HomeMy WebLinkAbout731 DuplagaMr. George
c/o Alfred
Wallover &
664 Fourth
Beaver, PA
Re: 87 -146 -C
Date
Date
Duplaga
L. Steff, Jr.
Steff
Street
15009
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 731
Before: Helena G. Hughes, Chair
Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
Decided: December 4, 1989
Mailed: DPoemhPr 15, 1 R9
Dear Mr. Duplaga:
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 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, President of Industry Borough Council,
Beaver County, violated the following provisions of the Ethics Act
(Act 170 of 1978), when you authorized the use of borough equipment,
borough materials and borough employees to black top the driveway of
your residence, and you authorized the use of the borough garage and
equipment for repairs on your personal vehicle; and, when you failed
to file Statements of Financial Interests for the 1984, 1985, 1986,
1987 and 1988 calendar years:
Section 3, Restricted Activities.
Mr. George Duplaga
Page 2
(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).
Section 4. Statement of financial interests
required to be filed.
(a) Each public employee employed by the
Commonwealth shall file a statement of financial
interests for the preceding calendar year with the
department, agency or bureau in which he is
employed no later than May 1, of each year that he
holds such a position and of the year after he
leaves such a position. Any other public employee
shall file a statement of financial interests with
the governing authority of the political
subdivision by which he is employed no later than
May 1 of each year that he holds such a position
and of the year after he leaves such a position.
65 P.S. §404(a).
(d) No public official shall be allowed to
take the oath of office or enter or continue upon
his duties, nor shall he receive compensation from
public funds, unless he has filed a statement of
financial interests with the commission as
required by this act. 65 P.S. §404(d).
A. Findings:
1. You served as a Councilman for Industry Borough, Beaver County,
from 1974 through 1987. You also served as Council President at
various times during this period.
2. Industry Borough employs a road crew to maintain borough
roadways. Every year, the road crew patches and repairs borough
streets during the spring and summer months.
3. James Platz, a borough road worker, delivered a quantity of
asphalt to your residence where it was dumped near your driveway:
a. Platz did this on a Sunday during the end of the 1981
patching year at the direction of Councilman Ed Bogovich,
Chairman of the Road Committee.
Mr. George Duplaga
Page 3
b. The asphalt was remanent material that had been in the
borough truck from the previous Friday.
4. You did not, at any time, request that the asphalt be dumped at or
near your residence, nor at any other place.
a. You did discover a lump of hardened asphalt on the side of
the lane leading from the state highway to your driveway.
You then broke up and spread this asphalt in the hole and
ditch that was formed along the edge of the state highway by
water running along the road from the overflow from the
Industry Borough Municipal Authority's water tank.
b. To the best of your recollection, Edward Bogovich once told
you that when he had scrap or extra materials, that he would
fill that ditch next to the road.
5. Edward Bogovich, Industry Borough Councilman, advised as follows:
a. He is currently borough council president and was formerly
Chairman of the Street Department.
b. He did not know how you became aware of the left over
patching material, but there was approximately h ton
remaining after one borough repair job.
c. It was up to driver Jimmy Platz if Platz wanted to dump
fill near Duplaga's property.
d. He thought that you talked to Platz and
asphalt dumped on your property.
e. Duplaga told him that he received 10 to
6. You never had any discussion with Edward Bogovich regarding this
black top.
a. You denied ever talking, at any time, to Platz or Bogovich
to request patching material.
b. You did not tell Edward Bogovich that you received 10 to 15
bushels.
7. Dan Carlin, former Industry Borough Road Foreman, advised as
follows:
a.
top
He served as road foreman until 1982 when he quit.
arranged to have the
15 bushels of black
Mr. George Duplaga
Page 4
b. He saw the borough truck unloading asphalt near Duplaga's
driveway. This occurred on a Sunday approximately five
years ago.
c. Jimmy Platz told him that he was told to take the asphalt
and dump it at Duplaga's.
d. He witnessed Duplaga using the borough garage to have his
vehicle repaired.
e. The Dunn boy, who repaired the vehicle, was not a borough
employee but he was related to the Superintendent of the
Water Authority.
8. You deny that the borough truck ever unloaded asphalt in your
driveway.
a. You did discover a pile of hardened asphalt in the
Pennsylvania Highway Department's right -of -way next to the
public highway and next to the private lane which
intersects the public highway at one end and leads to
several driveways including your driveway on the other end.
