HomeMy WebLinkAbout584-R BrownMr. Virgil W. Brown
c/o Joseph P. Greene, Jr., Esquire
Duffy & Duffy
Twenty Two North Walnut Street
West Chester, Pennsylvania 19380
Re: 85 -094 -C
Dear Mr. Brown:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 584 -R
DATE DECIDED: 12/14/87
DATE MAILED: 12/28/87
The Ethics Commission has received a complaint regarding you and a
possible violation cf Act 170 of 1978. On September 22, 1987, a hearing on
the matter was conducted and relevant evidence and testimony was presented.
Depositions were also taken on September 25, 1987. 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 and Roadmaster in Franklin Township,
Chester County Pennsylvania, violated Section 3(a) of the Ethics Act which
prohibits a public official's or public employee's use of office for
confidential information gained through that office for financial gain other
than compensation allowed by law and /or Section 3(d) of the Ethics Act when
you participated in township decisions to award contracts to Clanton
Excavating Company while being employed by that company and to J & J Farms of
West Grove, Pennsylvania, a firm in which your brother is a partner.
A. Findings: (Re: Clanton Excavating)
1. You served as a Franklin Township Supervisor from January 1982 to February
1986. You, therefore, are subject to provisions of the State Ethics Act.
2. Minutes of the Franklin Township Supervisors meetings for 1982 disclosed
the following:
a. January 4, 1982: You began serving as township supervisor and were
unanimously elected as roadmaster.
b. August 2, 1982: Special meeting to open bids for 1982 road projects,
Supervisors Virgil Brown and Thomas Deveney in attendance.-.
Mr. Virgil W. Brown
Page 2
Bids received from six (6) firms including Gary Clanton, West Grove,
Pennsylvania.
Supervisors agreed to take all bids under advisement. The only
project awarded was 82 -05 to Eastern Machine. (Minutes do not
reflect votes.)
The board to announce decisions at the regular meeting of August 18,
1982.
c. August 18, 1982: All supervisors present.
Bids received August 2, 1982 for miscellaneous road work discussed.
The board unaminously approved awarding the following:
Project 82 -01 - General grading /ditching: D'Ortone Construction
Co.
82 -02 - Ordinary snow removal /sanding: No bids received.
82 -03 - Heavy snow removal W/V plow: Eastern Machine on
as- needed basis.
82 -04 - Extra heavy snow removal: No bids.
82 -05 - Roadbank trimming /shredding: Eastern Machine.
d. December 15, 1982: You reported that you rode with the vendor during
the plowing and cindering this month and suggested the township
consider using a smaller truck to clear cul -de -sacs and
intersections, particularly in subdivisions where the large truck was
less effective. The vendor, Gary Clanton, has a smaller truck
available at a lesser rate and agreed to contract with the board with
an hourly estimate.
The board reviewed the present snow removal contract and agreed it
could .add provisions for the smaller vehicle.
3. Correspondence from 1982 disclosed the following relative to the
termination of the D'Ortone Construction contract to repair township roads:
a. September 3, 1982: Correspondence from solicitor to township
secretary /treasurer enclosing a termination notice and advising to
deliver it to the supervisors who were to be meeting with the
contractor.
Mr. Virgil W. Brown
Page 3
b. September 4, 1982: Unaddressed notice. Notice states that a
contract was entered into to perform work relating to maintenance of
the township roads, drainage ditches and culverts, and that
performance was out of compliance. Also, that employees failed to
follow the di rections of Roadmaster Virgil Brown on a number of
occasions. Contract determined to be breached, and advised that
services no longer needed. Formal termination to occur at next
regular meeting of township supervisors.
c, Review of the township minutes from August 1982 through December 1982
di sl cosed that no official action was taken by the board of
supervisors to terminate the D'Ortone contract.
4. Diane Francart, the former Franklin Township secretary /treasurer from May,
1981 to March, 1983 testified as follows:
a. D'Ortone Construction was the low bidder for township road projects
in 1982.
b., The D'Ortone contract was terminated shortly after work began.
