HomeMy WebLinkAbout993 KasabackIn Re:
Before:
Joseph Kasaback
4 North Hillside Ave.:
Ludlow, PA 16333
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 94- 044 -C2
Date Decided: 12/7/95
Date Mailed: 12/15/95
Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
John R. Showers
Rev. Joseph G. Quinn
Boyd E. Wolff
The Investigative Division of the State Ethics Commission
conducted an investigation regarding a possible violation of the
State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 gt seq.
Written notice of the specific allegation(s) was served at the
commencement of the investigation. A Findings Report was issued
and served upon completion of the investigation which constituted
the Complaint by the Investigation Division. An Answer was filed
and a hearing was held. The record is complete. This adjudication
of the Commission is hereby issued which sets forth the individual
Allegations, Findings of Fact, Discussion, Conclusions of Law and
Order.
This adjudication is final and will be made available as a
public document thirty days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration does not affect the finality of this
adjudication. A reconsideration request must be received at this
Commission within thirty days of issuance 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).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. §408(h). Any person who violates
confidentiality of the Ethics Law is guilty of a misdemeanor
subject to a fine of not more than $1,000 or imprisonment for not
more than one year, 65 P.S. 5409(e). Confidentiality does not
preclude discussing this case with an attorney at law.
gasaback, 94- 044 -C2
Page 2
I. ALLEGATION:
That Joseph Kasaback, a public official in his capacity as a
supervisor for Hamilton Township, McKean County, violated the
following provisions of the State Ethics Act (Act 9 of 1989) when
he solicited gifts from companies bidding to supply equipment
and/or material to the township in return for his official action,
including, but not limited to votes, recommendations, and
discussions regarding the award of said bids.
gection 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
5403(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).
,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.
; tasaback, 94- 044 -C2
Page 3
II. FINDINGS
A. PLEADINGS AND STIPULATIONS:
1. Two signed, sworn complaints were received by the
Investigative Division of the State Ethics Commission on
August 15, 1994, alleging that Respondent, Joseph Kasaback,
violated provisions of the Ethics Law.
2. Upon review of the Complaints by the Director of
Investigations of the Investigative Division of the State
Ethics Commission, a recommendation was made to the Executive
Director of the State Ethics Commission to commence a
preliminary inquiry.
3. On August 25, 1994, the Executive Director of the State Ethics
Commission authorized commencement of a preliminary inquiry
regarding the allegations that the Respondent, Joseph
Kasaback, violated the Ethics Act, Act 9 of 1989.
4. The preliminary inquiry was completed within sixty (60) days.
5. Upon completion of the preliminary inquiry, the matter was
reviewed by the Executive Director of the State Ethics
Commission.
6. On October 19, 1994, a letter was forwarded to Respondent by
the Executive Director of the State Ethics Commission
informing Respondent of the fact that a complaint against him
was received by the Investigative Division of the State Ethics
Commission and that a full investigation was being commenced.
a. Said letter outlined the nature and scope of the
allegations and further delineated the applicable
sections of the Ethics Law in question.
b. Said letter was forwarded return receipt requested,
article no. P 016 239 224.
c. The letter was delivered on October 22, 1994, and
contained the signature of Joseph Kasaback.
7. The full investigation was then commenced at the direction of
the Executive Director of the State Ethics Commission.
8. On January 13, 1995, the Executive Director of the State
Ethics Commission requested a ninety -day extension of time to
commence the investigation and such request was granted on
February 23, 1995.
a. Kasaback argues that such action was not proper.
Kasaback, 94- 044 -C2
Page 4
9. On June 7, 1995, the Investigative Division of the State
Ethics Commission issued an Investigative Complaint and
Findings Report to the Respondent.
10. Joseph Kasaback has served as an elected Hamilton Township,
McKean County, Supervisor for the past 26 years.
11. Hamilton Township had two other elected supervisors in 1991,
Thomas Pierotti and Betty Straneva.
12. None of the three supervisors served as roadmaster, and
instead acted on road related issues together with the
appointed township roadmaster, Richard Bartels.
13. In 1991, the Hamilton Township Supervisors determined that the
need existed to purchase a new combination dump truck and snow
plow combination.
a. The township's dump truck was getting old and costly to
operate.
14. Minutes from the Hamilton Township Board of Supervisor's
meetings include discussions regarding the purchase of a new
truck for the road department. Township meeting minutes
reflect the following discussions:
a. June 4, 1991:
"Rich Bartels said that he forgot one thing on his
report...the specs for the new truck. Joe (Kasaback)
said that when he and Rich went to Walsh Equipment(s)
open house they saw more or less what would suit the
township. Betty feels that we should have more input.
Tom suggested we have reps come and discuss options.
Rich could set this up."
Present: Thomas Pierotti, Joseph Kasaback, Betty
Straneva.
b. July 2, 1991:
"New truck: Rich Bartels asked the supervisors to wait
until the August meeting to open bids so that he could do
a little more research on the proper truck to put out for
bids so that we get what will be best for the township.
Joe Kasaback made the motion for Rich Bartels to prepare
the specs for the truck to be put out for bid and to have
the bid opening on August 6, 1991, at 7:00 p.m.; plus put
out for bid the F7000, Tom Pierotti seconded. Betty
Straneva opposed. Betty Straneva does not feel that
asking Farmers Home for half the monies for the new truck
is legal."
Kasaback, 94- 044 -C2
Page 5
Present: Kasaback, Pierotti, Straneva.
15. Township Roadmaster Richard Bartels was designated by the
supervisors to put together specifications for a new dump
truck and snow plow combination.
a. Bartels was selected to formulate the specifications
because his mechanical knowledge exceeded that of the
supervisors.
16. In the spring of 1991, Roadmaster Bartels and Supervisor
Kasaback attended an open house held at Walsh Equipment,
Prospect, Pennsylvania, and viewed new trucks.
