Loading...
HomeMy WebLinkAbout634 ParksMr. Jeffrey Parks Irvona, PA 16656 Re: 85 -123 -C Dear Mr. Parks: A. Findings: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order •No. 634 Date Decided: March 10, 1988 Date Mailed: March 16, 1988 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 Borough Council member of Irvona, Pennsylvania, violated Section 3(a) of the State 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 other than compensation provided by law and Section 3(c) of the Ethics Act which involves a public official or public employee contracting with their governmental body by having the Borough pay bills to P & S Trucking, a firm in which you are an owner. 1. You served on the Irvona Borough Council from 1983 to 1985. 2. You are a partner with Sam Strong in a company known as P & S Land Development, which originated in approximately 1977. a. Sam Strong was your uncle and is also a borough councilperson. b. In 1984, P & S Land Development entered into the trucking business under the name P & S Trucking. c. P & S Land Development was started with the intention of eventually stripping the land for coal. Mr. Jeffrey Parks Page 2 d. During the first year and a half of the trucking business, you employed a driver by the name of Theodore Gallagher. After that time, you worked as a driver. 3.n January. 1984, you and Sam Strong were appointed to the Borough Street committee. Chairman John Patterson was automatically a memher of all c • .;mi ttees. Minutes of the borough council meetings provide, in part, as fall( 'wing 1984 concerning the roads: a. March 5 - Denny O'Shell requested a road be opened to his pro', rty. b. May 7 - The Street Committee discussed opening the street to tie Denny O'Shell property, trees to be cut, survey to be made. Committee to talk with Cambria Mills Coal Company about using their equipment to grade the area. c. °:le 4 - Street Committee discussed opening of the street to Shell's property, trees to be cut, dig ditch and grade. Discussed re , to the alley in back of the borough building, grade and place 2 RC. d. July 2 - Street Committee discussed using a spreader box on street to Wagner's and at McMillans and the alleys. Parks to check on the roller. Strong to get a price on spreader box. e. August 6 - Moshannon Paving quoted a price of $350 /day for a spreader box, should do all necessary work in one day. f. Gctober 1 - Motion is made by William Paterson -to 'e a to place 2 RC on Wagner Road, alley and road to O'Shell I s at z cost or of $350. The motion was tabled. 'November 5 - The motion is made by William Collins, P. the Street Committee felt there is time to work on the streets to start. Motion is seconded and carried. Present: Patterson, Strong, McCusker and Col li ns. g. In August 1984, P & S Trucking began hauling SS 2 RC material from Moshannon Paving to the Borough cf Irvona, for the Borough, to stockpile in ;reparation of road work. Mr. Jeffrey Parks Page 3 6. Records of the borough provide as follows regarding invoices from P & S Trucki ng. a. P & S Trucking invoice dated September 10, 1984 to Irvona Borough for hauling SS 2 RC stone on 5 days; 22.5 hours at $30 per hour. Total: $675. b. P & S Trucking invoice dated October 1, 1984 for hauling 2 RC sandstone on 5 days; 22 hours at $30 per hour. Total: $660. c. P & S Land Development invoice dated November 5, 1984 for hauling 2 RC sandstone on 2 days; 12 hours at $30 per hour. Total: $360. 7. Records of Irvona Borough indicate the following regarding payments from the borough to your company: a. Irvona Borough, Street fund check No. 439 dated September 10, 1984 in the amount of $675 payable to P & S Trucking. b. Irvona Borough, Street Fund check No. 432 dated October 1, 1984 in the amount of $660 payable to P & S Trucking. c. Irvona Borough Street fund check No. 436 dated November 5, 1984 in the amount of $360 payable to P & S Land Development. 8. You stated that Chairman Patterson received prices and estimates from Moshannon Paving concerning the amount of material that the borough would need for the road work. 9. You stated that you would never take an action without Council voting on it first, and that you found it hard to believe there was no record in the minutes of any taken on P & S Trucking hauling the material from - Moshannon. a. You contend that there was a motion made to haul the material and a vote taken. b. You think that the Secretary might have missed this point with all the other discussion going on, and that sometimes she had trouble taking mi nutes. 10. There was no discussion or vote documented in the minutes of the borough council meetings that involved the hiring -of P & S Trucking to haul material for the borough. Mr. Jeffrey Parks t`age 4 11. There was no bid adverti to ha '1 material for the boraagh. 