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HomeMy WebLinkAbout712 BerryMr. Joseph J. Berry c/o Fred A. Pierantoni, III Rosenn, Jenkins & Greenwald 15 S. Franklin Street Wilkes- Barre, PA 18711 Re: 87 -157 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TICE COMMISSION Order No. 712 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast - Dennis C. Harrington James M. Howley Date Decided: June 1, 1989 Date Mailed: June 8, 1989 Dear Mr. Berry: The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was filed and a hearing was held. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: 1. Alleviation: That you, a Nanticoke City Councilman, violated the following provisions of the Ethics Act (Act 170.of 1978), in that your company, Berry Distributing, contracted with your governmental body without an open and public process: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential Mr. Joseph J. Berry Page 2 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). (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. S403(c). A. Findinas,: 1. You serve as a Nanticoke City Council member, Luzerne County, Pennsylvania. a. You have served in this since January, 1986 when you were appointed as a member .of council. b. You formerly .served as a member of the Nanticoke Zoning Board. 2. You are the owner and operator of:Berry Distributing, a business that deals in • tires, batteries and accessories, in Nanticoke, Pennsylvania. 3. Records on file at Nanticoke City Council stributing by the following info regarding payments t o during 1986 and 1987. Date Check No. oun Comment, a. April 7, 1986 567 $1,152.91 tires, studs repairs, wheel and valves for police cruisers and Streets Department. Mr. Joseph J. Berry Page 3 b. May 5, 1986 622 $909.08 Flat repairs, battery for police cruisers, flat repairs, tires, casting in tube for Streets Department vehicles. c. July 7, 1986 764 $2,417.60 Batteries, tire repairs, tires, oil, hydraulic oil and other services for police cruisers and parks vehicles. d. August 8, 1986 835 $3,273.94 Tires, tubes, flat repairs and batteries for hook and ladder and stickney; oil grease cleaner, tire repairs, tubes and hydraulic oil for packers; tires, valves and flat repairs for police repairs cars, oil and transmission fluid for cruisers; oil for Parks Department Mowers. Total. - 1986: $7,753.53 e. February 24, 1987 0206 $265 55 gallon hydraulic oil for packers. f. February 24, 1987 0207 $5,657.13 0 i 1 tires, casings, valves, flat repairs for Street Department. Antifreeze oil dry and extinguisher for streets. Tires, valves, flat repairs, seal for cruisers. Recaps, Mr. Joseph J. Berry Page 4 tubs, flat repair and battery, Parks. April 7, 1987 0284 $592.45 Hydraulic oil, degreaser, anti- freeze, battery caps, studs, tube, drop light, heavy duty jack, oil for Street, Police and Fire Departments. 0349 $482.90 Tires, valves, battery, recap tub, two cycle oil for chain saws. Tires and casings for packers, flat repairs for cruisers. h. May 5, 1987 i. June 2, 1987 July 7, 1987 0425 $1,580.95 Four heavy duty batteries and hydraulic oil for fire department Flat repairs and tires for cruisers. Anti- freeze grease, flat repairs, oil for packers. 0470 $2103.37 Tires, casings, recaps, flat repairs, tubes, rims for packers. Grease cartridges, tire and tub for back hoe. Tires and valves for cruiser. Oil for fire trucks. k. July 27, 1987 0532 $5100.00. Eight radial tubes, rims, and general tires. Nine trisun tires, nine radial tubes, nine used rims. 640 Mr. Joseph J. Berry Page 5 1. October 6, 1987 0682 $1340.25 Two-cycle oil, tires repaired and tubes for Parks Department. Tires anti- freeze, battery for cruisers. Flat repair, tires, tubes and casings for packers. Flat repair, tubes, battery for Street Department. Oil dry for shop use. m. You state that the above constitute aggregate amounts representing monthly payments for one or more purchases. 4. Payment for all of the repairs and items referenced above were made from the City of Nanticoke general fund at the People's Bank of Nanticoke. a. All checks were signed by Eugene Ruminski and /or Leonard Locke and Walter D. Sokolowski. 5. Records of Nanticoke City Council indicate that payments were made by the City for purchases made by the various City Departments from Berry Distributing in years prior to 1985. a. These payments related to years in which you were not a member of city council. 6. Records of Nanticoke City Council indicate that the following four purchase orders of the City of Nanticoke, Pennsylvania were approved by you as Department Director regarding the purchase of various supplies for city vehicles from Berry Distributing, 1006 South Market Street, Nanticoke, Pennsylvania: Purchase Order No. 585 Total for 1987: $17,092.05 Date Amount Comment 4/4/86 $749.78 This purchase order was signed by both you and Leonard Locke. 