17. Walsh Equipment, Prospect, PA., holds an open house
approximately every eighteen months. At these open houses,
attendees receive food and beverages as well as promotional
items such as baseball caps and notebooks. Chance drawings
are also held for door prizes.
a. Kasaback has attended several of Walsh Equipment's open
houses.
b. Road equipment and related items are on display.
c. Attendees get the opportunity to meet directly with
manufacturer representatives.
d. Open houses last the better part of the day and are held
in a picnic like atmosphere.
e. There is no admission fee and attendees are not under any
obligation to purchase anything.
18. Bartels, in his capacity as Township Roadmaster, went to
Seigworth's Road Supply, RD #3, Knox, PA., to view trucks and
related equipment around May or June of 1991.
a. Owner Kenneth Seigworth showed Bartels trucks and
accessories.
b. Bartels obtained literature on a new International truck
Seigworth had in stock.
19. Bartels used the literature he obtained from Kenneth Seigworth
as the basis for the bid specifications he put together.
20. Hamilton Township ran a legal notice requesting sealed bids
for "a new 1991 cab and chassis with dump body" in the
Bradford Era on July 16, 1991, and July 20, 1991.
Kasaback, 94- 044 -C2
Page 6
a. Bids received were scheduled to be opened at the
Supervisor's August 6, 1991, meeting.
21. Township bid packets requested that sealed bids be submitted
for a new, unused heavy duty single axle cab and chassis.
a. Its specifications set forth guidelines and the following
items are in relevant part:
Cab and chassis, frame, axles, springs, exhaust, brakes,
transmission, engine, clutch, electrical, fuel
tank, paint, wheels and tires, dump body, hydraulic
system, snow plow, snow plow hitch, stainless steel
spreader box, lighting, rear cross tube assembly, patrol
leveling trip cutting edge wing mold board, front
hydraulic wing post, wing brace, edge tripping mechanism,
wing cutting edge and miscellaneous equipment as
specified.
22. At the Supervisor's August 6, 1991, meeting, new truck bids
were received and opened. The minutes identify the following
recorded bids as being received and action taken to table them
until they can be reviewed:
a. August 6, 1991:
"At this time, Chairman Pierotti asked the secretary to
open bids as there were quite a few people there for that
purpose only.
New truck bids:
Business Year w /Wing Plow w/o Wing Plow
Verbiaw 1992 67,885.00 67,800.00
5 -Star 1992 59,957.42 54,957.42
Seigworth 1991 58,787.85 54,080.45
1992 60,282.06 55,574.66
Joe Kasaback made a motion to accept Seigworth's bid for
the 1991 truck. Died for a lack of a second.
Tom Pierotti made the motion to table the decision until
the August 20th meeting to let Rich go over the bids to
make sure the bids are according to specs. Betty
Straneva seconded it. Joe Kasaback opposed. Motion
carried.
Present: Kasaback, Pierotti, Straneva.
23. A review of the three bids submitted reflect that all three
meet specifications with exceptions. Five -Star
Kasaback, 94- 044 -C2
Page 7
International's bid did not provide for a stainless steel
spreader box. Five - Star's bid provided for a mild steel model
with a, urethane spinner.
a. Bids submitted by Seigworth Road Supply and Verblaw
Motors both provided for a stainless steel spreader box.
b. Seigworth's bid on the 1992 truck did not guarantee
delivery within 90 days.
24. Verblaw Motors bid was significantly higher than the bids
submitted by Five -Star International and Seigworth Road Supply
[and] thus was not seriously considered by the supervisors.
25. Kasaback asserts that he made the motion to purchase a 1991
truck from Seigworth's at the Supervisor's August 6, 1991,
meeting because he was anxious to get a new truck for the
township.
26. The bid submitted by Five -Star International was submitted in
conjunction with Walsh Equipment.
a. Kenneth Cowher, a Salesman for Walsh Equipment,
determined that bid specifications on the truck chassis
were best suited for one manufactured by International.
b. Walsh Equipment does not have a truck franchise which
requires them to get trucks elsewhere.
c. Cowher has worked with Anthony Demitras of Five -Star
International, Erie, PA., on municipal bids in the past.
d. Five -Star International handled all of the bid paperwork
and submitted it to the township.
e. Five -Star International supplied the truck chassis, Bob's
Sales and Service supplied the dump bed, with equipment
and hydraulics supplied and installed by Walsh Equipment.
27. Ken Cowher, a Salesman for Walsh Equipment, took a spreader
box to Kasaback's residence to demonstrate on or about August
20, 1991.
a. Supervisors Straneva and Pierotti were not present for
the demonstration.
28. During Cowher's demonstration, the focal point of the
conversation turned to professional football.
a. Kasaback and Cowher do not share a social relationship.
b. Cowher is not a broker of professional sports tickets.
Kasaback, 94- 044 -C2
Page 8
c. Cowher has not provided any type of entertainment tickets
to Kasaback in the past.
29. At the time that Cowher met with Kasaback, Cowher was acting
as a Representative of Walsh Equipment, attempting to generate
business for his employer.
30. On the late afternoon of August 20, 1991, the day the
supervisors were to vote on the bids in question, Kenneth
Seigworth, owner of Seigworth's Road Supply, Knox, PA.,
contacted Joseph Kasaback telephonically to confirm that the
vote would occur later that evening.
a. Seigworth and Kasaback do not share a social .
relationship.
b.
Seigworth is not a broker of professional sports tickets.
c. Seigworth has not provided any type of entertainment
tickets to Kasaback in the past.
31. At the time that Seigworth spoke with Kasaback, Seigworth was
acting as a representative of Seigworth Road Supply attempting
to generate business for his company.
32. ALLTEL Telephone Company provides long distance service for
Seigworth Road Supply, RD #2, Box 21, Knox, PA (814) 797 -5146.
33. Billing records of ALLTEL for line number (814) 797 -5146,
dated September 10, 1991, include a thirty -nine cent charge
for a two minute call placed on August 20, 1991, at 5:06 p.m.,
to Ludlow (814) 945 -6540.
a. On the evening of August 20, 1991, township supervisors
were to take action on the truck bids.
b. (814) 945 -6540 is the home phone number of Supervisor
Joseph Kasaback.
