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HomeMy WebLinkAbout986 BrinkSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Donald C. Brink File Docket: 94- 036 -C2 Date Decided: 10/26/95 Date Mailed: 11/8/95 Before: 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 seg. 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 public hearing was held at the request of respondent. 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). Brink, 94- 036 -C2 Page 2 I. ALLEGATION: That Donald Brink, a public official /public employee, in his capacity as a Commissioner for Pike County violated provisions of the State Ethics Act (Act 9 of 1989) when he participated in the award of a snow removal contract to a company which sub- contracted to utilize vehicles owned by him. 65 P.S. §403(a). 65 P.S. §403(f). Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 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 Brink, 94- 036 -C2 Page 3 65 P.S. §402. II. FINDINGS: A. PLEADINGS: 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. 1. On August 25, 1994, a letter was forwarded to Donald C. Brink, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, No. P 016 239 421, return receipt requested. b. The domestic return receipt bore the signature of Joan Brink, with a delivery date of August 29, 1994. 2. The investigative complaint' was mailed to the Respondent's Counsel on February 21, 1995. 3. Donald C. Brink served as a Pike County Commissioner from 1983 to 1987 and from January of 1992 to the present. a. Brink served as Chairman of the Pike County Board of Commissioners from January of 1994 to December of 1994. 4. The property on which Brink Excavating is located is owned by Donald C. Brink and his wife, Joan. a. The company maintains an office in Brink's residence at that location. 5. The company telephone, number 717 - 296 -7650, is located in the residence of Donald C. and Joan Brink. Brink, 94- 036 -C2 Page 4 6. Records on file at the Department of State, Corporation Bureau, indicate Brink Excavating Company, a.k.a. Brink Incorporated, is a registered corporation in the Commonwealth of Pennsylvania. a. Brink Incorporated was incorporated on September 29, 1978, by Donald Brink, R.D. #1, Box 305 [sic], Milford, PA. 7. Stock certificates in the possession of John Klemeyer, attorney for Dennis Brink, reflect a stock certificate in the name of Dennis Brink, for 50 shares and a stock certificate in the name of Joan Brink, for 50 shares. a. Dennis Brink is the son of Donald Brink. b. Joan Brink is the wife of Donald Brink. 8. Dennis Brink and Donald Brink assert that ownership of Brink, Inc., was transferred to Dennis and Joan Brink in 1991. a. No changes were recorded with the Commonwealth of Pennsylvania, Bureau of Corporation. b. No money was exchanged in this transaction. 9. The equipment, including the trucks, front end loader, bulldozer and tractor trailer used by Brink Excavating are owned by Donald C. Brink. 10. Dennis Brink and Donald Brink assert that Brink, Inc., pays $1,500.00 per month to Donald Brink for the use of equipment including trucks and a front end loader. 11. Statements of Financial Interest filed by Donald C. Brink on January 22, 1992 for the calendar year 1991, on January 22, 1993 for the calendar year 1992, and on May 1, 1994 for the calendar year 1993, contain the following information: a. In Section 8, Occupation or Profession, Brink lists "Contractor ". b. In Section 11, Direct or Indirect Sources of Income, Brink lists "Brink Excavating, RD 1, Box 315, Milford, PA 18337." c. In Section 14, Office, Directorship, or Employment In Any Business Brink lists "Brink Excavating" with Position Held "Part Owner ". d. Under Business Interests Transferred to Immediate Family Member Brink states "None ". Brink, 94- 036 -C2 Page 5 12. As to the policy of the Pike County Commissioners to make purchases or to contract for services: a. All purchases or contracts ranging from $4,000 to $10,000 are made only after obtaining 3 telephonic price quotes. b. All purchases or contracts exceeding $10,000 are made through the bidding process. 13. In the calendar years 1993 and 1994 Jagger Asphalt Paving was selected by Commissioner Brink to remove snow from County property. a. Brink did not ascertain the cost of the snow removal prior to the contract being awarded. 14. The agreement entered into between Brink and Jagger was not awarded through the use of telephone price quotes or the bidding process. 15. Brink arranged with the Delaware River Joint Toll Bridge Commission and the US Park Service for permission to dump the snow on Bridge Commission and Park Service property. 16. Jagger Asphalt Paving, PO Box 1006, Dingmans Ferry, PA 18328, Phone 717 - 828 -9447, is owned by Ronald Jagger, RR #1, Box 134C, Birchwood Lakes, Dingmans Ferry, PA. 17. Brink has known Ronald Jagger for approximately 30 years. a. Brink and Jagger have had prior business relationships. 18. Jagger submitted the following invoices to Pike County for snow removal: 1993 a. Undated Snow Removal Load and Haul Off February 25, 1993 6 1/2 hrs back hoe 6 1 /2 hrs truck #1 6 1/2 hrs truck #2 March 3, 1993 4 1 /2 hrs back hoe 4 / hrs truck #1 @ 65.00 $422.50 @ 50.00 $325.00 @ 50.00 $325.00 @ 65.00 $292.50 @ 50.00 $225.00 $1590.00 Brink, 94- 036 -C2 Page 6 (The invoice contained the handwritten notation "OK DCB ".) b. Undated Snow Removal Co Complex March 15, 1993 March 16, 1993 January, 10, 1994 14 hrs backhoe @ 65.00 $910.00 14 hrs truck #1 @ 50.00 $700.00 10 % hrs truck #2 @ 50.00 $525.00 6 % hrs labor @ 12.00 $ 78.00 6 hrs backhoe @ 65.00 $390.00 6 hrs truck #1 @ 50.00 $300.00 6 hrs truck #2 @ 50.00 $300.00 $3,203.00 (The invoice contained the handwritten notation "OK DCB ".) TOTAL FOR 1993 $4,793.00 1221 a. Date: January 12, 1994 Snow Removal Load and Haul Off Co. Complex January 9, 1994 6 hrs truck #1 6 hrs truck #2 6 hrs loader 9 V hrs truck #1 9 % hrs truck #2 9 % hrs loader [7] hrs labor @ 50.00 $300.00 @ 50.00 $300.00 @ 65.00 $390.00 @ 50.00 $475.00 @ 50.00 $475.00 @ 65.00 $617.50 @ 12.00 $ 84.00 $2,641.50 (The invoice contained the handwritten notation "Centra T. Quinn ".) Brink, 94- 036 -C2 Page 7 b. Date: January 26, 1994 Snow Removal Load and Haul Off Co. Complex January 18, 1994 January 19, 1994 January 21, 1994 5 hrs truck #1 5 hrs loader 5 hrs labor 10 hrs truck #1 10 hrs truck #2 10 hrs loader 10 hrs truck #1 5 hrs truck #2 10 hrs loader c. Date: February 14, 1994 Snow Removal Load and Haul Off Co. Complex Sanding January 29 & 30th February 6, 1994 9 hrs loader 8 hrs truck #1 6 hrs truck #2 @ 50.00 $250.00 @ 65.00 $325.00 @ 12.00 $ 60.00 @ 50.00 $500.00 @ 50.00 $500.00 @ 65.00 $650.00 @ 50.00 $500.00 @ 50.00 $250.00 @ 65.00 $650.00 $3,685.00 $235.00 @ 65.00 $585.00 @ 50.00 $400.00 @ 50.00 $300.00 $1,520.00 