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HomeMy WebLinkAbout717 JudgeMr. Patrick Judge c/o Carmen J. Maffei, Esq. 65 W. Jackson Street Wilkes- Barre, PA 18702 Re: 88 -060 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 717 Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington Michael J. Washo Date Decided: July 27, 1989 Date Mailed: July 28, 1989 Dear Mr. Judge: 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 deemed waived. 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: I. Allectation: That you, a member of the Wyoming Valley Sanitary Authority, Luzerne County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you voted to pay the bills for A & A Auto Stores, Incorporated while you are employed at A & A Auto Stores, Incorporated as General Manager: 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 Mt. Patrick Judge Page 2 Budget Report Date January 15, 1985 A. Findings: 1. You served as a member of the Wyoming Valley Sanitary Authority, Luzerne County, Pennsylvania. a. You have served in this position since February, 1985. b. You are a representative of the Borough of Forty Fort. c. You are one of twenty authorized board members of the authority. 2. You are employed as the General Manager for operations of A & A Auto Stores, Incorporated, in Exeter, Pennsylvania. a. You have been an employee of this company since 1972 and have been serving as the General Manager for Operations since 1976. 3. Records of the Wyoming Valley Sanitary Authority (WVSA), indicate that various purchases were made by the Authority from A & A Auto Stores, Incorporated. 4. Authority budget reports indicate payments by the authority to A & A Auto Stores, Incorporated for purchases made therefrom as follows: of his immediate family, or a business with which he is associated. 65 P.S. 5403(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. 5403(c). Invoice Date No payments found Ammt ltr. Patrick Judge Page 3 Budaet Report Date Invoice Date Amount February 19, 1985 No payments found March 18, 1985 No payments found April 15, 1985 No payment found May 20, 1985 4/12/85 $5.78 June 17, 1985 No payments found July 15, 1985 No payments found August 19, 1985 7/4/85 $6.09 September 16, 1985 8/21/85 $32.15 8/21/85 7.52 8/30/85 4.39 October 21, 1985 9/16/85 14.05 9/16/85 14.93 9/17/85 13.55 9/18/85 21.24 9/17/85 54.05 9/21/85 17.95 9/24/85 3.59 9/30/85 1.60 November 18, 1985 10/2/85 36.92 December 16, 1985 11/13/85 1.95 11/30/85 5.22 January 20, 1986 1/3/86 13.66 February 17, 1986 1/7/86 60.77 1/8/86 42.70 1/8/86 44.51 1/9/86 5.35 1/10/86 12.55 2/4/86 2.51 March 17, 1986 No payments found April 21, 1986 No payments found May 19, 1986 3/25/86 24.88 3/04/86 6.25 Mr. Patrick Judge Page 4 Budcret Report Date June 16, 1986 August 18, 1986 September 15, 1986 October 20, 1986 November 17, 1986 December 15, 1986 January 19, 1987 February 16, 1987 March 16, 1987 April 20, 1987 May 18, 1987 June 15, 1987 Invoice Date, 3/31/86 4/21/86 4/21/86 5/16/86 5/28/86 7/9/86 7/28/86 8/5/86 8/19/86 8/19/86 9/3/86 9/4/86 9/13/86 9/17/86 10/6/86 10/8/86 10/24/86 11/5/86 12/9/86 No payments found No payments found 3/12/86 3/16/87 3/18/87 3/19/87 3/20/87 3/23/87 4/6/87 4/6/87 4/9/87 4/14/87 4/14/87 4/20/87 No payments found mount 4.00 12.46 4.75 9.52 3.98 64.70 7.92 29.92 1.75 19.00 27.41 76.85 11.43 25.46 4.94 28.62 22.36 26.46 59.03 52.06 9.91 39.13 12.65 3.49 101.05 1.97 1.43 33.11 8.42 8.20 34.34 Mr. Patrick Judge Page 5 Budget Report Date July 20, 1987 August 17, 1987 September 15, 1987 October 20, 1987 November 17, 1987 December 15, 1987 January 18, 1988 February 16, 1988 March 15, 1988 April 19, 1988 May 17, 1988 June 21, 1988 July 19, 1988 August 16, 1988 September 20, 1988 October 18, 1988 November 15, 1988 Invoice Date 6/4/87 7/21/87 8/11/87 9/4/87 9/14/87 No payments found 11/12/87 11/18/87 12/18/87 12/15/87 12/28/87 1/11/88 1/4/88 1/29/88 2/3/88 2/3/88 2/18/88 2/18/88 2/19/88 2/22/88 3/3/88 3/4/88 3/3/88 4/11/88 No payments found 5/25/88 No payments found No payments found No payments found No payments found Amount 13.88 4.33 3.29 11.36 7.84 7.80 76.46 28.33 5.30 28.29 28.74 18.56 53.96 10.58 8.58 25.85 54.32 4.39 69.40 44.67 105.72 13.43 149.00 7.26 Mr. Patrick Judge Page 6 5. The total amount of payments for: 1985 = $240.98 1986 = $603.61 1987 = $489.75 1988 = $663.64 Total = $1,997.98 6. Minutes of the meetings of the Wyoming Valley Sanitary Authority indicate that meetings were held on each of the dates noted in Finding 4 above as indicated in the budget reports. a. At each of these meetings, a motion to pay the bills as outlined in the budget reports was considered and unanimously passed by the Authority board members. (1) You noted that all votes were taken as voice votes and not roll call votes so that a no vote was not recorded. b. You were present at each of the meetings except as follows: (1) January 15, 1985 - you were not a member of the board at this time. (2) August 18, 1986 - you were not present for this meeting. (3) May 18, 1987 - you were not present for this meeting. 