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HomeMy WebLinkAbout977 BrittenburgSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Gregory Brittenburg File Docket: 94- 010 -C2 Date Decided: 05/19/95 Date Mailed: 05/24/95 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt John R. Showers 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 et sea. 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 deemed waived. 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. §409(e). Confidentiality does not preclude discussing this case with an attorney at law. Brittenbura, 94- 010 -C2 Page 2 I. ALLEGATION: That Gregory Brittenburg, a former public official /public employee, in his capacity as a councilman for Emmaus Borough, violated provisions of the State Ethics Act, Act 9 of 1989, when his company, Britt's Tire Service, contracted with the borough to provide tires and repair services for borough vehicles without an open and public process; and when he participated in approving payments to his company. Section 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). (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. 5403(f). Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a Brittenburq, 94- 010 -C2 Page 3 II. FINDINGS: 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. 6402. 1. On February 4, 1994, the Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Gregory S. Brittenburg violated provisions of the State Ethics Act (Act 9 of 1989) . 2. Upon review of the complaint by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on February 5, 1994. 4. The preliminary inquiry was completed within sixty days. 5. On April 14, 1994, a letter was forwarded to Gregory S. Brittenburg, 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 016 239 408. b. The domestic return receipt bore the signature of an unknown individual, with a delivery date of April 20, 1994. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. On August 22, 1994, the Executive Director of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 8. The Commission issued an order on September 4, 1994, granting Brittenburq, 94- 010 -C2 Page 4 the ninety day extension. 9. On November 22, 1994, the Executive Director of the State Ethics Commission filed an application for a second ninety day extension of time to complete the investigation. 10. The Commission issued an order on December 15, 1994, granting the ninety day extension. 11. The Investigative Complaint was mailed to the Respondent on April 6, 1995. 12. Gregory S.Brittenburg served as an Emmaus Borough Councilman from January of 1986 to December of 1993. a. Brittenburg served as Chairman of the Fire and Ambulance Committee in 1986, 1987 and 1988. b. Brittenburg served as Chairman of the Water Committee in 1989 and 1990. c. Brittenburg served as Chairman of the Highway Committee in 1991, 1992 and 1993. 13. Brittenburg is part -owner of a business known as Britt's Tire Service. a. Brittenburg and his two brothers each own 5% of the business. b. Brittenburg's father owns the remaining 85%. 14. Brittenburg manages the Britt's Tire Service store at 810 Chestnut Street, Emmaus, PA. a. There are two other store locations. 15. Brittenburg is salaried and does not receive a commission on any sale. 16. The Borough of Emmaus purchases tires, tubes, and related items from Service Tire Auto Service Center, a Goodyear tire dealer. a. These purchases are made through a State contract which permits municipalities to purchase such items through a master contract. 17. Borough of Emmaus garage supervisor Danny DeLong purchased tires, tubes, and related items from Britt's Tire Service when Service Tire Auto Center did not have the items in stock or Brittenburg, 94- 010 -C2 Page 5 when Britt's Tire Service could provide a lower price. a. Purchases were also made from Britt's when tires would be on back -order from Tire Service. b. This has occurred since at least 1989. c. Purchases from Britt's were mainly for tire repairs or tires. d. Purchases were generally less than $500.00 e. One purchase in excess of $500.00 was made on December 7, 1992. (See Finding No. 21) 18. Purchases were made from Britt's Tire Service after Borough mechanics Rich Heckman and Barry Schantzenbach obtained telephone price quotes from Britt's and Service Tire. a. Purchases were initiated by borough employees. 