included:
Bituminous wearing course, ID -2
scratch course, SRL -H
Standard pavement markings, paint
and beads, white
Snowplowable recessed pavement marker
$13,859.44
$ 621.46
$ 600.00
$ 1,836.00
$15.118.12
$32,035.02
$ 1,928.08
$ 737.52
$ 1,164.00
Dzurko, 98- 04 -C2
Page 17
1
121141
a.
(one way W /B)
Shoulder repair Force Account $11,599.80
TOTAL: $15,429.40
1. John Dzurko signed the Authorization for Contract Work on or
about 10/6/97. The Force Account work was shoulder repair.
2. John Dzurko signed the Final Summary and related Daily Labor and
Equipment Breakdowns.
35. Anthony Dzurko signed off on ten of the sixteen Estimates submitted on
Contract #121141, relating to payments to Golden Eagle totaling
$3,129,156.95. Estimates authorized by Dzurko are as follows:
2
3
4
5
6
7
81
13
09/15/97
10/01/97
10/30/97
11/14/97
12/02/97
12/18/97
01/14/98
02/02/98
06/04/98
07/02/98
The six Estimates not signed by Dzurko totaled $1,032,553.40.
36. From 1996 to 1997 Anthony Dzurko signed off on work orders or estimates
submitted by Golden Eagle Construction Company as follows:
Contract No. Action
125207
121115
3 Work Orders
9 Estimates
6 Work Orders
9 Estimates
1 Estimate
121 120 27 Work Orders
23 Estimates
125202 10 Work Orders
6 Estimates
5 Work Orders
10 Estimates
Total
$543,853.
$127,051.
$840,177.
$235,663.
$ 22,850.
$431,681.
$ 65,168.
$ 32,009.
$ 12,316.
$818,384.
Payment
$ 688,331.04
$ 1,772,216.78
$ 273,892.74
$ 1,036,635.60
$ 470,714.98
$ 3,871,382.31
$ 10,731.95
$ 29,735.30
$ 619,960.01
$ 3,129,156.95
$11,902,775.66
38
80
31
94
10
25 (facsimile)
35
48
67
67
III. DISCUSSION:
At all times . relevant to this matter, the Respondent, Anthony Dzurko,
hereinafter Dzurko, has been a public employee subject to the provisions of the Public
Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65
Dzurko, 98- 043 -C2
Page 18
P.S. §401, deg. as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et
seg.
The issue is whether Dzurko violated Section 1103(a) as to the allegations that,
in his capacity as Assistant District Engineer- Construction for District 12 -0 of
PennDOT, he used the authority of his office by approving supplemental work orders
and payments for the private pecuniary benefit of Golden Eagle Construction Company,
a business in which his brother is a principle; and when he discussed work orders or
changes for construction projects with his brother.
65 Pa.C.S. §1102.
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.
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.
Having noted the issues and applicable law, we shall now summarize the
relevant facts.
Dzurko served as the Assistant Highway District Engineer from April, 1991,
through November, 1998, when he retired. As part his responsibilities, Dzurko was
required to sign work orders which authorized the performance of additional work on
work force accounts.
Dzurko, 98- 043 -C2
Page 19
A force account involves situations where additional work is needed on a
contract for which a unit price is established and extra work is required because of
changes which result in a significant increase or decrease in the cost of performing the
work. The force account comes into play in those situations where a contractor and
PennDOT District Engineer cannot agree on a tentative price to do a particular project
which necessitates a force account. In such force accounts, the work orders detail the
type of work to be done and the prices.
. The procedures to be followed in force account situations is somewhat complex.
When a project engineer determines the extent of additional work and potential cost,
the project engineer will notify the assistant construction engineer or Dzurko. If funds
are available, the necessary paperwork is completed. Following a review, the work
order is sent to the Documentation Unit for review and signature. After a fiscal officer
signs the work order, it is entered into a computer file and then sent to Dzurko for his
signature and forwarding to the district engineer for signature. The work order is then
sent to the project engineer or inspector who prepares a report for payment which is
submitted to Dzurko for his signature. The signature of Dzurko constitutes an
authorization for input into the system in preparation for payment.
Golden Eagle Construction Company (Golden Eagle) is a paving contractor which
has regularly been awarded PennDOT paving contracts through a bidding process.