d. Date: February 22, 1994 Snow Removal Load and Haul Off Co. Complex February 16, 1994 6 % hrs loader @ 65.00 $422.50 6 % hrs truck #1 @ 50.00 $325.00 February 17, 1994 7 hrs loader @ 65.00 $455.00 7 hrs truck #1 @ 50.00 $350.00 Brink, 94- 036 -C2 Page 8 e. Date: March 8, 1994 Snow Removal Load and Haul Off Co. Complex March 5, 1994 March 6, 1994 a. 11295 - 3/11/93 b. 11621 - 4/1/93 c. 15966 - 1/20/94 d. 16202 - 2/3/94 e. 16464 - 2/17/94 f. 16657 - 3/3/94 6 hrs loader 6 hrs truck #1 No Date No Date 1/12/94 1/26/94 2/14/94 2/22/94 $1,552.50 @ 65.00 $390.00 @ 50.00 $300.00 1 hr loader push off dump site $ 65.00 6 1 / hrs loader @ 65.00 $422.50 6 1 /2 hrs truck #1 @ 50.00 $325.00 $1,502.50 TOTAL FOR 1994 $10,901.50 19. Jagger was paid a total of $4793.00 in 1993 and $10,901.50 in 1994 by Pike County for the snow removal work. 20. Centra T. Quinn held the position of Clerk to the County Commissioners from 1958 to 1994. a. Quinn's signature on the invoices indicate her involvement in the bill paying process for the County. b. Quinn was not involved in hiring Jagger Asphalt Paving to remove the snow. 21. Truck #2 referred to on Jagger Asphalt Company's invoices is owned by Donald C. Brink. a. Truck #2 has a license plate No. 91010 CB. b. This vehicle is registered to Donald C. Brink. 22. Pike County records confirm the following County checks were used to compensate Ronald Jagger for the snow removal work: Check Number Jagger Invoice Date And Date Brink, 94- 036 -C2 Page 9 g. 16850 - 3/10/94 3/08/94 23. Pike County records and minutes of Commissioners meetings indicate Commissioner Brink took the following action in reference to the approval of payments of Jagger Asphalt Company bills: Date Check Action Taken By Signature Approved Number Amount Commissioner Brink On Check 3/11/93 11295 $ 1,590.00 2nd Motion, Voted Yes 4/01/93 11621 $ 3,203.00 2nd Motion, Voted Yes 1/20/94 15966 $ 2,641.50 Voted Yes 2/03/94 16202 $ 3,685.00 Voted Yes 2/17/94 16464 $ 1,520.00 Voted Yes 3/10/94 16657 $ 1,552.50 Voted Yes 3/10/94 16850 $ 1,502.50 Voted Yes TOTAL $15,694.50 24. Listings of bills are presented to the County Commissioners prior to the Commissioners meeting along with a cover letter which the Commissioners signed, indicating their approval of payment of the bills. a. Brink received these lists prior to taking action in regards to the bills. 25. Jagger billed Pike County as follows: a. November 24, 1993 Parking Lot as per contract $3,500.00 (DB Centra Quinn) b. November 24, 1993 Haul away debris from storage shed area $ 150.00 26. Payment for services outlined above were made as follows: pate Check No. Amount Brink Action Signature on Check 12/2/93 15177 $3,650.00 2nd Motion, Voted Yes 27. The checks made payable to Jagger Asphalt Paving were deposited into Jagger's account at the LA Bank of Lake Ariel. 28. LA Bank of Lake Ariel records indicate that on March 6, 1994, Ronald Jagger, owner of Jagger Asphalt Paving, wrote check number 2543, from the company's account, number 762276114, in Brink, 94- 036 -C2 Page 10 the amount of $3,500.00, to Brink Incorporated. 29. Check Number 2543 contained the endorsement "Brink Inc" and was deposited in Brink Incorporated's account at the Mellon bank. 30. Jagger Asphalt Paving used Brink Excavating as a subcontractor on three other occasions during 1992, 1993 and 1994. 31. Brink Excavating submitted invoices for payment to Jagger Asphalt Paving for the work performed on those 3 occasions. 32. There were no invoices prepared by Brink Excavating for Jagger Asphalt Paving's use of Brink's truck when used for the snow removal from Tioga [sic] County property. B. STIPULATIONS: 33. On June 27, 1994, the Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Donald C. Brink violated provisions of the State Ethics Act. 34. Upon review of the complaint by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 35. At the direction of the Executive Director, the Investigation Division initiated a preliminary inquiry on June 28, 1994. 36. The preliminary inquiry was completed within sixty days. 37. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 38. Joan Brink would testify that Dennis Brink told her that he had lent a truck to Ronald Jagger but did not tell her the purpose for which he lent the truck to him. 39. James Lighty is a general contractor who, since 1990, has employed Brink, Inc. to do excavating work. a. Lighty was involved with representatives of Brink, Inc. as to his jobs. b. Lighty had no involvement with Donald Brink. c. Based upon Mr. Lighty's observations as to his corporation's employing Brink, Inc., since 1990, Lighty has never contacted Donald Brink, and all of his contacts have been with Dennis Brink. Brink, 94- 036 -C2 Page 11 C. TESTIMONY: (1) Lighty has never seen Donald Brink on any job site. (2) Lighty has never seen Donald Brink operating in any supervisory capacity of Brink, Inc. (3) All bills forwarded by Mr. Lighty's corporation to Brink, Inc., were addressed to Brink, Inc. (4) All invoices received for work done since 1990 were from Brink, Inc. (5) To the best of Lighty's knowledge, information and belief based upon his business dealings with Dennis Brink, Dennis Brink is the President and controls the corporation. 40. Donald G. Quick is a part -time police officer in Milford, Pike County. a. On 1/21/94, Quick was on regular duty patrol from 8:00 p.m. to 4:00 a.m. of the following morning. (1) Quick worked with Police Chief Gary Williams whose shift was from 4:00 p.m. to 12:00 midnight. (2) At some point after 8:50 p.m., Williams and Quick were patrolling near the Pike County Courthouse. (a) Quick observed snow removal operations in the courthouse parking areas. (b) An old red International Dump Truck, which Quick believed was owned by Brink, was used in the snow removal operation. [1] The dump truck had a Jagger Construction placard. [2] A license check indicated that the truck was registered as owned by Brink or Brink Construction. [3] Exhibits 13A -E are photographs which Quick took of the dump truck on the evening of 1/21/94. [4] The truck's Pennsylvania license tag number is 91010 -CB. Brink, 94- 036 -C2 Page 12 (c) A Case Backhoe was also being used in the snow removal operation. 41. Gary Williams is the Milford Police Chief having served in that capacity since June, 1988. a. Williams has known Donald Brink, his wife, Joan Brink, and his son, Dennis Brink, for approximately 25 years. b. Williams has known Robert Raser for more than five years. c. During the evening of 1/21/94, Williams was on duty with Corporal Quick. (1) While on patrol, Williams observed snow removal operations at the courthouse. (a) Williams saw a backhoe and a dump truck with a Jagger decal on the doors. [1] The dump truck was recognized by Williams as a Brink truck. [2] A few days earlier, Williams had observed the truck without the decals on the doors. [3] A license check indicated that the truck was owned by Brink. [4] The backhoe was operated by Robert Raser. 