4/30/86 $836.50 This purchase order was signed by both 365 446 Mr. Joseph J. Berry Page 6 Mr. Gorka seventeen around the one time." 3/19/87 $464.45 4/13/87 $471.90 replied: (17) tires, bid item - Mr. Berry you and Leonard Locke. This purchase order was signed by both you and Leonard Locke. This purchase order was signed by both you and Leonard Locke. the amounts constitute more purchases in the a. You admit the above but note that monthly payments concerning one or corresponding month. which 7. Minutes of the Nanticoke City C made lfrom meetings Berry Distributing buting payment was authorized for purchases indicate that you abstained from voting on such payments. a. Minutes of the Nanticoke City Council meeting for August 3, 1987 indicate the following discussion regarding a purchase by the city of 17 tires from Berry Distributing for a cost of $5,100. (See item dated July 27, 1987, finding no. 3K): Mr. Gorka questioned "Item *685 Berry Distributing $5100" in this resolution. It involved the purchase of seventeen (17) tires from "Berry Distributing." Mr. Gorka asked if this was a "bid item." Mr. Berry replied that it was not a bid item and proceeded to elaborate on this. He stated that on July 20th he approached the Mayor and Mr. Locke to explain the "tire wearing" of the new packers on Interstate X81. Running the packers over an extended time period would cause the "mud & snow tires" to be worn out approximately in two (2) weeks. Therefore, he suggested placing eight (8) new regular tires on-one (1) truck to see how they would work out as far as stopping the truck vibrations and cutting down on fuel consumption. They tried this and found out that they saved fuel, that the vibration stopped and that we came out ahead dollar wise. Since this truck worked out very well he recommended going along with the second truck in the same way to prove that it was a wise and economical procedure to apply. "In other words, instead of buying you bought eight (8) in order to get -- instead of buying seventeen (17) at retorted "No Sir, we bought eight (8) Mr. Joseph J. Berry Page 7 tires and then you bought nine." fir. Gorka and Mr. Berry debated about going around the bid item with Mr. Gorka relating that the "total was $5100, and that Attorney Iracki expressed $4000 as the minimum for bidding. Mr. Gorka persisted by saying that we bought eight tires one month and nine tires the next month to get around the bid. Mr. Berry retorted that he explained everything very clearly. Then, Mr. Gorka queried Mr. Berry about "looking into 'overtime' involving trucks going to the landfill and the wear and tear on the trucks - -- this is more important than tires. 8. Records of Nanticoke City indicate one Statement of Financial Interests on file for you as follows: a. Statement Date - February 3, 1986. For calendar year - 1985. Sources of Income in excess of $500 - Berry Distributing. Occupation - Salesman. All other financial interests categories are indicated as none. b. You admit to filing the above statement but aver that you were unaware of the necessity for filing additional statements. You assert that you relied upon the advice of the City Council and thought the statement was applicable for your entire tenure on city council. 9. No other Statements of Financial Interests were on file for you with Nanticoke City. 10. John Hook provided the following testimony: a. He was Budget Director for the City of Nanticoke from 1985 to the present. b. The City of Nanticoke continued to do business with Berry Distributing after his appointment to City Council. c. The business which Nanticoke did with Berry Distributing was never put out for public bid. d. No purchases in excess of $4,000 were made from Berry Distributing; however, there were purchases greater than $500. e. He did not know who initiated the purchase of the 17 tires. f. Berry Distributing was not the exclusive distributor of tires and batteries for Nanticoke. You signed only four purchase orders for your own company out of a total of more than 100 orders; the four purchase orders would still have been paid without your signature. h. It is not unusual for more than one bill to be listed on a single purchase order. sign purchase i. The Council's Finance Director them the appropriate authorizations first and then give member to sign. j. The two orders of tires were purchased within a four days span. 11. Michael Pretulak gave the following testimony: a. He had been a mechanic for Nanticoke from 1982 to the present. b. He bought automotive parts for the City from Berry Distributing from 1982-1987. c. Nanticoke did not buy exclusively from Berry Distributing, but the City's business with Berry Distributing increased by a small percentage after you were appointed. He was not aware of any difficulties the drivers . were having with the factory tires and the Street Commissioner directed him to make the tire change. e. had voiced his