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HomeMy WebLinkAbout1144 RiderIn Re: Charles Rider STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Louis W. Fryman John J. Bolger Frank M. Brown 98- 061 -C2 Order No. 1144 1/31/2000 2/11/2000 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 at seq., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et sea., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Rider, 98- 061 -C2 Page 2 I. ALLEGATION: Charles Rider, a public official in his capacity as a councilman for McSherrystown Borough, violated provisions of the State Ethics Act (Act 9 of 1989, 65 P.S. §401 et se .) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by reviewing and participating in actions to approve subdivision plans for developers which were reviewed, inspected and recommended for approval by him and /or his employer, Nassaux - Hemsley Engineers; when the borough entered into contracts with Nassaux - Hemsley Engineers, a business with which he is associated, without an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded; and when he received compensation for serving as the borough engineer when such was not in accordance with the provisions of the Borough Code. 11. FINDINGS: 1. Charles Rider has served as a Councilman for McSherrystown Borough, Adams County, since January 5, 1998. a. Rider formerly served on council from 1981 to 1986, and during 1973 to 1975. 2. Rider is employed by the engineering firm Nassaux - Hemsley, 56 North Second Street, Chambersburg, PA 17201 -1896. a. Rider was employed by Nassaux - Hemsley, Inc. on a full -time basis from November 17, 1970, through January 26, 1973, and from January 6, 1975, until December 15, 1995. b. Rider has been employed by Nassaux - Hemsley, Inc., on a part -time basis since December 15, 1995. c. Rider's general duties for Nassaux - Hemsley are as a construction manager for various projects. d Rider is not a licensed engineer. 3. Rider disclosed Nassaux - Hemsley, Inc., as a source of income on Statements of Financial Interests filed on February 16, 1998, for calendar year 1997 and February 24, 1999, for calendar year 1998. 4. The engineering firm of Nassaux - Hemsley has served as the McSherrystown Borough Engineer since approximately 1982. a. Charles Rider is the Nassaux - Hemsley employee primarily responsible for providing engineering related services for the borough. b. Rider has served as the company's representative since 1982. c. Other Nassaux - Hemsley employees provide limited services related to actions requiring licensed engineer certifications or draftsmen drawings. 5. In 1985 Rider was the subject of a State Ethics Commission investigation to Case No. 85- 115 -C. Rider, 98- 061 -C2 Page 3 a. At issue in that case was actions on Rider's part which resulted in borough monies being paid to his employer Nassaux - Hemsley for engineering services. 6. Order No. 490 which was issued by the State Ethics Commission on May 2, 1986, found Rider in violation and noted in part: "Clearly, as an employee of the Nassaux - Hemsley, Engineering Firm, you are associated with that business within the above definition, therefore, you are prohibited from using your position to obtain any financial gain for that business. We have reviewed similar situations, in the past, and have determined generally that borough council members and other public officials may not participate in any matter as a public official that would benefit or otherwise result in a company with which they are associated obtaining any financial gain from the borough or other governmental bodies with which they are associated. In the instant situation, it is clear, that although you abstained from the initial council decision to award certain projects to Nassaux - Hemsley, Inc., you did represent that company before your fellow borough council members during work sessions of the borough and borough caucus meetings which were not public. At those meetings you would quote approximate dollar cost on prospective borough jobs to be done by the corporation and you would also respond to questions on how that company would perform work. It is clear, that in acting in the manner that you did during the private sessions, you were clearly in a conflicting position in that you were representing the private corporation that was to do work for the borough while at the same time you were required to act in the best interest of the public as a borough council member. Your representation of your private employer, in this respect, was clearly aimed at obtaining