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HomeMy WebLinkAbout729 AnkeyRe: 88 -031 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TICE COMMISSION Order No. 729 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: October 26, 1989 Date Mailed: November 1989 Mr. Edward W. Ankney R.D. #1, Box 316D Derry, PA 15627 Dear Mr. Ankney: 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. Allegation: That you, Supervisor for Derry Township, Westmoreland County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you participated in a decision to authorize the township road crew to excavate your property to provide fill for a township bridge project 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 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. S403(a). Mr. Edward W. Ankney Page 2 (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). A. Findings: 1. You served as a Derry Township Supervisor for at least the past twelve years. a. You have also served as township roadmaster during this time. (1) You have been employed in this position for almost twelve years. 2. In 1986, the Derry Township Supervisors were considering a community development project which included replacing the Gray Station Bridge. 3. Minutes of the Derry Township Supervisors disclosed the following in regards to actions taken in regard to the Gray Station Bridge Project: a. June 4, 1986: Motion Razza, seconded by Ankney to hire Art Romel to survey the right -of -ways of the Lee Valley Road and the Gray Station Bridge to determine where the right -of -ways are located. Motion carried unanimously. b. Motion Razza, seconded by Ankney to accept the following allocation of funds and agree to the terms of the "Letter of Understanding" with the Westmoreland County Planning Department for Community Development Funds: Bridge replacement (Gray Station) $191,000, Demolition and site clearance (4 properties), contract amount plus advertisement. Mir. Edward W. Ankney Page 3 Motion carried unanimously. c. August 19, 1987: Special Meeting. Bids for the Gray Station Bridge Replacement Project were received, sealed, appended and read. Bids were received as follows: Cilenti Construction Co. John Gulisek Construction Co. Independent Enterprises, Inc. D.W. Miller, Inc. Sciullo & Company Anthony Tedesco Construction Co. Upon This Rock Construction Vicra Construction Co. George Danko, Inc. $326,970.57 $283,011.00 $278,580.00 $327,557.55 $295,779.08 $296,858.45 $386,972.00 $257,260.00 $265,995.79 Motion made by Ankney, seconded by Razza to accept the above bids for study. Motion carried unanimously with all three supervisors voting. d. September 16, 1987: Special meeting. Motion made by Ankney, seconded by Razza to award a contract to Vicra Construction for the construction of the Gray Station Bridge Replacement project at a cost of $174,179.00. Motion carried unanimously with all supervisors voting. Meeting recessed until September 30, 1987. e. September 30, 1987: Motion made by Ankney, seconded by Razza to approve the land appraisal report prepared by Samuel J. Beatty for the purchase of land from the Urcheks at a price of $1,100 relative to the Gray Station Bridge Project. Motion carried unanimously, all supervisors voting. Motion made by Ankney, seconded by Razza to advertise bids for road construction materials relative to the Gray Station Bridge Project. Motion carried unanimously, all supervisors voting. 4. Bid tabulation sheets for the Gray Station Bridge Project disclose that bids were submitted reflecting bids for bridge construction, the related road work and a total bid. a. Vicra Construction Company Incorporated, the low bidder, bid as follows: Mr. Edward W. Ankney Page 4 Bridge Construction: $174,179.00 Related roadwork $ 83,081.00 Total: $257,260.00 b. Bid Tabulations disclose that Vicra Construction was the law bidder for the bridge construction phase of the project. 5. Township records confirm that no contract was awarded for the road paving work related to the bridge construction. 6. Steven Kozar, a Derry Township Supervisor since 1986, provided the following information in regards to the instant situation: a. In 1986, the township received approximately $190,000 in Community Development funds from the County for repairing the Gray Station bridge. b. The township advertised for bids for the project. Bids were received estimating costs for bridge replacement, related road work and total cost. c. Due to the high cost of bridge replacement, the bids were awarded for only the bridge construction. The bid was awarded to VICRA Construction Company. d. The Community Development funds were used for the bridge construction while General fund monies were used to construct the roadway. e. The supervisors considered putting bids out for the road material but did not once they were informed by the county that they would have to re -bid the entire project. The supervisors subsequently decided to do the paving part of the project with township employees and equipment and material obtained from