HomeMy WebLinkAbout526 ShafferMr. Dean Shaffer
R.D. #5
Johnstown, PA 15905
Re: 85 -103 -C
Dear Mr. Shaffer:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 526
DECIDEtAUG 2 0 1986
MA I LE 6
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 you, a Supervisor in Upper Yoder Township, violated
Section 3(a) of the Ethics Act which prohibits a public official's use of
public office or confidential information gained through that office or 3(d)
of the Act when you participated in township decisions to install fire
hydrants and had these hydrants installed by McCauliff Brothers Incorporated,
with whom you have an association.
A. Findings:
1. You have served as an Upper Yoder Township Supervisor since January, 1984.
As an elected official, you are subject to the provisions of the State Ethics
Act.
2. In September, 1984, the Upper Yoder Township Water Authority made a
request to the board of supervisors for the installation of fire hydrants.
a. Supervisor Russ McCauliff represented the board of supervisors in
meetings with one member of the authority to discuss costs.
h. This is confirmed in minutes of the Upper Yoder Township Supervisors
of September 17, 1984, and the Upper Yoder Township Water Authority
meeting of September 10, 1984.
3. As a result of those meetings, Supervisor McCauliff sought cost estimates
from McCauliff Brothers Incorporated.
a. No other firms were solicited to submit quotes.
Mr. Dean Shaffer
Page 2
b. The authority ultimately chose McCauliff Brothers to install the
hydrants.
4. Minutes of the Upper Yoder Township Water Authority meetings disclose the
following:
a.: September 10, 1984:
Reported that the Upper Yoder Township Supervisors would like a
proposal for the installation of at least two new fire hydrants in
no Meroher Heights area. Gayview Terrace will be listed as first
priority on he list with other hydrants to be left to the
recommendat. of of the fire chief. The supervisors have agreed to pay
for the installation of the new hydrants.
b. November 12, 1984:
Resolution No. 603. Motion Joseph Couffiel, seconded by Louis Guzzi
to instal two fire hydrants (1) Menoher Highway at Gayview Terrace
(2) Kenesaw Lane at Sunrise Drive at the cost of the Upper Yoder
Township Supervisors.
5. Minutes of the Upper Yoder Township Supervisors' meetings confirm the
following:
a. September 17, 1984:
REQUEST FROM UPPER YODER TOWNSHIP WATER AUTHORITY FOR INSTALLATION
OF THREE FIRE HYDRANTS - cost to be from fire hydrant rental
fund - Russ has discussed need for three hydrants with Robert
Valentine who is a member of the Water Authority and also active in
the fire company. Russ will get an estimate of cost to install
hydrants and supervisors will review locations during road
inspection.
b. October 16, 1974:
REQUEST FOR FIRE HYDRANTS - UPPER YODER TOWNSHIP WATER AUTHORITY
- Russ reports he had talked to Robert Valentine relative to their
request for three fire hydrants. Russ reports that township is
looking at cost of approximately $1,500 to $2,000 per hydrant. Dean
moves, Russ seconds, that approval be given to the Water Authority to
make arrangements for the installation of two fire hydrants - one at
Menoher Highway at Gayview and one at Sunrise Drive at Kenasaw - to
be paid out of fire hydrant account. Motion was carried! 4/0/1 with
Russ abstaining.
Mr. Dean Shaffer
Page 3
6. By invoice dated April 3, 1985, McCauliff Brothers billed the Upper Yoder
Township Water Authority in the amount of $4,892.50 for the installation of
two fire hydrants.
a. That bill was forwarded to the Upper Yoder Township Supervisors for
payment from the fire hydrant account.
7. Minutes of the Upper Yoder Township Supervisors also confirm:
a. April 16, 1985:
APPROVAL OF GENERAL FUND BILLS IN THE AMOUNT OF $7,766.56 AND ALL
OTHER TOWNSHIP FUNDS - for period of March 30 through April 12,
1985 - discussion held on bill under Fire Hydrant Account for
McCauliff Brothers in the amount of $4,892.50 as to bidding
requirements. Green notes that short of emergency, all governmental
bodies, including their agencies, are subject to the $4,000 minimum
without bidding. Russ :states bill was only a copy submitted to Water
Authority. Green suggests township receive letter of
explanation /clarification from the Water Authority or their solicitor
when forwarding bill. Lee moves, Bob seconds, that all bills from
all accounts be approved for payment except McCauliff bill in the
amount of $4,892.50. Carried! 5/0
b. May 21, 1985:
APPROVAL- GENERAL FUND BILLS SUBMITTED AND ALL OTHER FUND EXPENDITURES
FOR PERIOD FROM MAY 4, 1985, THROUGH MAY 17, 1985 - discussion held
on three bills submitted by the Upper Yoder Township Water Authority
for installation of two fire hydrants to be paid from the Fire
Hydrant Account. In order to avoid possible surcharge - three bills
held up for payment until receipt of letter of
clarification /explanation from their solicitor. Cowie moved,
Spaulding seconded, that General Fund bills in the amount of
$9,663.58 and expenditures from the Payroll Account and Garbage
Account for period from May 4, 1985, through May 17, 1985, be
approved for payment. Carried! 4/0/1 with McCauliff abstaining.
Mr.. Dean Shaffer
Page 4
c. June 18, 1985:
FIRE HYDRANT GILLS - Jiscus seon held zn three bilis from Upper Yoder
Township Water Author t 4y along with clarification letter from fhei r
solicitor James Walsh o .Cowie states that regardless of letter, he
feels we have Lille on a job not bid in excess of bidding
requirements. Bob elks solicitor if f.'L has any reservations about
paying submitted bills, nlicito ° says no. gob moves, Dean seconds,
that the township approve: bills for two fist hydrants as submitted by
Upper Yoder Township Water Authre,'ity. ''ot Approved! 2/2/1 You
and Spaulding voting yes -- Cow e and Wi 11 amson voting
no -- McCauliff abstaining.
