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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