34. As part of the meeting packet for the Supervisor's August 20,
1991, meeting, supervisors were furnished with comments by
Roadmaster Bartels regarding the new truck.
a. Bartels' comments related to bids by Seigworth Road
Supply and Five -Star International /Walsh Equipment.
" Seigworth: By going
would save $1,400.00.
5 -Star (Walsh) would
guarantee the truck
Seigworth is $324.64
guarantee the truck
with the 1991 truck, the township
If you want to go with the 1992,
be the cheapest and they will
within 90 days per our specs.
more expensive and they cannot
within 90 days. On equipment,
Kasaback, 94- 044 -C2
Page 9
Seigworth and 5 -Star are the same except for the
spreaders, but with the specs they are close enough."
35. At the Supervisor's August 20, 1991, meeting, discussion and
official action occurred on the purchase of a new truck.
a. Minutes from that meeting reflect the following:
August 20, 1991:
"Discussion was held on the purchase of the new truck and
the bids received. Even though the 1991 truck bid was
cheaper by $1400.00 than the 1992, the 1992 bid by 5 -Star
was the cheapest, plus they can guarantee the truck
within ninety days as specified. Tom Pierotti made the
motion to purchase the 1992 truck as bid by 5 -Star.
Betty Straneva seconded it. Betty Straneva feels that we
are further ahead by going with the 1992, and she asks
Mr. Seigworth if they had the 1991, and he replied that
it had only been there for four weeks. The supervisors
decided to go into Executive Session with Attorney
Luttenauer later in the meeting.
An Executive Session was gone into and this lasted until
8 :30 p.m. On the new truck: Tom Pierotti made the
motion to purchase the 1992 truck from 5 -Star at a cost
of $59,957.42. Joe Kasaback seconded it. Betty Straneva
voted that it was okay to purchase the truck, but that
she was not in favor of the money that Farmer's Home was
putting to it. Motion carried."
Present: Kasaback, Pierotti, Straneva.
36. No records exist indicating what occurred during the August
20, 1991, Executive Session with respect to the truck
purchase; thus, it is not clear who made the recommendation
during the August 20, 1991, Executive Session to purchase the
truck from Five -Star International.
a. Roadmaster Bartels did not attend or participate in
Executive Sessions.
b. Supervisors Kasaback, Pierotti and Straneva all deny
making the recommendation or reviewing the bids.
c. Supervisors Pierotti and Straneva believe that Kasaback
made the recommendation.
d. Solicitor Dennis Luttenauer did not review the bids or
make any vendor recommendations.
Kasaback, 94- 044 -C2
Page 10
e. Luttenauer recalled there being some discussion,about the
low bidder not meeting the specifications and whether the
supervisors could go with another vendor.
f. Luttenauer does not recall the vendors in question and
did not provide any written opinions on the subject.
37. After the completion of the Executive Session, the supervisors
took action to award a bid to Five -Star International to
supply Hamilton Township with a 1992 truck at a cost of
$59,957.42.
38. At the time the bid was awarded, both Straneva and Pierotti
believed that Five -Star International fulfilled all of the bid
requirements.
39. Neither Straneva nor Pierotti checked the bids to make sure
Five -Star International met all of the specifications.
40. When the truck was delivered, Supervisor Straneva realized
that the truck didn't have a stainless steel spreader box as
called for in the specifications.
41. Seigworth Road Supply and Five -Star International /Walsh
Equipment were competing companies both attempting to sell
Hamilton Township a new truck and accessories.
42. Seigworth Road Supply's bid on the 1991 truck was $58,787.85.
This was $1,169.57 less than Five -Star International's bid of
$59,957.42 on a 1992 model.
a. Five -Star did not provide a bid for a 1991 model.
43. Seigworth Road Supply bid [of] $60,282.06 [was] for a 1992
model. This was $324.64 more than Five - Star's bid for a 1992
model.
44. Kasaback stated, when interviewed, that Five -Star
International was selected over Seigworth because their 1992
model was worth more for insurance purposes, if totaled, than
Seigworth's 1991 model. Kasaback claims that the type of
spreader box did not factor into the decision.
45. Joseph Kasaback asserts the following in relation to the
township's purchase of a new truck:
a. Kasaback denied reviewing bids submitted by Verblaw
Motors, Five -Star International, and Seigworth Road
Supply.
Kasaback, 94- 044 -C2
Page 11
b. Kasaback denied asking Roadmaster Bartels whether a mild
steel spreader box would be acceptable but admitted that
the two did discuss spreader boxes at some point in time.
c. Kasaback denied that he solicited tickets from Ken
Cowher, the salesman for Walsh Equipment.
d. Kasaback denied speaking telephonically with Kenneth
Seigworth, of Seigworth Road Supply, on August 20, 1991.
1) Kasaback recalls speaking with Seigworth, but
doesn't recall the date.
e. Kasaback denied soliciting meals and /or tickets from
Kenneth Seigworth.
46. Richard Bartels recommended to the supervisors in 1991 that
the Township get a new truck.
47. Thomas Pierotti does not recall any discussion about the
truck's spreader box.
48. Supervisor Straneva doesn't recall an executive session on
August 20, 1991.
49. Supervisor Straneva was not aware that the bid of Five Star
did not meet the specifications until after the truck was
delivered.
50. Supervisor Straneva received phone calls form representatives
of Five Star and Seigworth regarding the trucks.
51. Anita Crawford, Township Secretary in 1991, does not recall
any discussion on the truck at the executive session on August
20, 1991.
52. Dennis Luttenauer, the solicitor for Hamilton Township on
August 20, 1991, on the question of whether he made a
recommendation as to the purchase of a truck that day or to
choose one bid over any other bid, made no recommendation one
way or the other on any of the bids.
53. A 90 -day extension [of the investigation] was requested on
January 13, 1995, which was granted by the Commission on
February 23, 1995.
54. The 180 days would have run by April 17, 1995, but with the
90 -day extension, the time was extended to July 16 or 17,
1995.
55. Exhibit 16 is the initial Findings Report composed by
Investigator Bender with a date of March 22, 1995.
Kasaback, 94- 044 -C2
Page 12
a. After review in the Pittsburgh Office of the State Ethics
Commission, the document was forwarded to the Harrisburg
Office on April 10, 1995.