7. Andrew Masaitis, provided the following information in relation to the instant situation: a. He is employed as a Plant Supervisor for the Wyoming Valley Sanitary Authority. b. He has been employed by the Authority from 1969 to 1978 and from 1984 until the present. c. He was promoted to the position of Plant Superintendent in September of 1987. d. He makes purchases of automotive parts for the Authority. e. He is authorized to make purchases in amounts up to $250 without approval. f. Purchases between $250 and $4,000 must be approved by the Authority's Treasurer. Mr. Patrick Judge Page 7 (1) You believed that the administration (committee chairman) must approve such purchases. g. When making purchases under $250, he generally tries to follow a policy of obtaining three (3) quotes. From time to time, he must deviate from this policy in order to obtain a specialty item or because of an emergency situation. h. He can not recall how long the Authority has been purchasing items from A & A Auto Stores, Incorporated. i. No one directed him to purchase goods from A & A Auto Stores, Incorporated. 8. Fred DeSanto provided the following information in relation to the instant situation: a. He served as the Business Manager for the Wyoming Valley Sanitary Authority. b. He has served in this position for approximately seven years. c. He is responsible for billing, collecting and accounts payable for the Authority. d. Purchasing of automotive parts is handled by the Plant Superintendent, Andrew Masaitis. e. Regular monthly bills such as utility bills, taxes and other items which require a timely payment are prepaid by the Authority. Other bills are generally paid after approved for payment by the Board. Payment to A & A Auto Stores, Incorporated would be within the category that requires pre - approval by the board for payment. f. No one requested or directed him to make purchases from A & A Auto Stores, Incorporated. 9. Charles Spellman provided the following information in relation to the instant situation: a. He has served as a member of the Wyoming Valley Sanitary Authority Board from 1968 to 1987. b. He has also served as Executive Director from 1985 to the present. Mr. Patrick Judge Page 8 c. When the Authority makes purchases from various vendors, the Plant Superintendent is permitted to make purchases above the $250 amount without prior approval. For purchases over $250, the Administration_Committee Chairman must approve such purchases. After a purchase is made, the vendor will send the bill to the authority. The comptroller receives this information and places the name of the vendor and the amount that is owed on the monthly computer printout. The printout contains the names of all the vendors that are owed payments from the previous months. (1) You deny the above and state that the plant superintendent is permitted to make purchases up to $250 without prior approval. d. Board members are given copies of this printout prior to the regular meeting. (1) You state the above practice was only begun in 1987 at your insistence. e. A vote is taken during the board's regular meeting for approving or disapproving payment for the entire list of vendors rather than individual companies. (1) You state that the above was a voice call vote and not a roll call vote. f. He was unaware of how the Authority initiated a business relationship with A & A Auto Stores, Incorporated. (1) You deny the above and assert that the executive director came to your office and asked for your help in opening an account with A & A. 10. James Chebalo provided the following information in relation to the instant situation: a. He is the owner of A & A Auto Stores, Incorporated. b. Patrick Judge is employed as General Manager of Operations. c. He is a salaried employee and would not benefit in any way from sales that A & A Auto Stores, Incorporated made to Wyoming Valley Sanitary Authority. 11. You provided the following information in relation to the instant situation: Mr. Patrick Judge Page 9 a. You have been an employee of A & A Auto Stores, Incorporated since 1972 and have been the General Manager of Operations since 1976. b. You were appointed to the Board of the Wyoming Valley Sanitary Authority as a Representative of the Borough of Forty Fort in February, 1985. c. You were not compensated as a member of the Wyoming Valley Sanitary Authority. (1) You note that you did not ask for or receive any reimbursement for any expenses incurred. d. In March or April of 1985, you were approached by Charles Spellman, Executive Director of the Authority, who inquired about opening an account at A & A Auto Stores, Incorporated for the Authority. e. The Authority did not do business with A & A Auto Stores, Incorporated prior to that time. f. You assisted in opening the account for the Authority. The account opened was a thirty day account whereby an item could be purchased and there would be a thirty day grace period for tendering payment. (1) You note that the above occurred at the request of the executive director of the. authority. The Authority began to make purchases shortly after opening the account. g . h. You never requested anyone from the Authority to conduct business with A & A Auto Stores, Incorporated. i. Regarding the payment of bills by the Authority prior to 1987, motions to pay bills would be made by the Chairman of the Finance Committee or Chairman of the Administration Committee. The Chairman would give the total amount of bills and a motion would be approved at a roll call vote. Authority members were unaware of the amount of pay to each individual vendor. (1) You deny the above and assert that the bills were approved by a voice vote and not a roll call vote. Mr. Patrick Judge Page 10 This process changed in 1987 and members received a computer printout prior to the meeting listing individual vendors, items purchased and prices therefore. Members were, thereafter, able to review these expenditures and prepare to vote on the payments. k. When reviewing the printouts, you would periodically notice purchases from A & A Auto Stores, Incorporated. 