42. Harry Forbes is a Milford resident and businessman. a. Forbes is currently a Milford Township Supervisor. b. During the evening of 1/21/94, Forbes met with Chief Williams and Corporal Quick and discussed the snow removal operation at the County offices. (1) Forbes observed a backhoe and a red Brink dump truck which had a Jagger sign on the door. (2) Forbes observed that Raser was operating the backhoe. (3) On several subsequent occasions, Forbes observed snow removal operations at the courthouse with the same dump truck and backhoe. (a) On one such occasion after January 21, 1994, during the daytime, Forbes observed Donald Brink, 94- 036 -C2 Page 13 Brink and Raser behind the courthouse when snow was being removed using the Brink dump truck. [1] The Brink truck bore the Jagger sign at that time. 43. Sally Thomson is a Pike County Commissioner, having served in that capacity since January, 1992. a. A county commissioner oversees the operation, administration and functioning of the county. (1) Pike County bills are reviewed at public meetings and paid as a group of bills. (2) Pike County contracts of $4,000 or more require at least three telephonic bids. (3) Pike County contracts of $10,000 or more require bid solicitation with specifications. (4) For Pike County contracts under $4,000, the criteria are to consider the service and the availability of people to do the job. (5) For snow removal, maintenance and similar matters reliance was placed upon Brink to arrange such matters. (a) Brink would review such matters and report to the County Board of Commissioners. (b) As to any emergency service, Brink would take care of such matters. (c) Brink was in charge of snow removal and maintenance matters. (d) Thomson never contacted Jagger. (e) Thomson was not aware of any instance where Commissioner Jonas contacted Jagger. (f) The only involvement of Thomson in snow removal was voting on the bills. (g) Both Thomson and Jonas voted to pay the bills of Jagger. (h) Brink had the responsibility to insure that the work was done as to contracts. Brink, 94- 036 -C2 Page 14 44. Margaret Jonas has been a Pike County Commissioner for the last eight years. a. The County Commissioners run the daily business of the County. b. There are contracting requirements for the County. (1) Contracts of $10,000.00 or more must be advertised for bid. (2) Contracts between $4,000.00 and $10,000.00 require obtaining three telephonic proposals. (3) Contracts below $4,000.00 are dealt with in executive sessions or workshops. (4) For snow removal, the Commissioners will have a discussion and Brink will hire the contractor. (a) Brink oversees the work.. (b) Brink reports to the Commissioners. (5) Bills for services rendered are provided to the Commissioners who vote to approve such bills. c. Jonas was aware that Jagger was hired to remove snow from the County property. d. Jonas voted with the unanimous board to pay Jagger's bills. e. Jonas was not aware that Brink's truck was used in the snow removal operations for the County. 45. Joan Brink is the spouse of Donald Brink. a. Joan Brink is the secretary /treasurer of Brink, Inc. (1) Brink, Inc. was incorporated in 1978 but was not activated until about 1990/91. (2) The Articles of Incorporation were signed by Donald Brink. (a) Donald Brink was the sole incorporator. (b) The corporation had the authority to issue 100 shares. (c) 100 shares were subscribed to Donald Brink. Brink, 94- 036 -C2 Page 15 (3) As of 2/17/95, Dennis Brink and Joan Brink are both registered as holding 50 shares each of Brink, Inc. (4) Brink, Inc.'s business checking account was established on 9/04/90. (a) Donald Brink had signature authority on the account until February 17, 1995. (b) Effective 2/17/95, a new signature card was executed for the account, listing Dennis Brink as president and Joan Brink as secretary /treasurer. El] This change occurred on the same day that stock certificates were issued to register 50 shares each to Joan and Dennis Brink. (c) Joan Brink stated that she and Dennis Brink were the sole owners of Brink, Inc. since its activation in 1990. (5) Raser was an employee of Brink, Inc. (a) From 1/94 to 6/94, Raser was paid for 40 hours each week. (6) Various telephone directories for 1993 - 1996 have a listing for Donald Brink, Contractor at Brink, Inc.'s telephone number, 296 -7650. (7) Brink, Inc., leases trucks from Donald Brink at $1,500.00 per month. (a) The insurance, licensing and registration fees for the trucks are paid by Brink, Inc. (b) Checks dated 9/30/94, 11/30/94, and 05/31/94 to Brink are only in the amount of $1,000.00. (8) The 1990 through 1992 corporate income tax returns for Brink, Inc. list Joan and Dennis Brink as each holding 50% of the common stock of Brink, Inc. (a) The rental payments received by Donald Brink are reported on the joint personal income tax return of Donald and Joan Brink. (9) For Brink, Inc., Joan Brink does the bookkeeping and Dennis Brink makes all the business contacts. Brink, 94- 036 -C2 Page 16 (10) Brink has not signed any checks of Brink, Inc. (11) John Klemeyer is the attorney for Brink, Inc. (a) In 1990 Joan Brink went to Kleymeyer's office and asked him to issue the shares of stock to Joan and Dennis Brink. (12) Brink, Inc. stores equipment on the tract of land where Joan and Donald Brink have their home. (13) Joan Brink states that Donald Brink has no involvement with the operation and management of Brink, Inc. (14) Brink, Inc.'s normal business activity does not include renting or leasing equipment to others. 46. Ronald Jagger is a businessman in the asphalt paving business. a. Jagger has done snow removal work for Pike County. (1) Jagger testified that he was called by the Commissioner's Office to remove snow at the Pike County complex in February and March, 1993. (2) From January through March, 1994, Jagger also performed snow removal operations for Pike County. (a) Jagger asserts that he borrowed a Brink, Inc. truck for the snow removal. (b) Exhibit 8 consists of bills for Jagger's work for the Pike County Commissioners from February 25, 1993 through March 6, 1994. (1) The bills reflect snow removal operations on 14 days. (2) The Brink truck is indicated on the bills as Truck #2. (3) The Brink truck was used on 8 of the 14 days of snow removal, specifically: 2/25/93; 3/15/93; 3/16/93; 1/9/94; 1/10/94; 1/19/94; 1/21/94; and 2/6/94. c. Exhibit 10 reflects checks by Jagger in payment to Brink, Inc. for the usage of Brink, Inc. equipment on jobs. (1) Check #2543 dated 3/06/94 from Jagger to Brink, Inc. is in the amount of $3,500.00. Brink, 