and continuing the receipt of a financial gain for them. In addition, to the foregoing, as chairman of the borough council, you had asked for a motion on awarding three work authorizations to Nassaux- Hemsley on September 12, 1983. Although you abstained from the final decision to award these work authorizations to that company, you were a participant in the original matter that resulted in the motion being made. Additionally, you voted on the payment of various bills to Nassaux- Hemsley and you finally voted on an ordinance that would have required the borough engineer, who was at that time Nassaux - Hemsley, to perform certain work in regard to a storm water management plan. In light of all of the foregoing actions which you took on behalf of your private employer while you were on borough council, we believe that such activities constituted a use of your position that was aimed at obtaining a financial gain for your private employer. As such, we believe that your actions were in violation of the State Ethics Act." 7. Nassaux - Hemsley continued to serve as engineer for McSherrystown Borough after Rider left office in 1986. 8. After Rider took office on January 5, 1998, Nassaux - Hemsley was re- appointed as the borough engineer on January 14, 1998, and December 9, 1998. Rider, 98- 061 -C2 Page 4 a. Rider abstained from official action taken at both these meetings to re- appoint Nassaux - Hemsley and set their compensation. 9. Nassaux - Hemsley engineering services are utilized by McSherrystown Borough on an as needed basis. 10. Nassaux - Hemsley fees for engineering and related services provided to McSherrystown Borough are detailed in the firm's January 7, 1987, agreement with the borough. a. The township is billed on an hourly rate for the various services provided. 11. Since at least 1982, Charles Rider has been the Nassaux - Hemsley employee assigned to the McSherrystown Borough account. a. Rider's compensation for engineering services provided the borough is paid to him by Nassaux - Hemsley. b. Since December 15, 1995, Rider has been compensated by Nassaux - Hemsley at a rate of $20.50 per hour for services rendered. 12. Rider's duties as a Nassaux - Hemsley employee in relation to McSherrystown Borough included the following: a. Review site plans and applications. b. Meet with developers. c. Site inspections. d. Review Zoning Ordinances. e. Submit memoranda. f. Make recommendations to council. 13. Nassaux - Hemsley invoices the borough directly for engineering services provided by Rider and other Nassaux - Hemsley employees. 14. Business records of Nassaux - Hemsley, Inc., reflect that since January 1998 Nassaux - Hemsley employees Charles Rider, William Hemsley, Todd Dusman and John Bowers all performed work for the borough on behalf of Nassaux - Hemsley. a. The bulk of the work was performed by Charles Rider. 1. William Hemsley was used when a licensed engineer certification was required. 2. Todd Dusman and John Bowers were used when a draftsman was needed. b. Rider was not a certified draftsman or licensed engineer. 15. When billing McSherrystown Borough, Nassaux - Hemsley would detail hours worked by Charles Rider as either Project Manager, Senior Manager or Senior Engineer. Rider, 98- 061 -C2 Page 5 16. Nassaux - Hemsley billed the borough for hours worked by Rider in accordance with Section 3 of their contractual agreement with the borough entered into on January 7, 1987. a. Rider's services were billed at $55.00 /hr in 1997 and 1998 and $71.00 /hr in 1999. b. Draftsmen were billed at the rate of $35.00 /hr in 1997 and $39.00 /hr in 1998. 17. Nassaux - Hemsley, Inc., invoices to McSherrystown Borough, included hours for Charles Rider as follows: Statement Date 02/25/98 02/25/98 02/25/98 04/30/98 04/30/98 06/22/98 09/25/98 09/25/98 09/25/98 10/30/98 1998 Total Hours 03/23/99 05/04/99 1999 Totals TOTAL 18. McSherrystown Borough was invoiced for professional payments to Nassaux - Hemsley as follows: Statement Statement Date Number 12/30/97 1262 12/30/97 1263 12/30/97 1265 01/31/98 53 02/25/98 132 02/25/98 133 Statement Number Total Hours Invoice Amount $192.50 $245.00 $630.00 $185.00 132 133 134 379 380 661 1041 1048 1049 1190 237 395 $660.00 $1,240.00 12.0 12.5 23.0 19.5 0.5 1.5 6.5 5.0 3.5 2.5 86.5 9.5 4.0 13.5 100.0 services and issued Nature of Borough Work Check No. Senior Manager - $192.50 16826 Senior Manager - $137.50 16826 Senior Engineer - $55.00 Draftsperson - $52.50 Senior Manager - $357.50 16826 Senior Engineer - $27.50 Draftsperson - $245.00 Senior Engineer - $27.50 