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HomeMy WebLinkAbout622 RishelMs. Nancy Rishel c/o Rush Township Supervisors Building Philipsburg, PA 16866 Re: 85 -051 -C Dear Ms. Rishel: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 622 DATE DECIDED: December 14, 1987 DATE MAILED: December 22, 1987 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 Secretary in Rush Township, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain and Section 3(c) which prohibits a public official, public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, by participating in a bid process that resulted in an award for a tractor and loader to a company owned by your husband and by which you are employed even though this company was not the lowest bidder. A. Findings: 1. You were appointed Secretary /Treasurer of Rush Township in 1969 and you served in that capacity until the spring of 1985, at which time you resigned. 2. Rishel Sales and Service was owned solely by Robert Rishel. a. You married Bob Rishel in 1969. Ms. Nancy Rishel Page 2 b. Rishel hod owned this business since 1967. c. Outdoor equipment was sold aid serviced by Rishel Sales and Service, which included farm equipment, lawn mowers, etc. d. Name brands such as Wheel Horse, Snapper, Kubota, Airens, Polaris, Rush Hog, Mitsubishi, Echo and Woods were sold by this company. e. The company had two locations: the home office in Spring Mills, Pennsylvania and a store in State College. 3. You stated that you occasionally answered the phones for Rishel Sales and Service and that you were not familiar with the equipment that the company sold. 4. Bob Rishel stated that he did employ you to do his payroll for another company which he owned, R.L. Rishel Transportation. He paid you approximately $100.00 per week to do the payroll. 5. According to Bob Rishel, because the business was set up and running before you were married, he already employed the necessary personnel in Rishel Sales and Service to effectively run the company including General Managers and Accountants. 6. Rush Township advertised for bids for a tractor and loader in the Clearfield Progress Newspaper on October 1, 9, and 15, 1984, with the bid opening to occur on October 17, 1984 at the township building. a. The advertisement requested bids for a 36 H.P. tracto, with loader, b. Specifications were available at the township building from Mr. Earl Blake, or from Mr. Blake at his home. 7. The need for the tractor with loader had been discussed for a number of months before the advertisement, by Earl Blake, Supervisor and full -time roadmaster. a. The township was using Blake's personal tractor at no charge. This was a small farm tractor and of limited value to the township. b. The township was in need of equipment with ditch digging capabilities in addition to as many other functions as possible. Ms. Nancy Rishel Page 3 8. According to Bob Rishel, all three supervisors came to his store in Spring Mills to look at'tractor and loader equipment. Rishel waited on them personally, and recalls giving them literature on the only piece of equipment that he carried which fit their needs, a Kubota tractor and loader. a. It is possible that Blake looked locally at John Deere equipment and that sales representatives from other companies spoke with Blake about their products. 9. Bob Rishel submitted a bid to the township in response to the advertisement for a tractor and loader. a. The bid specified a Kubota L -355 S/S 4WD Diesel Tractor with L9490 remote hydraulics. b. The bid price was $12,990.00, total. c. The bid specified 12 items, including LM -8124 Rear Wheel Weights. d. Literature for the above listed tractor accompanied the bid. 10. A special meeting of the Rush Township Supervisors was held on October 17, 1984, for the purpose of opening the bids. 11. Six bids were opened at the special meeting: McGarvey Tractor $12,840.00 Cambria Tractor 13,816.00 H & S Repair 14 166.00 John Deere 19,323.00 Rishels 12,990.00 Carns 14,999.00 12. The two lowest bids were from Rishel Sales and Service and McGarvey Equipment, Inc. a. The difference between the two bids was $150.00. b. McGarvey equipment was the lower of the two bids. Ms. Nancy Rishel Page 4 co McGarvey's bid was for a Kubota 355SS tractor equiped with a L1720 Loader: This was the exact same tractor and loader that Rishel's bid included. - McGarvey's bid specified 9 items which did not include the wheel weights, but he did specify that "The tractor and loader is equipped per your specification sheet and as the attached literature indicates. 13. Bob Rishel did attend th'e bid opening along with a representative from Cambria Tractor and Equipment Company and H & S Repair Shop. It is possible that some of the other bidders were represented; however, McGarvey did not attend. 14. Bob Rishel stated that he pointed out to the supervisors at the meeting that McGarvey's bid did not specify the wheel weights. a. Bob Rishel knew the price of a set of wheel weights, and informed the supervisors that if that price were added to the bid, the total would be more than his own. Although uncertain, he estimated the price to be about $100.00 per set. b. Bob Rishel thought that the specifications had called for two sets of wheel weights. This would cost approximately $200.00; when added to McGarvey's bid of $12,840.00, the total would be $13,040.00. c. Bob Rishel's bid would then be the lowest. 15. The specification sheet called for one set of rear wheel weights (206) pounds. a. Rishel had specified the rear wheel weights on his bid. b. McGarvey stated that the tractor and loader were equipped per 'the specifications. 