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HomeMy WebLinkAbout811 LombardiIn Re: Vincent A. Lombardi STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 91- 012 -C2 : Date Decided: August 23, 1991 : Date Mailed: September 3, 1991 Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. 401 et. 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 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 fifteen 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, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen 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 S2.38. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. 408(h) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). I. ALLEGATION: That you have violated the following section of the Public Officials and Employees Ethics Law (Act 9 of 1989), when Newtown Township contracted with Carroll Engineering Corporation to do a flood plain survey on a property you own at 123 N. Sycamore Street, Newtown, PA; and when you, as a Newtown Township Supervisor, approved payment of the Carroll Engineering Corporation's invoice for the survey: II. FINDINGS: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §402(a). 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 or his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. 5402. 1. Vincent A. Lombardi serves as a Supervisor in Newtown Township, Bucks County. a. He has served in this position from January 1988 to the present. 2. Patricia Cochrane serves as the Newtown Township Code Enforcement officer. a. She was appointed by the township supervisors. 3. Vincent Lombardi owns a property at 123 N. Sycamore Street, Newtown, PA. a. This property is Mr. Lombardi's future residence. Lombardi, Page 3 4. During the Spring of Cochrane in order to an addition onto his 91- 012 -C2 1990, Mr. Lombardi approached Ms. discuss the possibility of his building residence. 5. Mr. Lombardi did not apply for a building permit at that time. He only discussed with Cochrane what was needed from the township in order'to build the addition. 6. Mr. Lombardi presented Ms. Cochrane with a plan for a property that was drawn up by Engineer, Joseph Mixner, in 1973. The Mixner plan did not contain a drawing of the addition that Lombardi discussed with Cochrane. 7. Patricia Cochrane believed that the proposed addition would be in the flood plain which crossed the rear of the Lombardi property. 8. Mr. Lombardi did not believe that the property in question was in the flood plain and that the survey that had been completed by Mr. Mixner supported this. 9. Patricia Cochrane advised Mr. Lombardi that she would discuss the matter with the township engineer. 10. Barbara Mendelsohn, Engineer from Carroll Engineering Corporation, assigned to Newtown Township, was contacted by Newtown Township Code Enforcement Officer, Patricia Cochrane, who told her that Lombardi was planning to build an addition on his home at 123 N. Sycamore Street, and she wanted to know if the addition would be in the flood plain. 11. Cochrane provided Mendelsohn with a copy of the Mixner plan for Lombardi's property, but it did not contain the proposed addition. 12. Mendelsohn made a copy of the Mixner plan and returned the original to Cochrane. 13. Cochrane gave Mendelsohn the dimensions of the addition, 20 feet deep by the width of the building, which Mendelsohn drew on her copy of the plan. 14. Mendelsohn did not go to the Lombardi property to determine if the addition would be in the flood plain. 15. The actual survey was performed by Carroll Engineering's Chief Inspector, William Kalkbrenner, and Engineer, Geoffrey Morton, on April 11, 1990. 16. Kalkbrenner returned the data to Mendelsohn, and she compared it with the USGS Datum which is the government's Lombardi, 91- 012 -C2 Page 4 measurements for determining the flood plain levels. 17. Mendelsohn notified Cochrane by letter of her findings. 18. Carroll Engineering billed Newtown Township for her work which included a review of Kalkbrenner's work; a comparison of Kalkbrenner's data, with the USGS Datum and preparation of the letter to Code Enforcement Officer Cochrane. 19. Township records indicate that Carroll. Engineering Corporation's Invoice #21494, dated May 23, 1990, was for various services rendered to the township. Two of the items listed on the invoice contained the following information: ENGINEERING /PLAN REVIEW Rate Hours Charge Professional Engineer I - Barbara Mendelsohn (4/11/90) $60.00 2.50 Vincent Lombardi Property Project Engineer - Geoffrey Morton 52.50 4.00 TOTAL CONSTRUCTION /OBSER /OPERS /PLAN REVIEW $150.00 210.00 $360.00 Chief Inspector - William Kalkbrenner (4/11/90) $59.00 6.00 $354.00 Vince Lombardi Property 20. Township records indicate the "Outstanding Accounts Payable By Fund" report presented to the Board of Supervisors at the July 16, 1990 meeting contained the following information concerning payment to Carroll Engineering for their bills dated May 23, 1990: Due Invoice/ Date P.O. # Stat Description Account Dr Amount 7/16/90 004086 5/23/90 Charges Weinr 404.120 $ 1,970.2` 7/16/90 004086 5/23/90 Charges Drain 408.350 2,232.75 7/16/90 004086 5/23/90 Charges Swamp 454.700 4,580.00 7/16/90 004086 5/23/90 General Charge 408.100 2,384.07 7/16/90 004086 5/23/90 Zoning Charge 414.313 943.25 7/16/90 004086 5/23/90 Road Program 438.000 1,311.5C 7/16/90 004086 5/23/90 Yardley Road 438.600 30.00 7/16/90 004086 5/23/90 TAC Services 414.146 156.75 7/16/90 004086 5/23/90 Planning Comm 414.313 150.00 Lombardi, 91- 012 -C2 Page 5 7/16/90 004086 5/23/90 Developers Chg 130.700 32,664.35 TOTAL $46,423.42 21. Minutes of the Board of Supervisors meeting held on July 16, 1990, indicate that Supervisor Vincent Lombardi made a motion, which was seconded by Supervisor, Mary Smithson, to pay the bills which included the above payments to Carroll Engineering. The motion t-as passed unanimously. 22. Newtown Township records indicate Newtown Township, Check #4906, dated 7/16/90. in the amount of $46,423.42, was paid to Carroll Engineering Corporation. 23. Individual contractor's invoices are not presented to the Board of Supervisors when they approve payment of the bills at the supervisors' meetings. 24. The Board of Supervisors were presented, for their review, a list titled "Outstanding Accounts Payable By Fund ", dated 7/13/90, when they approved payment of Carroll Engineering Corporation. 