ARE HYDRANT BILLS - You expressed strong dissatisfaction with action
of hoard not to approve payment to the Water Authority ror two fire
hydrants. Cowie read from the minutes of both the Supervisors'
ieeti nr end the Water - Authority meeting both listing installation
as one ;ob. Bills total more than $4,000 which is a violation of
Commonweal`h laws. Cowie also notes when Board approved paying for
the installation, it was noted cost would not exceed $4,000. Bob
rescinds p-evious motion stating that based on advice of solicitor,
he agate moves that the bills from the Water Authority for two fire
hydrant:; be paid'as submitted. Carried! 3/2 with Cowie and
Williamson voting no on fact that they both feel bills are in
violation of bidding requirements.
8. Prior to the supervisors' meeting of June 18, 1985, (Finding #7c) the
Water Authority's solicitor sent correspondence to the Supervisors' solicitors
That letter dated June 17, 1985, advised that the Authority consistently
treated each fire hydrant as a "separate project ". Two bills, each in the
amount of $2,203.64 were submitted with a request for payment as soon as
possible.
a . B y invoices dated ray 17, 1985, the Supervisors were b i l l e d for two
separate installations, each in the amount of $2,203.64 and a
separate bill of $485.20 for Laurel Management tapping fees.
9. You subsequently voted at the June 18, 1985 meeting of the board of
supervisors to pay the McCauliff Brothers bill. (See Finding #7c).
10, You were employed by U.S. Steel until retiring on March 31, 1985.
a. You subsequently obtained employment with McCauliff Brothers on April
8, 1985.
Mr. Dean Shaffer
Page 5
11. McCauliff Brothers' invoice for the fire hydrant installation discloses
the hydrant installations as March 26, 1985, to March 29, 1985.
B. Discussion: As a township supervisor in a township of the second class,
you are clearly a public official as that term is defined in the State Ethics
Act. 65 P.S. Section 402. As such, your conduct must conform to the
requirements of the State Ethics Act. Sowers, 80 -050; Weltz, 86 -001. The
Ethics Act provides as follows:
Section 3. Restricted activities.
(a) 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).
M1
Within the above provisions of law, no public official may use his public
position to obtain a financial gain for themselves or for a business with
which they are associated. Such a public official may not use confidential
information obtained in his public position for similar purposes.
The Ethics Act finds business with which one is associated as follows:
Section 2. Definitions.
"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 holder
of stock. 65 P.S. 402.
Generally, there is no doubt that at least from April 8, 1985, you were
an Pmployee of McCauliff Brothers Incorporated and, therefore, you were
associated with that business within the purview of the State Ethics Act.
Therefore, you could not use your public position in order to obtain any
financial gain for that entity.
While you were a Supervisor in Upper Yoder Township from January, 1984
onward, we do note that at the time the township decided to initiate the fire
hydrant project and at the time cost estimates were obtained you were not an
employee of the McCauliff Brothers Incorporated business and, therefore, no
restrictions would have been placed upon your activities at that point in
time.
Mr. Dean Shaffer
Page 6
On June 18, 1985, at a point in time when you were an employee of
McCauliff Brothers Incorporated, you participated in the township's discussion
and consideration of paying McCauliff Brothers Incorporated for work that they
had performed in installing two fire hydrants in the township. Township
minutes indicate that in the months prior to June, 1985, the payment of these
bills had caused substantial controversy among the township supervisors in
that at two of the township supervisors were of the opinion that the
bidding, requirements of the Second Class Township Code may have been violated.
Therefore, as early as April 16, 1985, the township board of supervisors was
aware that there wzs a problem surrounding the payment of these bill:,. On
June 18, 1985, discussion was held by the township board of supervisors
regarding the payment of these bills. When the payment issue was first called
to the floor on that date, you seconded the motion to pay the bills for the
fire hydrant project. Two supervisors voted for this including you and two
supervisors voted against the payment of bills with one supervisor abstaining.
As a result, the motion did not carry. During the same meeting, however,
township minutes indicate that you expressed strong dissatisfaction with the
township board's refusal to pay ,these bills. A second vote was taken and the
supervisor who had previously ab'stai ned from voting, cast an affirmative vote
and the motion carried 3 to 2 with you also voting. We note here that this
Commission has previously determined that public officials would not be
permitted to vote on the payment of bills to their employers where a dispute
has arisen with relation to the payment of such bills. See Stewart, 79 -070.
Within the instant situation, it is clear that the bill had been questioned
for humber of months prior to your participation in the final payment of
that bill to your employer. This was not a routine bill within the purview of
the previously cited opinion of the Commission. As such, we believe that your
participation in the payment of this bill to the company that employed you and
your strong influence in having that matter brought before the township
supervisors a second time on June 18, 1985, was a use of your public office to
obtain a financial gain for a business with which you are associated, in
violation of the State Ethics Act. This was heightened by the fact that a
single contract appears to have been split into two in order to evade the
applicable bidding requirements.
C. Conclusion: Your actions as a township supervisor in obtaining payment
for a disputed bill in relation to a business with which you were associated
was a violation of the State Ethics Act. This matter will be forwarded to an
appropriate law enforcement authority for further review and any action that
may be deemed appropriate.
Mr. Dean Shaffer
Page 7
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 (defined
as mailing) 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 Responder.;, 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 $1,000 or
imprisoned for not more than one year or both, see 65 P.S. 409(e).
By the Commission,
d ti
G. Sieber Pancoast
Chairman