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HomeMy WebLinkAbout1137 JohnsonIn Re: Horace Johnson 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- 004 -C2 Order No.1 137 September 30, 1999 October 13, 1999 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 leg., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. 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 ., 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. Johnson, 98- 004 -C2 Page 2 - I. ALLEGATION: That Horace Johnson, a public official /public employee, in his capacity as the full -time solicitor for Cumberland County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he accepted something of monetary value in the form of all expense paid trips from a vendor who has contracts with the county based on the understanding that his official action and judgment in regards to contracts with that vendor would be influenced thereby; and when he used the authority of his position of solicitor for a private pecuniary benefit when he accepted all expense paid trips from a county vendor at a time when he was participating in drafting of bid specifications and reviewing bids for a contract awarded to that vendor. 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 (c) No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee that the vote, official action, or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 P.S. §403(c). II. FINDINGS: 1. Horace Johnson served as a Solicitor for Cumberland County from January 4, 1988, until retiring on December 31, 1997. a. Johnson also served as Solicitor for the Cumberland County Sheriffs Department. 2. On January 4, 1988, Horace Johnson entered into an employment contract with the Cumberland County Commissioners. a. The contract was signed by Commissioners Moore, Husted and Myers and Horace Johnson. 3. Johnson's employment contract with the County provided that Johnson would serve as Solicitor for the County and for the County Sheriff. 4. Terms of Johnson's 1988 employment contract with the County provided as follows: a. Johnson shall receive Twenty -nine Thousand Dollars ($29,000.00) for the year 1988, payable bi- weekly. Thereafter, said amount shall be adjusted as prescribed by applicable rules and regulations or as set by the Salary Board. Johnson, 98- 004 -C2 Page 3 - b. In the performance of his duties as Solicitor for the County and in carrying out his duties as Solicitor for the Sheriff, Johnson shall devote the amount of time necessary to the satisfactory performance thereof. In recognition of the fact that the nature of his duties is such that his hours of work are dictated by circumstances, the aforementioned shall be paid regardless of the number of hours actually worked. c. Johnson is a full -time employee and as such shall receive all benefits presently provided for full -time employees in the Employee Handbook excepting the following: 1. Johnson shall not be permitted to accrue any sick leave, vacation leave or holiday hours. 2. Johnson shall not be entitled to any compensatory time. d. This contract remained in effect during Johnson's tenure as Solicitor. 5. Johnson received longevity and step pay increases received by all full -time employees during his years of service as County Solicitor. a. Johnson received health insurance benefits such as life and accident insurance, dental insurance, health and hospitalization, vision, tuition reimbursement and workers compensation. 1. Only full -time employees were entitled to receive these benefits. 6. From 1988 until 1997 Johnson received salary step increases authorized by the County Commissioners. 7. W -2 Wage and Tax Statements for Horace Johnson issued by Cumberland County confirm the following annual income: a. 1988: 1989: 1990: 1991: 1992: 1993: 1994: 1995: 1996: 1997: $28,996.51 $30,102.75 $31,328.05 $33,306.75 $36,121.50 $38,580.00 $38,281.00 $44,705.75 $48,667.51 $53,225.05 8. Johnson began receiving monthly pension benefits from Cumberland County in January, 1998, following his retirement. 9. Johnson's duties as Solicitor were as outlined in the Fourth Class County Code and included but were not limited to providing: "legal advice incident to the office which may be required of him by the commissioners" and for any other County office that did not have an appointed solicitor. a. Legal advice included reviewing contracts and participating in litigation involving the County. Johnson, 98- 004 -C2 Page 4 - 10. Johnson, as County Solicitor, served as legal advisor to various County departments and boards. a. Johnson served as Solicitor to the Cumberland County Prison Board (CCPB) during his tenure as County Solicitor. 11. The CCPB was established pursuant to the provisions of the Fourth Class County Code. a. The CCPB sets policies and procedures and oversees the operation of the prison. 12. The CCPB consists of the three County Commissioners, County Controller, County Sheriff, County District Attorney and a judge of the Court of Common, Pleas. 13. The CCPB authorized the establishment of a commissary for the welfare of the inmates at the county prison. a. The commissary is a prison store where inmates can purchase clothing, personal hygiene items, writing materials and snacks. 14. Prior to May, 1992, the prison commissary was operated by the prison management. 15. On May 18, 1992, the CCPB voted to enter into a contract with Canteen Corporation to provide commissary services for the prison. a. Prior to entering into a contract with Canteen Corporation, the Board of Commissioners was advised by the County's Assistant Solicitor, Stephen D. Tiley, that the contract should be competitively bid. b. Pursuant to the Commissioners' Letter of Intent, Canteen was authorized to provide commissary services as outlined in Canteen's proposal. c. The Letter of Intent was effective May 29, 1992. 16. Beginning in late 1993 the Cumberland County Commissioners and the CCPB began to question possible uses of the profits received from the inmate commissary funds. a. Solicitor Horace Johnson was asked by both Boards to provide advice in this area. 1. Mr. Johnson immediately provided a letter, dated November 23, 1993, to the Commissioners, through which Mr. Johnson discussed the history of the commissary. Through the letter, Mr. Johnson noted that: a. In May, 1992, the CCPB moved to contract with Canteen Corporation; b. CCPB authorized the signing of a Letter of Intent and sought Steve Tiley's advice as to whether it was necessary to bid the services; Johnson, 98- 004 -C2 Page 5 - c. Mr. Tiley advised that, "while it is not extremely clear that this contract must be bid, please be advised it is my opinion that the only absolutely safe procedure would be to competitively bid the services;" d. On May 29, 1992, the Warden wrote to Canteen Corporation and authorized Canteen to commence providing commissary services; e. On June 2, 1992, Mr. Johnson reviewed the proposed Canteen Corporation contract and the Letter of Intent, and met with Warden Egoff; f. Although Warden Egoff advised Mr. Johnson that he was unaware of anybody else in the business, Mr. Johnson made phone calls and learned that there were at least ten entities which provided commissary service; On November 19, 1993, Mr. Johnson received a copy of the proposed Canteen Corporation Service Agreement; a request for his opinion was also made as to whether it was okay to sign the Agreement. b. In accordance with the Commissioner's request that Mr. Johnson provide his opinion as to whether it was advisable to sign the Agreement with Canteen Corporation, Mr. Johnson advised that: 1. He concurred with Assistant Solicitor Tiley that the contract should be awarded pursuant to competitive bidding. Therefore, the County should not sign the Canteen Corporation Service Agreement but, rather, should consider the development of specifications and advertise for bidding; 2. If the County should, nevertheless, decide to enter into the Agreement, certain changes to the Canteen Corporation Service Agreement should be made. c. Mr. Johnson was advised by Warden Egoff that the present 10% commission may result in the commissary fund having more money than is permitted; Warden Egof noted that if that occurs, he would seek either a price reduction or a lesser commission. Mr. Johnson noted that asking for a lesser commission made no sense at all except to the vendor, but stated that if he felt it necessary, an adjustment in prices to the inmates could be made. g. 17. In response to the requests for advice which were made by the County and the CCPB, from at least November, 1993 continuing through June, 1996, Johnson provided legal advice to the Commissioners and the CCPB regarding the Service Agreement with Canteen, uses of profits from the commissary by the County, and legal requirements to put the commissary contract out for bid. a. The primary focus of Mr. Johnson's discussions with the CCPB and the County with respect to the commissary fund was how commissary monies could be used by the County, how commissary monies could be used to pay County expenses which were incurred in connection with the Johnson, 98- 004 -C2 Page 6 - 19. Paul Cercel became employed with Covenco, Inc. 20, Covenco, Inc., is a vending and food management company located in Middletown, Pa. prison and how to lawfully expand the use of commissary proceeds by the County. 