k, dueotottheirodifficul the difficulty landfill site. Mr. Joseph J. Berry Page 8 f. After the tires proved unworkable, they were removed and left in the garage. The original tires were better suited for the trucks' purpose. h. The fuel savings amounted to 2 miles /gallon. i. There was no indication the heat was burning up the snow tires. Mr. Joseph J. Berry Page 9 12. James McGrath, Special Investigator of the State Ethics Commission testified as follows: a. He is employed by the State Ethics Commission as a Special Investigator. b. You stated in an interview that you went to the Mayor and the Finance Director to recommend the replacement of the snow tires. c. In an interview, you stated that you ordered the first set of tires to test whether they would improve the ride and the gas milage of the trucks; the tires were tested (4) days. d. You stated in an interview that you planned to make a profit of approximately $42 /tire by selling to the city. e. According to the Council minutes, the tires were not discussed in Council until after both sets were bought. f. According to the minutes, members of Council questioned whether the two part purchase was made to avoid going over the statutory limit of $4,000. g. Nanticoke Solicitor Iracki advised you about the $4,000 limit on sales to the city, but not on the $500 limit under the Ethics Act. h. You said the first purchase of tires was to test them, and if they were economical, a set for the second truck would be purchased. i. You indicated that your signature on four purchases orders was a mistake or oversight. Purchases between $500 and $400 would be examined by Mr. Hook, who made the purchase order. They would be given to the councilman in charge of the particular department to be signed. Finally, the council would approve the bill at a public council meeting. k. All of the goods and services contracted for with Berry Distributing were provided to Nanticoke. 1. All purchase orders were approved by Nanticoke Council. j. m. Berry Distributing was not the only tire and battery supplier for Nanticoke, but a majority of their purchases were made from him. n. The opinion given by the Solicitor to you was strictly verbal. o. The tests of the tires were not recorded in writing. 13. John Haydock provided the following testimony: a. He was elected Mayor of Nanticoke in 5 1986. b. You were unanimously approved as a council appointee and later as the councilman to run the street department. c. The Solicitor said as long as you did not vote on your own purchase orders, there would be no ethics problem unless the purchase exceeded $4,000. d. He thought no one other than Berry Distributors would give Nanticoke credit. e. Under your supervision, the Street Department improved and saved money; your service was excellent. f. He did not know who recommended the changing of the truck tires at the caucus meeting. The tests of the tires were performed by the drivers. The tires saved fuel and road time was shortened. h. He did not remember when Council decided to purchase the tires, or whether Council considered the purchase before it was made. Mr. Joseph J. Berry Page 10 14. Leonard Locke gave the following testimony: a. He was a Councilman and the Finance Officer for the City of Nanticoke. . b. Nanticoke had bad credit; you were one of the few people who would - extend credit. c. Berry Distributing supplied all tires, batteries, and accessories for Nanticoke's vehicles. d. You advised the Nanticoke Council to purchase the summer tires in order to save money. Mr. Joseph J. Berry Page 11 e. Council was informed by you of the effectiveness of the tires based on his tests. f. You were a great asset to the City of Nanticoke and corrected many problems while you worked for the city. The City purchased from Berry Distributing because they had been doing so for a long time. They were not sure if was the best price. 15. You provided the following information in relation to this situation: g. a. You were appointed to Nanticoke City Council in January, 1986 and remained on council until the end of 1987. b. You are the sole owner of Berry Distributing. c. This company has conducted business with the City of Nanticoke for the past twelve (12) years. d. You sought the opinion of the Sc prior to taking office regarding wh restrictions on your continued bus city. (1) You note that you relied upon City Solicitor, Joseph Iracki. the information of the g. 4 3.citor, Joseph Iracki, ther there would be any mess dealings with the e. You were advised that the only restrictions upon you would be to abstain from voting on the approval of payments for purchases made from your company and that sales in excess of $4000 would have to be arranged through a bidding process. f. You believe that you complied with the guidance that you had obtained from the city solicitor. As a city council member, you were in charge of the streets