Supervisor / Roadmaster Virgil Brown had input and oversaw the road
work and determined whether there was compliance.
c. The D'Ortone contract was not terminated at a public meeting.
d. Gary Clanton replaced D'Ortone even though he was not next in line
in terms of bidding.
5. Nancy Blake, the former township supervi sor of Franklin Township from
January, 1980 to January, 1986, testified as follows:
a. D'Ortone, which was low bidder in 1982, was awarded the township
contract.
b. D'Ortone worked for little more than one week but their work did not
seem to be up to bid specifications.
c. After D'Ortone was terminated, Smith was the next lowest bidder.
d. Clanton Excavating was not awarded the particular contract referenced
above but might have done some other township work.
6. D'Ortone was paid $1,300.00 in 1982, Smith was paid $9,409.00 in 1982 and
Clanton Excavating was paid $16,536.25.
Mr. Virgil W. Brown
Page 4
7. Minutes of the meetings and township records for 1983 disclosed the
following relative to the road contract bids and amounts paid:
a. May 23, 1983: Special meeting to open road bids. All supervisors
present.
Bids awarded as follows:
Project 83 -01 - Grading, ditching, etc. - Clanton Excavating
83 -02 - Mowing Roadbanks - Clanton Excavating
83 -03 - Triming & Shredding bush - David Adamson
83 -04, 05, 06 - All snow removal - Clanton Excavating
Bids also received from Bituminous Service Co., Guardian
Construction Co., W. H. Smith.
No record of motions and votes reflected in the minutes.
b. Township records confirm that in 1983 Clanton Excavating was paid a
total of $17,331.90 for services rendered.
8. Minutes of Franklin Township Supervisors meetings for 1984 disclosed:
a. February 27, 1984: You, as roadmaster, reported that snow and ice
removal was required several times since the last meeting.
A citizen questioned the sums spent for snow and ice removal. The
board noted that all bills were checked against the rates as bid for
the year, and the hours worked were checked against the work order
written by the roadmaster for each assignment.
The citizen stated that Franklin Township spent $12,000 for snow
removal while New London spent $2,500.
You then enumerated the vehicles used, the hourly rates as bid, and
the cost per ton of each of the kinds of cindering materials used.
You further read from records of each work assignment and the
number of hours and tons of materials, plus the unit cost of each.
b. April 23, 1984: Mrs. Black returned to the audit issue to ask you if
you worked for Gary Clanton. You said you did not. She then asked
if your brother worked for Gary Clanton. You replied that he did
not. Miss Blake added that at times Mr. Brown helped in snow removal
work -with the board's knowledge -and was not paid by Mr. Clanton or
by the Township. Mr. Clanton nodded his agreement with this
statement.
Mr. Virgil W. Brown
Page 5
9. Township minutes of the supervisor'"s meeting of August 9, 1984 reflect
that a special meeting was held on this date to receive bids for snow removal
and road work. Only one sealed bid was presented for review and this bid was
received from Clanton Excavating Company, West Grove, Pennsylvania.
a, A discussion on the bid led to the conclusion that the prices quoted
were the same as last year's bid.
b. You and Supervisor Nancy Blake were present; however, the third
supervisor, James Hudson, was absent.
A motion to accept Clanton's bid was seconded, it was not recorded as
to who made or seconded the acceptance of the bid.
d. Records indicated that the bid was unanimously approved. You thus
voted to approve this contract.
e. An amount of $19,025.75 was paid to Clanton Excavating under the
township's 1984 Snow Removal and Road Maintenance contract.
10. Township minutes of the supervisor's meeting of May 20, 1985, reflect
that a meeting was held to receive bids for road work and materials.
a. Minutes reflect that Clanton Excavating was the sole bidder in
Project 85 -01, General Grading and Ditching; Project 85 -04, Use of a
Tandem Truck with Speed Plow and Cinder Spreader; Project 85 -05,
Rubber Mounted Loader and Project 85 -06, Rubber Mounted machine with
V -Plow.
b. Clanton was the low bidder in Project 85 -02, Spot Paving.
c. Minutes reflect that the low hidders were all unanimously approved by
the township supervisors with the exception of Project 85 -03,
Roadbank Mowing, which was received from Mark Equipment,
Incorporated.
d. You abstained from voting on Project 85 -03, Roadbank Mowing.
e. Clanton Excavating received $7,672.25 from the township for snow
removal and road maintenance work during 1985.
