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