94- 036 -C2 Page 17 (a) Jagger claims the check was for the usage of a Brink, Inc. truck that Jagger borrowed and used at different times on jobs including the snow removal work. [1] Jagger states that he has no invoices from Brink, Inc. for the truck usage but he does have invoices from Brink, Inc. for all other transactions. d. Brink gave Jagger instructions as to the snow removal process at the Pike County Courthouse property. e. As to the snow removal operation at the Pike County Courthouse, Jagger asserts that Raser helped him one time by driving a backhoe. (1) Jagger testified that he gave Raser coffee money. f. Jagger asserts that Raser was not an employee on loan from Brink, Inc. g . j. There have been business dealings between Jagger and Brink, Inc. (1) Jagger states his business dealings were with Dennis Brink. h. The front end loader Jagger used for the County snow removal was his own. i. Jagger testified that he decided on the amount of the check he would give Brink, Inc. for the "borrowed" truck. Jagger asserts that Brink, Inc. was not a subcontractor of Jagger for the county snow removal operation. k. Jagger claims that he put the Jagger Asphalt sign on the Brink, Inc. truck so that he would be permitted to dump the county snow in the designated location. 1. Jagger states that he talked to Dennis Brink, not Donald Brink, about "borrowing" the truck. m. Jagger testified that he "borrowed" the truck from Dennis Brink on a few occasions prior to 1993, based upon the relationship Jagger had with Dennis Brink. 47. John H. Klemeyer is an attorney and partner in the firm of Beecher, Wagner, Rose and Klemeyer. a. Brink, Inc. is a client of the firm. Brink, 94- 036 -C2 Page 18 b. Klemeyer handled the incorporation of Brink, Inc. in the 1970's but was not involved in the activation of the corporation in 1990. (1) Share certificates of Brink, Inc. were issued on 2/17/95. (a) To Klemeyer's knowledge, these were the only shares ever issued. (b) These share certificates were issued for original shares rather than shares transferred from a prior owner. (c) No shares were issued to Donald Brink. (2) Only 100 shares of Brink, Inc. were authorized. c. In the legal opinion of Klemeyer, an incorporator does not have to be a shareholder. d. When Klemeyer incorporated Brink, Inc., he was advised by Brink not to activate the corporation. 48. James McGrath is a special investigator for the State Ethics Commission. a. Dennis Brink and Jagger were interviewed by McGrath on 2/14/95. (1) Three days after these interviews, Brink, Inc. stocks were issued in the names of Joan and Dennis Brink and the corporate checking account signature cards were changed to eliminate Donald Brink as an authorized signatory. 49. Robert E. Raser is a salaried employee of Brink, Inc. a. Raser states that he helped Jagger with snow removal at the County complex on only one occasion. (1) Raser asserts that he did the work on his own time and was not compensated by Brink, inc. (2) Regarding the snow removal operations at the Pike County Courthouse on 1/21/94, Raser testified that he volunteered his time and did not work for Jagger but that Jagger "tucked a couple dollars in . . . [his] work shirt that night." 50. Dennis Lee Brink is the president of Brink, Inc. Brink, 94- 036 -C2 Page 19 a. Respondent's Exhibit 3 reflects that in 1990, Dennis and Joan Brink were each 50% shareholders of Brink, Inc. b. Dennis Brink states that his father, Donald Brink, has had no involvement with Brink, Inc. since 1990. c. Brink, Inc. stores equipment on property owned by Donald and Joan Brink. d. Dennis Brink asserts that Jagger "wanted to borrow a truck" at a point in time during the winter of 1993/94. g. (1) Dennis Brink claims that there was no lease of the truck to Jagger. (2) Dennis Brink states that Jagger borrowed a truck on one occasion prior to 1993. (3) Dennis Brink states that when Raser assisted Jagger in snow removal from County property, he did not do such as a Brink, Inc. employee. (4) Dennis Brink testified that he did not request a payment from Jagger for the use of the truck. e. Jagger gave a check in the amount of $3,500.00 to Dennis Brink for Jagger's use of the truck. (1) Dennis Brink claims the $3,500.00 was an "after the fact" payment by Jagger because Jagger "used the truck more than he anticipated." (2) Dennis Brink testified that he did not submit any invoice from Brink, Inc. to Jagger for the use of the truck. f. Brink, Inc. pays Donald Brink $1,500.00 per month rental for Brink's trucks. (1) There is no written lease agreement as to the trucks. Brink, Inc. normally would charge $60.00 an hour for trucking which would include both the use of the truck and an operator. h. Exhibit 15A reflect that Dennis Brink received 50 shares of Brink, Inc. on 2/17/95. i. Dennis Brink states that when he became president of Brink, Inc. in 1990, Donald Brink retained ownership of the trucks and did not transfer them to Brink, Inc. due Brink, 94- 036 -C2 Page 20 j• g. to tax considerations. Dennis Brink states that Brink, Inc. does not normally lease vehicles to others to use. k. The normal business operation of Brink, Inc. is excavation. (1) Brink, Inc. does work for general contractors in Pike County. 51. Donald Brink (Brink) is a Pike County Commissioner. a. When Brink's term expires at the end of 1995, he will not seek reelection. b. Brink is the spouse of Joan Brink and the father of Dennis Brink. c. Brink testified as follows as to Statements of Financial Interests (FIS's) that he filed for calendar years 1991, 1992 and 1993: (1) Although he listed himself as a contractor, he was not a contractor. (2) Section 8, which lists Brink's occupation as contractor and Section 14, which lists Brink as part owner of Brink Excavating, are inaccurate. (3) Brink does not know why Sections 8 and 14 were inaccurate. (4) Brink signed the FIS's subject to statutory penalties for unsworn falsification to authorities. d. As to Brink, Inc., Brink states he received rental income from equipment he leases to Brink, Inc. e. Brink organized Brink, Inc. (1) Brink asserts he has no stock or ownership interest in Brink, Inc. f. Brink states that during the winters of 1993 and 1994, he did not know that Jagger was using a truck owned by Brink that was leased to Brink, Inc. for removing snow from Pike County property. Brink testified that Jagger was hired by the county commissioner's office to remove snow from county property. Drink, 94- 036 -C2 Page 21 h. Brink states that during the Spring of 1994, he was not aware that Jagger issued a check to Brink, Inc. for the use of a truck "borrowed" from Brink, Inc. i. Brink received $1,500.00 per month from Brink, Inc. which business is operated out of Brink's home. The bank signature card for the corporate account of Brink, Inc., dated 9/04/90, lists Brink as a current customer. 