11. Correspondence dated April 8, 1985 from Solicitor Dennis Byrne to the
Franklin Township Supervisors disclosed the following:
a. The board asked him to provide an opinion setting forth the
responsibilities of a Supervisor /Roadmaster who is employed by a
contract or who provides labor and materials to the township.
Mr. Virgil W. Brown
Page 6
b. The request was made because Supervisor Vi rgi 1 Brown recently
disclosed to the board that he became an employee of a contractor who
does business with Franklin Township. In the past, the contractor
provided excavation, road construction, maintenance and snow plowing
services.
c. The Ethics Law directs that public officials avoid both actual and
preceved (sic) conflicts of interest, he previously advised the Board
that any Supervisor who has a close relationship with any Contractor
providing services to the Township, recuse himself or herself when
the Board takes any action with respect to that Contractor. The
foregoing advice included the direction that recusal should occur
even if there was no financial interest between the Supervisor and
the Contractor because the, "close" relationship might be preceved
(sic) as a conflict of interest by a citizen.
d. Supervisor Brown has become an employee of a contractor who provides
services to the Township there now is an, "actual ", conflict of
interest when the Board acts on matters relating to that Contractor.
Accordingly, the Board is advised that Supervi sor Brown should recuse
himself, (that is not vote) whenever the Board takes any action
relating to the Contractor by whom he is employed. In order to
provide you with some guidance as to the scope of the recusal, I
suggest that Supervisor Brown take no part in voting on any Motion,
Resolution or Ordinance which awards a contract or bid or authorizes
payment to his employer.
e. Further, since Supervisor Brown has heen appointed Franklin Township
Roadmaster, it is also necessary for him to recuse himself when it is
required that the Roadmaster approve any work done by his employer in
Franklin Township in which Supervisor Brown particpated. That is
Supervisor Brown in his capcity (sic) as Roadmaster is also
prohibited from approving any work done by his employer in Franklin
Township when Supervisor Brown actually participated in the
performance of the work in question. To require less would place
Supervisor Brown in a positon of possibly approving his own work.
Since making such a fine distinction may prove difficult in practise
(sic), it is my suggestion that Supervisor Brown in his capacity as
Roadmaster refrain from approving, authorizing or di recting any work
done within Franklin Township by his employer. In the event that
Supervisor Brown's employer is engaged to provide further services to
Franklin Township, I suggest that the Engineer act as the approving
authority for that work.
12. Review of Franklin Township work orders for highway maintenance disclosed
that during calendar years 1982 through 1985, you as township roadmaster
signed work orders which initiated work to he performed by Clanton Excavating
Company. The following work was approved by you:
Mr. Virgil W. Brown
Page 7
February 3, 1982 - Fixing wash out along road edge. Patching pot
holes on road surface.
March 8, 1982 -
January 5, 1984 -
January 11, 1984 -
January 14, 1984 -
Grade and put stone on road. Fix along edge
of a road and fix pipe ends. Remove dirt from
around poles.
March 22, 1982 - Patching pot holes on township roads.
April 1, 1982 - Putting head walls on a pipe crossing.
May 19, 1982 - Fix pot holes and edge of roads.
July 20, 1982 - Ditching and firing washout with riprap
stone.
August 25, 1982 - Grading and stoning.
December 12, 1982 - Plow and cinder roads.
December 27, 1982 - Grade two township dirt roads with grader.
January 15, 1983 - Plow and cinder township road.
February 6, 1983 - Plow and cinder township roads.
February 11, 1983 - Plow township roads with two trucks.
May 16, 1983 - Gut tree on Hess Mill Road.