18. Since the early 1970's, Johnson played golf with a close, personal friend named Paul Cercel. Cercel and Johnson played golf on a regular basis and frequently shared in paying the costs incidental thereto, e.g., greens fees, cart rental, drinks, food, etc. a. Covenco has focused its efforts in acquiring contracts with nursing homes as its main source of business. b. In 1994 Covenco expanded its business to include providing commissary services to county prisons. c. Covenco hired William McMullen in 1994 to develop this part of the business. 1. McMullen had been employed by Canteen Corporation, the County's prior commissary provider. 21. By a November 23, 1993, letter to the County Commissioners, Johnson recommended the developing of specifications and advertising for bids to award a contract for management of the commissary. a. Johnson provided an analysis of the current contract and advised to continue the present Agreement with Canteen but to prepare specifications and solicit bids. b. If the Commissioners decided not to solicit bids, Johnson recommended maintaining the present arrangement. 22. From at least 1970 through the present, Horace Johnson's close relationship with Paul Cercel, an employee of Covenco, continued. Mr. Johnson did not have a relationship with any other employee of Covenco. a. Johnson was and is a frequent guest on golf trips sponsored by Paul Cercel through which most expenses were paid for by Cercel, who submitted those expenses to his employer, Covenco. 23. Paul Cercel is a Vice President of Sales and Marketing for Covenco. a. His primary responsibilities included securing new accounts and maintaining existing accounts, which was done in part by fostering customer good will, which in part was accomplished by providing trips, gifts, etc., to customers. 24. Johnson accompanied Cercel on golf trips while Cercel was employed by Covenco. Johnson, 98- 004 -C2 Page 7 - a. Covenco provided these trips as a means of trying to maintain an account at the Cumberland County Nursing Home that Covenco secured in October, 1990. 1. Nursing home director Robert Slencak accompanied Cercel on several golf trips provided by Cercel. 2. Other friends of Cercel also accompanied him on these golf trips. b. Gifts, including trips and entertainment, are provided to customers by Covenco as part of the company's efforts to maintain accounts. 25. Horace Johnson golfed with Cercel on or about January 12, 1991, through January 21, 1991, at Myrtle Beach, South Carolina. a. Also attending was Robert Slencak, Nursing Home Administrator. b. Expenses related to the trip were charged as business related expenses by Cercel. c. Johnson also paid for some of the involved expenses during the trip. 26. Expenses for the 1991 Myrtle Beach golf trip were submitted by Cercel to Covenco for reimbursement. a. Covenco approved the expenses as business related and reimbursed Cercel. 27. Horace Johnson accompanied Cercel on golf trips [to] Myrtle Beach in 1992 and. 1993, during which Cercel paid for most of the expenses. a. Cercel submitted these expenses as business related. b. Covenco approved the expenses as business related. 28. A golf trip to Myrtle Beach from January 21, 1994, through January 24, 1994, which included Johnson contained expenses claimed by Cercel to Covenco as business related. a. Covenco approved this trip as business related and reimbursed Cercel for the expenses submitted. 29. In response to a request by the CCPB, on May 19, 1994, Johnson provided a memo to the CCPB advising that regulations required that a commissary be established, a small margin of profit could be realized and that funds shall be spent for the welfare of the prisoners. a. In accordance with Assistant Solicitor Tiley's advice on May 29, 1992, Johnson's analysis of the status of the Canteen Corporation Agreement was that specifications should be prepared and bids solicited for a new commissary contract. 30. During the CCPB meeting of May 23, 1994, Mr. Johnson's May 19, 1994, memo and the use of monies from the commissary fund was discussed. Johnson, also, again advised the CCPB that they should consider bidding the commissary services in the future. Johnson, 98- 004 -C2 Page 8 - 31. On or about August 10, 1994, Covenco sent a letter to Warden Egoff requesting the opportunity to obtain commissary business through the bidding process. The letter was signed by William McMullen, a former employee of Canteen. Mr. McMullen wrote to the Warden that "you trusted me and your own judgment once before in developing your program, now, I ask that you give me the opportunity to provide Cumberland County Prison with a comparison proposal in order to show you why selecting Covenco, Inc., as your vendor for inmate commissary services would be a great asset to the Cumberland County Prison." 32. In December, 1994 Earl Reitz was appointed Warden of the Cumberland County Prison. a. During this time Reitz restructured the prison computer system upgrading software to a Digital Solutions, Inc. (DSI) format. 1. DSI is a software program developed to assist with prison operations. b. Reitz also wanted to restructure the commissary and was interested in using another outside company. 1. Reitz was interested in reducing staff time [and] paperwork by making the computer system compatible with the DSI software. 33. The commissary contract was being discussed by CCPB during December, 1994, through February, 1995, although no decisions had been reached. 34. On November 23, 1994, Paul Cercel purchased four airline tickets to Orlando,, Florida, for himself, Johnson and two others. 35. Cercel, Johnson and County Home Administrator Slencak participated in a golf outing in Orlando, Florida from February 14, 1995, through February 16, 1995. a. Cercel submitted expenses for reimbursement. b. Cercel was reimbursed by Covenco. 1. The expenses were claimed by Cercel as business related, and were approved by Covenco on that basis. 36. On March 27, 1995, the CCPB approved a motion authorizing Johnson to research possible uses of the funds from the commissary fund. a. Questions had been raised during the review of the commissary fund regarding the various expenses the County could collect. 37. Johnson issued a memo to the CCPB dated March 29, 1995, wherein he advised the board on uses of profits from the commissary fund. a. The memo sets forth a detailed analysis as to the use of funds in the commissary account. b. Consistent with Assistant Solicitor Tiley's advice which was rendered as early as May 29, 1992, and in accordance with his prior position, Johnson, 98- 004-C2 Page 9 - Johnson again recommended that a vendor of commissary items should be determined pursuant to the bidding process. c. He advised that he would prepare the necessary specifications for bidding. 1. The legality of the County's specifications was the responsibility of Johnson. 2. Johnson reviewed all specifications. 