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HomeMy WebLinkAbout179 HessingerMr. Richard Hessinger c/o McClure, Dart, Miller, Kelleher & White Attorneys at'Law 501 Marine Bank Building Erie, PA 16501 - 1477 Re: #82 -65 -C Dear Mr. Hessinger: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORgER OF THE COMMISSION June 17, 1983 Order No. 179 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions and findings on which those conclusions are based are as follows: I. Allegation: That as a Supervisor in Summit Township you participated in the award of contracts to a business with which you are associated or your brother -in -law's business, including voting on said contracts and payments of same in violation of Section 3(a), Section 3(c) of the Ethics Act or Section 1 of the Ethics Act. II. Findings: 1. You serve as a Supervisor in Summit Township hereinafter the Township, Erie County and as such are a public official subject to the Ethics Act. 2. Your brother -in -law, James Lenart, owns and operates Lenart Builders (L.B.) at R. D. #1, Waterford, PA. a. Neither you nor any member of your immediate family is a director, officer, owner or holder of stock in L.B. b. However, during the summer months between school termsin 1981, you worked as a sub - contractor for L.B. part -time. You were paid $7.00 per hour and earned a total of approximately $1100.00 in 1981 and $970.00 in 1982. You did not work for or contract with L.B. prior to 1981. Richard Hessinger June 17, 1983 Page 2 c. Your Financial Interest Statement filed by May 1, 1982 to cover calendar year 1981 reflects only Millcreek School District and the Township as sources of income in excess of $500.00. 3. L. B. has done work for the Township. a. During the summer of 1980, L.B. was employed by the Township to do roof repairs on a Township building. b. The contract for this work was originally approved at the Supervisors' meeting of August 4, 1980 and amounted to $2492.36. c. You voted to award this contract. d. Subsequently on September 15, 1980, you voted to rescind this contract and to purchase materials to do these repairs in the amount of some $1700.00 from a firm, Tropical Industrial Coatings (TIC) so that the purchase, by the Township, could be exempt from State sales tax. e. L. B. retained the labor contract, amounting to $600.00 to repair the roof. f. James Lenart is an authorized sales agent for TIC and received a $400.00 commission from TIC from the sale of the products referred to in (d) above. g. The roofing project was completed by Township employees in October, 1980. h. On June 7, 1982 you voted to approve and award a Township contract to L.B. for the installation of a door. You did not provide services to L.B. on or for this project. i. L.B. quoted a price of $1,175.50 for this project which was $425.00 higher than another bid submitted, but the L.B. quote listed material and labor not listed in the lower bid. 4. The Township purchased materials from companies represented by your brother, Fred Hessinger, and the Township records show payment of same as follows: Item a. Snap -on -Tools b. Amp Welder, wheel kit, snap ring pliers $352.95 Amount $504.81 Approved /Paid Oct. 5, 1981 (voted to approve) - - - Sept. 3, 1980 (no record of vote to approve) Richard Hessinger June 17, 1983 Page 3 5. Fred Hessinger had done business with the Township prior to your election as a Supervisor. 6. The purchase of the Snap -on- Tools, No. 4(a) above, was undertaken at the review and request of Larry Heckert, Township Road Manager, and you did not participate in the choice made to purchase Snap -on -Tools in preference to similar items available from Sears Roebuck. B. Discussion: As an elected Supervisor your conduct as a "public official" must conform to the requirements of the Ethics Act. Section 3(a) of the Ethics Act requires that: No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Under this provision, the Commission has held that where discretionary awards or payments are at issue, a public official may not vote to make such awards, payments or decisions in favor of his employer. Knox, 81 -009, Couglin, 79 -063. Compare Stewart, 79-070. This is because the term "business with which the public official is associated" includes a business by which the official is employed. We need not here discern whether the relationship between you and L.B. was one of employer - employee or that of an independent contractor. Suffice it to say that if L.B. has the right to direct and control the method of your work you may for purposes of the Ethics Act at least be considered to be an employee of L.B. See Massiah- Jackson, 80 -036. Even if so, our prior rulings would not preclude the vote you cast on August 4, 1980, because your relationship with L.B. did not begin until 1981. The State Ethics Commission has also ruled that even as a sub - contractor of a developer whose plans were subject to a