May 24, 1983 - Cut tree up on Church Hill Road after a storm.,
June 7, 1983 - Patch all township roads. Pot holes and edges
repaired.
December 21, 1983 - Repair damage along road.
December 22, 1983 - Cinder all township roads.
December 29, 1983 - Cinder all township roads. Mix salt and
anti -skid material. Ditch along Flint Hill
Road. All anti -skid material.
Cinder all township roads.
Cinder all township roads.
Cinder all township roads.
Mr. Virgil W. Brown
Page 8
January 16, 1984 - Cinder all township roads.
January 17, 1984 - Falling and mi xi ng anti -skid material .
January 18, 1984 - Cinder and plow all township roads.
January 22, 1984 - Falling and mixi ng anti -skid material .
January 24, 1984 - Cinder township roads.
January 26, 1984 - Cinder township roads.
January 30, 1984 - Cinder township roads.
January 31, 1984 - Plowing and cindering township roads.
February 1, 1984 - Mixi ng anti -skid material and cindering
township roads.
February 5, 1984 - Patching pot holes on School House Road.
February 28, 1984 - Cold patch all township roads. Repair pot
holes.
March 13, 1984 - Cinder all township roads.
March 8, 1984 - Cinder and plow all township roads.
March 29, 1984 - Cut fallen tree on Mount Olive Road.
April 12, 1984 - Grade and put stone on township roads.
May 4, 1984 - Fix pipe cave -in at Heather Hills. Blacktop
over a pipe at Heather Hills. Patch pot holes
in the township.
May 30, 1984 -
June 14, 1984 -
July 19, 1984 -
Tree trimming.
Cold patching.
Clean mud off of a township road. Place
rip rap around a pipe on Flint Hill Road.
August 12, 1984 - Widen Parson Road.
September 4, 1984 - Ditching and cutting road banks back.
September 18, 1984 - Ditching and cutting road banks back.
Mr. Virgil W. Brown
Page 9
a.
October 28, 1984 - Remove and old tree from a ditch. Place rip
rap along roadway.
November 27, 1984 - Ditch and grade road. Cut tree up that blew
down from high winds.
January 5, 1985 - Plow and cinder township roads.
January 11, 1985 - Cinder township roads.
January 20, 1985 - Plow and cinder township roads.
January 26, 1985 - Plow and cinder township roads. Plow back
certain roads.
January 31, 1985 - Plow and cinder township roads.
February 2, 1985 - Plow and cinder township roads. Mix anti -skid
material.
February 3, 1985 - Plow and cinder all township roads.
February 13, 1985 - Clean out pipe on South Guernsey Road since
water was running across this road.
March 12, 1985 - Cut and clean up fallen tree on South Guernsey
Road.
May 11, 1985 - Cut up tree on Church Hill Road after wind and
rain storm.
July 5, 1985 - Patch pot holes on four township roads.
July 8, 1985 - Ditch work at four township roads.
13. Records of Clanton Excavating Company, West Grove, Pennsylvania, reflect
that you received payment for contract labor you performed as follows:
(1) March 11, 1983 - Check number 1733 for $240.00
(2) July 15, 1983 - Check number 2053 for $256.00
(3) April 16, 1984 • Check number 2701 for $100.00
(4) May 2, 1984 - Check number 2734 for $224.00
Mr. Virgil W. Brown
Page 10
b. You have stated that you performed the labor and services for Mr.
Clanton as an independent contractor.
14. Mr. Gary Clanton, owner of Clanton Excavating Company, stated that to the
best of his knowledge, you worked as a contract laborer only during calendar
years 1983 and 1984. He also stated the following:
a. Clanton advised that attempts to locate payroll records for full -time
employees during 1982, 1983 and 1984 were unproductive.
b. In regards to 1982 contracts the board of supervisors wanted his firm
to do the township roadwork but were required to award the bid to the
lowest bidder, D'Ortone Construction. His company was the high
bidder but was brought i n after D'Ortone's contract was terminated.