3. Each department, in general, was responsible for providing the framework for the bid specifications to Johnson. 4. Johnson was responsible for finalizing all bid specifications. 38. During the spring of 1995 Warden Reitz conducted a survey of prisons in surrounding counties regarding the selection of a commissary vendor. a. Reitz's survey indicated that since taxpayer funds were not being used in the commissary the selection could be made without competitive bidding. b. At that time, some other counties utilizing outside vendors were not putting the commissary contracts out for bid, while others had. c. Not all counties were contacted by Reitz. 39. Reitz concluded from his survey that Oasis Inmate Commissary Service was using DSI software and would take less time to process orders than the county's current vendor, Canteen. a. Other counties contacted by Reitz were satisfied with Oasis. b. Reitz and Whitcomb recommended the county contract with Oasis. 40. Reitz and Alfred Whitcomb, Chairman of the CCPB, believed the commissary contract was not required to be put out for bid. Neither Reitz nor Whitcomb, however, are attorneys. Whitcomb strongly recommended that Oasis be used. 41. Both the County's Solicitor and the Assistant Solicitor advised that the contract should be bid. 42. By issuing Request for Proposals instead of advertising publicly for bids, CCPB could target specific vendors and request that said vendors submit proposals. Bidding, however, allows all interested vendors the opportunity to respond. 43. Johnson, in accordance with Assistant Solicitor Tiley's prior 1992 advice, consistently recommended that the commissary contract be put out for bids. Johnson, however, left such decision to the County. a. The bid process ultimately followed allowed all interested vendors to participate in the process and be selected as the commissary vendor. Johnson, 98- 004 -C2 Page 10 - 44. On May 15, 1995, the CCPB authorized Johnson, in his capacity of Solicitor, to prepare specifications for bidding for suppliers of the commissary at the prison. a. The authorization was consistent with Johnson's recommendation that the commissary contract be put out for bid and Johnson's March 29, 1995, memo. 45. Between June, 1995, and August, 1995, Janet Walters, a County paralegal supervised by Johnson, was directed by Johnson to do a study regarding the administration and operation of the commissary contract. a. Walters' research focused on commissions paid by the vendor and the County's costs in the program. b. Walters was specifically requested to determine the mechanics and details of the commissary operation, which information was to be used for the bid specifications. 46. On October 18, 1995, CCPB Chairman Alfred Whitcomb issued a memo to Members of the CCPB advising he reviewed the system offered by Oasis Inmate Commissary Service and felt this system is the one the Board should go with. a. Warden Reitz concurred with Whitcomb's analysis. 47. No action was taken by the CCPB on Whitcomb's request. 48. On December 18, 1995, the CCPB unanimously approved advertising for bids for the commissary service. a. The authorization was made based on Johnson's recommendation. 49. On December 19, 1995, Johnson provided Whitcomb and Reitz a memo and bid specifications for the commissary contract. a. The memo recommends a 15% commission be paid by bidders and describes allowable margins of profit. b. The memo also requested Whitcomb's and Reitz' comments regarding the specifications; they provided no comments. 50. After the specifications were finalized, Johnson recommended copies be provided to Canteen Corporation, Oasis Inmate Commissary Service and Covenco for review and comments. a. Canteen Corporation and Oasis Inmate Services are companies that had been providing inmate commissary services for a number of years. 51. All specifications for the commissary contract were developed by Horace Johnson, and were based in part on the information developed by Walters as referenced in [Finding No.] 44 hereof. 52. A standard practice in the County in dealing with bid specifications was for the department head involved in a particular bid and Janet Walters from the Solicitor's Office to prepare bid specifications. Johnson, 98- 004 -C2 Page 11 - 53. Prior to the bid specifications being advertised, Johnson contacted William McMullen of Covenco and requested his assistance in drafting the bid specifications. Johnson also contacted other counties. a. McMullen provided certain specific information and provided commissary contracts used in Northumberland and Lancaster County. b. Johnson did not contact any of the other companies which were to be sent the specifications to ask for their assistance; a pre -bid conference, however, was required and held to obtain the input of other interested bidders. c. Representatives from Oasis contacted Johnson to offer assistance in the drafting of specifications. d. Johnson advised Oasis their assistance was not needed. 54. On December 20, 1995, Paul Cercel made airline reservations for a golf trip to Florida for Johnson, Slencak and himself. a. Reservations were also made for a John Polk, a friend of Cercel. 55. The golf trip to Ponte Verda Beach, Florida, occurred from January 23, 1996, until January 26, 1996. a. The group included Cercel, Johnson, Slencak and John Polk. 56. Certain expenses, including airfare and room charges, related to the trip were paid for by Cercel who submitted the expenses to Covenco for reimbursement. 57. Cercel was reimbursed for expenses by Covenco for the Florida golf trips. 58. The golf trip to Florida occurred less than a month prior to the County Commissioners authorizing to advertise the commissary contract. 59. On February 12, 1996, the Cumberland County Commissioners authorized advertising for bids for inmate commissary services, pursuant to Tiley's and Johnson's legal advice. The authorization required submission of bids by March 11, 1996. a. b. The motion was approved after the board was advised by Horace Johnson that the specifications were complete. 60. The bid specifications drafted by Johnson required that sealed bids be submitted by March 11, 1996, at 1:30 p.m. a. The specifications required attendance at a Pre -Bid Conference scheduled for February 29, 1996. The purpose of the Pre -Bid Conference was to consider amendments to the specifications which would make them more functional for all involved. 61. On February 29, 1996, approximately one month after Johnson returned from the Ponte Verda Beach, Florida, golf trip, the Pre -Bid Conference was held; Johnson, however, was not present at the conference, but his paralegal was. Johnson, 98- 004 -C2 Page 12 ' 62. Prospective bidders representatives included the following: 1. Oasis Mike Evancho 2. Covenco John Legault Paul Cercel 3. Canteen Ed Ray 4. Keefe Drew Yardley 63. The Pre -Bid Conference resulted in the postponement of bid opening, as well as numerous changes to the specifications to accommodate the bidders. Following the Pre -Bid Conference, the Cumberland County Commissioners concurred with the postponement of the bid openings for the commissary service until March 25, 1996. 64. In accordance with recommendations made at the Pre -Bid Conference,- as reported by Janet Walter, Johnson made addenda on March 11, 1996, and March 14, 1996, to the bid specifications following the pre -bid conference. a. Paragraph 11(a) was amended to read the address of the bidder's facility' must be located as to enable delivery as set forth in Paragraph 4. 1. Paragraph 4 required deliveries between 10:00 a.m. and 1:00 p.m. on the day following orders. b. Paragraph 1 was deleted (eliminated warehouse location requirement). c. Paragraph 4 was amended to include within six (6) months of the award of the contract deliveries must be made by bidder's personnel and equipment. d. Paragraph 20 was amended to reduce services from a minimum of four (4) to three (3) correctional facilities. 