52. Edward Schafer is a public accountant in Matamoras, Pennsylvania. a. Schafer has been an accountant for 25 years and renders services such as completing corporate and individual tax returns, financial statements and payroll processing reports. b. In July, 1990, Schafer was contacted to reactivate Brink, Inc. c. The SS -4 application for a Federal employer ID number lists Joan Brink as the secretary /treasurer of Brink, Inc. d. In a workman's compensation insurance audit of Brink, Inc. prepared by Schafer (Respondent's Exhibit 2), Joan Brink is listed as secretary /treasurer and Dennis Brink is listed as president of Brink, Inc. e. As to the application for a Pennsylvania unemployment number prepared by Schafer's office (Respondent's Exhibit 3), Dennis and Joan Brink are listed as each owning 50% of Brink, Inc. f. Respondent's Exhibits 4 through 6 are the 1990 through 1993 corporate federal income tax returns of Brink, Inc. (1) On the 1990 - 1992 returns, Dennis and Joan Brink are listed as the owners of the corporation, with each owning 50% of the stock. (2) The tax returns were filled out by Schafer's office and filed with the IRS. (3) The 1993 U.S. Corporate Tax Return for Brink, Inc. (Respondent's Exhibit 7) does not list any names on Schedule E. (4) Schafer states that Brink was not involved in the preparation of these returns. Brink, 94- 036 -C2 Page 22 g. Schafer is not aware of any involvement of Brink in Brink, Inc. from July, 1990 to the present. h. According to Schafer, Brink has not received any dividends, salary or wages from Brink, Inc. (1) The only income to Brink from Brink, Inc. which was reported was for his rental of equipment to the corporation. i. The rent Brink, Inc. pays to Brink is reflected on line 16 of the corporate tax returns. (1) Shafer states that the rental income was to be $2,000.00 per month, not $1,500.00 per month. Brink, Inc. paid for the insurance on the equipment owned by Brink. D. DOCUMENTS: 53. The Statements of Financial Interests (FIS's) of Brink for the calendar years 1991 -93, Exhibit 5, reflect "Brink Excavating, RD 1, Box 315, Milford, PA 18337" as a direct or indirect source of income in block 11. a. In block 14, labeled "Office, Directorship or Employment in any business," "Brink Excavating" is listed as the business entity and "Part Owner" is indicated as the position held. b. For block 8 as to Brink's Occupation or Profession, "Contractor" is listed. 54. Exhibit 6 consists of copies of official records from the Commonwealth of Pennsylvania, Department of Transportation. a. Pennsylvania license tag number 91010CB is registered as covering a 1973 International Truck owned by Donald Brink, Box 315, Milford, PA 18337. 55. Exhibit 8 consists of photocopies of invoices from Jagger Asphalt Paving to the Pike County Commissioners. a. Invoice number 11295 lists a total charge in the amount of $1590 for snow removal for the County on February 25, 1993 and March 3, 1993. (1) Truck #2 is billed for 6 -1/2 hours at $50.00 per hour for a total of $325.00 on February 25, 1993. Brink, 94- 036 -C2 Page 23 b. Invoice number 11621 reflects a total charge in the amount of $3,203 for snow removal at the County complex on March 15, 1993 and March 16, 1993. c. Two invoices both numbered 15177 and dated November 24, 1993, do not involve snow removal services. d. Invoice number 15966 dated January 12, 1994 reflects a total charge in the amount of $2,641.50 for snow removal and hauling on January 9, 1994 and January 10, 1994. (1) Truck #2 is billed for 6 hours at $50.00 per hour for a total of $300.00 on January 9, 1994, and for 9 -1/2 hours at $50.00 per hour for a total of $475.00 on January 10, 1994. e. Invoice number 16202 dated January 26, 1994, lists a total charge in the amount of $3,685 for snow removal and hauling at the County complex on January 18, 1994, January 19, 1994 and January 21, 1994. g- (1) Truck #2 is billed for 10 -1/2 hours at $50.00 per hour for a total of $525.00 on March 15, 1993, and for 6 hours at $50.00 per hour for a total of $300.00 on March 16, 1993. (1) Truck #2 is billed for 10 hours at $50.00 per hour for a total of $500.00 on January 19, 1994, and for 5 hours at $50.00 per hour for a total of $250.00 on January 21, 1994. f. Invoice number 16464 dated February 14, 1994 reflects a charge in the amount of $1,520 for sanding, snow removal and hauling at the County complex on January 29, 1994, January 30, 1994 and February 6, 1994. (1) Truck #2 is billed for 6 hours at $50.00 per hour for a total of $300.00 on February 6, 1994. Invoice number 16657 dated February 22, 1994, reflects a total charge of $1,552.50 for snow removal and hauling at the County complex on February 16, 1994 and February 17, 1994. (1) There is no indication of any use of Truck #2 on this invoice. h. Invoice number 16850 dated March 8, 1994, lists a total charge in the amount of $1,502.50 for snow removal and hauling at the County complex on March 5, 1994 and March 6, 1994. Brink, 94- 036 -C2 Page 24 (1) There is no indication of any use of Truck #2 on this invoice. 56. Exhibit 10 are photocopies of three invoices from Brink, Inc. Excavating to Jagger Asphalt Paving and four checks issued by Jagger Asphalt Paving to Brink, Inc. a. Brink, Inc. invoice references a job site dozer, truck and labor 17, 1992 in the total dated November of Wild Acres, on November 16, amount of $1,050 30, 1992, which bills Jagger for 1992 and November .00. (1) Check number 1970 dated December 22, 1992 issued by Jagger Asphalt Paving payable to Brink, Inc. is in the amount of $1,050.00. b. Brink, Inc. invoice dated August 7, 1993, which references a job site of School Route 739, bills Jagger for a dozer and labor on August 6, 1993 and August 7, 1993 in the total amount of $1,775.00. (1) Check number 2235 dated August 7, 1993 issued by Jagger Asphalt Paving payable to Brink, Inc. is in the amount of $1,775.00. c. Brink, Inc. invoice dated April 27, references a job site of Driveway -Gold Rey Jagger for machines and installing culvert driveway on April 26, 1994 and April 27 total amount of $2,000.00. 1994, which Fernino, bills pipe for a new , 1994 in the (1) Check number 2606 dated April 27, 1994 issued by Jagger Asphalt Paving payable to Brink, Inc. is in the amount of $2,000.00. d. Check number 2543 dated March 6, 1994 issued by Jagger Asphalt Paving payable to Brink, Inc. is in the amount of $3,500.00. (1) There is no corresponding invoice of record from Brink, Inc. to Jagger Asphalt Paving. 57. Exhibit 12 A is a photocopy of the minutes of the March 11, 1993 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion, seconded by Brink, to approve the payment of county bills in the amount of $115,429.04 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $1,590.00 by check number 011295 dated March 11, 1993. Brim, 94- 036 -C2 Page 25 b. Exhibit 12 A, page 5 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. 