16. Nancy Rishel did not attend the bid opening. The minutes were taken by Supervisor Leo Hughes. 17. According to all three supervisors, Nancy Rishel did not discuss the tractor and loader with them or try to influence them in any way. 18. The bid was awarded the same night of the meeting - to Rishel Sales and Service. Ms. Nancy Rishel Page 5 a. The minutes reflect that there was a lower bid but it did not meet the specifications of the township. b. According to Richard Ramsey who is the representative from Cambria Tractor and Equipment Company, the Supervisors tabled the matter after opening the bids and briefly discussing them. When Ramsey got home that evening, he called Supervisor Blake who then told him that the bid had been awarded to Rishel's. Ramsey and the other dealership representatives left when the matter was tabled, with the exception of Rishel who was still there when they left. 19. Bob Rishel stated that he did not find out about the advertisement for bids from you and that he employed people in his company whose job it was to watch the papers for bid advertisements. He also stated that he is not sure how his company got the specifications, but assumed that either someone called the township and asked to have them sent through the mail or one of the representatives picked it up when they were in the Philipsburg area. 20. Richard Ramsey stated that when it was pointed out that McGarvey's bid did not specify the wheel weights, he suggested that the supervisors call McGarvey for further explanation of his bid. This was not done. B. Discussion: As a secretary /treasurer of Rush Township, you are a "public employee" as that term is defined in the State Ethics Act. 65 P.S. §402. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable 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). This Commission has determined that any public employee who uses his public office to obtain a gain or benefit which is not provided for in law, constitutes a "financial gain other than compensation provided by law" in violation of Section 3(a) of the Ethics Act. These determinations of the Commission have been appealed to Commonwealth Court which has affirmed the Ms. Nancy Rishel Page 6 _ orders of the Commission. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, 531 A.2d 536 (1987). It is further provided in Section 3(c) of the Ethics Act: Section 3. Restricted activities. (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body 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. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). Section 3(c) basically provides that a public official or any member of his immediate family may not contract with his governmental body if the contract is valued at $500 or more unless it is awarded through an open and public process. In the instant situation, you were the secretary /treasurer of Rush Township which advertised for bids for a tractor and loader that had ditch digging capabilities together with other functions. Your husband, through his company Rishel Sales and Service, sold farm equipment and other items; your husband did have a Kubota tractor which met the advertised specifications. Although you were employed on the payroll, at one of your husband's other companies, R.L. Rishel Transporation, for which you received $100 per week for doing payroll, the only functions that you performed for Rishel Sales and Service consisted of answeriny the telephone. When the bids were opened relative to the advertisement for a tractor loader, six bids were submitted of which Rishel Sales and Service was the second lowest bid. McGarvey was the lowest bid but there was some question as to whether his bid included all of the items in the specification, namely, the rear wheel weights. The McGarvey bid did not mention the weights but specified tnat the tractor loader would be per the specifications. However, the Rishel bid specifically listed the rear wheel weights. At the meeting of the supervisors regarding the tractor and loader bids, the minutes reflect that there was a lower bid which did not meet Ms. Nancy Rishel Page 7 the specifications of the township. A representative of one of the other bidders attended'this meeting wherein the matter of bids was discussed and tabled; after that representative returned home, he called one of the supervisors who advised him that the bid was awarded to Rishel. This Commission must focus on your conduct in this situation to determine whether your actions violated either Sections 3(a) or 3(c) of the Ethics Act cited above. In your position as secretary /treasurer of the township, you did not participate or have any involvement as to the bid specifications for the tractor /loader nor did you vote on selecting Rishel Sales or Service for the contract. In this regard, all three supervisors have stated that you did not discuss the tractor loader with them or try to influence them in any way regarding their decision. Thus, there is no evidence to establish that you violated Section 3(a) or 3(c) of the Ethics Act. C. Conclusion and Order: 1. As a secretary /treasurer of Rush Township, you are a public employee subject to the provisions of the Ethics Act. 2. You did not violate Section 3(a) or 3(c) of the Ethics Act regarding the awarding of a contract for a tractor and loader to your husbands company, Rishel Sales and Service. 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 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 $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, J s8.i.s -&�� 12 *-37t G. Sieber Pancoast Chairman