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HomeMy WebLinkAbout1166 FantaskeyIn Re: Paul Fantaskey File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Vice Chair Julius Uehlein John J. Bolger Frank M. Brown Susan Mosites Bicket 99- 069 -C2 Order No. 1166 9/20/00 10/5/00 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation as to the above -named Respondent regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which inter alia provides for the completion of pending matters under that Act. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). 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 and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved and the Stipulation of Findings appears as the Findings in this adjudication. 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. Fantaskey, 99- 069 -C2 Page 2 I. ALLEGATION: That Paul Fantaskey, a public official /public employee, in his capacity as president of Renovo Borough Council, Clinton County, and Borough Police Chief, violated Sections 1103(a) and 1103(f) of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for a private pecuniary benefit of himself and /or a business with which he is associated by participating in council actions to make purchases from a Service Star store owned by him without an open and public process; and when he participated in actions of council approving payments to a store owned by him. II. FINDINGS: 1. Paul Fantaskey has served as a member of Renovo Borough Council since 1988. 2. Renovo Borough is governed by a nine (9) member borough council. a. Renovo Borough is located in a rural portion of Clinton County. 3. Fantaskey is a partial owner and operator of a ServiceStar Hardware store located at 621 Huron Avenue, Renovo, PA 17764. 4. Fantaskey's ServiceStar Hardware store is the only hardware store located within Renovo Borough. a. Some maintenance and hardware items are available locally through Renovo Auto Parts and Hardware, 130 -132 6 Street, Renovo, PA 17764. b. Other than the ServiceStar, the closest full -line hardware store near to Renovo Borough is Renninger's True Value Hardware, which is situated 30 miles west of Lock Haven, Pennsylvania. 5. Renovo Borough does not maintain an inventory of hardware or maintenance items. a. Purchasing] for items by the borough is done on an as needed basis. b. Vehicle repair parts and related chemicals and some hardware items are purchased from Renovo Auto Parts. c. In 1995, the Borough's purchases from Renovo Auto totaled $6,300.31. d. The total of all purchases made by the Borough from Renovo Auto from 1995 through 1999 was $18,025.43. e. Hardware and related items are purchased from Fantaskey's ServiceStar store. 6. Renovo Borough does not solicit bids for hardware or maintenance items used by the borough road department. Fantaskey, 99- 069 -C2 Page 3 a. These items are purchased on an as needed basis by borough employees. 7 Renovo Borough financial reports confirm purchases were made from Renovo Auto Parts and Fantaskey's ServiceStar store on a regular basis since at least 1995. 8. Purchases have been made from Fantaskey's ServiceStar from 1995 to the present. a. Purchases from Fantaskey's ServiceStar were made by borough employees. b. Council did not play any role in routine purchases made from the store. c. Borough employees could make purchases under $500.00 with preference given to local businesses. d. Fantaskey offered a discount to the borough on various purchases. 9. Monthly invoices are submitted by ServiceStar which contain a running total of borough purchases for the prior month. 10. Sixty (60) invoices on file with Renovo Borough reflect various purchases were made from Fantaskey's ServiceStar store from 1995 through 1999 totaling $25,725.23. 11. Invoices for purchases in excess of $500.00 from Fantaskey's ServiceStar indicate as follows: Statement Date Amount 06/07/95 02/05/96 04/02/96 May /Undated June /Undated 05/28/96 07/02/96 10/00/96 11/08/96 12/00/96 07/00/97 08/07/97 10/07/98 $ 619.21 556.57 1,109.19 965.14 521.96 1,599.82 846.40 1,041.86 1,543.70 595.96 725.36 543.74 1,066.62 09/08/99 524.57 11/24/99 751.20 Items Plumbing, electrical, hardware Roofing material, plumbing Hardware, electrical, fans Plumbing, hardware, electrical Electrical, hardware, paint Air conditioner, lights Paint, hardware, plumbing Plumbing, hardware, flags, paint Plumbing, pipe, electric, hardware Hardware, paint, lock sets, keys Hardware, paint, brushes Paint, electrical, hardware Electrical, molding, hardware, trimmer parts Plumbing, paint, chemicals, flags, hardware Paint, hardware, brushes, tools, tape, tire chains 12. The invoice amounts represent multiple purchases of many different items during the time period covered by each statement. Fantaskey, 99- 069 -C2 Page 4 13. No competitive bidding or price quotes were obtained on the items purchased by the borough from Fantaskey's ServiceStar. 