yearly bids. The supervisors felt that the township employees could do the roadwork for less than the contractors. f. Fill material was needed for the access road to and around the bridge. Supervisor Aldo Razza attempted to get fill dirt from several residents living near the bridge but they wanted a price for the fill. g. The coal yard at the bridge site originally agreed that the township could take the fill needed from its supplies, but later the company said the township would be taking too much fill and stopped the township from taking any more. Mr. Edward W. Ankney Page 5 h. Ed Ankney informed them that they had this bank in back of his home that the township could use at no cost to obtain fill material. When the time came to get the fill, they decided to go to Ankney for it. i. No additional equipment was needed to get the fill. They used the township loader, V -6 dozer and trucks. The fill was easy to obtain in that it was loose fill and around the hill on Ankney's property. The fill obtained was a shale material. . He was not aware that fill material could have been obtained from Derry Lake. The township often went down to the lake for fill, a truckload at a time. With the amount of fill needed for the road project, he did not think that much fill would be available. In addition, the Ankney property was much closer to the bridge site, and the Ankney shale fill would be more suitable than the sand from the lake. k. The supervisors never added up any figures about purchasing fill and having it delivered to the site instead of using township employees. 1. Vicra Construction Company did the bridge work and put the asphalt on the bridge. The township, using township equipment and materials, did the remainder of the paving. m. There was no pressure put on him to agree to get the fill material from Ankney. j 7. Aldo Razza, a Derry Township Supervisor from 1981 through 1987, advised as follows: a. In 1986, the township received some Community Development Funds from Westmoreland County to replace the Gray Station Bridge. b. The supervisors put out bids for the project. The bids were submitted in the form of bridge cost, paving -road cost and total cost. c. The bids for paving and related road work were all in the neighborhood of $80,000. The supervisors thought this was very high and felt that the township road crew could do the paving cheaper. d. A contract was awarded for the bridge but the supervisors decided to do the road work. Mr. Edward W. Ankney Page 6 e. The township road crew and materials were used but he could not recall the total cost to the township. He believes it was much cheaper than the $80,000 bid prices. f. A considerable amount of fill material was needed for the access ramp to the bridge. He contacted a number of people located near the bridge for fill. A red dog yard near the bridge site initially said the township could have some fill. After about one -half day of hauling, the owner of red dog would not permit any more hauling. He recalled that either landowner wanted paid or thought the township was taking too much fill. h. Ankney had a shale hillside on his property and volunteered the shale for use as fill. i. The shale was ideal fill material, better than the red dog that was being used. The shale was easy to get at and load. It was also very near the bridge site. He did not want to get the fill from Ankney because of potential problems, but fill was needed and Ankney offered the fill at no cost to the township. He did not see how Ankney could have profited. k. He was not aware that fill material was available at Derry Lake for the road project. The township previously obtained fill from Derry Lake but that fill was more sandy and silt and not suitable for the road project. The fill material from Ankney's was probably better fill, and Ankney's property was at least four miles closer to the bridge site. 1. There were no ulterior motives in getting the fill from Ankney. He does not believe that Ankney profited. 8. You provided the following information regarding the instant situation: a. You have served as a Derry Township Supervisor for the past twelve years. You have been a full -time employee since 1978. j b. When the contract for the bridge was prepared, the supervisors agreed that the contractor would do the bridge work and township employees would build the approaches to the bridge. The supervisors believed that the township would save a considerable amount of money by proceeding in that manner. Mr. Edward W. Ankney Page 7 c. The bridge project was to be financed from a grant to the township from Community Development funds administered by the County. d. Originally, the township was to obtain the necessary fill for the approaches from a contractor who had property located near the bridge. This agreement was reached with contractor, a Mr. Keppel and Supervisor Razza. Keppel had both red dog and fill dirt. e. The contractor who was doing the bridge work was later told by Keppel that the amount of fill needed was more than Keppel