58. Exhibit 12 B is a photocopy of the minutes of the April 1, 1993 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion, seconded by Brink, to approve the payment of county bills in the amount of $127,560.85 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $3,203.00 by check number 011621 dated April 1, 1993. b. Exhibit 12 B, page 4 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. 59. Exhibit 12 C is a photocopy of the minutes of the December 2, 1993 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion, seconded by Brink, to approve the payment of county bills in the amount of $113,259.88 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $3,650.00 by check number 015177 dated December 2, 1993. b. Exhibit 12 C, page 4 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. 60. Exhibit 12 D is a photocopy of the minutes of the January 20, 1994 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion to approve the payment of county bills in the amount of $28,740.10 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $2,641.50 by check number 015966 dated January 20, 1994. b. Exhibit 12 D, page 4 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. Brink, 94- 036 -C2 Page 26 61. Exhibit 12 E is a photocopy of the minutes of the February 3, 1994 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion to approve the payment of county bills in the amount of $66,937.75 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $3,685.00 by check number 016202 dated February 3, 1994. b. Exhibit 12 E, page 4 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. 62. Exhibit 12 F is a photocopy of the minutes of the February 17, 1994 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion to approve the payment of county bills in the amount of $106,574.03 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $1,520.00 by check number 016464 dated February 17, 1994. b. Exhibit 12 F, page 4 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. 63. Exhibit 12 G is a photocopy of the minutes of the March 10, 1994 meeting of the Board of the Pike County Commissioners which reflect, in part, a motion to approve the payment of county bills in the amount of $172,013.73 which motion passed unanimously with Thomson, Brink and Jonas voting. a. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $1,552.50 by check number 016657 dated March 3, 1994. b. Exhibit 12 G, page 4 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as County Commissioners. c. The county bills list includes a payment to Jagger Asphalt & Paving in the amount of $1,502.50 by check number 016850 dated March 10, 1994. d. Exhibit 12 G, page 7 is a photocopy of the negotiated check from Pike County to Jagger Asphalt and Paving, which check is co- endorsed by Brink, Jonas and Thomson as Brink, 94- 036 -C2 Page 27 County Commissioners. 64. The total payments received by Jagger Asphalt and Paving from Pike County as to snow removal, sanding and hauling was • $15,694.50. 65. Exhibit 13 consists of a group of photographs of a red dump truck with license plate 91010 -CB and bearing a "Jagger Asphalt Paving" logo on the cab door. 66. Exhibit 14 is a photocopy of the Certificate of Incorporation and the Articles of Incorporation for Brink, Inc. a. The Articles of Incorporation were signed by Brink on September 29, 1978. b. Brink, Inc. had the authority to issue 100 shares no par value common stock with a full stated capital of $1,000.00. c. Brink was the sole incorporator. d. All 100 shares were subscribed to Brink. 67. Exhibit 15 A is a photocopy of two share certificates reflecting Dennis Brink and Joan Brink as registered share holders with fifty shares each of Brink, Inc. a. The share certificates were signed on February 17, 1995 by Joan Brink as Secretary /Treasurer and Dennis Brink as President. 68. Exhibit 15 B consists of photocopies of a group of checks issued by Brink, Inc. payable to Joan Brink, Brink, Dennis Brink, Robert Raser, Justin Brink and other individuals. 69. Exhibit 16 A consists of photocopies of documents pertaining to Brink, Inc.'s bank account No. 868 -443 -7 in Mellon Bank. a. A signature card dated September 4, 1990 lists Joan Brink, Dennis Brink, and Donald Brink as authorized signatories. b. A signature card effective February 17, 1995 lists Dennis Brink as President and Joan Brink as Secretary /Treasurer, and lists Joan Brink and Dennis Brink, but not Donald Brink, as authorized signatories. 70. Exhibit 20 consists of photocopies of checks issued by Brink, Inc. to payees including Brink, Greenwald Berk Agency and Shoval -Mc Owen, Commonwealth of Pennsylvania, and Nationwide Brink, 94- 036 -C2 Page 28 Mutual Insurance Company. 71. Exhibit R -2 is a photocopy of a General Liability and /or Workers Compensation Report for the insured, Brink, Inc., for the audit period of August 1, 1990 to August 1, 1991. a. Under payroll, the employees are listed as Dennis Brink, Ora B. Hall, Chris Boyd, Donald Marks and Joan Brink. 72. Exhibit R -7 is a photocopy of a 1993 U.S. Corporation Income Tax Return for Brink, Inc., which is signed by Joan Brink as Secretary. III. DISCUSSION: As a Commissioner for Pike County, Donald C. Brink, hereinafter "Brink," 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: 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 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 in the allegations. In addition, Section 3(f) of Act 9 of 1989 specifically provides in pertinent part that no public official /employee, his spouse or child, or any business with which he or his spouse or child is associated may enter into any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body, unless the contract is awarded Brink, 94- 036 -C2 Page 29 through an open and public process including prior public notice and subsequent public disclosure. The allegation before us is that Brink, in his capacity as a Pike County Commissioner, violated Section 3(a) of Act 9 of 1989, the conflict provision, and Section 3(f) of Act 9 of 1989, the contracting provision, when he participated in awarding a County snow removal contract to a company which subcontracted to utilize vehicles owned by him. We must apply the allegation to the facts of record. The pertinent facts are as follows. In 1978, Respondent Brink incorporated Brink, Inc. Attorney John Klemeyer handled the incorporation. Brink was the sole incorporator, and all of the 100 shares which the corporation had the authority to issue were subscribed to him. However, Brink advised Klemeyer not to activate the corporation at that time. Brink, Inc. was not