department. Prior to your assuming office, the acquisition of parts, tires and batteries would be put out for bid. Generally, these individuals, after serving in office for a while learned that the best prices and the best credit were available from Berry Distributing and they eliminated the bidding requirements and simply made purchases from Berry Distributing. h. The normal process for ordering parts was for the head Mr. Joseph J. Berry Page 12 mechanic to call up and order them. Most of these purchases would be on an emergency basis. i. The finance director approved payments of all bills, the finance director also reviewed the purchase orders and signed them. You, as head of the streets department In the checked purchase orders regarding this departmen that you obtained or sought a purchase order regarding the acquisition you supplies unot sign these items. Such Berry Such would be Distributing, you over to the Mayor for his signature. k. You inadvertently signed several purchase orders. (1) You gn note that the Finance purchase orders signed Director or another city q by official. 1. You have abstained from voting all bills regarding purchases made from Berry Distributing. You did not believe that - signing the - purchase orders would be a problem because this was not one of the restrictions that the solicitor had placed upo4 you. These purchases orders additionally require the s cond signature of the Finance Director, Leonard Locke.- n. The City purchased new trash trucks sometime in 1987. These trucks were used to haul trash to Pottsville which is approximately 130 miles round trip. o. These trucks came equipped with snow tires when they were purchased and you felt that because of the hot summer and long run, the tires u wi up. ar You ires and brought the city y should experiment regular up to the mayor and city counciimembers. p. You decided to try eight regular tires on one of the trucks. After the tires were _placed on the trash truck, you found that gas mileage had improved and there were less vibrations as the result. q. The test period lasted approximately` four to five days. r. You then decided to place the tires pn.a second truck. Mr. Joseph J. Berry Page 13 s. You could not recall in favor of the tire t. You were unaware of regarding the tires. if the head mechanic at the garage was replacement. any complaints from the truck drivers u. Mr. Berry indicated that the idea to replace the tires was his own. v. There were two separate purchases each under $4000, therefore there was no requirement that the tires be purchased through bidding. w. No other dealers were contacted with the purchase of tires or to obtain price quotes. x. You were aware, as soon as you proposed the idea that the tires would be purchased from your company because your company has handled the tire account for the city for many years. y. The city could get credit simply from your company whereas they might not be able to do so from another company. z. There was no change in the procedure regarding purchases from your (business) once you assumed office. You never stopped the city mechanic from going elsewhere to make purchases if your company did not have the part. (a.) When questioned by your attorney, if you had intended to make a profit on the tires, you responded in the affirmative and stated that your total profit on each unit (tire, rim and valve) was approximately $42.00. ($714 total profit). (b.) You filed one Statement of Financial Interests in your term in office and you were unaware that you were required to file Statements in any other years. No one advised you of this requirement. aa. You admit the above but assert that you were not motivated by profit but by the desire to assist the city in the most economical manner. You indicate that your profit was less than $714.00. bb. You provided the following testimony: (1) You are currently self - employed in the tire business. Mr. Joseph J. Berry Page 14 -(2) You would not have accepted the council seat if there was a problem with doing business with the City. (3) The Solicitor advised that you would only have to abstain from voting on the payments to yourself to avoid an ethical violation. (4) The Solicitor notified you of the requirement of bidding for a contract more than $•,000. (5) Your portfolio contained many vouchers to be signed and you mistakenly signed four which were for payments to him. (6) Nanticoke did most Of its business with Berry Distributing, but did some business with Jack Williams Tire Company. (7) Your business with Nanticoke increased because no one else would extend the city credit. (8) The summer .tires were needed .because the long haul necessary 'to dump trash was not anticipated when the trucks were ordered with snow tires. (9) Heat would cause.the snow. tires to.go flat; this is why summer tires were needed. (10) The snow tires caused vibration which' caused parts