65. Bids were received from four companies and opened by County Controller Al Whitcomb during the March 25, 1996, County Commissioners meeting. a. Oasis Commissary Services $1.52 average price per item. b. Canteen Corporation $ 1.59 average price per item. c. Keefe Supply $1.58 average price per item. d. Covenco $1.61 average price per item. 66. The bids for the indigent kits, which cost would have been borne by the County, were as follows: a. Oasis $1.73 b. Canteen $2.56 c. Covenco $1.27 67. The County Commissioners accepted the bids for review and action at a future meeting. Johnson, 98- 004 -C2 Page 13 - a. All four bids were referred to Horace Johnson for his review. 68. Prior to the award of the bid, Canteen, Keefe and Oasis committed to use, specifically, DSI software, which was in use at the prison, and was preferred by the Warden for use in the commissary service. a. Covenco was the only bid that did not specifically mention using the DSI software. b. Covenco did sign the bid specifications which included the successful bidder commit to using DSI software or a comparable software program. 69. Johnson reviewed the bids, and on April 1, 1996, met with Al Whitcomb (County Controller and Prison Board Chairman), Warden Earl Reitz, Janet Walter, Solicitor Paralegal, and Janet Scott, prison employee. a. During this meeting, Johnson recommended that the contract be awarded to Covenco, based on his evaluation of the bid information. b. Whitcomb and Reitz expressed concerns that if Covenco got the bid what would be the assurance that Covenco would utilize DSI software. c. Since the specifications required the use of DSI or comparable software, Johnson advised that he would contact Covenco and determine if they would use DSI software, as opposed to something comparable, which the specifications allowed. d. Whitcomb and Reitz agreed that if Covenco used DSI, they would not object to the award of the contract to Covenco. 70. On April 1, 1996, Johnson called William McMullen of Covenco and asked if Covenco would sign a contract requiring the use of DSI software. a. McMullen had been employed by Canteen Corporation and was Canteen's account representative for the county prison until 1994. b. McMullen agreed to use DSI software, but wanted to review the contract. c. By letter dated April 2, 1996, Johnson provided McMullen with a copy of the contract and advised McMullen to sign and return it. Johnson advised McMullen that execution of the contract will be Covenco's "commitment to using the latest DSI software." McMullen also was instructed not to date the contract. Johnson indicated that "[s]hould the County determine to award the contract with Covenco, it will then date the contract, sign it and provide you with a fully executed copy thereof." Whitcomb was copied with the April 2, 1996, letter. 71. Following the meeting with Johnson on April 1, 1996, contrary to Whitcomb's statement that he would have no objection with Covenco if Covenco used DSI, and after learning that Covenco would use DSI, Whitcomb requested the County Commissioners delay awarding the contract because there was a need for further clarification of the commissary bids. a. Whitcomb advised the Commissioners that a few of the assumptions made by Johnson were incorrect. Johnson, 98- 004 -C2 Page 14 - b. Whitcomb was referring to Johnson's assumption that Oasis and Canteen discounted certain items in violation of the terms of the specifications. 72. Robert DeGrossa of the Cumberland County Controller's Office conducted a review of the commissary bids at the direction of Controller Al Whitcomb. a. The analysis of the bids prepared by DeGrossa dated April 16, 1996, concluded that all bidders' prices were below Canteen's current baseline. b. Bid tabulations: Baseline: $1.59 Canteen Bid: $1.39 Oasis: $1.35 Covenco: $1.59 Keefe: $1.47 c. The report concluded that DeGrossa did not think bidders discounted prices but that Canteen's current menu, along with Covenco's and Keefe's bids, provide a high profit. d. The bids lacked norms, although most tested items fell in line with each, other, and some were out [of] line. 73. Following the April 1, 1996, meeting, Johnson prepared an analysis of the bids which was dated April 2, 1996. a. Two addenda dated May 14, 1996, and May 15, 1996, were subsequently prepared. b. These memos outlined Johnson's review of the bids, his alterations and deletions in various bid items and his comments regarding an analysis of the bids from the County Controller's Office. 74. Johnson's initial report on the commissary bid dated April 2, 1996, concluded that Oasis and Canteen got the lowest prices by discounting the "non -hot" items which was in violation of the bid specifications. a. "Hot items" and "non -hot items" were not terms used in the bid specifications but were used by Johnson extensively when evaluating the bids. b. Johnson also recommended that Keefe not be considered because he had difficulty reviewing their bid, Keefe failed to bid on fifteen (15) of the required items, made changes in the items and did not provide a bid in regard to the indigent kits. c. Johnson commented favorably about Covenco's bid. Johnson believed that Covenco's bid was the best deal for the County. 1. Johnson observed, among other things, that the County pays for indigent kits and receives no commission therefrom. Covenco's indigent kit price was $1.27, the lowest of all bidders. Oasis' indigent kit price was $1.73, which, obviously, caused Johnson doubt as to whether Oasis was even the lowest bidder. Controller Whitcomb thought that the bid should be awarded to the Johnson, 98- 004 -C2 Page 15 - ostensible lowest bidder, and not the bidder with the best price for the County. 75. Johnson and paralegal Janet Walter met with Warden Reitz, Controller Whitcomb, Robert DeGrossa and Janet Scott on May 10, 1996. a. The focus of the meeting [was on] concerns as to whether the contract should be awarded to the lowest bidder and the use of the DSI software. b. Reitz was of the opinion that whoever was awarded the contract should be required to use the DSI software. 1. Reitz and Johnson believed that since the process had dragged on for over a year a decision should be reached. 76. Johnson's first addendum to the solicitor's report dated May 14, 1996, responded to the Controller's analysis. a. The specifications require a 15% commission[;] so long as bidders meet that criteria, the motivation should be to go with a higher markup rather than the lowest markup. b. The only motivation for bidders Canteen and Oasis to increase hot items and decrease non -hot items was to get a low average price per item which the specs do not allow. c. Where bidders did not bid the same items, he made the appropriate adjustment to put everyone on a level playing field. d. It is [in] the best interest of the County to award the bid to Covenco because its bid meets the specification and produces the greatest commission for the County. 77. Johnson subsequently prepared a second addendum analysis memo of May 15, 1996, to the Commissioners. Johnson recommended that the bid should be awarded to the bidder whose prices and bid met the specifications and produced the most profit for the County. Covenco's average price was $1.61 (per the specifications, the bidders' prices had to be comparable to or less than those charged by retailers within a one (1) mile radius of the Cumberland County Prison). Based on such, Johnson recommended that the commissary contract be awarded to Covenco on the condition that Covenco date and sign a contract that required the use of the DSI Software and that the same be returned to the County on or before June 24, 1996. Johnson further recommended that if Covenco will not use DSI. then the bid should be awarded to Oasis. 