9. Marko Rodokovich, Industry Borough Police Chief, advised as
follows:
a. He saw Randy Dunn working on Duplaga's car in the borough
garage. Everyone knew what was happening.
b. Duplaga's car was on jacks when he saw it in the garage. He
does not know what was done to it, maybe a transmission was
installed.
c. He talked to Jimmy Platz, the former road worker who told
him that there were a couple of wheel barrels of asphalt
remaining on the borough truck. Platz said he called Ed
Bogovich who told him to dump it in Duplaga's driveway.
10. Paul Walton, Jr., advised as follows:
a. He has been employed by Industry Borough for the Road
Department as road foreman since 1972.
b. He observed Duplaga's car, a Chrysler, up on blocks inside
of the borough maintenance garage. The transmission was out
of the car on the floor of the garage.
c. He questioned Randy Dunn who told him he was working on
Duplaga's car.
Mr. George Duplaga
Page 5
d. A short time later he was called by Councilman Frank Mosura
who told him what was going on had nothing to do with him.
Mosura then told him he was fired.
e. It would not have been necessary to pull the
that type of vehicle to replace the starter.
f. He never saw Randy Dunn working on any water
equipment in the borough garage.
11. You provided the following information in regards to the present
situation:
transmission on
authority
a. You did not authorize any borough employee to bring the
asphalt to your property.
b. Councilman Ed Bogovich probably told Jimmy Platz the
borough road worker, to deliver the asphalt to your
residence. Bogovich had previously stated that when he had
extra or scrap materials that he would fill the ditch.
c. Police Chief, Marko Rodokovich, told you that Platz called
Bogovich and asked Bogovich what he wanted Platz to do with
the excess asphalt. Platz said he was told by Bogovich to
dump it on your driveway.
d. You did not know that the asphalt had been dumped there
until the following day.
e. The asphalt that you received was nothing but waste. The
asphalt was hardened, in a big ball, and was not suitable
for any use. There are many piles of this hardened asphalt
behind the borough building.
f. You had to pound out the asphalt with a sledge hammer so
that you could spread it out in a ditch near your property.
g. You drove your car to the borough building on an extremely
cold winter to try to find a road worker concerning a
citizen complaint. Upon leaving, your vehicle would not
start.
h. Randy Dunn, who is not a borough or authority employee was
there working on a Water Authority truck. Dunn's father
works for the Water Authority.
i. Randy Dunn did fix your vehicle using the borough garage.
No borough equipment or parts were used.
Mr. George Duplaga
Page 6
You paid Randy Dunn over $300 to fix your car which
included a new starter and other items. You noted that
Dunn was not a borough employee and did not use borough
equipment.
k. Other borough officials and employees have used the borough
garage. Paul Walton fixed his equipment in the garage.
Councilman Bogovich had a trailer built in the garage by
CETA employees and then took the trailer to his home.
12. Borough records confirm that you have not filed a Statement of
Financial Interests for the 1984, 1985, 1986 and 1987 calendar years
while you served on council. Records also confirm that you did not
file a Statement of Financial Interests for the 1988 calendar year,
the year after you left office.
a. You believe that you did file Statements of Financial
Interests for each and every calendar year while you served
on council and for the year following your service on
council. You did not keep copies for your own records.
13. The following information was provided by your attorney:
a. Your driveway is not constructed of blacktop and it has
never had any blacktop material on it.
b. Edward Bogovich, Councilman and Chairman of the Road
Department directed the road foreman to dispose of some
hardened and unusable cold patch material by dumping it in a
ditch beside the State Highway which runs past your
property. The ditch is in the right -of -way of the state
road and was formed by erosion caused by overflow from the
Industry Municipal Authority's water supply tank which is
located up the road a short distance from your home. You
neither requested nor directed that the material be placed
in the ditch and, in fact, had no knowledge or concern over
the matter until the allegation was made during the last
election that your driveway had been blacktopped by the
Borough.
c. You did not authorize the use of the borough garage and
equipment for repair to your personal vehicle. The facts
are that on one bitterly cold January day, you had
investigated a complaint of a resident regarding the
cindering of a borough road and had gone to the borough
garage to report your findings to the Road Department.