1) Between April, 1995 and June 7, 1995, the Findings
Report was reviewed with the rest of the file by
John Olsson, Assistant Counsel, and Robert Caruso,
Deputy Executive Director of the Investigative
Division, and edited prior to the issuance of the
Investigative Complaint on June 7, 1995.
56. Exhibit 17 is a document with revisions made by John Olsson,
Assistant Counsel, with a few notations made by Robert Caruso,
Deputy Executive Director.
a. The document passed back and forth between Caruso and
Olsson during the revision process.
57. Exhibit 18 is a document with further revisions and some
notations.
58. Exhibit 19 is a document which constitutes "a further
evolution of the Findings Report...."
59. "Once Investigator Bender finishes his Findings Report, that
is not the end of the process as far as the investigation is
concerned."
60. "...[O]nce the Findings Report is received in Harrisburg, that
report along with the interviews and reports of investigation
and such are reviewed by ...[John Olsson, Assistant Counsel]
and /or Mr. Caruso and could possibly be sent back to the
investigator for further review and investigation."
a. Such was not done in this case.
61. "...[A]t the time that the 90 -day extension was granted,
Investigator Bender obviously could not speculate as to what
the Harrisburg Office would do with his Findings Report once
he forwarded it to that office."
62. "...[I]t was quite possible that upon review in the Harrisburg
Office that .[the Investigative Division] could have sent
the matter back for review to Investigator Bender...."
B. .TESTIMONY:
63. Anthony Demitras is an employee of Fire Star International
Trucks (FSIT) for approximately seven years.
a. FSIT markets International trucks, parts and service.
Kasaback, 94- 044 -C2
Page 13
b. Demitras had involvement in 1991 in a bid for Hamilton
Township.
1) Ken Cowher from Walsh Equipment contacted Demitras
about an upcoming bid in Hamilton Township.
c. FSIT will bid to supply a truck while Walsh Equipment
will bid to supply accessories such as snow plow hitches
or spreader boxes.
1) For the Hamilton Township bid, FSIT bid for the
truck and Walsh Equipment bid for equipment that
would be attached to the truck.
a) Demitras went to the Hamilton Township Board
meetings to introduce himself to the
Supervisors.
b) Demitras would only have contact or answer
questions as to the truck but not any
equipment for the truck.
c) Kasaback did not ask Demitras for anything.
64. Kenneth L. Cowher is employed as a sales representative for
Walsh Equipment (Walsh) since 1986.
a. Walsh sells highway maintenance equipment and supplies,
including spreader boxes.
b. Walsh has sold at least two products to Hamilton
Township.
c. When Cowher, in his daily sales calls, stopped at
Hamilton Township, he learned that the Township was
considering purchasing a new snow removal dump truck.
d. Walsh does not have a truck franchise.
1) If a township is considering purchasing a truck,
Cowher contacts a local dealer and suggests that
the dealer bid on the truck.
e. For the Hamilton Township bid, Cowher determined that an
International Truck most closely fit the specifications
advertised.
1) Cowher contacted FSIT which was the closest dealer
for International Trucks.
f. After Cowher called Demitras about the Hamilton Township
bid, the two decided to bid together.
Kasaback, 94- 044 -C2
Page 14
1) FSIT would submit the bid for the truck and dump
body.
2) Walsh would become a subcontractor to FSIT to
supply the snow removal equipment.
a) The bid specifications called for a Henderson
brand spreader which is a stainless steel
spreader box.
(1) In 1991, Seigworth equipment had the
exclusive territory for stainless steel
boxes.
(2) For spreader boxes, stainless steel was
most expensive followed by mild steel
with rubberized components followed by
mild steel.
(3) Walsh put in a bid for a mild steel
spreader box with rubberized components.
(a) Cowher believes the durability and
quality of that type spreader is
equal to a stainless steel box.
(4) Cowher was present for the bid opening at
Hamilton Township on August 6, 1991.
(a) The bids were opened, read and
tabled to a later date of August 20,
1991.
g. Between August 6 and 20, 1991, Cowher was requested to
bring equipment for the Supervisors to review.
1) Cowher brought an Elkin tailgate spreader which is
a mild steel box with rubberized components.
a) Cowher went to the Township Building and to
Kasaback's residence.
b) At Kasaback's house, Cowher disassembled and
showed the componentry to Kasaback.
(1) Cowher and Kasaback discussed various
other topics.
(a) The topic of football arose
generally and the Buffalo Bills
specifically.
Kasaback, 94- 044 -C2
Page 15
j.
1) Cowher states that Kasaback
getting tickets for years.
65. Kenneth R. Seigworth is the owner of
(SRS) .
1. Kasaback is a Buffalo Bills
fan.
2. The conversation turned to
football tickets.
3. Kasaback asked Cowher: "Any
chance you could get tickets ?"
a. Cowher responded to
Kasaback: "There ain't
no way I can get tickets,
Joe."
b. Kasaback's request for
tickets occurred in a
conversation after the
sales presentation by
Cowher.
h. FSIT received the Hamilton Township bid for the truck
with equipment supplied by Walsh.
i. Cowher's relationship with Kasaback was primarily
professional rather than social.
1) Cowher does not socialize with Kasaback or the
other Supervisors.
In the normal course of business, Cowher does not provide
sports tickets.
k. Cowher contacted Supervisor Straneva by telephone to
assure her that Walsh Equipment was offering quality
equipment.
1. Kasaback did not call Cowher to come to Kasaback's house
between August 6 and 20, 1991.
m. Seigworth was a competitor of Cowher as to the truck/
equipment bidding in Hamilton Township.
n. Cowher interpreted Kasaback's reference to tickets as
done in a joking manner.
has joked about Walsh
Seigworth Road Supply
gasaback, 94- 044 -C2
Page 16
a. SRS sells road improvement equipment /supplies to
municipalities and contractors..
1) SRS has sole non -bid small items to Hamilton
Township.
b. SRS submitted truck bids to Hamilton Township in 1991 and
1993.