He did not know the reason for the termination and was not involved
in that matter. The 1982 contract was not rebid.
c. He has known you for approximately the past seven (7) or eight (8)
years and that you worked part -time for him and later full -time
repairing and operating equipment. He could not recall if your
employment with Clanton Excavating began before or after your term as
township supervi sor.
d. You were not a supervisor when Clanton Excavating first obtained
Franklin Township road contracts.
e. He admitted that you possibly discussed bids for township road work
with him, particularly projects to bid, how much was allocated to be
spent and what projects were priority. Clanton denied that this
information influenced his bid. He denied that you ever tried to
influence the bid in return for employment.
f. Clanton believes his company was chosen because of the bid and his
company was local and flexible to work on various projects.
g. Regarding the April 23, 1984 meeting, Clanton admitted to stating
that you did not work for Clanton Excavating, but claims he was
referring only to full -time employment.
15. Mr. Gary Clanton of Clanton Excavating further testified as follows:
a. He submitted bids to Franklin Township for road work from 1982 to
1985.
b. He knew and employed Virgil Brown, as a part -time or full -time
employee between 1982 and 1985 with assigned duties consisting of
drivi ng trucks, supervi sion, mechanical work and working on roads.
Mr, Virgil W. Brown
Page 11
c. He testifed that check stubs for 1983 and 1984 were part of payments
to Virgil Brown as an employee of Clanton Excavating.
d.
e.
(1) Mr. Clanton testified that Invoice No. 0279 and 0280 of Clanton
Excavating to Franklin Township, dated January 18, 1984 reflect
township road work performed by Clanton Excavating.
(2) It was further stated by Mr. Clanton that his secretary broke
down the work on the basis of who performed the individual
tasks.
(3) The above invoices contain two entries where your name is
written relative to the referenced work.
(a) January 14, 1984
(b) January 16, 1984
- Tandem dump truck with rider - 8
hours - at $55.00 /hr. - $440.00
- Tandem dump truck with rider - 4 1/2
hours - at $55.00 /hr. - $247.50.
(1) It was also stated by Mr. Clanton that Virgil Brown was his
employee when he was township supervisor and that in terms of
work, Virgil performed all the different varieties and types of
work activities.
(2) He not only paid Virgil Brown by check but also in cash,
possibly once or twice a month.
f. His business had only five employees in 1982 but his business
increased which resulted in more employees, one of which was Virgil
Brown.
g. One reason his business increased and the need for more employees
developed was because he was receiving township contracts.
16. Payroll records of Clanton Excavating Company reflect that you were
employed on a full -time basis from March 1985 to April 1985 and August 1985 to
August 1986. Your gross earnings were $10,051.91 in 1985 and $18,005.30 in
1986 for work performed for Clanton Excavating Company.
17. Franklin Township records disclosed that prior to your election
township supervisor in 1982, Gary Clanton Excavating had one contract with the
township in 1981 for road project general grading, drainage and repairs and
was paid $2,947.70.
Mr. Virgil W. Brown
Page 12
18. On your Statement of Financial Interest,for calendar year 1984, you
listed Clanton Excavating and J & J Farms as sources of income in excess of
$ 500.
19. You state that you either made the motion or provided a second to award a
snow removal and road work contract to Clanton Excavating Company on August 9,
1984.
a. You advised that the bid was properly advertised and that the
township bidding procedures were followed.
b. You stated that if the minutes of the supervisors' meeting indicated
it was a unanimous vote, then this must be so.
c. You stated that at the time, you just did not consider the situation
that as a township supervisor and roadmaster, you were voting to
award a contract to a firm which has previously paid you for doing
contract labor.
d. You denied that you received any financial gain as a result of this
vote.
e. You stated that you would never vote again under such circumstances.
Findings: Re: Contract to J & J Farms
20. Finding #1 is incorporated herein by reference.
21. Records of J & J Farms, P.O. Box 63, New London, Pennsylvania 19360,
reflect that on October 30, 1984, this firm sold 19 bales of mulch hay
weighing 14.915 tons to Franklin Township.
a. The cost per ton was indicated as $65.00.
b. Records indicated that the 19 bales of mulch hay were paid in full by
Franklin Township on December 6, 1984.
c. Records further indicated that during 1984, the firm which purchased
the largest amoung of mulch hay from J & J Farms was Hudson Farms,
Inc., of Avondale, Pennsylvania. A review of individual deliveries
disclosed that 110.90 tons at $65.00 each were purchased.