78. Johnson's recommendation to award the contract to Covenco was in accordance with Paragraph 13 of the instructions to bidders' specifications titled, "Criteria for Evaluating Bids, " and included his analysis of the bidders' specifications as follows: a. Capabilities: Covenco was located in Middletown, PA, approximately 21 miles away and serves four (4) to six (6) other prisons. Johnson, 98- 004 -C2 Page 16 - b. Program Quality: Covenco will operate with DSI software which the prison presently uses and deliveries will be made with its own personnel and equipment. c. Compliance: Covenco's bid was the most responsive bid and the most beneficial to the County. d. The County pays for the indigent kits and receives no commission for the same, and Covenco was the lowest bidder on said kits. 79. On May 15, 1996, Johnson directed paralegal Janet Walter to direct a memo to Whitcomb inquiring as to whether he would prefer the CCPB make a recommendation to the County Commissioners regarding the bid prior to the Commissioners taking official action. Said memo was sent. 80. On May 15, 1996, Johnson was the guest of Paul Cercel at the Blue Ridge Country Club. a. Expenses for the outing including lunch, green fees and carts were submitted as business expenses by Cercel. b. Cercel was reimbursed by Covenco. 81. During the CCPB meeting of May 20, 1996, Johnson advised the CCPB that he would make a recommendation on the commissary bids at the next meeting. a. Johnson had already recommended Covenco as set forth in his bid analysis, with the addenda thereto. 82. Johnson recommended to the CCPB on June 17, 1996, that the commissary bid be awarded to Covenco. a. The board voted unanimously to accept Johnson's recommendation and to advise the county commissioners. 83. On June 17, 1996, Johnson advised the County Commissioners that the CCPB recommended the commissary bid be awarded to Covenco. _ a. Based on the CCPB recommendation, the Commissioners unanimously approved the bid to Covenco. 84. Johnson directed paralegal Janet Walter to advise Paul Cercel of the decision. a. Walter advised Cercel by letter dated June 19, 1996, of the award. 85. The contract entered into by Cumberland County and Covenco for the Inmate Commissary Service Agreement was dated June 17, 1996, and was signed by all three County Commissioners and representatives of Covenco. a. The Agreement was drafted by Horace Johnson. 86. The contract entered into by the County and Covenco requires the use of DSI, as opposed to a comparable program which the bidder may already have. Such was contrary to the bid specifications which permitted the bidder to use either DSI software or a comparable program, that bidder provide at bidder's expense. Johnson, 98- 0 -C2 Page 17 - a. The contract did not require that Covenco provide the County with the latest DSI software as stated in Item 10 of Johnson's proposed contract with Covenco. (See Finding No. 89). 87. The contract entered into by the County and Covenco did not require Covenco to purchase DSI software. Rather, contrary to the April 2, 1996, draft contract, the contract provided in Item 10 that Covenco will use the DSI software purchased by the County. a. Johnson inserted this provision after being advised by Warden Reitz that his primary concern was that the successful bidder use DSI software. 88. Bid specifications regarding the DSI Jail Management Program provided as follows: "The County must be able to transmit orders directly from the County Prison to the successful bidder by use of its present computer (hardware) and software programs. Presently, the County Prison uses DSI Jail Management Program which automatically charges an inmate's account for items an inmate orders and shows the balance of the inmate's account. Bidder's computer and software programs must be either DSI Jail Management Program or a different program that bidder provides at bidder's expense, provided bidder supplies all necessary software, hardware and necessary training to personnel using same, which requires no additional County personnel and which will track inmate's accounts in like manner ..." 89. The draft contract sent to Covenco on April 2, 1996, provided as follows: ... the contractor provide the county with the latest software developed by Digital Software Solutions incorporated for use in prisons to enable County's employees to enter ordered items into a computer which will display the inmate's balance of funds available for commissary purchases, will update the Inmate's account and after all inmate orders have been processed they will be down loaded by modem to the contractor's off -site warehouse facility. If contractor fails to provide and maintain said software, county may terminate this agreement on thirty (30) days notice. 90. The final contract executed between the County and Covenco provides as follows: Contractor will use County's software presently used by the county prison which will enable county's employees to enter ordered items into a computer which will display the inmate's balance of funds available for commissary purchases, will update the inmate's account and after all inmate orders have been processed they will be down loaded by modem to the contractor's off -site warehouse facility. If contractor fails to effectively use said software, county may terminate this agreement on thirty (30) days notice." 91. From November, 1993 through February 12, 1996, when the County Commissioners authorized advertising for bids for the commissary, Horace Johnson, in accordance with his interpretation of the County Code, consistently advised the CCPB and the County Commissioners that the contract had to be bid. Johnson, 98- 004 -C2 Page 18 - a. Johnson was opposed to requests for proposals insofar as it was Johnson's opinion, as well as Tiley's, that the contract should be bid. 92. After Covenco received the commissary contract, Cercel went on a golf trip to Phoenix, Arizona, with Johnson and Slencak from February 13, 1997, to February 16, 1997. 93. Cercel charged most of the expenses on a Covenco provided credit card. a. The expenses were approved by Covenco as business expenses. 94. Other gifts provided to Johnson by Cercel during the period when the commissary project was being bid included: 10/12/95: Golf Outing; Outdoor Country Club - Golf carts, lunch, dinner, drinks, raffle tickets; 12/28/95: Cigars; 05/16/96: Lunch, golf, etc. - Blue Ridge Country Club; 04/24/97: Golf carts, lunch, etc. 95. Beginning in 1993 through the spring of 1997 when he was providing legal advice regarding the commissary contract to both the County Commissioners and the CCPB, Johnson was receiving gifts and golf trips from Cercel, who was reimbursed by Covenco. 96. Johnson benefitted from golf trips sponsored by Cercel and paid for by Covenco as follows: 1994 Myrtle Beach: Airfare, room, rental car, flight ins. 1995 Orlando, Florida: Airfare, lodging, tips, golf, rental car 1996 Ponte Verda Beach, Florida: Airfare, lodging, golf, meals 1997 Phoenix, Arizona: Airfare, car rental, lodging, golf, meals and tips 97. The total value of all gifts and expenses set forth above which were paid by Cercel, who subsequently submitted the same to Covenco, was $4,763.83. 98. Johnson continues to golf with Cercel; most expenses are paid by Cercel and some of the expenses are paid by Johnson. 99. Johnson was charged in Cumberland County with a violation of 65 Pa.C.S. § §409(a), 409(b), to which Johnson pleaded guilty. Johnson had failed to disclose on his Statements of Financial Interests for the years 1991 through 1996 the value of the golf trips paid for by Covenco. 100. It was noted at the time of Mr. Johnson's plea that ". . . the county suffered no financial injury as a result of [Johnson's] actions." 101. In accordance with an agreement reached with the Cumberland County District Attorney's Office, Johnson paid a fine of $1,000 and, pursuant to §409(c) of the Ethics Act, $4,000 was paid to the County. Johnson, 98- 0 -C2 Page 19 III. DISCUSSION: At all times relevant to this matter, the Respondent, Horace Johnson, hereinafter Johnson, as the full -time Solicitor for Cumberland County, was a public official /public employee 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, et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, el, seq. See P.J.S. v. State Ethics Commission, 555 Pa.149, 723 A.2d 174 (Pa. 1999). The issue before this Commission is whether Johnson violated Section 3(a) (now codified as Section 1103(a)) or Section 3(c) (now codified as Section 1103(c)) of the Ethics Act as to the allegation that he accepted something of monetary value in the form of all expense paid trips from a vendor who has contracts with the County based on the understanding that his official action and judgment in regard to contracts, with that vendor would be influenced thereby; and when he used the authority of his position as Solicitor for a private pecuniary benefit when he accepted all expense paid trips from a County vendor at a time when he was participating in drafting of bid specifications and reviewing bids for a contract awarded to that vendor. Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined in the Ethics Act as follows: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402 (For the definition as codified, see, 65 Pa.C.S. §1102). Section 3(c)/1103(c) of the. Ethics Act provides in part that a public official /public employee shall not solicit or accept anything of monetary value based upon any understanding that his vote, official action or judgment would be influenced thereby. Having noted the issues and applicable law, we shall now summarize the relevant facts. Johnson served as the Solicitor for Cumberland County and for the Cumberland County Sheriff from January 4, 1988 until he retired on December 31, 1997. As Solicitor for the County and for the County Sheriff, Johnson was a full -time employee. Johnson, 98- 004 -C2 Page 20 - Johnson's duties as Solicitor were as set forth in the Fourth Class County Code. Those duties specifically included providing legal advice to the County Commissioners and to any other County office that did not have an appointed solicitor. Such legal advice included the review of contracts. This case involves contracting as to the operation of the commissary at the Cumberland County Prison. As County Solicitor, Johnson served as Solicitor to the Cumberland County Prison Board ( "CCPB "). The CCPB was the body which authorized the establishment of the commissary. Prior to May, 1992, the commissary was operated by the prison management. From May, 1992 forward, the commissary was operated by private entities. The first private entity to run the commissary was "Canteen Corporation" ( "Canteen "). On May, 18, 1992, the. CCPB voted to enter into a.contract with Canteen, to provide commissary services for the prison. However, before entering into a contract with Canteen, the County Board of Commissioners was advised by Assistant County Solicitor, Stephen B. Tiley, that the contract should be competitively bid. Canteen was then authorized to provide commissary services pursuant to a Commissioners' Letter of Intent effective May 29, 1992. Pursuant to the stipulated findings, Johnson's involvement in matters pertaining to the operation of the prison commissary began as early as June, 2, 1992, when Johnson reviewed the Letter of Intent and proposed Canteen contract and met with the Warden, who at the time was Warden Egoff. This meeting occurred within a few days of the Warden writing to Canteen and authorizing it to commence providing commissary services. Per the stipulated facts, although Warden Egoff advised Johnson that he was unaware of anyone else in the commissary service business, Johnson made some telephone calls and learned that there were at least ten entities which provided commissary service. Beginning in late 1993, the Cumberland County Commissioners and the CCPB began to question possible uses of the profits received from the inmate commissary funds. Johnson was asked by both Boards to provide advice in this regard. Johnson was also asked by the County Commissioners whether it would be advisable to sign the proposed Service Agreement with Canteen Corporation. In response the latter request, Johnson advised that he concurred with Assistant Solicitor Tiley that the contract should be awarded pursuant to competitive bidding, and that the County should therefore not sign the Canteen Corporation Service Agreement, but rather, should consider developing specifications and advertising for bids. Johnson further advised that if the County would nevertheless decide to enter into the Agreement, certain changes be made to it. In a letter dated November 23, 1993, from Johnson to the County Commissioners, Johnson recommended the developing of specifications and advertising for bids to award a contract for management of the commissary. Johnson provided an analysis of the current contract and advised to continue the present agreement with Canteen but to provide specifications and solicit bids. Johnson recommended that if the Commissioners decided not to solicit bids, the present arrangement be maintained. From at least November, 1993, and continuing through June, 1996, Johnson provided legal advice to the Cumberland County Commissioners and the CCPB regarding the service agreement with Canteen, uses of profits from the commissary by the County, and legal requirements to put the commissary contract out for bid. Johnson, 98- 004 -C2 Page 21 - In 1994, Covenco, Inc., a vending and food management company in Middletown, PA, expanded its business to include providing commissary services to county prisons. Covenco hired William McMullen, who had previously been employed by Canteen Corporation, to develop the commissary service part of its business. Covenco's Vice - President of Sales and Marketing is a man named Paul Cercel. Cercel and Johnson are close personal friends, and have been so since at least 1970. Johnson and Cercel have played golf on a regular basis since the early 1970's, before Johnson became the Cumberland County Solicitor. Covenco provides gifts, including trips and entertainment, to its customers as part of its effort to maintain accounts. During the period of time that is pertinent to this case, Johnson was a frequent guest on golf trips sponsored by Cercel. The Cumberland County Nursing Home Director, Robert Slencak, also accompanied Cercel, on several golf trips (Covenco had an existing account at the Cumberland County Nursing Home). Most of the expenses for these trips were paid initially by Cercel and reimbursed by Covenco. Although Johnson was involved in golf trips paid for by Covenco prior to 1994,' we shall now focus upon Johnson's conduct and the golf outings which occurred from 1994 forward, that is, from on or about the time Covenco expanded its operations to include the commissary service business. The stipulated findings reflect that Johnson was included in a golf trip to Myrtle Beach, South Carolina from January 21, 1994, through January 24, 1994. This trip involved expenses that were submitted by Cercel to Covenco as business related. Covenco approved the trip as business related and reimbursed Cercel for the submitted expenses. Shortly thereafter, in May, 1994, Johnson provided advice to the CCPB regarding the commissary, which advice included Johnson's analysis - -as to the status of the Canteen Corporation agreement - -that specifications should be prepared and bids solicited for a new commissary contract. On or about August 10, 1994, Covenco sent a letter signed by McMullen to Warden Egoff, requesting the opportunity to obtain the commissary business through the bidding process. In December, 1994, a new Warden, Earl Reitz, was appointed. Warden Reitz upgraded the Prison computer system to use a Digital Solutions Inc. ( "DSI ") software program. Reitz also wanted to restructure the commissary and was interested in using another outside company. From December, 1994 through February, 1995 the commissary contract was being discussed by the CCPB, although no decisions had been reached. From February 14, 1995, through February 16, 1995, Johnson and Slencak participated with Cercel in a golf outing in Orlando, Florida. Cercel submitted expenses from this trip to Covenco for reimbursement as business related expenses, and Covenco approved the expenses as business related. In March, 1995, shortly after the Orlando trip, the CCPB authorized Johnson to research possible uses of the funds from the commissary fund. Two days later, Johnson issued a memo to the CCPB setting forth a detailed analysis on that issue and again recommending that a vendor of commissary items be determined pursuant to the bidding process. Johnson further advised that he would prepare the necessary specifications for bidding. This was unusual, because it was a standard practice in the County for the head of the County department involved in a