After making your report, the car would not start and
remained there blocking the entrance to the borough garage.
j•
Mr. George Duplaga
Page 7
d. Mr. Randy Dunn, an independent contractor who was hired by
the Industry Municipal Authority to repair the Authority's
truck, diagnosed the problem as a faulty starter. He
offered to replace the starter at a price agreed between you
and Mr. Dunn. Mr. Dunn then pushed the vehicle into the
garage to get it out of the wind since it was 10 degrees
below zero and made the repair at the full cost and expense
of you. There was no rule or policy in effect at the time
that prohibited this totally spontaneous action. Again,
this became part of a series of campaign accusations in the
next councilmanic election. You were defeated in that
election and retain no interest in seeking election to the
office of councilman.
e. It is your best recollection and belief that you filed the
Statements with the Borough Secretary each year as required
and you apparently did not retain copies for your personal
file. In any event, the Statements reveal that you have no
conflicts of interest under the statute.
14. On September 21, 1989, the State Ethics Commission received
Statements of Financial Interests signed by you for the 1984, 1985,
1986, 1987 and 1988 calendar years.
B. Discussion: As President of Industry Borough Council, Beaver
County, you were a public official as that term is defined in the
State Ethics Act. 65 P.S. S402. 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."
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 v. State
Mr. George Duplaga
Page 8
Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983);
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 v. State Ethics Commission, 116 Pa. Commw. Ct. 19,
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 4(a), (d) quoted above, this provision of law
requires that a Financial Interests Statement must be filed annually
as to public employees and officials and further that a public
official may not enter or continue in office or receive compensation
unless he complies with the annual filing requirement.
In the instant matter, during your tenure on Industry Borough
Council between 1974 and 1987, two events occurred which involved a
delivery and dumping of asphalt by a borough employe near the driveway
of your personal residence and secondly the repair of your personal
vehicle in the borough garage.
As to the asphalt, it was delivered by borough employe James
Platz who states he did so at the direction of Councilmember Ed
Bogovich. However, Mr. Bogovich asserts that it was within Mr.
Platz's discretion as to where the asphalt would be damped. It
appears that the asphalt was excess material which had hardened and
hence was unsuitable for paving. The record reflects that the
asphalt in this case was used as fill in a ditch formed along the edge
of the state highway near your residence.
Since the evidence is not conclusive that there was a use of
office on your part regarding the delivery of the asphalt there was no
violation of Section 3(a) of the Ethics Act as to that part of the
allegation.
Concerning the second part of the allegation dealing with the
repair of your personal vehicle at the borough garage, the facts
reflect that you drove to the borough building to try to find a road
worker to resolve a resident's complaint. After your car would not
start, it was pushed into the borough garage and you contracted with
Randy Dunn, who is not a borough or water authority employee, to
repair the vehicle. Mr. Dunn installed a new starter in your car
without using borough equipment. It further appears that your vehicle
was parked outside but was pushed into the borough garage by Mr. Dunn
because of the sub zero weather outside. Under these circumstances,
we find that you did not violate Section 3(a) of the Ethics Act
regarding the repair of your personal vehicle.
Concerning the Financial Interests Statements, the borough
records reflect that you did not file the required Statements during
Mr. George Duplaga
Page 9
your tenure in office. You now have filed Financial Interests
Statements for the years between 1984 and 1987 as well as for 1988,
the year after you left public service. Accordingly, we find that you
violated Section 4(a), (d) of the Ethics Act in that you failed to
file the Financial Interests Statements but we will take no further
action due to the fact that you now have filed the required
Statements.
C. Conclusion & Order
1. As Industry Borough Council President, you were a public
official subject to the provisions of the Ethics Act.
2. The evidence is insufficient to find that you violated
Section 3(a) of the Ethics Act regarding the delivery of excess
hardened asphalt which was used as fill for a ditch at the edge of the
state highway which was near but not on your property.
3. You did not violate Section 3(a) of the Ethics Act as to the
repair at the borough garage of your personal vehicle which was
repaired at your expense by an individual who was not employed by the
borough and who did not use borough equipment for the repair.
4. You violated Section 4(a), (d) of the Ethics Act by failing
to file Financial Interests Statements for the years 1984 through
1988.
5. This Commission will take no further action as to the
violation in paragraph 4 since you now have filed the required
Financial Interests Statements.
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 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.
Mr. George Duplaga
Page 10
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
2 3 /4.-1
,Helena G. Hughes
Chair