activated until 1990. Accountant Edward Shafer testified that in the course of activating Brink, Inc. in 1990, he prepared various documents which are in evidence. These documents list Brink's son, Dennis Brink, as President of Brink, Inc.; Brink's wife, Joan Brink, as Secretary /Treasurer; and both Dennis and Joan Brink as 50% shareholders of Brink, Inc. These documents include Brink, Inc.'s registration of its account for unemployment compensation taxes, which indicates that Brink, Inc. was acquired as a "transfer /incorporation" from a predecessor business in the name, "Donald C. Brink." The predecessor business is purported to have been discontinued August 31, 1990. Brink, Inc.'s corporate checking account was established on September 4, 1990. Bank records indicate that there were three authorized signatories for the account: Joan Brink, Dennis Brink, and Donald Brink. Donald Brink remained an authorized signatory for the Brink, Inc. bank account for more than four years, specifically from September 4, 1990 until February 17, 1995. On February 17, 1995 -- just three days after a Special Investigator for the State Ethics Commission ( "SEC ") interviewed Dennis Brink and Ronald Jagger (another witness in this case) -- the signature card for the Brink, Inc. account was changed. The new signature card lists Dennis Brink as President and Joan Brink as Secretary /Treasurer. Donald Brink is no longer listed as an authorized signatory. Another change occurred on February 17, 1995: share certificates were issued to Dennis Brink and Joan Brink, designating each as a 50% shareholder of Brink, Inc. These share certificates were issued for original shares rather than transferred shares. Attorney Klemeyer testified that no shares had ever been issued previously. Brink, Inc. maintains its office in Brink's home, Brink, Inc.'s telephone number is the same telephone number as Brink's, Brin]t, 94- 036 -C2 Page 30 and the trucks and equipment used by Brink, Inc. are owned by Brink. The trucks and equipment are purportedly "leased" to the corporation through an unwritten lease agreement. They are stored on the property where Brink's home is located. Factually, it is uncontroverted that Brink, Inc. is a business with which, at the very least, Brink's immediate family members, his spouse and son, are associated. 65 P.S. §402. In this regard, we note that although the parties have gone to great lengths as to whether Brink himself has an interest in Brink, Inc., it is sufficient under the Ethics Law that Brink, Inc. is a business with which members of Brink's immediate family are associated. Meanwhile, in his public capacity, Brink has twice served as a Pike County Commissioner: from 1983 to 1987 and again from January, 1992 to the present time. Parenthetically, on Brink's Statements of Financial Interests for calendar years 1991 through 1993, Brink listed his occupation as "contractor" and stated that he was part owner of Brink Excavating. During the winters of 1993 and 1994 there were heavy snow storms which necessitated the removal of snow from around the Pike County Courthouse. Pike County Commissioners Sally Thomson and Margaret Jonas relied upon the third Commissioner, Brink, to arrange for snow removal. Although Pike County contracts of $10,000 or more must be advertised for bids, and contracts between $4,000 and $10,000 require obtaining three telephonic proposals, contracts under $4,000 may be awarded based upon considerations of the type of service and the availability of people to perform the job. For the winters of 1993 and 1994, Brink chose Jagger Asphalt Paving to remove snow from the County property. Jagger Asphalt Paving is owned by Ronald Jagger. Brink has known Jagger for approximately thirty years. The work was not awarded through the use of telephone price quotes or the bidding process. Brink did not ascertain the cost of the snow removal before awarding contracts to Jagger. However, from the record it appears that such work was awarded on an as- needed basis, and the cost to the County per snowfall was in each instance under $4,000.00. The total cost to Pike County for Jagger's snow removal operations for the two years was $15,694.50. Of this, $4,793.00 was attributable to the winter of 1993 and $10,901.50 was attributable to the winter of 1994. The bills are itemized in detail in Findings 18 and 55. The snow removal work occurred on fourteen days spanning the two winters of 1993 and 1994. The evidence has established that of those fourteen days, on the following eight days a red dump truck owned by Donald Brink, and purportedly "leased" to Brink, Inc., was used in the County snow removal operations: February 25, 1993, March 15, 1993, March 16, 1993, January 9, 1994, January 10, 1994, January 19, 1994, January 21, 1994, and February 6, 1994. Brink, 94- 036 -C2 Page 31 For each of these dates, Pike County was billed by Jagger for the use of the Brink truck. The total cost to the County for the Brink truck's involvement in these operations was $2,975.00. When Jagger was using it, the Brink truck had a Jagger Asphalt and Paving logo placed on the side of the truck giving it the appearance of a Jagger truck. Jagger testified that the logo was necessary in order to dump snow in an authorized location. In at least one of the snow removal operations at the County complex, Jagger was assisted by Robert Raser, who is an employee of Brink, Inc. Raser testified that he did the work on his own time and that Jagger gave him coffee money for his efforts. Dennis Brink testified that Raser's work with Jagger at the County Complex was not done in his capacity as a Brink, Inc. employee. As to the utilization by Jagger of the Brink truck, both Jagger and Dennis Brink have testified that Jagger asked Dennis Brink if he could borrow the truck and that Dennis Brink agreed. These individuals also testified that after Jagger finished using the Brink truck, he made a voluntary, unsolicited payment of $3,500 for the truck which he "borrowed" from Brink, Inc. Dennis Brink claimed that the $3,500 was an "after the fact" payment by Jagger because Jagger "used the truck more than he anticipated." Jagger testified that he "borrowed" a truck from Brink, Inc. on a few other occasions prior to 1993, while Dennis Brink testified that there was one such prior occasion. There is no invoice of record from Brink, Inc. to Jagger for Jagger's use of the "borrowed" truck for Pike County snow removal. There are three other invoices of record establishing other business dealings between Jagger and Brink, Inc. where Brink, Inc. equipment and laborers were used by Jagger. On those three other occasions, Brink, Inc. invoiced Jagger and Jagger made payment to Brink, Inc. One of these invoices is for work in April, 1994, well after the 