19. The amounts Britt's Tire Service charged the Borough were the same as the prices listed in the State contract for tires and tubes. 20. It is the policy of the Borough of Emmaus Council that the Chairpersons of the various committees review the bills for the department overseen by his /her committee and approve payment of those bills. a. In his capacity as Chairman of the Highway Committee, Brittenburg in 1991, 1992, and 1993, Brittenburg would review the amounts charged to the borough by Britt's Tire Service and approve them for payment. b. He did not review actual invoices, but reviewed computer printouts which listed the company name and amount. 21. Borough of Emmaus minutes of meetings confirm that Councilman Brittenburg took the following action at the Borough Council meetings in reference to the approval of payments to Britt's Tire Service: Invoice Date Amount Department Action Taken Number Of Meeting Of Bill Items Purchased By Brittenburg For And The Committee He Chaired BS12220 10/02/89 $ 7.33 (Tube) Highway Motion, Voted, Water BB12537 11/06/89 $ 11.43 (Tube) Water Motion, Voted, Water BB13570 12/18/89 $ 6.32 (Tube) Park Voted, Water BB13948 BB10193 BB09750 BB09805 BB09058 BB12914 BB12915 BB09377 BB09883 BB09912 BB09986 BB09987 BB10805 BB13008 BB13927 BB13944 BB14137 BB14149 BB14405 0030615 0031680 BB24334 BB24397 BB24730 BB26132 BB26661 BB26881 BB27063 BB27728 BB27729 BB28102 BB28266 22. 23. Brittenbura, 94- 010 -C2 Page 6 01/15/90 10/15/90 02/19/91 03/04/91 10/07/91 10/07/91 10/07/91 11/18/91 12/16/91 01/06/91 12/19/91 12/19/91 04/06/92 04/20/92 07/20/92 07/20/92 08/17/92 08/17/92 09/08/92 10/19/92 12/07/92 12/07/92 11/23/92 12/21/92 06/07/93 08/16/93 09/07/93 09/20/93 12/06/93 12/06/93 12/20/93 01/06/94 $ 6.59 $ 6.62 $ 10.04 $171.72 $ 86.74 $297.92 $451.44 $451.44 $ 40.00 $ 92.66 $ 46.87 $ 15.00 $ 25.00 $ 93.74 $ 25.00 $386.96 $ 35.00 $ 10.00 $ 18.00 $140.45 $335.39 $656.16 $279.58 $137.98 $ 15.32 $146.58 $ 30.00 $ 25.00 $419.40 $ 60.00 $246.36 $160.20 The actions taken by Brittenburg at the Emmaus Borough Council meetings listed in Finding No. 21 were not determinative. Records obtained from Brittenburg confirm Britt's Tire Service made the following profit on items sold to the Borough: Invoice Number BB12220 BB12537 BB13570 BB13948 BB10193 BB09750 BB09805 BB09058 BB12914 Date Of Bill 09/21/89 10/23/89 12/01/89 01/15/90 10/08/90 02/12/91 02/20/91 10/02/91 09/17/91 (Tube) (Tube) (Tube) (Tires) (Tires) (Tires) (Tires) (Tires) (Flat) (Tires) (Tire) (Flat) (Flat) (Tires) (Flat) (Tires) (Flat) (Flat) Highway (Flat) Water (Alignment)Fire & Amb. (Repairs) Fire & Amb. (Tires) Water (Tires) Water (Tires) Sewer (Tubes) Highway (Tires) Highway (Flat) Water (Flat) Highway (Tires) Fire & Amb. (Tire Chg)Fire & Amb. (Tires) Highway (Tires) Highway $ 7.33 $ 11.43 $ 6.32 $ 6.59 $ 6.62 $ 10.04 $171.72 $ 86.74 $297.92 Park Highway Sewer Water Fire Highway Water Highway Highway Sewer Fire Highway Highway Fire Water Water /Police Water Amount Of Bill (Tube) (Tube) (Tube) (Tube) (Tube) (Tube) (Tires) (Tires) (Tires) Motion, Voted, Water Voted, Highway Motion, Voted, Hwy Motion, Voted, Hwy Absent Absent Absent Voted, Highway 2nd Mot,Vote, Hwy Voted, Highway Voted, Highway Voted, Highway 2nd Mot,Vote, Hwy Voted, Highway Absent Absent Motion, Voted, Hwy Motion, Voted, Hwy 2nd Mot, Vote, Hwy Motion,.Voted, Hwy Motion, Voted, Hwy Motion, Voted, Hwy Motion, Voted, Hwy Voted. Highway Motion, Voted, Hwy Motion, Voted, Hwy Voted, Hwy Motion, Voted,Hwy Voted, Hwy Voted, Hwy Voted, Hwy Not In Office Estimated Profit $ 2.00 $ 2.00 $ 2.00 $ 2.00 $ 2.00 $ 2.00 $12.87 $12.00 $21.48 Brittenburq, 94- 010 -C2 Page 7 BB12915 BB09377 BB09883 BB09912 BB09986 BB09987 BB10805 BB13008 BB13927 BB13944 BB14137 BB14149 BB14405 0030615 0031680 BB24334 BB24397 BB24730 BB26132 BB26661 BB26881 BB27063 BB27728 BB27729 BB28102 BB28266 Year 1989 1990 1991 1992 1993 09/17/91 10/31/91 12/10/91 12/13/91 12/19/91 12/19/91 03/24/92 04/15/92 07/11/92 07/04/92 08/03/92 08/04/92 09/01/92 09/16/92 11/13/92 11/17/92 11/23/92 12/16/92 06/02/93 07/30/93 08/23/93 09/13/93 11/15/93 11/15/93 12/16/93 12/30/93 Total Sales $ 25.08 $ 13.21 $1,663.83 $2,143.26 $1,102.86 $451.44 (Tires) $30.00 $451.44 (Tires) $30.00 $ 40.00 (Flat) $ 2.00 to $5.00 $ 92.66 (Tires) $12.00 $ 46.87 (Tire) $ 6.00 $ 15.00 (Flat) $ 2.00 to $5.00 $ 25.00 (Flat) $ 2.00 to $5.00 $ 93.74 (Tires) $12.00 $ 25.00 (Flat) $ 2.00 to $5.00 $386.96 (Tires) $36.00 $ 35.00 (Flat) $ 2.00 to $5.00 $ 10.00 (Flat) $ 2.00 to $5.00 $ 18.00 (Flat) $00.00 $140.45 (Alignment) $20.00 $335.39 (Repairs) $42.34 $656.16 (Tires) $20.00 $279.58 (Tires) $24.00 $137.98 (Tires) $12.00 $ 15.32 (Tubes) $ 4.00 $146.58 (Tires) $12.00 $ 30.00 (Flat) $ 2.00 to $5.00 $ 25.00 (Flat) $ 2.00 to $5.00 $419.40 (Tires) $36.00 $ 60.00 (Tire Chg) $12.00 $246.36 (Tires) $24.00 $160.20 (Tires) $12.00 24. The total yearly sales by Britt's Tire Service and the total yearly profits are as follows: Total Profits $ 6.00 $ 4.00 $130.35 $174.34 $104.00 to $136.35 to $186.34 to $110.00 Total $4,948.24 $418.69 to $442.69 25. When Britt's Tire Service sold the tires to the Borough at the State contract price, it was usually less than the price which Britt's paid to their distributor. a. Firestone Tire Company reimbursed Britt's Tire for the difference in the price they paid for the tire and the price they sold it to the Borough. b. Firestone Tire Company also paid Britt's Tire Service from $6.00 to $10.00, a tire, for handling the transaction. Brittenbura, 94- 010 -C2 Page 8 c. Britt's profit would be derived from the handling charge paid by Firestone. 26. The estimated profit listed in Findings No. 24 and 25 do not reflect the entire cost to Britt's Tire Service for various expenses incurred by business overhead. 27. Brittenburg discussed the legality of Britt's Tire Service doing business with the Borough with Borough Council and the Borough Solicitor Charles Fonzone. a. Fonzone provided Brittenburg with a verbal opinion that Brittenburg's actions would not violate any laws. III. DISCUSSION: As a councilman for Emmaus Borough, Gregory Brittenburg, hereinafter Brittenburg, was 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. the occurrences in this case transpired after date of Act 9 (June 26, 1989), we must apply of Act 9 to determine whether the Ethics Act Since effective provisions violated. the the was 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 part that no public official /employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body Brittenburg, 94- 010 -C2 Page 9 valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. The issues before us are whether Brittenburg violated Section 3(a), the conflict provision, and Section 3(f), the contracting provision, of the Ethics Law when he participated in approving payments to Britt's Tire Service (Britt's) which contracted with the borough without an open and public process to provide tires and repair services. Factually, Brittenburg served as Emmaus Borough Councilman from January 1986 through December, 1993. In a private capacity Brittenburg was part owner of Britt's where he received a salary but not any sales commissions. Whenever the Borough of Emmaus purchased tires, tubes and related items, Service Tire Auto Service Center was contacted in that such purchases were through a state contract which permitted municipalities to buy such items. Whenever Service Tire Auto Service Center did not have an item in stock, Emmaus Borough Garage Supervisor Danny DeLong made the purchase from Britt's, which was also utilized whenever it had a lower price. With the exception of one purchase on December 7, 1992, which was in excess of $500.00, the purchases were generally less than $500.00 and were made after telephone quotes were obtained by DeLong. The listing of all purchases made by Emmaus Borough from Britt's together with the profit are delineated in the findings. Fact Findings 21, 23. Brittenburg in his capacity as Chairman of the Highway Committee reviewed the amounts charged to the Borough by Britt's and approved them for payment when submitted to Council. Brittenburg did not actually review invoices but merely computer printouts which listed the company names and amounts. The actions taken by Brittenburg at the Emmaus Borough Council regarding such invoices were never determinative. Whenever Britt's did sell tires to the Emmaus Borough, it was usually less than the price which Britt's actually paid to its distributor. The tire manufacturer did reimburse Britt's for any price differential and also paid Britt's a handling charge per tire. However, the estimated profit received by Britt's was in actuality less than the calculated profit which did not reflect various overhead expenses incurred by Britt's. Lastly, Brittenburg did discuss with the solicitor the legality of Britt's doing