16875 Draftsperson - $157.50 Project Manager - $660.00 16933 Senior Engineer - $27.50 16933 Rider, 98- 061 -C2 Page 6 02/25/98 134 04/30/98 379 04/30/98 06/22/98 09/25/98 09/25/98 09/25/98 10/30/98 03/23/99 05/04/99 380 661 1041 1048 1049 1190 237 395 $1,265.00 $1 ,072.50 $27.50 $82.50 $396.50 $275.00 $192.50 $137.50 $522.50 $220.00 Senior Manager - $687.50 Draftsperson - $525.00 Senior Manager - $1,265.00 Senior Engineer - $137.50 Senior Engineer - $935.00 Senior Engineer - $27.50 Senior Engineer - $82.50 Senior Engineer - $357.50 Draftsperson - $39.00 Senior Engineer - $275.00 Senior Engineer - $192.50 Senior Engineer - $137.50 Senior Engineer - $522.50 Senior Engineer - $220.00 16933 17057 17057 17178 17336 17336 17336 17382 17647 17704 a. Nassaux - Hemsley statement numbers 1262, 1263, 1265 and 53 were all for work which was performed during 1997, prior to Rider serving on council. 19. Nassaux - Hemsley invoices were included as part of the borough's monthly bill lists to be approved for payment by council. a. Bill lists are voted on in their entirety by one single motion. 20. Rider, in his official capacity as a councilman, abstained from voting to approve the payment of Nassaux - Hemsley invoices. a. Prior to abstaining from voting on bill lists, Rider would state the reason for his abstention as either being the borough engineer or an employee of Nassaux - Hemsley. 21. Borough checks made payable to Nassaux - Hemsley contained the signatures of two (2) councilmen and the secretary /treasurer. a. Rider did not sign the front side of any check made payable to Nassaux- Hemsley. b. The backside of these checks contained a deposit stamp for Nassaux- Hemsley, Inc. 22. Payroll records of Nassaux - Hemsley, Inc., confirm Rider was compensated by the firm as an employee for services provided McSherrystown Borough. a. Rider did not receive any compensation for engineering services directly from the borough. Rider, 98- 061 -C2 Page 7 23. McSherrystown Borough records include the following payments made to Nassaux - Hemsley, Inc., for invoices detailed in Finding No. 28 (sic). Date Check No. Amount 01/14/98 16826* $1,067.50 02/11/98 16875* $ 185.00 03/11/98 16933 $3,165.00 05/13/98 17057 $ 1,100.00 07/08/98 17178 $ 82.50 10/14/98 17336 $ 864.00 11/11/98 17382 $ 137.50 04/14/99 05/12/99 1998 Total 17647 17704 1999 Total $6,601.50 $ 522.50 $ 220.00 $ 742.50 *For Service prior to 1998 24. Since January 1998, Engineering Services provided to the borough by Rider included, but were not limited to, reviewing site plans and applications, meeting with developers, site inspections and making recommendations before council. a. Rider was compensated by Nassaux - Hemsley, Inc., for these services. 25. Since January 1998 Rider, in his capacity as borough engineer, has taken an active role in reviewing site plans, applications, conducting site inspections and making recommendations to council on projects, including but not limited to: a. McSherrystown West Phase II. b. St. Joseph's Academy /Interfaith Housing c. Turkey Hill Land Development d. Conewago Valley Estates. 26. McSherrystown West II is the second phase of a subdivision of developers Paul D. Burkentine, Todd Grim and John Grim. a. James R. Holley Associates was the engineer for the developers. b. Charles Rider served as borough engineer on the project. 27. Charles Rider participated in discussions and provided information to council regarding the McSherrystown West Phase II project as follows: a. January 28, 1998: Engineering review of the final subdivision plan of Burkentine and Grim (McSherrystown West II) has been prepared by Nassaux - Hemsley, Inc. b. February 11 1998 Rider, 98- 061 -C2 Page 8 c. March 11. 1998 Rider informs council that he has reviewed the county's planning and development office comments on the McSherrystown West II project. Rider said the developers were in agreement with his engineering comments and a zoning change will be needed. d. April 22. 1998 Rider advices council he had reviewed the plan and there are several items that need to be addressed before any final plan approvals can be given. The project was discussed further with the Grim's. "Approval of the preliminary plan was given by Borough Council Subject to approval of variances, waivers and items addressed in NHI comments on a motion moved by Walter. Motion carries." Present: Rider, Forbes, Smith, Messinger, Slagle, Walter, Weaver e. May 13. 