public official's review, however, the official may, under certain circumstances be required to abstain. See Sowers, 80 -050. Specifically, if, at the time of an official's vote, the official has sought, been offered or can reasonably expect to be asked to perform work for the developer whose plans are subject of the official's review, the official should abstain. These concepts are equally applicable to the contract -award situation present in your case. Thus, if at the time of your votes (August 4, 1980 and June 7, 1982) to award Township contracts to L.B. you had sought or been offered or could reasonably expect to obtain /secure a sub - contract on the projects subject to the township's review, Richard Hessinger June 17, 1983 Page 4 you should refrain from taking part in the Township's decision to award the contract. This would be required in order to avoid any appearance of a conflict between your own interests and the public trust as required by Section 1 of the Ethics Act. However, in this case, we find no reason to believe that as of August 4, 1980, you could reasonably have expected to obtain work with L.B. or that you sought such work. Thus, no violation of the letter or spirit of the Ethics Act attaches to your action. Likewise, as to your June 7, 1982 vote there is no evidence you sought or obtained or could have expected to be asked, were asked to or did serve L.B. on this door project. Your vote on June 7, 1982 did not contravene the letter or spirit of the Ethics Act. You should be cautious, in the future of situations where your official action is sought so that your conduct conforms to the standards of the Ethics Act. Thus, if you seek or obtain or can reasonably expect to be offered or to secure work from the Township's contractor such as L.B., you should avoid the appearance of any conflict between your private interests and the public's interests by abstaining. We consider the disclosure requiements of the Ethics Act next. Any income in excess of $500 should be reported on your Financial Interest Statement (FIS). See Section 4(a) and 5 of the Ethics Act, 65 P.S. 404(a) and 405 respectively. Usually, a self - employed independent contractor can simply list this fact on his FIS. If, however, income in excess of $500 was received from funds of the governmental body with which the official- businessman is associated, the specific source must be identified. Thus, if you received $500 or more in adjusted gross income from L.B. in 1981 and payment from L.B. was made from funds of the Township by virtue of a Township -L.B. contract, reporting of L.B. as a source of income would be required. Under the present circumstances, however, for those FIS reports for 1981 and 1982, there is no evidence that you received $500 or more from L.B. as a result of L.B. - Township contracts. It is sufficient to enter "self- employed" as a source of income on your FIS. You have supplied us with an FIS dated March 10, 1983, which adds this item as a source of income. Compare Findings No. 2(c) above. This amendment suffices to meet your reporting requirement. A copy of this amended FIS should be filed with the Township. Finally, the question of the Township's purchases of items from Fred Hessinger is different. You are not employed by or "associated with" Fred Hessinger or his business as that phrase is defined in the Ethics Act nor did you sub - contract with Fred Hessinger . Your votes to purchase the items from Fred Hessinger or the Township's payment for same as found above (No. 4) are not violative of the Ethics Act, where we find that you exercised no discretion in choosing one product over the other. Richard Hessinger June 17, 1983 Page 5 C. Conclusion: You should refrain from participating in decisions and discussions, including voting or exercising discretion as a Supervisor in awarding contracts or payments to Township contractors such as L.B. where you have sought or been asked or can reasonably expect to obtain work from the contractor. Your actions with respect to the two L.B. - Township contracts, under the circumstances present here do not violate the provisions of the Ethics Act. Your future conduct should conform to these requirements. Your actions vis -a -vis purchases set forth in No. 4 above do not violate the Ethics Act. Sources of income in excess of $500.00 must be reported on your Financial Interest Statement in accordance with Section 5(b)(5) of the Ethics Act, 65 P.S. 405(b)(5). An amendment of your Financial Interest Statement has been filed with the State Ethics Commission which properly indicates "self - employment" under Item 15, but this Financial Interest Statement should also be filed with the Township within 30 days of this Order. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document 15 days after service unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). PJS /jc By the Commission, A4A r i aul J. ith Chairma