12. You stated that you chec %ed the Borough Code yourself an mistakenly i terpreted the amount they were allowed to make as councilmembers. a. When questions were raised about P & S Trucking having done the hauling for the borough, it was discovered that they were really only allowed to make $500 not $1000. b. Yea stated that the Council probably did not think th -t the job had to be bid because the Borough Code stated that councilmembers were «flowed to make so much per year. c. You stated that you were not under the assumption that the hauling job had to be bid even though you were aware of the bidding process, just so they did not go over the $4,000. 13. You stated that of the $1,675 that P & S Trucking charged the borough to haul n- terial from Moshannon Paving, you made about $432 after taxes and expense3. a. `.°au paid the driver of the truck 25% of the gross which was the same deal for hauling coal. Strong would have made approximately the same amount from the deal as 5O% partner. `.`ou stated that if you had known that you were only allowed to make $5C =2) you would never have agreed to do the hauling for she borough. d. Yr_ stated that you did not intend to do anything illegac or to make honey. for yourself, that if you did anything wrong it wa :. out of is norance. y. You stated that at first when councilmembers said they should haul the material for the borough, both you and Strong stated that you were not allowed. You then looked it up in the Borough Code and it appeared that it was alright. You stated that you now wish that you had never done it and you think Strong feels the same way. "ou and Strong only agreed to do•the hauling as long as they stayed nder the limit set by the Borough Code. Mr. Jeffrey Parks Page 5 14. A review of borough records for the years 1982 through 1987 indicate that no Statements of Financial Interests were on file for you. 15. In regard to the filing of a Statement of Financial Interests which was not on record at the Borough office, you stated that you were sure you filed. a. You stated that you did file when you first went on council. b. You stated that there were a lot of people time that there was so much trouble iinthe borough, they g were taken. c. You were given forms to complete at the time of your interview and requested to file them with the Borough and a copy with the State Ethics Commission within three weeks. 16. You have not returned these completed Statements to the State Ethics Commission. B. Discussion: As a councilmember for Irvona Borough, you are a "public official" as that term is defined in the Ethics Act. See Patterson, No. 624; 65 P.S. §402; 51 Pa. Code §1.1. As such, your provisions of the Ethics Act and the restrictions ntherein are 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). Section 3(a) basically provides that a public public office or confidential information to obtain o a f financi ia al in uoe h hrs than compensation as provided for by law for himself or a businesswithwhich he is associated. Under this provision, this Commission has determined that the use of office by a public official to obtain a gain or benefit for himself or a business with which he is associated which is not provided for in law constitutes a "financial gain other than compensation provided for by law." ;lr. Jeffrey Parks Page 6 These determinations have been appealed to the Commonwealth Ccurt ?e,. sylvania which has affirmed the Orders of the Commission. See McCutcheon v. state Ethics Commission, 77 Pa. Commw. 529 466 A.2d 283 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531 A.2d 536 (1987) Thus, under this provision, a public official may not use his public position tf- secure any financial gain for himself or a business with which he is associated unless it is provided for by law. Domalakes, 85 -010. In addition to the foregoing, th° State Ethics Act prOVid9S as follows: Section 3. Restricted activities. (c) No public official or public employee or a member his immediate family or any business in which the pers:n or a member of the person's immediate family is a di rr , tor, 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). Yr. relation to the above provision of law, this Commission has generally determined that this provision is a procedure to be used when a public official or employee contracts with his own governmental body in excess of $50C. Eryen, 80 -014; Lynch, 79 -047. This procedure, the open and public process, must be used in all situations where a public official is otherwise appropriately contracting with his own governmental body in excess of $500. This open and public process would require: , (1) prior public notice of the employment or contracting possioility; (2) sufficient time for a reasonable