1993 -1994 County snow removal operations. The other invoices are the only evidence of the nature and extent of prior business dealings between Brink, Inc. and Jagger. They indicate that on one occasion, in November of 1992, Jagger was billed'by Brink, Inc. for a bulldozer, truck and labor for two days work at a job site designated "Wild Acres," and on the other occasion, in August of 1993, Jagger was billed by Brink, Inc. for a bulldozer and labor for two days work in preparing a driveway behind a school. There is no evidence of any other prior business dealings between Jagger and Brink, Inc., and there is specifically no evidence of any prior business dealings between Jagger and Brink, Inc. pertaining to snow removal work or work for Pike County. Brink stated that "leases" to Brink, Inc. Pike County property. Spring of 1994, he was Brink, Inc. for the use he did not know that his truck, which he , was used by Jagger to remove snow from Likewise, Brink claims that during the not aware that Jagger issued a check to of the "borrowed" Brink truck. Brink, 94- 036 -C2 Page 32 There is the testimony of Harry Forbes that Brink was actually at the County Complex while Jagger was using the Brink truck for snow removal. However, Forbes testified that this incident was after January 21, 1994. A review of the evidence reveals that there was only one day of snow removal by Jagger after January 21, 1994 -- specifically February 6, 1994 -- such that there is no evidence placing Brink on the scene during Jagger's use of the Brink truck until the final day of Jagger's snow removal operations for the County. The Investigative Division has acknowledged that its case is based upon circumstantial evidence. It is clear that an administrative agency's findings may be based upon circumstantial evidence if that evidence is sufficient to meet the applicable burden of proof. See, Jones v. Unemployment Compensation Board of Review, 127 Pa. Commw. 635, 562 A.2d 935 (1989). The Pennsylvania Supreme Court has stated: When a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact - finder any other evidence and reasonable inferences therefrom which are inconsistent therewith. Smith v. Bell Telephone Company, 397 Pa. 134, 153 A.2d 477, 480 (1959) . Under the Ethics Law, Act 9 of 1989, the standard of proof is more stringent than the "substantial evidence" standard which administrative agencies are ordinarily required to meet. A violation of Act 9 of 1989 requires "clear and convincing proof." 65 P.S. §408(g). Clear and convincing proof is that which is ". . . so clear and direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of the facts at issue." Matter of Pekarski, 536 Pa. 346, , 639 A.2d 759, 760 (Pa. 1994); see also, In Re: Matter of Sylvester, 521 Pa. 300, 555 A.2d 1202 (1989) and cases cited therein. In its case and in its Brief, the Investigative Division has highlighted numerous factual circumstances which could suggest that there was a scheme among Brink, Dennis Brink, and Jagger, whereby Brink would give the Pike County snow removal work to Jagger who would then funnel a portion of the pecuniary benefit to Brink, Inc. through the use of a purportedly "borrowed" truck. We are cognizant of the inherent difficulty of proving a scheme, particularly where the perpetrators concoct a story to explain the circumstances. Respondent's proffered explanation for Brink, 94- 036 -C2 Page 33 the circumstances in this case may be viewed by some to be incredible, yet it is conceivable. We would not reject it out of hand simply on the basis of the history of dealings between the parties, because of record, there were only two prior dealings. Neither had anything to do with snow removal work or Pike County, and both involved the use of Brink equipment with an operator. Nor would we simply assume that Brink knew that Jagger would use the Brink truck for the County's snow removal. Even if Brink knew that Jagger had the truck, he would not necessarily know how it would be used by Jagger. In fact, the Brink truck was only used on eight of the fourteen days that Jagger performed snow removal for the County, and Brink has only been placed at the scene on the final day. Finally, as for whether the business would be likely to loan the truck, we would note that Respondent Brink and Jagger knew each other for approximately thirty years, and that such an arrangement between Brink's son and Jagger would not be inconceivable in light of that relationship. The circumstantial evidence against the Respondent is not "so clear and direct" as to allow us to reach a clear conviction, without hesitancy, that the Brink truck was not borrowed. Furthermore, both as to Section 3(a) and Section 3(f), this case hinges upon the key portion of the allegation which alleges a subcontract. We note the following stringent principles of contract law: • • [T]he courts cannot construct a true contract, regardless of the justness of doing so, unless there is a manifestation of assent to the making of a promise. It may therefore be said that the courts will neither make a contract for the parties nor rewrite a contract that the parties have themselves made, though it will enforce obligations that ought, in justice, to be enforced quasi contractually. S. Williston, A Treatise on the Law of Contracts, 51.6 (4th Ed. 1990) . Here, both Dennis Brink and Jagger, the alleged "parties," have vehemently denied that they entered into any subcontract. In the absence of any evidence to establish the requisite "manifestation of assent" by the alleged parties, we may not conclude that there was a subcontract. Nor do we have the judiciary's power to find a quasi subcontract. Having applied the allegation to the facts of record, we are constrained to find that there was no violation of either Section 3(a) or 3(f). Brink, 94- 036 -C2 Page 34 IV. CONCLUSIONS OF LAW: 1. Donald C. Brink as a Pike County Commissioner is a public official subject to the provisions of Act 9 of 1989. 2. Brink did not violate Section 3(a) or Section 3(f) of Act 9 of 1989 as to his participation in awarding a snow removal contract to a company alleged to have subcontracted to utilize vehicles owned by him based upon an insufficiency of evidence. In Re: Donald C. Brink : File Docket: 94- 036 -C2 Date Decided: 10/26/95 . Date Mailed: 11/8/95 ORDER NO. 986 Donald C. Brink, as a Pike County Commissioner, did not violate Section 3(a) or Section 3(f) of Act 9 of 1989 as to his participation in awarding a snow removal contract to a company alleged to have subcontracted to utilize vehicles owned by him based upon an insufficiency of evidence. BY THE COMMISSION, Ausno etiA4_ DANEEN E. REESE, CHAIR Commissioner Roy W. Wilt served as hearing officer and elected not to participate in the final decision of this matter.