22. Mrs. Elizabeth W. Mark, wife of the co -owner of J & J Farms advised that
her husband, James Mark and Jay Brown were equal partners in this firm from
1982 to April 1986.
a. She averred that Jay Brown and Virgil Brown were brothers.
Mr. Vi rgi 1 W . Brown
Page 13
b. She provided payroll records which verified that Virgil Brown was a
full -time employee of J & J Farms from January 1984 to March 8,
1985.
c. She stated that Virgil Brown had the permission of J & J Farms to
intermittently perform township supervisor duties when requi red.
d. She stated that her husband assumed full ownership of J & J Farms in
April 1986.
23. You confirmed that you were a full -time employee of J & J Farms from
about January 1984 to March 1985.
a. Your brother, Jay Brown, was an equal partner in the firm during the
period you were employed.
b. Both you and your brother have residences and families of your own.
You provide no support to your brother, nor does he support you.
24. You related that through consultation with the other two township
supervisors a decision was made to purchase the mulch hay from J & J Farms.
25. You stated that no motion was ever made to make this purchase and no bids
were sought because the purchase was under $4,000.00.
26. You advised that the other two township supervisors asked you to handle
this matter by determining which firm offered the best deal to the township.
a .
b.
You stated that J & J Farms offered the best comprehensive purchase.
You related that the $65.00 cost per ton was competitive.
c. You determi ned that the mulch hay would not have to be transported by
the township.
d. J & J Farms would provide the mulch hay in bigger bales. This would
make the spreading much easier.
e. J & J Farms agreed to place specific amounts of mulch hay at areas
along the roads where it was to be used.
27. You stated that at the time you made the purchase of mulch hay, you did
not entertain the possibility of having a conflict of interest because of your
employment with J & J Farms or because your brother, Jay Brown, was then a 50%
owner of this firm. -
28. Minutes of the Franklin Township Supervisors' meeting of May 28, 1984
reflect a discussion on work completed by Clanton Excavating Company at the
brother, Jay Brown.
Mr. Virgil W. Brown
Page 14
a. Clanton Excavating Company had presented a bill to Jay Brown in the
amount of $1,087.50 for ditching and bank cutting near his driveway.
b. Jay Brown appeared before the hoard and asked that the township
share in the cost of this work since some of the work was planned
to be completed by the township during the summer of 1984.
c. The area involved was listed on the township's April Road Inspection
Report as being scheduled for completion during the summer of 1984.
d. Minutes indicated that you announced you would not participate in
this discussion since you wanted to avoid an appearance of a conflict
of interest.
e. Supervisor Hudson moved that the board pay half the b i l l , an amount
of $543.75, as reimbursement to Jay Brown.
f. The motion was approved by Supervisors Hudson and Blake.
g.
You abstained from participating in this vote.
29. Township records reflect that the reimbursement check of . $543.75 was
endorsed by Jay Brown and H. V. Brown.
a. You stated that a local newspaper had erroneously reported that you
endorsed this check.
b. You advised that your father, Mr. H. V. Brown, had endorsed the check
and cashed it on behalf of your brother.
c. You denied that you endorsed this check.
B. Discussion: As a supervisor for Franklin Township, you are clearly a
"public official" as that term is defined in the State Ethics Act.
Accordingly, your conduct must conform to the requirements of the Ethics Act
and the restrictions therein apply to you.
Section 3(a) of the Ethics Act provides:
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).
Mr. Virgil W. Brown
Page 15
Paragraph Section 3(d) of the Ethics Act provides:
(d) Other areas of possible conflict shall he addressed by
the commission pursuant to paragraph (9) of section 7.