of the trucks to wear quickly. (11) You brought the_need" for summer tires-to the attention of the Nanticoke Council and recommended putting tires on the second truck after discussing it with the drivers. (12) The 'fuel savings amounted to 4 or 5 gallons and the amount of vibration was reduced. (13) You indicated, that due to labor, your estimate for the profit per tire was over stated by 15 percent. (14) John Hook commonly placed several bills on the same invoice. (15) You believed ,that you needed to fill out only one financial disclosure for this entire term in office. Mr. Joseph J. Berry Page 15 (16) The second set of tires was obtained after you contacted the Mayor and Leonard Locke and by getting a majority of Council to agree informally. B. Discussion: As a councilmember for the City of Nanticoke, you are a "public official" as that term is defined under the Ethics Act and Regulations of the State Ethics Commission. 65 P.S. 5402; 51 Pa. Code S1.1. 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 quoted above provides in part that a public official may not use public officetolobtain a financial gain for himself or a business with which he is associated other than compensation provided for by law. Under Section 3(a), this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, A.2d (1983); Yacobet, Order No. 4121 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. _ �, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act *ould prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 41988). Likewise, a public officia /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. The term "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 dire or, officer, owner, employee or holder of stock. !65 P.S. S402. Since you are the owner and operator ofB'rry Distributing which is a business in Nanticoke that sells tires, tteries and accessories, it is clear that Berry Distribut g is a business with which you are associated as that term is defin under the Ethics Act. Mr. Joseph J. Berry Page 16 In the instant matter, it appears that Berry Distributing supplied the City of Nanticoke with automotive items for a number of years prior to the time in which you were appo nted as a councilmember..-The foregoing business practic continued after your appointment to council. It appears that Be Distributing did almost $8,000 worth of business with Nanticoke in the year 1986 and also did business with the city in 1987 totaling over $17,000. However, the testimony reflects that the City was in financial difficulty and your company continued to sell on credit when other companies would not. As to the numerous purchases that occurred in that period of time, it appears that four purchase orders relating to supplies from Berry Distributing were signed by you as well as by Leonard Locke. In determining whether your actions violated Section 3(a) of the Ethics Act quoted above, it is necessary to review the provisions of Section 3(a) of the Ethics Act in the context of the above facts. Although you did not formerly vote to approve any of the invoices, it is noted that on four occasions you did sign purchases orders from Berry Distributing. Since the term "use of office" is not limited to situations of voting, making or seconding motions, it is clear that your action of signing purchasing orders for Berry Distributing constituted a use of office on your part, particularly when you served as department director in that area. A financ .al gain occurred in this case because sales were generated through the supply of these various automotive items by Berry Distributing to the City of Nanticoke which generated a profit to your business. Therefore, all of the component elements of Section 3(a) of the Ethics Act were implicated by your actions in this case. Accordingly, you violated Section 3(a) of the Ethics Act when you signed these purchase orders for automotive items that were supplied by Berry Distributing to the City of Nanticoke. However, considering the totality of the facts and circumstances e ationsrelatin the to Se�ction of take the 8thics A action ct. as to the all g g Turning to Section 3(c) of the Ethics Act which is quoted above, that provisions of law provides in part that a public official or any business which he is an owner may not enter into any contract valued at $500 or more with his governmental body unless the contract has been awarded through an open and public process which would include prior public notice and subsequent public disclosure as to all proposals considered and contracts awarded. Part of the various automotive items which .Berry Distributing sold to Nanticoke included a purchase of seventeen tires from Berry Distributing. This situation arose because two garbage trucks had mud and snow tires on them and you expressed concern that the tires would be 181. Your suggestion est on since new regularltiresnon Interstate