1998 Rider present as councilman and borough engineer for zoning hearing before council on McSherrystown West II application. g- Paul Burkentine and Todd Grim addressed council regarding their subdivision plans. Rider requested that they address his engineering memorandum (dated January 28, 1998) point by point. 1. No action was taken by council. f. June 10. 1998 Public hearing on zoning change for McSherrystown West II. "Councilman Walter moved a motion, seconded by Councilman Rider to approve the amendment to the McSherrystown Zoning Ordinance, Article II, Section 201, zoning map to allow change of zoning district identified on tax map 2, parcels 40 and 257, located on the north side of main street and south of the Conewago Township line from industrial to residential -2, containing approximately twelve acres of land. Motion carries. Present: Rider, Forbes, Messinger, Slagle, Walter and Weaver Absent: Smith August 12. 1998 John Grim and Todd Grim presented a revised final subdivision and land development plan for McSherrystown West II. Council reviewed and discussed the project. Rider was present but not recorded as having any specific comments. h. August 26. 1998 John Grim, Todd Grim and Paul Burkentine addressed Rider's engineering comments from council's August 12, 1998, meeting. They presented their plan for approval with the understanding that they do need a waiver approval from Borough Council for lots 1 and 2. Rider addressed comments on flood plains and the borough's floodplain ordinance. "Councilman Rider moved a motion to grant a waiver to the Subdivision and Land Development Ordinance, Section 504.1a increasing the width Rider, 98- 061 -C2 Page 9 of driveway from twenty feet to twenty -four feet for lots 1 and 2. Councilman Walter seconded the motion. Motion carries. A motion to approve the final plan of the McSherrystown West II subject to variance approval from the Zoning Hearing Board for maximum lot coverage on lots 1 and 2 and the zoning amendment being forwarded to Adams County Planning Office for their review was moved by Councilman Smith. Councilman Rider seconded the motion. Motion carries." Present: Rider, Forbes, Smith, Slagle, Walter and Weaver Absent: Messinger September 9, 1998 Rider, as borough engineer, reviewed the highway occupancy permit application for closing off the ditch along Route 116 as presented by James P. Holley & Associates for Grim, Grim and Burkentine. "Rider moved a motion to execute the necessary documents for closing of the ditch along Rt. 116 on the west end of the borough. Councilman Smith seconds the motion." Motion carried. Present: Rider, Forbes, Smith, Slagle and Weaver Absent: Messinger, Walter j. September 23. 1998 Rider made the motion to reimburse Burkentine and Grim for soil with a price to be determined by volume per cubic foot. Present: Rider, Forbes, Slagle, Walters and Weaver. Absent: Messinger k. October 7, 1998 (Public Hearing) Rider attends council public hearing as borough manager on Ordinance 98 -6 to change the "zoning district for approximately 12 acres, more or less, identified on tax map 2, parcels 40 and 257 located on the north side of Main Street and south of the Conewago Township line from industrial to R -2 residential." (McSherrystown West II). October 7, 1998 (Regular Meeting) Under old business "ordinance 98 -7 ratifying the enactment of ordinance 98 -6 zoning map change was read aloud by Secretary Smith. Councilman Rider moved a motion to approve Ordinance 98 -7 Zoning Map Change. Councilman Walter seconded the motion. Motion carries." Present: Rider, Forbes, Smith, Slagle, Walter and Weaver. m. October 28, 1998 Borough Secretary Smith noted that the Grims will be submitting a revised plan for McSherrystown West II for lots 8 and 9. No commentary noted by Rider. n. December 9, 1998 Rider, 98- 061 -C2 Page 10 Old Business. "The final plan of McSherrystown West II, Burkentine, Grim and Grim is being presented for approval and signatures. Engineer Rider noted that all recommended changes were made and all required fees were paid. Councilman Smith moved a motion to approve and sign the final plan of McSherrystown West II. The motion was seconded by Councilman Weaver. Councilman Rider abstains from the vote since he was the engineer reviewing the plan. Motion carried." Present: Rider, Forbes, Smith, Slagle, Walter, Weaver and Zigler. o. April 14, 1999 Rider reports to council that he had spot checked the manhole and pipes installed by the developers of McSherrystown West II. p. Rider attended these meetings as a councilman and provided input at the direction of council. 