1. Approval to pay bills continued to be done without a roll call vote. You were unaware of purchases made by the Authority from A & A Auto Stores, Incorporated prior to the time that you received the bills. (1) You admit the above but note that you never received copies of bills but only printouts from the meetings. m. You are a salaried employee of A & A Auto Stores, Incorporated and you do not have ownership interest in the company. (1) As to A & A, you add that you are not an officer, director, owner, or stock holder of the company nor are any members of your family. B. Discussion: As a member of the Wyoming Valley Sanitary Authority, you are a public official as that term is defined under the Ethics Act and regulations of this Commission. 65 P.S. 402; 51 Pa. Code 1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and cause of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. Mr. Patrick Judge Page 11 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. Comm. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988) allocatur denied Pa. , 553 A.2d 971, (1988). Likewise, a public officiate employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. "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. S402. Since you are an employee of A & A Auto, such is a business with which you are associated as that term is defined under the Ethics Act. Additionally, under Section 3(c) of the Ethics Act quoted above, a public official or a business with which the official is a director, officer or holder of stock exceeding 5% of the equity at fair market value shall not enter into any contract amounting to $500 or more with his governmental body unless such is completed through an open and public process which includes prior public notice and subsequent public disclosure. In applying the above provisions of law to the instant matter, it is noted that you are employed as general manager for A & A Auto Stores, Incorporated which has made numerous sales to the Authority during the years 1985 through 1988. The minutes of the Authority reflect that monthly meetings occurred with general regularity. At those meetings, motions were put forward to pay the bills as outlined in the budget reports which were unanimously passed by the Authority board members. The minutes further reflect that during this period Mr. Patrick Judge Page 12 you missed only three meetings, one in each year: 1985, 1986 and 1987. As to Section 3(a) of the Ethics Act, there has been a use of office on your part in voting for motions to pay the bills of A & A Auto Stores, Incorporated. Since the payment of the bills resulted in a financial gain to a business with which you were associated, other than compensation provided for by law, such action on your part was a violation of Section 3(a) of the Ethics Act. However, considering the totality of the facts and . circumstances in this case, this Commission will take no further action as to the Section 3(a) violation. Turning to the allegation as to the possible violation of Section 3(c) of the Ethics Act, this Commission notes that since you are only an employee of A & A Auto Stores, Incorporated and not a director, officer, owner or holder of stock exceeding 5% of the equity, we find that you did not violate Section 3(c) of the Ethics Act regarding the purchases that were made by the Authority from A & A Incorporated. You are reminded that public office is a public trust and therefore, you must, in all future situations, abstain from participating in matters whenever the business with which you are associated, A & A Incorporated, comes before or transacts business with the Authority. C. Conclusion and Order: 1. As a member of the Wyoming Valley Sanitary Authority, 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 voted in favor of motions to approve payments of bills for A & A Auto Stores, Incorporated, a business with which you are associated. 3. Considering the totality of the facts and circumstances in this case, the Commission will take no further action as to the 3(a) violation referenced in paragraph 2. 4. You did not violate Section 3(c) of the Ethics Act regarding the contracts between the Authority and A & A Auto Stores, Incorporated since you are not a director, officer, owner, or holder of stock exceeding 5% of the equity in that business. 5. You are reminded that you must abstain in all future . circumstances wherein A & A Auto Stores, Incorporated has matters before the Authority. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request Mr. Patrick Judge Page 13 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 S2.38. 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. 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). Commissionj, i elena G. Hughes hair