particular bid to prepare bid specifications together with Janet Walters, a paralegal with the Solicitor's Office. Johnson, 98- 004 -C2 Page 22 - Ordinarily, each County department was responsible for providing the framework for the bid specifications to Johnson, and Johnson was responsible for reviewing the specifications, determining their legality, and finalizing them. During the Spring of 1995, Warden Reitz conducted a survey of prisons in surrounding counties regarding the selection of a commissary vendor. The survey indicated that since taxpayer funds were not used in the commissary, the selection of a commissary vendor did not require competitive bidding. Warden Reitz and Alfred Whitcomb, who was County Controller and Chairman of the CCPB, were both of the view that the County's commissary contract was not required to be put out for bid. Moreover, both Reitz and Whitcomb recommended that the County use Oasis Inmate Commissary Services ( "Oasis ") rather than Canteen. Johnson, in accordance with Assistant Solicitor Tiley's 1992 advice,, consistently recommended that the commissary service contract be put out for bids. On May 15, 1995, the CCPB authorized Johnson as Solicitor to prepare specifications for bidding for suppliers of the commissary at the Prison. During the summer of 1995, Janet Walters, the aforementioned County Paralegal supervised by Johnson, was directed by Johnson to conduct a study regarding the administration and operation of the commissary contract. Walters was, specifically to determine the mechanics and details of the commissary operation, which information was to be used for the bid specifications. On October 18, 1995, Whitcomb as CCPB Chairman issued a memo to the Members of the CCPB advising that he felt that the Oasis Inmate Commissary Service system was the one the Board should go with. Warden Reitz concurred with that analysis. No action was taken by the CCPB on Whitcomb's request. On December 18, 1995, the CCPB unanimously approved advertising for bids for the commissary service. The authorization was made based upon Johnson's recommendation. On the following day, December 19, 1995, Johnson provided Whitcomb and Reitz with a memorandum and bid specifications for the commissary contract. The very next day, December 20, 1995, Paul Cercel made airline reservations for a golf trip to Ponte Verda Beach, Florida for Johnson, Slencak, and himself. Reservations were also made for a man named John Polk, who was a friend of Cercel. Before the bid specifications were advertised, Johnson contacted McMullen at Covenco and requested his assistance in drafting them. Johnson also contacted other counties, but he did not contact any of the other companies which were to be sent the specifications to ask for their assistance. A pre -bid conference was required and was held to obtain the input of other interested bidders. Representatives from Oasis contacted Johnson to offer assistance in drafting the specifications. Johnson advised Oasis that their assistance was not needed. After the bid specifications were finalized, Johnson recommended that copies be provided to Canteen, Oasis, and Covenco for review and comments. From January 23, 1996 until January 26, 1996, Johnson participated in the Ponte Verda Beach, Florida golf trip. Certain expenses, including airfare and room charges related to the trip, were paid for by Cercel who submitted the expenses to Covenco for reimbursement. Johnson, 98- 004 -C2 - Page 23 On February 12, 1996 —less than one month after Johnson's Ponte Verda Beach golf trip with Cercel- -the Cumberland County Commissioners authorized the advertising of the commissary contract pursuant to Tiley's and Johnson's legal advice. Bids were required to be submitted by March 11, 1996. Bidders were required to attend a pre -bid conference held on February 29, 1996. Johnson was not present at the conference but his paralegal was. As a result of that conference, the bid opening was postponed and Johnson made changes to the bid specifications to accommodate the bidders. On March 25, 1996, at a meeting of the Cumberland County Commissioners, bids were received from four companies and were opened by Whitcomb as County Controller. The bidders were Oasis, Canteen, a company called "Keefe Supply," and Covenco. The bids were as set forth in findings 65 -66. Keefe Supply was the only, bidder which did not bid on "indigent kits." Covenco's bid was the only bid that did not specifically mention using the DSI software, although Covenco did sign the bid specifications which required the successful bidder to commit to using DSI software or a comparable software program. The County Commissioners accepted the bids for review and action at a future meeting. All four bids were referred to Johnson for his review. Johnson reviewed the bids, and on April 1, 1996, he met with County Controller and Prison Board Chairman Al Whitcomb, Warden Earl Reitz, Paralegal Janet Walter, and prison employee Janet Scott. During this meeting, Johnson recommended that the contract be awarded to Covenco, based upon his evaluation of the bid information. Whitcomb and Reitz expressed concerns as to assurances that Covenco would utilize DSI software. Since the specifications required the use of DSI Q comparable software, Johnson advised that he would contact Covenco and determine whether they would use DSI software, as opposed to something comparable, which the specifications allowed. Whitcomb and Reitz agreed that if Covenco used DSI, they would not object to the award of the contract to Covenco. On that same day, April 1, 1996, Johnson called McMullen at Covenco and asked if Covenco would sign a contract requiring the use of DSI software. McMullen agreed, but wanted to review the contract. By letter dated April 2, 1996, Johnson provided McMullen with a copy of the contract and advised him to sign and return it. McMullen was instructed not to date the contract. Johnson specifically indicated that if the County would decide to award the contract to Covenco, the County would sign and date the contract and would provide a copy to McMullen. Meanwhile, despite Whitcomb's prior statement that if Covenco would use DSI, he would have no objection to using Covenco, Whitcomb asked the County Commissioners to delay awarding the contract because there was need for further clarification of the commissary bids. Whitcomb advised the Commissioners that a few of the assumptions that had been made by Johnson were incorrect. The Cumberland County Controller's Office conducted a review of the commissary bids at the direction of Controller Whitcomb. The analysis, dated April 16, 1996, was as set forth in Finding No. 72. Johnson also prepared an analysis of the bids. The analysis consists of an initial report dated April 2, 1996, and two addenda (discussed further below) which are dated May 14, 1996 and May 15, 1996. In Johnson's initial report, Johnson . commented favorably about Covenco's bid. Johnson recommended that Keefe Supply not be considered because it failed to bid as required. Johnson concluded that Oasis Johnson, 98- 004 -C2 Page 24 - and Canteen got the lowest prices by discounting what Johnson termed "non -hot" items, in violation of the bid specifications. On May 10, 1996, Johnson participated in a meeting with Warden Reitz, Whitcomb, and others as to the contract. The meeting focused upon concerns as to whether as to whether the contract should be awarded to the lowest bidder and the use of the DSI software. In the May 14, 1996 addendum to his initial (April 2, 1996) report analyzing the bids, Johnson responded to the Controller's analysis, and concluded that it would be in the best interests of the County to award the bid to Covenco. In the second addendum, dated May 15, 1996, Johnson recommended that the contract be awarded to Covenco on the condition that Covenco date and sign a contract that would require the use of the DSI software and that the same be returned to the County on or before, June 24, 1'996. Johnson further recommended that if Covenco would not use DSI, then the bid should be awarded to Oasis. On May 15, 1996, Johnson directed his paralegal to send a memo to