1) For the 1991 bid, employees of Hamilton Township
visited Seigworth and discussed the Township's
needs as to the truck and equipment.
a) Roadmaster Bartels put together specifications
for a truck with spreader box.
(1) Hamilton Township requested a stainless
steel spreader box.
c. Seigworth states that a stainless steel spreader box is
least likely to corrode and there is no difference in the
mild steel spreader, with or without rubber, as to
corrosion.
1) Seigworth opined that the difference between a
stainless steel spreader and a mild steel with
rubberized components would be $600 to $650 in
1991.
a) Seigworth believed the difference between a
stainless steel spreader and a mild steel
spreader would be about $1000 in 1991.
d. Seigworth believed he submitted two bids to Hamilton
Township in 1991 - one with a 1991 and the other with a
1992 truck.
e. At the August 6, 1991, bid opening in Hamilton Township,
Verblaw Motors, FSIT and SRS submitted bids.
1) After reviewing the bids, Seigworth believed he was
the low bidder that met the specifications.
a) Verblaw Motors bid was extremely high.
b) The other bid (FSIT) did not meet, in
Seigworth's view, the spreader specifications
of the bid because a stainless steel spreader
was not offered.
Kasaback, 94- 044 -C2
Page 17
f. On the day before the bid award, Seigworth called
Kasaback to determine the time in the evening when the
bid was to be awarded.
1) Kasaback said to Seigworth: "By the way, would
there be any tickets for the Buffalo Bills game, or
anything, along with this truck ?"
(a) Seigworth responded: "No, sir. I don't do
business that way."
(1) Kasaback replied that he would have to
look the bids over again.
g. At the August 20, 1991, meeting, Seigworth gave to the
Hamilton Township Solicitor a DCA booklet that states
that municipalities are to award a contract to the lowest
bidder who meets the specifications.
1) After an executive session, an announcement was
made that FSIT and Walsh got the bid.
h. Seigworth believed he was the low bidder for the Hamilton
Township bid because the FSIT bid was $54,957.42 and
Seigworth's bid was $54,080.45 without a wing plow.
1) With a wing plow, the FSIT bid was $59.957 compared
to $58,787 for Seigworth.
(a) These figures compared bids between a 1991 and
1992 model truck.
i. For the Hamilton Township bid, utilizing a 1992 model
truck, Seigworth asserts that his bid of $60,282.06 was
lower than FSIT bid of $59,957.42 because he met the
specifications of using a more expensive stainless steel
spreader box.
1) There was a strong probability that Seigworth could
not deliver the 1992 model in the 90 -day period
specified for the bid.
j. At the August 6, 1991 Hamilton Township meeting, Kasaback
made a motion to accept Seigworth's bid for the 1991
model truck.
1) The motion failed for a lack of a second.
66. Thomas Pierotti was a Hamilton Township Supervisor between
1985/86 and 1991/92.
jCasabacic, 94- 044 -C2
Page 18
a. For township bid specification, Pierotti would yield to
the Roadmaster and Kasaback.
1) For a period of time, Kasaback was the designated
Supervisor in charge of the road crew.
2) Kasaback was knowledgeable about large vehicles.
b. Bartels was the person charged by the Supervisors to
gather information concerning trucks.
67. Betty Straneva is a Hamilton Township Supervisor since 1991.
a. Rich Bartels put together the specifications for the 1991
Hamilton Township solicitation for bids for the truck.
b. For the truck bid, there was a requirement for a
stainless steel spreader box.
1) The spreader box was a concern because of rusting
on other trucks.
c. Of the three Supervisors, Kasaback was more knowledgeable
as to mechanical things.
d. As to the Township purchasing a 1991 or 1992 model truck,
FSIT could deliver a 1992 truck within 90 days.
1) Bartels told the Supervisors that Seigworth could
not guarantee delivery of a 1992 . model on time.
e. On August 20, 1991, Pierotti made a motion, seconded by
Straneva to purchase the truck from FSIT.
68. Rich Bartels was hired by Hamilton Township as a laborer in
1987 and then as Roadmaster in 1990.
a. The Township Supervisors asked Bartels to prepare
specifications for a truck bid in 1991.
1) Bartels used certain specifications that Seigworth
had for the truck.
a) The specifications included a stainless steel
spreader box.
2) Bartels considered stainless steel spreader boxes
to be more reliable than mild steel spreader boxes.
3) At the August 6, 1991 board meeting, the bids were
opened, reviewed and the matter tabled so that the
Supervisors could review the matter.
Kasaback, 94- 044 -C2
Page 19
4) Bartels' analysis of the bids was that Seigworth
offered a later model truck with a stainless steel
spreader box.
a) Seigworth's bid was the only bid that met the
specifications for stainless steel.
5) Bartels thought that the spreader with rubber was
the best one to have in terms of handling bigger
material.
a) Bartels mentioned to Kasaback that the
spreader with rubber would be better to use.
6) Bartels conveyed to the Supervisors that getting a
1992 rather than a 1991 truck would be a better
deal.
69. Daniel M. Bender is an Investigator for the State Ethics
Commission.
a. The investigation could not have been completed by April
17, 1995, given the work that was needed in this and
other investigations.
1) Bender was working on 19 active cases at that time.
b. The procedure for receiving Commission approval for
extensions has to be made in the guidelines of when
Commission meetings are scheduled.
70. Joseph Kasaback (Kasaback) is a Supervisor in Hamilton
Township.
a. When the Supervisors decided to purchase a new truck,
Bartels was directed to handle the matter by obtaining
certain information.
b. The Township authorized the solicitation of bids for a
truck.
1) The bids were opened at an August 6, 1991 Township
board meeting.
a) Kasaback made a motion to accept the bid of
Seigworth for a 1991 model truck.
(1) The motion failed for lack of a second.
2) A decision was made to decide the matter at another
meeting.
Kasaback, 94- 044 -C2
Page 20
c. Cowher came to Kasaback's house and brought a spreader.
1) There was a discussion about many things including
tickets.
a) Kasaback testified that his recollection was
that he only asked Cowher if his company ever
bought tickets.