and prudent competitor /applicant to be able to prepare and present an application or proposal; (3) public disclosure of all applications or proposals considered and; Mr. Jeffrey Parks Page 7 ( public disclosure of the contract awarded and offered and accepted. See, Cantor, 82 -004. Thus, in the event that contracting would be allowed, the above process must be employed. In the instant matter,_you were both a member of borough council, a member of the borough street committee and also a co- partner in the trucking business known as P & S Trucking. "Business with which he is associated" is defined under the Ethics Act 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. Thus, P & S Trucking was a business with which that term is defined under the Ethics Act. The facts �in this acase� establish as that P & S Trucking did contracting work for the borough by hauling sandstone and stone on several occasions. P & S Trucking submitted invoices for this work dated September 10, 1984 and October 1, 1984 for which the borough issued checks No. 439 in the amount of $675 and check No. 432 in the amount of $660 to P & S Trucking. Although this Commission finds that there is insufficient evidence to establish a violation of Section 3(a) of the Ethics Act because the evidence and, in particular, the minutes do not reflect any use on your part of public office in awarding the contract to P & S Trucking, a violation of Section 3(c) of the Ethics Act did occur because P & S Trucking, the business with which you were associated, was awarded a contract in excess of $500 with your governmental body and none of the four conditions outlined above were followed in the award of that contract: there was no public notice, no time or opportunity for a competitor to present an application, no public disclosure of the applications and no subsequent disclosure after the contract was awarded. Since the above criteria were not satisfied in the award of this contract which was in excess of $500 to your business, this was a violation of Section 3(c) of the Ethics Act. Lastly, it is noted that although you were a member of the Irvona Borough Council from 1983 to 1985, you have not filed any Statements of Financial Interests for those years. Mr. Jeffrey Parks Page 8 However, Section 4(a) of the Ethics Act provides in F °rt: "Any other public employee shall file a statemel.t of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position." 65 P.S. §404(a). Under the above cited provision of law, you are required to `:1^ a Statement of Financial Interests for the years 1983 through 1985 together with a Statement for the year 1986 which would be the year after you ler't your position. C. Conclusion and Order: , ,s a council member of Irvona Borough Council, you are a public official ; ;e'`ject: to the provisions of the State Ethics Act. 2. There is insufficient evidence to establish that you violated Section 3(a) of the Ethics Act regarding the award of a contract to P & S Trucking, a 'usiness with which you were associated. You violated Section 3(c) of the Ethics Act when a business with which you ; e associated P & S Trucking, entered into a contract with your rnme ntal body which was in excess of $500 and which was not awarded 1.rou;h an open and public process. +. 'you are hereby ordered within 30 days of the date of thi4. Order to file a 31 of Financial Interests for the years 1983 through 1985 when you were a member of Irvona Borough Council and also for the calendar year 198r which :icued Le the year after you left your public position. 5. his matter will be referred to the appropriate law enforcement a °ithority for , eview and appropriate action. Our miles in this case will remain confidential in accordance with Sectio„ 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final end 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 pertineot factual findings. See 51 Pa. Code 2.38. During thi: 15 -day period, no one, including the Respondent unless h waives his right to challenge ::his Order, may violate this confidentiality by r�.1easing, discussing or circulati dg this Order. Mr. Jeffrey Parks Page 9 Any person who violates the confiden.iality 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, G. Sieber Pa ncoa st Cho i r,na n Mr. Jeffrey L. Parks Box 255 Irvona, PA 16656 Re: Order No. 634 Dear Mr. Parks: JJC /na STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 May 12, 1988 On March 24, 1988, the State Ethics Commission received your Statements of Financial Interests for calendar years 1983 through 1984 as required by Order No. 634. We have forwarded your Statements of Financial Interests to Irvona Borough. This letter will be part of the Order and a public record as such. Sincer John J. on no ,, "Exec ive Director