onetruck to I81. Y gq Mr. Joseph J. Berry Page 17 determine whether truck vibration and fuel consumption would be reduced was accepted; a few days later eight regular tires were also placed on the second garbage truck. The total purchase consisted of seventeen tires, sixteen tires plus a spare, the aggregate price of which was $5,100. Although you originally estimated that your profit per tire was $42.00, it now appears, based upon your testimony, that such amount was overstated by 15 %. Therefore, your profit on the purchase of the seventeen tires amounts to $606.90. Although you do not challenge the fact that there was no public process as to the purchase of the seventeen tires, you argue that the approval of the purchases through a council meeting was akin to a public process. Such an argument is unavailing since Section 3(c) of the Ethics Act specifically requires that the process be an open and public one including prior public notice and subsequent public disclosure which did not occur in this case. Therefore, based upon these facts and circumstances you violated Section 3(c) of the Ethics Act when you, through Berry Distributing, contracted to sell seventeen tires to the City of Nanticoke which was not done through an open and public process. In Yocabet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987), Commonwealth Court affirmed an order of the State Ethics Commission which found that a Second Class Township Supervisor violated Section 3(a) of the Ethics Act by voting for his appointment to the position of Township Secretary /Treasurer and receiving payment for that position when such had not been fixed by the Township Board of Auditors as part of his compensation. The Court upheld the right of this Commission to order restitution: "Section 7 of the Ethics Act instructs the Commission to investigate situations where there is a reasonable belief that financial conflict may exits, and if conflict is found, to require the offender to remove himself from the conflict without gain..." Id at 539. In this case, you are hereby directed within 30 days of the date of this Order to forward a check to the City of Nanticoke payable in the amount of $606.90 which represents the profit that you made on the sale of the seventeen tires to the City of Nanticoke. Through such . action you will remove yourself from the financial gain, in which case this Commission will take no further action. Failure to comply with the above will result in the referral of this matter to the appropriate law enforcement authority for review and appropriate action. C. Conclusion and Order: 1. As a Nanticoke Councilmember, you are a public official subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you, as Councilmember, signed several purchase orders for Berry Distributing, a business with which you are associated; however, Mr. Joseph J. Berry Page 18 this Commission will take no further action as to that portion of the allegation. 3. You violated Section 3(c) of the Ethics Act when your business, Berry Distributing, sold seventeen tires to the City of Nanticoke which was in excess of $500 and which was not accomplished through an open and public process. 4. You are hereby directed to forward a check to this Commission payable to the order of the City of Nanticoke in the amount of $606.90 within 30 days of the date of this Order. 5. If you comply with the provisions of paragraph 4 above you will remove yourself from the conflict and this Commission will take no further action. 6. Failure to comply with the provisions of paragraph 4 above will result in the referral of this matter to the appropriate law enforcement authority for review and appropriate action. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending action on your request by the Commission. A request for reconsideration, however; = does not affect the finality of this Order. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of your reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a during the fifteen day period and no one, including-yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. Mr. Joseph J. Berry Page 19 Any person who violates 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, 65 P.S. 409(e). By th Commission ena G. Hughes hair Robert W. Brown did not participate in this matter. Fred A. Pierantoni, III Rosenn, Jenkins & Greenwald 15 S. Franklin Street Wilkes - Barre, PA 18711 Re: Joseph Berry 87 -157 -C Dear Mr. Pierantoni: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 8, 1989 In the hearing on the above captioned matter, you made a motion to dismiss after the Investigative Division presented its case. Please be advised that your motion was presented to the full Commission when it deliberated upon this matter on June 1, 1989. The Commission took the following action: VJD /slm "Motion denied" Very truly yours, l p " =� Vincent J. Dopko General Counsel