(1) Kasaback testified that he joked with
Cowher at the State Convention about
tickets but did not do so while Cowher
was at his house.
b) Kasaback testified that after he went to a
football game with his son -in -law in Tampa,
Arizona, he had no desire and has not gone to
any football games.
d. Kasaback testified that he did not ask Seigworth to
provide anything personally to him ( Kasaback).
e. Kasaback states that the decision to accept the bid of
FSIT for the truck bid in August, 1991 was as a result of
a general discussion of all Supervisors.
1) Kasaback testified that the general discussion
focused on whether to buy a 1991 or 1992 model
truck and the delivery time of the truck.
a) Kasaback states that Seigworth could not
deliver a 1992 model truck by the delivery
date.
f. When Cowher and Kasaback were talking about football
tickets, Cowher's company had a bid pending in Hamilton
Township.
Although Kasaback made a motion at the August 6, 1991
meeting to accept Seigworth's bid, he voted with the
Board on August. 20, 1991 to accept the bid of FSIT.
h. In 1991, Kasaback was a Buffalo Bills fan, living
approximately 80 -85 miles from their stadium.
71. Todd Kasaback is the son of Kasaback.
a. Todd Kasaback testified that when he answered a telephone
call in August, 1991 from Seigworth for Kasaback, Todd
did not hear Kasaback ask for football tickets.
Kasaback, 94- 044 -C2
Page 21
C. EXHIBITS:
1) Todd Kasaback testified that he could not recall
the identify of one of the two Investigative staff
members that visited Kasaback's house in February,
1995.
2) Todd Kasaback had no idea of the significance of
the phone call from Seigworth to Kasaback when made
in 1991.
72. Kasaback solicited tickets from Seigworth based upon an
understanding that Kasaback's vote, official action or
judgment would be influenced thereby.
73. Exhibit lA is a redacted complaint with attachments received
at the State Ethics Commission on August 15, 1994, which
relates to the allegation in this case.
74. Exhibit 2 is a notice letter dated October 19, 1994, with
attachments, advising Kasaback that an investigation would be
undertaken as to the allegation in this case.
75. Exhibit 5, page 2, is an Order of the State Ethics Commission
dated February 23, 1995, granting a 90 -day extension to the
Investigative Division as to the investigation in this case.
76. Exhibit 7, page 1, is a Financial Interests Statement of
Kasaback dated February 12, 1991, for the calendar year 1990,
wherein he listed the following financial interests inter
alia:
a. Direct or indirect sources of income: Penelec, Hamilton
Township and PA Retirement System.
b. All other financial categories: None.
77. Exhibit 7, page 2, is a Financial Interests Statement of
Kasaback dated February 10, 1992, for the calendar year 1991
wherein he listed the following financial interests inter
alia:
a. Creditors: Hamlin Bank, Kane, PA at 11% interest rate.
b. Direct or indirect sources of income: Penelec and
Hamilton Township.
c. All other financial categories: None.
78. Exhibit 7, pages 3 and 4, are Financial Interests Statements
of Kasaback as a public official and candidate dated January
19, 1993 and February 23, 1993 respectively, which either list
gasaback, 94- 044 -C2
Page 22
no information or contain a check mark of none for all
financial categories.
79. Exhibit 7, page 5, is a Financial Interests Statement of
Kasaback dated January 20, 1994, for the calendar year 1993
wherein he listed the following financial interests inter
alias
a. Creditors: PSECU with address and interest rate of 7.9 %.
b. Direct or indirect sources of income: Penelec, Social
Security, and Hamilton Township.
c. All other financial categories: None.
80. Exhibit 8A is the minutes of Hamilton Township for
1991 which reflects in part the following:
a. Bartels raised the issue of the specifications
new truck.
a.
1 )
Kasaback stated that Bartels and he went to the
Walsh Equipment open house and saw more or less
what would suit the Township.
2) Supervisor Straneva wanted more input.
3) Supervisor Pierotti suggested that representatives
come and discuss options with Bartels who should
make the arrangements.
81. Exhibit 8B is the minutes of Hamilton Township for July 2,
1991 which reflect in part the following:
Bartels asked that bids for the new truck not be opened
by the Supervisors until the August meeting so that he
could do more research.
1) Kasaback made a motion, second by Pierotti, that
Bartels prepare specifications for the truck with
bid opening at August 6, 1991 at 7:00 p.m.
Straneva opposed.
82. Exhibit 8C is the Hamilton Township minutes for August 6, 1991
which reflect in part:
a. The bids for the new truck were as follows:
June 4,
for the
Kasaback, 94- 044 -C2
Page 23
w/ Wing Plow w/o Wing Plow
Verblaw 67,885.00 67,800:00
5 Star 59,957.42 54,957.42
Seigworth (91) 58,787.85 54,080.45
(92) 60,282.06 55,574.66
1) Kasaback made a motion to accept Seigworth's bid
for the 1991 truck which failed for lack of a
second.
b. Pierotti made a motion to table the decision until August
20, 1991 so that Bartels could review the bid to ensure
they were according to specifications. Straneva seconded
the motion which carried with Kasaback opposed.
83. Exhibit 8D is the Hamilton Township minutes for August 20,
1991 which reflect in part:
a. As old business, a discussion was held on the purchase of
the new truck.
1) The bid by FSIT for the 1992 truck was cheapest
with a 90 -day delivery guarantee.
a) Pierotti made the motion to accept FSIT bid
for the 1992 truck which was seconded by
Straneva.
(1) The Supervisors went into executive
session with Attorney Littenauer.
b. Pierotti made a motion to purchase the 1992 truck from
FSIT for $59,957.42 which was seconded by Kasaback.
Motion carried.
84. Exhibit 10 is the general specifications by Hamilton Township
for bids as to a truck with dump body and equipment including
but not limited to a material spreader.
a. Delivery was to be completed in 90 days with liquidated
damages of $50.00 per calendar day after 90 days.
b. The bid specified a stainless steel material spreader.
85. Exhibit 12 is the bid by FSIT submitted to Hamilton Township
for a 1992 International Truck with wing plow totaling
$59,957.42.
a. Included within the bid is equipment supplied by Walsh
Equipment.