Dzurko's brother John is employed by Golden Eagle but is not partner, owner or
stockholder in Golden Eagle. John Dzurko holds the positions of Estimator, Safety
Officer, and EEO Officer in Golden Eagle. Pricing for all jobs by Golden Eagle is
handled by William Snoddy based upon the estimates complied by John Dzurko.
Between January, 1994, and October, 1997, twenty -four contracts were
awarded to Golden Eagle by PennDOT. Any additions, deletions or changes in a
contract must be documented though a work order. Dzurko signed off on twelve .
supplemental work orders as to Golden Eagle Contracts involving five of the contracts
it was awarded by PennDOT. Some of the work orders signed by Dzurko had Golden
Eagle related documents which were signed by John Dzurko. The specifics of the
twelve supplemental work orders as well as the specific actions taken by Dzurko as
to the five contracts are delineated in Fact Findings 15 -35. The typical action taken
by Dzurko involved his signing off on work orders, contract estimates, certificates of
acceptance and supplemental work approvals. In addition, Fact Finding 36 contains
a summary of the five contracts together with the action taken and payments made
on the contracts.
The stipulated findings also reflect that there was interaction between Dzurko
and his brother John as to the Golden Eagle Contracts with PennDOT. See, Fact
Findings 22(a), 34 b.1. and c.1.
Having summarized the above relevant facts, we must now determine whether
the actions of Dzurko violated Section 1 103(a) of the Ethics Act.
In applying the provisions of Section 1103(a) of the Ethics Act, Dzurko was a
public employee who used the authority of his office in approving supplemental work
orders for Golden Eagle, a business with which his brother is associated. But for the
fact that Dzurko was a PennDOT employee, he would not have been in a position to
authorize those supplemental work orders. Such was the use of authority of office.
See, Juliante, Order 809. The use of authority of office resulted in a private pecuniary
benefit consisting of the financial gain that Golden Eagle received as a result of such
supplemental work. . The private pecuniary benefit inured to the benefit of Golden
Eagle which is a business with which John Dzurko, a member of Dzurko's immediate
family, is associated through his employment. Accordingly, Dzurko violated Section
Dzurko, 98- 043 -C2
Page 20 -
1103 of the Ethics Act when he used the authority of office to obtain a private
pecuniary benefit for Golden Eagle, a business with which his brother is associated as
to the approval of work orders and payments for Golden Eagle. Dzurko violated
Section 1103(a) of the Ethics Act by using the authority of office as to discussions of
work orders for Golden Eagle Construction Company, a business in which his brother
is an employee.
The parties have submitted a Consent Agreement together with a Stipulation of
Findings wherein it is proposed to resolve the case by finding violations of Section
1103(a); and a payment of $5,000 within 30 days of the mailing of this Order by
Dzurko through this Commission to the Commonwealth of Pennsylvania, Department
of Treasury. Such payments are to be monthly in the amount of $416.67 per month
for twelve months, commencing with thirty days of the date of mailing of this Order.
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 noted, 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. Anthony Dzurko, as an Assistant District Engineer- Construction for
District 12 -0 of PennDOT, was a public Employee subject to the
provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11.
2. Dzurko violated Section 1103(a) of the Ethics Act when he used the
authority of his office by approving supplemental work orders and
payments for the private pecuniary benefit of Golden Eagle Construction
Company, a business in which his brother is an employee.
3. Dzurko violated Section 1103(a) of the Ethics Act by using the authority
of office as to discussions of work orders for Golden Eagle Construction
Company, a business in which his brother is an employee.
In Re: _ _ Anthony Dzurko
File Docket: - 98- 043 -C2
Date Decided: 9/30/99
Date Mailed: 10/13/99
ORDER NO. 1136
1. Anthony Dzurko, as an Assistant District Engineer- Construction for District 12 -0
of PennDOT violated Section 1103(a) of the Ethics Act when he used the
authority of his office by approving supplemental work orders and payments for
the private pecuniary benefit of Golden Eagle Construction Company, a business
in which his brother is an employee.
2. Dzurko violated Section 1103(a) of the Ethics Act by using the authority of
office as to discussions of work orders for Golden Eagle Construction Company,
a business in which his brother is an employee.
3. As Per the Consent Agreement of the parties, Dzurko is directed to make
payment of $5,000 in the amount of $416.67 per month for twelve months,
beginning within. 30 days of the mailing of this Order through this Commission
to the Commonwealth of Pennsylvania, Department of Treasury.
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,
ittuwE tauti.J
DANEEN E. REESE, CHAIR