25. The "Outstanding Account Payable By Fund" list contained a number of payments to be made to Carroll Engineering from various Township Accounts. The total amounted to $46,423.42. 26. The payment for the work performed on the Lombardi property was contained in the total amount paid from the "Zoning Charges" account which totalled $943.25. 27. The individual invoices were in the possession of the township manager at the time of the meeting and would not have been reviewed by the supervisors unless a question arose concerning payment of a bill. 28. The Code Enforcement Officer, Patricia Cochrane, is authorized to use the township engineer when she deems it to be necessary. 29. Cochrane's use of the township engineer is billed to a township account titled "Zoning Charges ". III. DISCUSSION: As a Supervisor for Newtown Township, Vincent A. Lombardi, hereinafter Lombardi, 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 Lombardi, 91- 012 -C2 Page 6 applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 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. 1989 In the instant matter, we must determine whether Lombardi violated Section 3(a) of Act 9 of 1989, quoted above, regarding his voting to approve the payment of a contract between the township and Carroll Engineering Corporation, the municipal engineer which did a flood plain survey on Lombardi's property. Factually, Lombardi has served as a Supervisor in Newtown Township, Bucks County, since January 1988. When Lombardi decided to build an addition to his residence located at 123 N. Sycamore Street, he contacted Patricia Cochrane, who serves as the Newtown Township Code Enforcement Officer, a position appointed by the township supervisors. In the spring of 1990, Lombardi discussed the possibility of an addition on his residence with Ms. Cochrane and inquired of her as to what he needed in order to build the addition. Lombardi presented Ms. Cochrane with a plan for the property which was drawn up by Joseph Mixner, an engineer, but said plan did not contain a drawing of the proposed addition. In reviewing the proposed addition, Ms. Cochrane was of the opinion that the addition might cross the flood plain in the rear of the Lombardi property. After Ms. Cochrane conveyed her views to Lombardi, he responded that his property was not in the flood plain. Thereupon, Ms. Cochrane advised Lombardi that she would discuss the matter with the township engineer, Barbara Mendelsohn of Carroll Engineering Corporation. Ms. Cochrane supplied Mendelsohn with a copy of the original Mixner plan, together with the dimensions of the proposed additions by Lombardi. Carroll Engineering dispatched its chief inspector to the Lombardi, 91- 012 -C2 Page 7 property to conduct a survey, and Mendelsohn then compared the results with the USGS Datum, which is the government's mechanism for determining flood plain levels. After Mendelsohn notified Cochrane of her findings, Carroll Engineering billed the township for the work, which included a review of the inspector's work and a comparison of the data and preparation of the letter to Ms. Cochrane. The total amount of work performed on the Lombardi property by Carroll Engineering amounted to $714.00 (Fact Finding 19). The July 16, 1990 minutes of the Board of Supervisors reflect that Lombardi made and voted in favor of a successful motion to pay various bills to Carroll Engineering, which included, among the various services they performed, the work performed on his property. As to bill payments, individual invoices are in the possession of the township manager and are not reviewed by the supervisors, unless a question arises concerning the payment of a bill (Fact Finding 27). In addition, Ms. Cochrane, as Code Enforcement Officer, has the authorization to use the township engineer as she deems necessary (Fact Finding 28). In applying the above facts to Section 3(a) of Act 9 of 1989 quoted above, we do not find that a violation of Section 3(a) of the Ethic Law occurred in the case. There is no showing of any use of authority of office on the part of Lombardi regarding Ms. Cochrane's action of utilizing Carroll Engineering Corporation to review Lombardi's property concerning the potential flood plain problem. In this regard, it is noted that Ms. Cochrane does have the authority to utilize the services of the township engineer when she deems it necessary. As to the payment by the township for such engineering services, we note that the individual invoices are in the possession of the township manager; the supervisors do not review the bills unless a question arises concerning payment. Finally, we note that the element of a private pecuniary benefit is absent in this case: the services of Carroll Engineering Corporation were requested by the Township Code Enforcement Officer; any obligation on that contract is between Carroll Engineering Corporation and the township and there is no personal liability on such contract on the part of Lombardi. Thus, the voting by Lombardi to approve a payment to Carroll Engineering Corporation, which covered numerous and varied services provided by the engineering firm to the township, was not a liability to Lombardi so that his voting on the matter would not create a private pecuniary benefit to him. For the above reasons, we find that Lombardi did not violate Section 3(a) of Act 9 of 1989 in this case. IV. CONCLUSIONS OF LAW: 1. Vincent A. Lombardi, as a Supervisor of Newtown Township, is a public official subject to the provisions of Act 9 of 1989. 2. Lombardi did not violate Section 3(a) of Act 9 of 1989 regarding his voting to approve payment of a contract between Lombardi, 91- 012 -C2 Page 8 the township and Carroll. Engineering Corporation, which firm was authorized by the Code Enforcement Officer, to perform a study of a potential flood plain problem on Lombardi's property. In Re: Vincent A. Lombardi : File Docket: 91- 012 -C2 : Date Decided: August 23, 1991 : Date Mailed: September 3, 1991 ORDER No. 811 1. Vincent A. Lombardi, as'a Newtown Township Supervisor, did not violate Section 3(a) of Act 9 of 1989, when he voted to approve .a payment of a contract between the township and Carroll Engineering Corporation, which firm was authorized by the Code Enforcement Officer, to perform a study of a potential flood plain problem on Lombardi's property. BY THE COMMISSION, o tâ– tre#0101.,e/ 1400 . 14e DENNIS C. HARRINGTON, VI