28. Work sheets submitted by Rider to Nassaux - Hemsley confirm the following hours worked by Rider in relation to the McSherrystown West II project during the time period that he also participated in council actions. !late Hours 01/26/98 3.0 01/27/98 5.5 01 /28/98 3.0 02/16/98 2.5 08/10/98 3.5 08/1 1 /98 1.5 Project Grim Subdivision Review McSherrystown West Review McSherrystown West Review Meeting with developer and borough Preliminary Plan Review Preliminary Plan Review TOTAL 17.0 17.0 HRS X $20.50 /HR = $348.50 29. In addition to reports to council on the McSherrystown West II project, Rider also prepared engineering memorandum and planning memorandum. a. These memorandum were completed on Nassaux - Hemsley, Inc., stationary in Rider's capacity as borough engineer and a Nassaux- Hemsley employee. 30. The borough project file for the McSherrystown West II project includes the following planning and engineering memorandum prepared and signed by Rider. a. Engineering memorandum dated November 21, 1997, includes review comments identifying requirements that have not been fully addressed per the borough's subdivision and land development ordinance. b. Planning memorandum dated January 28, 1998, includes review comments on preliminary plan requirements, subdivision plans, demolition plans, land development layout, grading and utility plans. c. Nassaux - Hemsley correspondence dated April 15, 1998, to Borough Manager William Smith identified items which were not addressed in his November 21, 1997, and January 28, 1998, memorandums. d. Nassaux- Hemsley correspondence dated August 10, 1998, to Borough Manager William Smith included review comments relating to the and development plan, utility plan, grading and miscellaneous items. Rider, 98- 061 -C2 Page 11 31. Rider, in his official capacity as borough councilman participated in seven (7) separate council actions taken relating to the McSherrystown West II subdivision as detailed in Finding No. 37 (sic). Individual votes were as follows: a. April 22, 1998: Preliminary approval for McSherrystown West II. b. June 10, 1998: Seconded a motion and voted to allow a zoning change for McSherrystown West II c. August 26, 1998: Motioned and voted to grant a waiver to the borough's land development ordinance for the project d. August 26, 1998: Seconded motion and voted to approval final plan subject to variance approval e. September 9, 1998: Motioned and voted to give a highway occupancy permit to the developer. f. October 7, 1998: Motioned and voted to approve zoning change for the developer. 32. At council's December 9, 1998, meeting, the final plan of McSherrystown West II was presented for approval and signatures. a. Engineer Rider is on record stating "that all recommended changes were made and all required fees were paid." 33. Rider abstained from the official action taken to approve the final plan for McSherrystown West II as presented at council's December 9, 1998, meeting. The motion and Rider's recorded abstention is as follows: a. "Councilman Smith moved a motion to approve and sign the final plan of McSherrystown West II. The motion was seconded by Councilman Weaver. Councilman Rider abstains from the vote since he was the engineer reviewing the plan. Motion carries." Present: Rider, Forbes, Smith, Slagle, Walter, Weaver and Zigler. 34. Rider's abstention on December 9, 1998, occurred after receiving a notice of investigation from the State Ethics Commission on November 6, 1998. a. Rider participated in all prior votes on items relating to the McSherrystown West II project as detailed in this report. b. Rider confirmed his abstention was directly related to the November 6, 1998, letter. 35. Rider in his official capacity as borough engineer reviewed plans and made recommendations to council on the Conewago Valley Estates, St. Joseph's /Interfaith Housing and Turkey Hill Minit Market projects. a. Rider prepared engineering memorandum which included recommendations for council actions, participated in council discussions on those projects, and responded to council questions regarding the projects. Rider, 98- 061 -C2 Page 12 a. Rider made a motion to grant zoning change requests for Interfaith Housing and Conewago Valley Partnership during a zoning hearing held on May 26, 1999. This motion passed 7 -0. 