Kasaback, 94- 044 -C2
Page 24
1) The spreader would be a New Elkin Model 2000
tailgate spreader as per list which reflects mild
steel construction.
86. Exhibit 13 is the bid of SRS to Hamilton Township for a 1991
truck that would meet or exceed all specifications.
a. As for a 1992 model, the bid notes a very strong
probability that the time schedule of 90 days could not
be met.
b. As to the equipment concerning the spreader, the bid
specified a Henderson Model TGS -11 spreader made of
stainless steel which is a heavy duty auger - spinner
model.
c. The bid was $58,787.85 with an additional $1,494.21 for
a 1992 model truck.
87. Exhibit 14 is the bid of Verblaw Motor Truck Sales to Hamilton
Township for a 1992 International Model Truck 2554 with
stainless steel spreader box totaling $67,800.
88. Exhibit 3 is a 90 day extension request by the Investigative
Division as to the Kasaback investigation.
a. The request was filed on January 13, 1995.
b. The 180 base period for completing the investigation was
April 17, 1995.
c. The reasons for the request were the need to conduct
interviews and other cases with Act 9 deadlines.
d. The 90 day extension was granted by the Commission on
February 23, 1995.
89. Exhibit R -2 is a list of the people interviewed by the
Investigative Division and the dates of interviews as
stipulated.
III. PISCUSSION:
As a Supervisor for Hamilton Township, Joseph Kasaback,
hereinafter Kasaback, is a public official as that term is defined
under Act 9 of 1989. 65 P.S. §402. As such, his conduct is
subject to the provisions of the Ethics Law and the restrictions
therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 provides, in part, as follows:
Kasaback, 94- 044 -C2
Page 25
This amendatory act shall not apply to
violations committed prior to the effective,
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto.
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3(a) of Act 9 of 1989, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest as the term is defined above.
In addition, Section 3(c) of Act 9 of 1989 provides in part
that no public official /employee shall solicit or accept anything
of monetary value based on any understanding of the public
official / employee that the vote, official action, or judgement of
the public official /employee would be influenced thereby.
Preliminarily, Kasaback asserts that no need was shown by the
Investigative Division for a grant of an extension to the
investigation in this case.
Section 8(c) of Act 9 of 1989 provides in part:
65 P.S. §408(c).
Upon a showing by the executive director of
the need for extension of this period, the
commission may extend an investigation for up
to two 90 -day periods, provided that each 90-
day extension shall be approved by a majority
vote of members present. In no event shall a
findings report be issued later than 360 days
after initiation of an investigation.
The above process is neither adversarial between the parties
nor one in which input is allowed to a respondent. This is simply
a procedural provision which allows the grant of an extension of an
investigation when the executive director shows the need for an
extension. Since it is not the prerogative of a respondent to
challenge such an extension(s), we need not and do not address the
matter which concluded once we determined that a need for an
extension was shown.
Kasaback, 94- 044 -C2
Page 26
The issues before us are whether Kasaback, as a Hamilton
Township Supervisor, violated Section 3(a) of Act 9 of .1989, the
conflict provision, or Section 3(c) of Act 9 of 1989, the
solicitation provision, regarding the allegation that he solicited
gifts from companies bidding to supply equipment /materials to the
Township in return for his official action as to the award of the
bids.
Kasaback has served as a Supervisor in Hamilton Township,
McKean County for the last 26 years. Neither Kasaback nor the two
other elected Supervisors, Pierotti or Straneva, serve as
Roadmasters. Richard Bartels is the appointed Township Roadmaster.
When the Hamilton Township Supervisors determined in 1991 that
a new truck with a snow plow and related equipment was needed,
Bartels was designated to write the specifications for a bid
solicitation.
In the Spring of 1991, Bartels and Kasaback attended an open
house at Walsh Equipment to view new trucks. In addition, Bartels
went to Seigworth Road Supply (SRS) to view trucks and related
equipment in May or June, 1991. Subsequently, Hamilton Township
published a legal notice requesting sealed bids for a new truck and
equipment. Bids were received and opened at the August 6, 1991
meeting of the Board of Supervisors. The three bids that were
received and opened were from Five Star International Trucks
(FSIT), SRS, and Verblaw Motor Truck Sales. The Verblaw bid was
very high and not considered by the Board. The FSIT bid was in the
amount of $59,957.42 for a 1992 International Truck with wing plow.
However, the FSIT bid included a tailgate spreader made of a mild
steel rather than stainless steel as required in the bid
specifications.
The SRS bid was in the amount of $58,787.85 for a 1991 model
truck with equipment including a stainless steel spreader as per
the specifications. A 1992 model truck could be provided for
$60,282.06 but SRS noted a very strong probability that a 1992
model could not be delivered within the bid time schedule of 90
days.
At the August 6, 1991 meeting, Kasaback made a motion to
accept the SRS bid for the 1991 truck which motion failed for a
lack of a second. Pierotti then made a motion to table the matter
until the August 20, 1991 meeting so that Bartels could review the
bids to insure conformity with the specifications.
Between the August 6 and August 20, 1991 meetings of the
Hamilton Township Board of Supervisors, representatives from SRS
and Walsh Equipment, which joined in the FSIT bid, contacted
Kasaback. Parenthetically, as to the FSIT quote, FSIT was to
supply the truck and Walsh Equipment was to supply the accompanying
Kasaback, 94- 044 -C2
Page 27
equipment for the truck. However, since SRS had a truck franchise,
it was able to supply both the truck and accompanying equipment.
Cowher, from Walsh Equipment, brought a spreader to the
Township Building and then to Kasaback's residence. At Kasaback's
house, Cowher disassembled and showed the componentry of the
spreader to Kasaback. Thereafter, Cowher and Kasaback discussed
other topics, including football. Kasaback is a Buffalo Bills fan
who lives approximately 80 miles from their stadium. When football
was discussed, Kasaback asked Cowher whether Cowher could get any
tickets. Cowher responded to Kasaback that there was no way he
could get tickets for him. Cowher testified that he construed
Kasaback's reference to tickets as done in a joking manner in that
Kasaback had joked about Cowher getting tickets for years.