14. In or about May 1996, the borough authorized renovations to the borough building. a. All aspects of the building repair /renovation project were the responsibility of the Pennsylvania Conservation Corps, and were handled by Alice Tarr, Program Director and Project Coordinator. Ms. Tarr had supervisory and overall responsibility for the implementation and administration of the repair /renovation project and all related contracts. b. Part of the renovations included the installation of new lights and an air conditioner in the council meeting room. c. All purchases of materials and supplies incidental to the building repair /renovation project were the responsibility of Ms. Tarr, resulting in the purchase of numerous items from other sources. d. The borough was interested in obtaining approximately a 23,000 BTU air conditioner and four tube florescent drop -in light fixtures. e. The total cost of the building repair /renovation project exceeded $80,000. 15. The Borough Council's involvement in the repair /renovation project was limited to approving payments and proposals as recommended by and pursuant to the primary responsibility of Ms. Tarr. 16. A quote for light fixtures dated May 14, 1996, was obtained by "ADT" from Denney Electric Supply, 206 E. Main Street, Lock Haven, PA 17745, confirmed a price of $41.48 for each drop in light fixture. a. ADT is the initials of Alice D. Tarr, who was the project crew leader. 17. A quote dated June 11, 1996, was received by borough from Maxwell Furniture Store in the amount of $899.95 for a G.E. 23,500 BTU air conditioner. 18. In May 1996, the Borough purchased both the air conditioner and 17 lights from Fantaskey's ServiceStar. a. Both the air conditioner and light purchases were in excess of $500. 19. On May 28, 1996, Fantaskey invoiced the borough for both the air conditioner and the lights. a. One air conditioner @ $749.99. b. Seventeen lights @ $49.99 = $849.83. Fantaskey, 99- 069 -C2 Page 5 20. The air conditioner was paid for by Borough general fund check no. 8405 dated June 1, 1996, in the amount of $749.99. 21. The seventeen (17) lights were paid for by Borough general fund check no. 8449 dated June 17, 1996, in the amount of $849.83. 22. Fantaskey made the motion and participated in approving the payment of these bills during the Borough's June 11, 1996, meeting. 23. The lights purchased from Fantaskey ServiceStar were $8.51 more per unit than the quote obtained by ADT from Denney Electric Supply. Fantaskey $ 49.99 Denney Electric $ (41.48) $ 8.51 a. Denney Electric Supply was located in Lock Haven approximately thirty (30) miles from the borough. 24. The lights purchased from Fantaskey cost the borough $144.67 more than if the lights were purchased from Denney Electric Supply. 25. The written air conditioner quote from Maxwell Furniture Store was received ten (10) days after the borough authorized payment to Fantaskey, whose price resulted in a savings to the Borough of $149.96. 26. Renovo Borough records include monthly invoices submitted for payment from Fantaskey's ServiceStar Store. a. These invoices are included as part of Renovo Borough Council's monthly bill lists. b. Bill lists are read out loud before council by department. c. Bills to be paid are totaled per department. d. Bills to be paid are broken down into the following departments: administration, building, fire, parks, police, streets and water. e. Total bills to be paid per department are approved by a single motion. f. Borough checks are manually signed by the treasurer, council president or vice president with two (2) signatures required. 27. Fantaskey, in his official capacity as a Renovo Borough Councilman, participated in forty -seven (47) separate actions approving bill lists containing payments totaling $19,293.90 to his ServiceStar Hardware store. Annual totals were as follows: Fantaskey, 99- 069 -C2 Page 6 Year Votes Amount 1995 9 $2,599.65 1996 9 $7,773.67 1997 10 $3,302.36 1998 9 $2,621.23 1999 10 $2, 996.99 Total $19,293.90 28. All bills approved for payment and involving Respondent's vote were voted on and approved by all present members of Borough Council, and Fantaskey's vote was not determinative of the outcome on any of the 47 occasions. 29. All of the bills approved for payment were submitted for voting in batches; there were no separate votes cast for payments to the ServiceStar. 30. Of the 47 actions approving payment to the ServiceStar 43 actions were based upon unanimous votes; two (2) actions were based upon the gross majority, with only 1 dissenting vote; and two (2) votes were unrecorded (Respondent was absent for one oft the two). 