36. Rider did not participate in any other council votes on these projects. a. Rider regularly participated in council discussions on these projects with no distinction between his positions of engineer and councilman. b. Members of council relied on Rider's input and recommendations when voting to approve these projects. III. DISCUSSION: At all times relevant to this matter, the Respondent, Charles Rider, hereinafter Rider, has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq. as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et sea. The issue is whether Rider violated Sections 1103(a) and 1103(f) of the Ethics Act as to the allegations that he participated in actions of Council to approve subdivision plans which were reviewed, inspected and recommended for approval by him or his employer, Nassaux - Hemsley Engineers; the Borough entered into contracts with Nassaux - Hemsley Engineers, without an open and public process; and he received compensation for serving as the Borough Engineer contrary to the Borough Code. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The term "conflict of interest" is defined under the Ethics Act as follows: Section 1102. Definitions. "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. §1102. Rider, 98- 061 -C2 Page 13 Section 1 103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103. Restricted activities. (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, 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. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). In addition, Section 1103(f) specifically provides in part that no public official /public employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. Having noted the issues and applicable law, we shall now summarize the relevant facts. Rider has served as a Councilmember for McSherrystown Borough (Borough) from 1973 to 1975, from 1981 to 1986, and since 1998. In a private capacity, Rider is employed by the engineering firm of Nassaux - Hemsley as a project construction manager. Rider is not a licensed engineer. Nassaux - Hemsley has served as the Borough Engineer since approximately 1982. Rider was the subject of a prior investigation of this Commission involving his actions as to the Borough paying his employer Nassaux- Hemsley for engineering services. In Rider, Order 490, we found a violation of the Ethics Act when Rider participated in actions of Borough Council as to his private employer, Nassaux- Hemsley. Rider, 98- 061 -C2 Page 14 Nassaux - Hemsley engineering services were utilized by the Borough on an as needed basis with Rider assigned by Nassaux - Hemsley as its employee for the Borough account since at least 1982. Rider's duties for the Borough as a Nassaux - Hemsley employee included reviewing site plans and applications, meeting with developers, performing site inspections, reviewing zoning ordinances, submitting memoranda and making recommendations to Council. Although other employees of Nassaux - Hemsley performed work for the Borough, the bulk of such work was performed by Rider. Nassaux - Hemsley billed the Borough for hours worked by Rider in accordance with its contractual agreement. The details of the services provided by Nassaux - Hemsley to the Borough are set forth in Fact Findings 17 and 18. Rider as a Councilmember abstained from voting to approve payments of Nassaux - Hemsley invoices. In addition, Rider did not sign the Borough checks which were issued to Nassaux - Hemsley in payment for its services. Rider as a Nassaux- Hemsley employee was not compensated by the Borough but by Nassaux - Hemsley for the services that he performed on its behalf for the Borough. Since January 1998, Rider as Borough Engineer took an active role in reviewing site plan applications, conducting site inspections and making recommendation to Council as to various developments including the McSherrystown West Phase II project. The specifics of Rider's involvement as Borough Engineer for the McSherrystown West Phase II Project are delineated in Fact Findings 27 through 30. Rider not only took action as a Nassaux - Hemsley employee regarding the McSherrystown West II Subdivision for the Borough as Engineer but he also took action as a Borough Councilmember on that Project, the specifics of which are delineated in Fact Finding 31. At the December 9, 1998, Council Meeting, Rider stated as Borough Engineer that all recommended changes were made and all required fees were paid. Thereafter, Council voted to approve the final plan for the McSherrystown West 11 Project with Rider as Councilmember abstaining since he was the Engineer who reviewed the plan. That particular abstention by Rider occurred after he had received notice of the instant investigation by this Commission. Having summarized the above relevant facts, we must now determine whether the actions of Rider violated Section(s) 1103(a) of the Ethics Act. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding that Rider violated Section 1103(a) when he participated in discussions, actions and decisions of Council to approve plans for the McSherrystown II subdivision which had been reviewed by his employer, Nassaux - Hemsley Engineers together with the payment of $ 150.00 by Rider through this Commission to the Commonwealth of Pennsylvania in three (3) equal payments of $50.00, with the first scheduled payment to be forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter, and each additional payment to be made every thirty (30) days thereafter; by Rider abstaining as to matters in which he has a conflict as to Nassaux - Hemsley; and by Rider making the necessary disclosures as required by the Ethics Act. In the Consent Agreement, the Investigative Division has chosen not to further proceed as to the second and third allegations in this case. Recognizing that the Investigative Division has prosecutorial discretion, we will accordingly defer to such discretion and make our disposition based upon the above allegation. See, Ferraro, Order 1099. Rider, 98- 061 -C2 Page 15 In applying the provision of Section 1103(a) of the Ethics Act, there were uses of authority of office on the part of Rider regarding his participation as a Councilmember as to the approval of the McSherrystown II Subdivision. The details of his actions as Councilmember as to that subdivision are delineated with specificity in Fact Finding 31. Such actions constituted uses of authority of office. See, Juliante, Order 809. Such actions by Rider occurred as to a project for which he was providing services to the Borough as an Engineer, that is, as an employee of the firm Nassaux- Hemsley. Thus, Rider as a Borough Councilmember participated in actions in an official capacity on a matter before Council for which he performed services to the Borough as an employee of the private engineering firm of Nassaux - Hemsley. Such actions placed Rider in a conflict under Section 1103(a) of the Ethics Act. See, Ferrero, Order 720; Widmer, Order 608 -R. Such uses of authority of office resulted in a pecuniary benefit to Nassaux - Hemsley, a business with which Rider is associated as that term is defined under the Ethics Act as well as to Rider himself in that he as an employee of Nassaux - Hemsley received compensation for performing such engineering services for the Borough. Accordingly, Rider violated Section 1 103(a) of the Ethics Act when he as a Borough Councilmember participated in matters pertaining to the McSherrystown II Subdivision project which resulted in a private pecuniary benefit to Nassaux - Hemsley, a business with which he is associated. As per the Consent Agreement, Rider must abstain as to matters involving Nassaux - Hemsley and observe the disclosure requirements of Section 1 103(j) of the Ethics Act which require setting forth the reasons for such abstentions as well as providing written statements to that effect for the record. Lastly, as to the Consent Agreement, we believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Rider is directed to make payment of $150 in installments as delineated above through this Commission to the Commonwealth of Pennsylvania. Compliance with the Order will result in the closing of this case with no further action. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Charles Rider, as a Councilmember in McSherrystown Borough, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998, Chapter 11. 2. Rider violated Section 1103(a) when he participated in discussions, actions and decisions of Council to approve plans for the McSherrystown II subdivision which had been reviewed by his employer, Nassaux- Hemsley Engineers. In Re: Charles Rider File Docket: Date Decided: Date Mailed: ORDER NO. 1144 BY THE COMMISSION, 98- 061 -C2 1/31/2000 2/11/2000 1. Charles Rider, as a Councilmember in McSherrystown Borough, violated Section 1103(a) when he participated in discussions, actions and decisions of Council to approve plans for the McSherrystown II subdivision which had been reviewed by his employer, Nassaux - Hemsley Engineers. 2. Rider is directed to abstain as to matters involving Nassaux - Hemsley and comply with the disclosure requirements of Section 1103(j) of the Ethics Act. 3. Per the Consent Agreement of the parties Rider is directed to make timely payment of $150 in three payments of $50 through this Commission to the Commonwealth of Pennsylvania. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. DANEEN E. REESE, CHAIR