Although Seigworth from SRS did not make any personal contact
with Kasaback, Seigworth did telephone Kasaback regarding the truck
bids. During the course of their telephone conversation, Kasaback
asked Seigworth: "By the way, would there be any tickets for the
Buffalo Bills game, or anything, along with this truck ?"
Thereupon, Seigworth responded: "No, sir. I don't do business that
way." Kasaback then replied that he would have to look over the
bids again.
Kasaback testified that he did not ask Seigworth to provide
any personal items. Todd Kasaback, Kasaback's son, testified that
he answered the telephone when Seigworth called Kasaback and
recalled, in exact detail, his father's side of the telephone
conversation. Although Todd Kasaback acknowledged that the
telephone conversation occurred over four years ago and that it had
no significance at that time, he nevertheless asserted that he
recalled what Kasaback said to Seigworth. However, Todd Kasaback
could not recall the identity of the Commission Investigative staff
who visited Kasaback's home in February, 1995, which was
approximately 6 months prior to the hearing in this case.
At the August 20, 1991 meeting of the Hamilton Township Board
of Supervisors, FSIT was awarded the bid to supply the truck and
equipment. As noted above, the FSIT bid for the spreader was for
a mild steel construction contrary to the Township bid
specifications which required a more expensive stainless steel
spreader. The SRS bid included a stainless steel spreader.
Lastly, SRS could not guarantee delivery of a 1992 model truck in
the 90 day period of the specifications.
We now apply the allegation to the facts of record.
Violations of both Section 3(a) and Section 3(c) of the Ethics Law
have been alleged.
As to Section 3(a) of Act 9 of 1989, we find no violations for
the reason that Kasaback did not use the authority of office to
Kasaback, 94- 044 -C2
Page 28
obtain a private pecuniary benefit for himself under the particular
facts of this case.
Turning to Section 3(c) of Act 9 of 1989, we do not find a
violation of Section 3(c) as to Kasaback's discussion with Cowher.
Cowher testified that Kasaback's comment about tickets was viewed
by him to be a joke, just as Kasaback had joked with him for years
about tickets. The remark was in the context of a discussion about
football and was completely unrelated to the previous demonstration
of the spreader. There was no connection between the potential
sale of equipment to the Township and the tickets.
However, there was a clear violation of Section 3(c) as to
Kasaback's conversation with Seigworth. Unlike Kasaback's
conversation with Cowher where tickets were mentioned in the
context of a long- standing joke, and as just one of a number of
other topics discussed after Cowher had completed his presentation
of the spreader, Kasaback's conversation with Seigworth, a man he
did not know, specifically linked the receipt of "any tickets for
the Buffalo Bills game, or anything, along with this truck." This
was no joke. It is clear that Kasaback coupled the sale of the
Township truck with the receipt of football tickets or something
else of value. Indeed, when Seigworth rebuffed Kasaback's
solicitation, Kasaback retorted that he would have to take another
look at the bids. Clearly this solicitation was based upon an
understanding that Kasaback's vote, official action, or judgment
would be influenced thereby.
Although the testimony of Kasaback and Seigworth is at odds,
we find Seigworth to be a disinterested and credible witness. In
addition, we do not find the testimony of Kasaback's son, Todd, to
be particularly plausible. In particular, we find it difficult to
accept that Todd Kasaback could recall in exact detail a telephone
conversation that occurred four years ago which he admitted had no
significance at the time, yet could not recall which of the State
Ethics Commission investigative staff appeared at Kasaback's home
less than six months before the hearing.
Kasaback solicited football tickets or something else of value
from Seigworth which solicitation was specifically linked to the
Township's purchase of the truck. Since such solicitation was
based upon an understanding that Kasaback's vote, official action
or judgment would be influenced as to the purchase of the truck, a
violation of Section 3(c) of the Ethics Law occurred.
Our decision as to the Section 3(c) violation is in accord
with our prior precedent in Yezzi, Order No. 825, which Order was
affirmed by Commonwealth Court in Yezzi v. State Ethics Commission,
Opinion filed in Commonwealth Court at 693 C.D. 1992 on December
15, 1992, allocatur denied, in the Pennsylvania Supreme Court on
July 15, 1993 at 10 WD Allocatur Docket 1993.
Kasaback, 94- 044 -C2
Page 29
IV. CONCLUSIONS OF LAW:
1. Joseph Kasaback, as a Hamilton Township Supervisor, McKean
County, is a public official subject to provisions of Act 9 of
1989.
2. Kasaback did not violate Section 3(a) of Act 9 of 1989
regarding the solicitation of gifts from companies bidding to
supply equipment to the Township in that Kasaback did not use
the authority of office to obtain a private pecuniary benefit
for himself.
3. Kasaback did not violate Section 3(c) of Act 9 of 1989 as to
a joking request for tickets to Cowher of Walsh Equipment
following a demonstration of truck equipment for the Township.
4. Kasaback violated Section 3(c) of Act 9 of 1989 when he
solicited football tickets or something of value from
Seigworth of Seigworth Road Supply based upon the
understanding that Kasaback's vote, official action, or
judgment would be influenced thereby.
In Re: Joseph Kasaback
ORDER NO. 993
File Docket: 94- 044 -C2
Date Decided: 12/7/95
Date Mailed: 12/15/95
1. Joseph Kasaback, as a Hamilton Township Supervisor, McKean
County, did not violate Section 3(a) of Act 9 of 1989
regarding the solicitation of gifts from companies bidding to
supply equipment to the Township in that Kasaback did not use
the authority of office to obtain a private pecuniary benefit
for himself.
2. Kasaback did not violate Section 3(c) of Act 9 of 1989 as to
a joking request for tickets to Cowher of Walsh Equipment
following a demonstration of truck equipment for the Township.
3. Kasaback violated Section 3(c) of Act 9 of 1989 when he
solicited football tickets or something of value from
Seigworth of Seigworth Road Supply based upon the
understanding that Kasaback's vote, official action, or
judgment would be influenced thereby.
BY THE COMMISSION,
406
DANEEN E. REESE, CHAIR