business with the Borough. The solicitor provided a verbal opinion that Brittenburg's actions would not violate any laws. In applying the provisions of the Ethics Law to the above facts, we find a technical violation of Section 3(a) of Act 9 of 1989. There was a use of authority of office on the part of Brittenbura, 94- 010 -C2 Page 10 Brittenburg to obtain a private pecuniary benefit for a business with.which he is associated. Juliante, Order 809. Although the actions of Brittenburg as to the approval of Britt's invoices at Borough Council were never determinative, we do note that Brittenburg as Chairman of the Highway Committee reviewed and approved the amounts charged by Britt's. The use of authority of office did result in a private pecuniary benefit consisting of the profit made on the business transactions between Britt's and Emmaus Borough. Lastly, Britt's is a business with which Brittenburg is associated: 65 P.S. §402. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Since Brittenburg was a part owner of Britt's, it is clear that Britt's is a business with which Brittenburg is associated. Therefore, a technical violation of Section 3(a) of Act 9 of 1989 occurred when Brittenburg used the authority of office to obtain a private pecuniary benefit for a business with which he is associated. Brittenburg however argues that this case should be dismissed on the theory that any action taken had no more than a de minimis economic impact. Although the Ethics Law does have an exclusion for matters having a de minimis economic impact, we do not believe that that exclusion applies in this case given the number of transactions and the approximate profit received over several years. Schweinsbera, Order 900. As to Section 3(f) of Act 9 of 1989, the record does reflect at least one contract on December 7, 1992 which was in excess of $500.00 between the Borough and Britt's. Since the Borough Garage Supervisor utilized telephone solicitation in order to determine where to purchase tires and related materials, it is clear that the process was not open and public. In particular, there was neither an advertisement for bids nor any prior notice or subsequent disclosure of all proposals considered and contracts awarded. Therefore, since the business with which Brittenburg is associated contracted with his governmental body and the contract was in excess of $500.00 and was not awarded through an open and public process, a violation of Section 3(f) of Act 9 of 1989 occurred. See Walsh, Order 955. In reviewing the record, we do not believe that there was any intent by Brittenburg to violate the Ethics Law. We note that it was the action of the garage supervisor, and not Brittenburg, who Brittenburg, 94- 010 -C2 Page 11 was responsible for soliciting quotes and obtaining the purchase of materials or repair services for the borough. Finally, tires were sold by Britt's below cost subject to a subsequent manufacturer's remittance for the price differential and handling. Given the totality of facts and circumstances in this case, we will take no further action. IV. CONCLUSIONS OF LAW: 1. Gregory Brittenburg as a member of the Emmaus Borough Council was a public official subject to the provisions of Act 9 of 1989. 2. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Brittenburg reviewed and approved for payment certain invoices for purchases made by the Borough from Britt's Tire Service, a business with which Brittenburg is associated. 3. Brittenburg violated Section 3(f) of Act 9 of 1989 when Britt's Tire Service contracted with Emmaus Borough in excess of $500.00 without an open and public process. In Re: Gregory Brittenburg ORDER NO. 977 File Docket: 94- 010 -C2 Date Decided: 05/19/95 Date Mailed: 05/24/95 1. Gregory Brittenburg as a member of the Emmaus Borough Council technically violated Section 3(a) of Act 9 of 1989 when Brittenburg reviewed and approved for payment certain invoices for purchases made by the Borough from Britt's Tire Service, a business with which Brittenburg is associated. 2. Brittenburg violated Section 3(f) of Act 9 of 1989 when Britt's Tire Service, a business with which he is associated, contracted with Emmaus Borough in excess of $500.00 without an open and public process. 3. Based upon the totality of facts and circumstances in this case, this Commission will take no further action. BY THE COMMISSION, cO DANEEN E. REESE, CHAIR