Whitcomb asking whether he would prefer the CCPB make a recommendation to the County Commissioners regarding the bid before the Commissioners took official action. On that same day, Johnson was a guest of Paul Cercel at the Blue Ridge Country Club for an outing which included lunch, green fees and carts, all of which expenses were submitted by Cercel to Covenco as business expenses, and for which expenses Cercel was reimbursed by Covenco. Five days later at a CCPB meeting, Johnson advised the CCPB that he would make a recommendation on the commissary bids at the next meeting. Of course, Johnson had already recommended Covenco as set forth in his analysis and addenda thereto. On June 17, 1996, Johnson recommended to the CCPB that the commissary bid be awarded to Covenco. The Board voted unanimously to accept Johnson's recommendation and to so advise the County Commissioners. On that same day, Johnson advised the County Commissioners that the CCPB recommended that the commissary bid be awarded to Covenco. Based upon the CCPB recommendation, the Commissioners unanimously approved the bid to Covenco. The contract between Cumberland County and Covenco for the inmate commissary service agreement was dated that same day, June 17, 1996, and was signed by all three County Commissioners and representatives of Covenco. The agreement was drafted by Johnson. Contrary to the bid specifications, the agreement specifically requires the use of DSI software. From November, 1993 through February 12, 1996, when the County Commissioners authorized advertising for bids for the commissary, Johnson, in accordance with his interpretation of the County Code, consistently advised the CCPB and the County Commissioners that the commissary contract had to be bid. Beginning in 1993 and continuing through the spring of 1997 when Johnson was providing legal advice regarding the commissary contract to both the County Commissioners and the CCPB, Johnson was receiving gifts and golf trips from Cercel, who was reimbursed by Covenco. The trips, outings, and gifts provided to Johnson by Cercel and paid for by Covenco during the pertinent period of time are summarized in findings 92 -97. According to Stipulated Findings Nos. 99 -101, Johnson pled guilty to charges in Cumberland County, which appear to have involved his failure to disclose the value of the golf trips paid for by Covenco on his Statements of Financial Interests for the years 1991 -1996. It was noted at the time of Mr. Johnson's plea that ". . . the Johnson, 98- 004 -C2 Page 25 - county suffered no financial injury as a result of [Johnson's] actions." In accordance with an agreement reached with the Cumberland County District Attorney's Office, Johnson paid a fine of $1,000 and, pursuant to §409(c) of the Ethics Act, $4,000 was paid to the County. Having summarized the above relevant facts, we must now determine whether the actions of Johnson violated Section 3(a)/1103(a) or Section 3(c)/1103(c) of the Ethics Act. The parties have submitted a Consent Agreement together with a Stipulation of Findings. The consent agreement reflects the parties' agreement that there is insufficient evidence to establish a violation of Section 3(c)/1103(c) of the Ethics Act in this case. The parties propose that this case be resolved by this Commission finding that a violation of Section 3(a). (now codified as Section 1103(a)) of the Ethics Act. occurred when Horace Johnson, in his capacity as a full -time Solicitor for Cumberland County, used the authority of his position as Solicitor for a private pecuniary benefit by accepting all expense paid trips from a County vendor at a time when he was participating in drafting bid specifications and reviewing bids for a contract awarded to that vendor, and directing Johnson to make a payment in the amount of $3,500 to the Commonwealth of Pennsylvania through this Commission within 30 days of the issuance of this Commission's Order. We believe that the Consent Agreement is the proper disposition for this case, based upon our review of the totality of the facts and circumstances. There is insufficient evidence to establish a violation of Section 3(c)/1103(c) of the Ethics Act in this case. A violation of Section 3(c)/1103(c) of the Ethics Act as to a public official /public employee must be supported by clear and convincing evidence that the public official /public employee solicited or accepted something of monetary value based upon an understanding of that public official /public employee that his vote, official action or judgment would be influenced thereby. Based upon the facts before us, there is insufficient evidence to establish the requisite elements for such a violation. However, there is clear and convincing evidence establishing a violation of Section 3(a)/1103(a) of the Ethics Act as set forth above. Johnson did in fact use the authority of his position as Solicitor for a private pecuniary benefit by accepting numerous trips at the expense of Covenco at a time when he was participating in drafting bid specifications and reviewing bids for the contract that was awarded to Covenco. As the recipient of such trips and other gifts delineated at length in the stipulated findings, Johnson had a clear conflict of interest in matters pertaining to the contract for commissary services. Johnson's duty under the Ethics Act was to abstain fully from such matters, and to make the disclosures that are required by Section 3(j)/1103(j) of the Ethics Act. Johnson neither abstained nor made the requisite disclosures. To the contrary, Johnson repeatedly participated in matters pertaining to the contract, and specifically advocated for the selection of Covenco as the successful bidder. We find that a violation of Section 3(a)/1103(a) of the Ethics Act did in fact occur. See, Volpe, Order No. 579 -R; Smith, Order No. 578 -R. Accordingly, we approve the consent agreement that has been submitted by the parties. We find a violation of Section 3(a)/1103(a) of the Ethics Act as set forth above. The parties having agreed that the appropriate payment to be made by Johnson would be in the amount of $3500 and payable to the Commonwealth of Pennsylvania, we direct Johnson to make payment in the amount of $3,500 to the Commonwealth of Pennsylvania through this Commission within 30 days of the date of this Order. Compliance with the foregoing will result in the closing of this case with Johnson, 98- 0 -C2 Page 26 - no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Horace Johnson, as a full -time Solicitor for Cumberland County, was a public official /public employee 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, et seq., as codified by Act 93 of 1998, Chapter 1 1 , 65 Pa.C.S. § 1101, et seq. 2. A violation of Section 3(a)/1103(a) of the Ethics Act occurred when Johnson used the authority of his position of Solicitor for a private pecuniary benefit by accepting all expense paid trips from a County, vendor at a time when he was participating in drafting bid specifications and reviewing bids for a contract awarded to that vendor. 3. Insufficient evidence exists to establish a violation of Section 3(c)/1 103(c) of the Ethics Act in this case. In Re: Horace Johnson ORDER NO. 1137 File Docket: _ 98- 004 -C2 Date Decided: September 30, 1999 Date Mailed: October 13, 1999 1. A violation of Section 3(a)/1 103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 P.S. §403(a) as codified by 65 Pa.C.S. §1103(a), occurred when Horace Johnson, as a full -time Solicitor for Cumberland County, used the authority of his position of Solicitor for a private pecuniary benefit by accepting all expense paid trips from a County vendor at a time when he was participating in drafting bid specifications and reviewing bids for a contract awarded to that vendor. 2. Insufficient evidence exists to establish a violation of Section 3(c)/1103(c) of the Ethics Act in this case. 3. Per the Consent Agreement of the parties, Johnson is directed to make payment in the amount of $3,500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the issuance of this Order. 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, ogituipu6 DANEEN E. REESE, CHAIR