wanted to donate. The township then had to look elsewhere for fill. f. You then volunteered fill from a bank located at the rear of your residence. You permitted neighbors to take dirt from the same area at no charge and you were not going to charge the township. The township engineer saw the fill and said that it was good material to use for the approaches to the bridge. Township road workers hauled the fill from your property for six or seven work days. You had no estimate of the amount of fill removed from your property. h. You had no idea what the fill would be worth if the township purchased it from you. You only gave the dirt to the township to save the township money. i. If you hadn't made the fill available to the township, the township would have had to advertise for fill, pay for it, and most likely truck from a distance farther away than your property. By using the fill you donated and township employees, the project was completed at virtually no cost to the township. The Derry Water Authority denied the township fill from Derry Lake in the amount needed for the bridge project. The township did get a truck load of fill, now and then, from Derry Lake but never in the quantities needed for the bridge project. You were told that DER only allows so much dirt to be taken from Derry Lake each year. k. The removal of dirt from your property did nothing to enhance its value. You did build two garages on the property near the spot from where the fill was taken. The g. j Mr. Edward W. Ankney Page 8 garages would have been built in any event because they were built on property not effected by the removal of the fill material. 1. You did not profit as a result of donating the fill to the township. m. You were motivated as a public servant to save the township money by using fill from your farm property. You donated the fill without profit to yourself. Your actions have been misunderstood and misinterpreted. B. Discussion: As a supervisor in Derry Township, you are a public official as that term is defined under the Ethics Act. 65 P.S. 402; 51 Pa. Code S1.1. As such, your conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Initially, we note that since the activities in this case occurred prior to Act 9 of 1989, Act 170 of 1978 will be applied in determining whether your activities violated Section 3(a) and 3(c) of the Ethics Act quoted above. Under Section 3(a) quoted above, 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. 412 -R, affirmed Yacobet v. State Ethics Commission, Pa. Commw. Ct. , 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, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. As to Section 3(c) of the Ethics Act, it specifically provides that no public official or member of his immediate family or business in which the person or member of his immediate family is an officer, director, or owner of greater than five percent of the equity at fair market value of a contract in excess of five hundred dollars may contract with his governmental body unless the contract has been awarded through an open and public process. Mr. Edward W. Ankney Page 9 In the instant matter, Derry Township was considering a community development project of replacing the Grace Station Bridge. The contract was put out for bids and awarded to Vicra Construction Company. However, the Board of Supervisors determined that the paving aspect of the project could be done by township employees for a lesser amount than bid by the contractors. Additionally, certain fill material was needed for road access to the bridge and several residents in the area were contacted regarding a price for fill. The coal yard originally agreed to supply the fill but later advised the township that it would not supply any further fill. Other individuals who were also contacted wanted a high price for fill. At that time you offered to supply fill from your property at no cost to the township. The specific question before us is whether your actions of supplying fill at no cost of the township violated Sections 3(a) and 3(c) of the Ethics Act. Under these facts and circumstances we find that you neither violated Section 3(a) or 3(c) of the Ethics Act because you did not receive any financial gain or consideration for supplying the fill to the township. In particular, there is no Section 3(a) violation because you did not obtain a financial gain in this case. Similarly, there is no Section 3(c) violation because Section 3(c) has application only to contracts of $500 or more; in this case, there was no consideration for this contract. C. Conclusion: 1. As a Derry township supervisor you are a public official subject to the provision of the Ethics Act. 2. You did not violate Sections 3(a) and 3(c) �f the Ethics Act when you supplied fill to the township at no cost for an access road for the Gray Station Bridge Project. 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 Hr. Edward W. Ankney Page 10 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). By t e Commissio , elena G. Hughes Chair