31. Renovo Borough issued 179 checks totaling $23,613.25 to Fantaskey's ServiceStar between January 1995 and December 1999. Annual totals were as follows: 1995: 1996: 1997: 1998: 1999: $3,078.80 $8,695.20 $3,930.27 $4,456.24 $3,452.74 32. Paul Fantaskey signed the front side of seven (7) checks totaling $997.61 which were issued to his ServiceStar store. a. Fantaskey signed the front side of the following borough checks made payable to ServiceStar. Check No. Date Amount Fund 9802 09/21/98 $ 272.42 General 1065 12/10/98 $ 20.44 General 1336 06/15/99 $ 71.28 General 4244 07/15/99 $ 146.28 Water 1363 07/15/99 $ 145.32 General 1528 11/16/99 $ 154.82 General 4325 11/16/99 $ 187.05 Water Total $ 997.61 b. Fantaskey signed these checks in his official capacity as a Renovo Borough Councilman. c. Fantaskey signed the checks only when other persons with signatory authority were unavailable. Fantaskey, 99- 069 -C2 Page 7 33. Fantaskey estimated his profit on sales to the borough at 22% for hardware related items and 8% for major appliances and large purchases. 34. Fantaskey's sales to the borough, exclusive of the lights and air conditioner, totaled $22,013.43. a. Total sales $ 23,613.25 NC, lights 1,599.82 $ 22, 013.43 35. Based on Fantaskey's profit margin estimate of 22 %, Fantaskey's profit on sales to the borough would be $4,842.95 ($22,013.43 x .22 %). III. DISCUSSION: At all times relevant to this matter, the Respondent, Paul Fantaskey, hereinafter Fantaskey, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401 et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which Acts are referred to herein as the "Ethics Act." The issue is whether Fantaskey violated Sections 1103(a) and 1103(f) of the Ethics Act as to the allegations that he, as a public official, used the authority of his office for a private pecuniary benefit of a business with which he is associated by participating in council actions to make purchases from a Service Star store owned by him without an open and public process; and when he participated in actions of council approving payments to that store. 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. Fantaskey, 99- 069 -C2 Page 8 65 Pa.C.S. §1102. Section 1103(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. Fantaskey has served as one of the nine members of the Renovo Borough Council ( "Council ") since 1988. Fantaskey is part owner and operator of a Service Star Hardware store which is the only full -line hardware store located within Renovo Borough ( "Borough "). Fantaskey, 99- 069 -C2 Page 9 The Borough neither maintains an inventory of hardware /maintenance items nor solicits bids for these items; rather, Borough employees purchase items on an as- needed basis. Borough employees are permitted to make purchases under $500.00, preferably from local businesses. Financial reports for the Borough reflect that Borough employees made purchases from Fantaskey's Service Star Hardware store on a regular basis since at least 1995. No competitive bidding or price quotes were obtained on the items purchased from Fantaskey's store and no Council action was taken with respect to routine purchases from that store. In or around May 1996, Council authorized repairs /renovations to the Borough building. As part of the renovations, Council was interested in obtaining an air conditioner and florescent light fixtures. In May 1996, the Borough purchased an air conditioner and seventeen lights from Fantaskey's Service Star Hardware store. In June 1996, the Borough paid $749.99 for the air conditioner and $849.83 for the lights. During the Borough's June 11, 1996 meeting, Fantaskey made the motion and voted to approve the payment of bills, including those from his hardware store for the air conditioner and the lights. Fantaskey's Service Star Hardware store submitted monthly invoices to the Borough for payment, which invoices were included as part of Council's monthly bill lists. Bills to be paid were approved by a single motion and Borough checks requiring two signatures were manually signed by the Council President, Vice President, or Treasurer. Except for the purchase of the air conditioner and the lights, none of the Borough's individual purchases exceeded $500.00. Fantaskey, in his capacity as Borough Council Member, participated in 47 separate actions approving bill lists containing payments for purchases from his hardware store totaling $19,293.90, and signed seven checks payable to his store totaling $997.61. Fantaskey's sales to the Borough, exclusive of the air conditioner and lights, totaled $22,013.43. Based upon a 22% profit margin for hardware, Fantaskey made a profit of $4,842.95 on all other items that the Borough purchased from his hardware store. Having summarized the above relevant facts, we must now determine whether the actions of Fantaskey violated Sections 3(a) and 3(f) of the Ethics Act. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein they propose to resolve the case by finding a technical violation of Section 1103(a) of the Ethics Act in relation to Fantaskey's votes to approve bill lists containing payments for purchases from a business with which he is associated; a technical violation of Section 1103(f) of the Ethics Act in relation to the Borough's purchase of an air conditioning unit and light fixtures which were in excess of $500.00 without an open and public process; no violation of Section 1103(f) in relation to the purchases of various hardware and materials from a business owned by Fantaskey, as no individual purchases were in excess of $500.00; and a payment of $500.00 by Fantaskey in settlement of this matter within 30 days of the issuance of this Order by Fantaskey through this Commission to the Commonwealth of Pennsylvania. Regarding Section 1103(a) of the Ethics Act, Fantaskey made the motion and voted to approve bill lists containing payments to Fantaskey's Service Star Hardware store and signed several Borough checks as a Council Member that were payable to his store. Such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office by Fantaskey resulted in pecuniary benefits to his hardware store. Further, the pecuniary benefits were Fantaskey, 99- 069 -C2 Page 10 private because there is no provision in the Borough Code that authorizes Fantaskey to participate as to the approval of payments to a business with which he is associated. See, 53 P.S. §45101 et seq. Accordingly, Fantaskey technically violated Section 1103(a) of the Ethics Act when he used the authority of office to obtain a private pecuniary benefit for a business with which he is associated when he made the motion and voted to approve bill lists containing payments to Fantaskey's Service Star Hardware store and signed several Borough checks as a Councilmember that were payable to his store. In that the payments to Service Star were part of a block of bills that were typically approved by all Councilmembers present, a technical violation is the appropriate disposition of this particular allegation. Regarding Section 1103(f) of the Ethics Act, a review of the Stipulated Findings by the parties reflects that there was not an open and public process as to the Borough's purchase of an air conditioner and 17 light fixtures from Fantaskey's hardware store. In that the cost of both the air conditioner and the lights exceeded $500.00, a contract to sell such items should have been awarded through an open and public process. Accordingly, since the contract was $500.00 or more and was not awarded through an open and public process, we find that Fantaskey technically violated of Section 1103(f) of the Ethics Act. As to the purchases of all other hardware materials from Fantaskey's hardware store, we find that no individual purchases were in excess of $500.00. Since the contracting threshold of the Ethics Act was not exceeded, Section 1103(f) was not implicated. Therefore, as to all such contracts, Fantaskey did not violate Section 1103(f) of the Ethics Act in that such contracts were less than $500.00. As to the Stipulation of Findings and 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, Fantaskey is directed to make the payment of $500.00 to the Commonwealth of Pennsylvania within 30 days of the date of this Order. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Fantaskey, as President of Renovo Borough, is a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Fantaskey technically violated Section 1103(a) of the Ethics Act when he made the motion and voted to approve bill lists containing payments to Fantaskey's hardware store from which the Borough made purchases. 3. Fantaskey technically violated Section 1103(f) of the Ethics Act regarding the Borough contract to purchase an air conditioning unit and light fixtures from Fantaskey's hardware store when the contract, which was valued at $500.00 or more, was not awarded through an open and public process. 4. Fantaskey did not violate Section 1103(f) of the Ethics Act as to purchases of various other hardware materials from his hardware store, in that no individual purchases were in excess of $500.00. In Re: Paul Fantaskey ORDER NO. 1166 File Docket: 99- 069 -C2 Date Decided: 9/20/00 Date Mailed: 10/5/00 1. Fantaskey, as Renovo Borough Council Member, technically violated Section 1103(a) of the Ethics Act when he made the motion and voted to approve bill lists containing payments to Fantaskey's hardware store from which the Borough made purchases. 2. Fantaskey technically violated Section 1103(f) of the Ethics Act regarding the Borough contract to purchase an air conditioning unit and light fixtures from Fantaskey's hardware store when the contract, which was valued at $500.00 or more, was not awarded through an open and public process. 3. Fantaskey did not violate Section 1103(f) of the Ethics Act as to purchases of various other hardware materials from his hardware store, in that no individual purchases were in excess of $500.00. 4. As per the Consent Agreement, Fantaskey is directed to make payment of $500.00 through this Commission to the Commonwealth of Pennsylvania within thirty (30) days of the issuance of this order. 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. BY THE COMMISSION, Louis W. Fryman, Vice Chair