65 P.S. 403(d).
Factually, shortly after you began serving as township supervisor and
roadmaster, D'Ortone Construction Company's service contract with the township
was terminated. The claimed basis for termination was that performance was
out of compliance and that the employees failed to follow your directions as
roadmaster. The contract was not terminated at a public meeting nor rebid.
At a supervisors' meeting in 1984, you denied that you worked for Gary Clanton
although his business records established that you were employed as a contract
laborer for the years 1983 and 1984. In a supervisors' meeting on August 9,
1984, you voted in favor of the acceptance of a bid by Clanton Excavating
Company. Further, at the meeting of May 20, 1985, you voted in favor of
awarding a bid to Clanton Excavating which was low bidder in project 85 -02.
It is noted that the township solicitor advised the supervisors on April 8,
1985, that a conflict existed because you were both the supervisor and also an
employee of a contractor who provided services for the township. From
February 3, 1982 to July 8, 1985, you as supervisor /roadmaster approved
numerous work orders for Clanton Excavating Company while working as a
contract laborer for that company for the periods from March 11, 1983 to May
2, 1984. Your assertion that you were an independent contractor for Clanton
Excavating is unavailing, in light of the nature of the work you performed for
Clanton Excavating and also in light of the testimony of Mr. Clanton and
evidence such as pay stubs which establish that you were, indeed, an employee
of that company. Some of the projects, on which you worked for Clanton
Excavating , related to township jobs. You were responsible for this work as
the township roadmaster yet performed it as an employee of Clanton Excavating
Company. Lastly, it is noted that you either made or seconded a motion for
the award of snow removal and road work by Clanton Excavating Company on
August 9, 1984.
Regarding the contract with J & J Farms, it appears that you were a full
time employee for this firm from 1982 through April, 1986. The payroll
records of J & J Farms reflect that you were a full -time employee from
January, 1984 to March 8, 1985. On October 30, 1984, J & J Farms sold 19
hales of mulch hay to Franklin Township without bidding. You stated that you
were asked to handle the matter and decided that J & J Farms offered the "best
deal" to the township because it was in your view "the best comprehensive
purchase."
In the instant situation, this Commission finds that you have violated
Section 3(a) but not 3(d) of the Ethics Act. In reaching this result, this
Commission is guided by its opinion in Sowers, 80 -050. There, this Commission
Mr. Virgil W . Brown
Page 16
opined that a public official /employee must refrain from participating in
projects or proposals of the developer when the project or proposal is subject
to the public employee's /official's review when either of two situations
occur:
1. The official seeks or can legitimately anticipate performing services
for the developer, or
2. The official has obtained work from the developer and subsequently is
asked to vote on matters relating to the developer which arose after
the official obtained the work or services from the developer.
The facts in the instant case are quite similar to those in Earnest, 265.
In that case, a township supervisor voted on matters relative to the
development of a mall when he was simultaneously in the employ of a
sub - contractor of the developer of the mall. This Commission. in that case,
found a violation of Section 3(a) of the Ethics Act and referred the matter to
the appropriate law enforcement officials.
Under the facts and circumstances outlined above, it is clear that you
used your public position to obtain financial gain other than compensation
provided by law for yourself and for a business with which you were
a ssoci ated.
C. Conclusion and Order:
1. You, as a Supervisor /Roadmaster in Franklin Township, are a "public
official" under the Ethics Act and are subject to the provisions set forth
therein.
2. Under the facts and ci rcumstances above, you violated Sections 3(a) of the
Ethics Act by voting to award service contracts to Clanton Excavating, a
company in which you were employed.
3. Under the facts and circumstances above, you violated Section 3(a) of the
Ethics Act by purchasing mulch hay from J & J Farms, a company in which you
were an employee.
4. You have not violated Section 3(d) of the Ethics Act under the facts and
circumstances outlined above.
5. This matter will be referred to the appropriate law enforcement officials
for review and appropriate action.
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 5 business days after service
(defined as mailing).
Mr. Virgil W. Brown
Page 17
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). The
confidentiality provision does not restrict respondents consultation with
1 egal counsel .
By the Commission,
G. Sieber Pancoast
Chai rman