HomeMy WebLinkAbout1175 TemborskiIn Re: Kenneth Temborski
: File Docket:
: X -ref:
: Date Decided:
: Date Mailed:
Before: Daneen E. Reese, Chair
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
99- 070 -C2
Order 1175
12/12/00
12/27/00
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 et seq by the above -named Respondent. 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 not 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter
11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion
of pending matters under Act 93 of 1998.
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 Chapter 11 of Act
93 of 1998. Any person who violates confidentiality of the Ethics Law 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.
Temborski, 99- 070 -C2
Page 2
I. ALLEGATION:
That Kenneth Temborski, a public official /public employee, in his capacity as a
member of the School Board of Directors for the Hazleton Area School District, Luzerne
County, violated Sections 3(a) and 3(f) of the State Ethics Act (Act 9 of 1989), when he
used the authority of his office for the private pecuniary benefit of himself and /or
businesses with which he is associated by participating in actions of the board resulting in
purchases being made from Hazleton Industrial Supply, American Industrial Resources,
Inc., and Erie Bearings, Inc., companies where he is owner, part -owner or employee; and
when the purchases were made from his companies in excess of $500.00 on an annual
basis without an open and public process.
II. FINDINGS:
1. Kenneth Temborski served as a member of the Hazleton Area School Board
(HASB) from December 1995 through November 1999.
2. Temborski served as the chairman of the district's buildings and grounds
committee from approximately December 4, 1995, until May 16, 1996.
a. The district's buildings and grounds committee had oversight
responsibilities over the district's maintenance department.
b. The district's maintenance supervisor was accountable to the buildings
and grounds chairman.
c. Purchases for maintenance items were the responsibility of the
maintenance supervisor.
3. During this same period of time, Temborski was involved with the following
business entities as either an employee or owner.
a. Hazleton Industrial Supply (Owner)
333 W. Broad Street
Hazleton, PA 18201
b. SEPA (Owner)
1117 W. 15th Street
Hazleton, PA 18201
c. K & A Rentals (Owner)
22 Turkey Path Road
Sugarloaf, PA 18249
d. American Industrial Resources Inc. (Owner)
RD #2, Box 22
Turkey Path Road
Sugarloaf, PA 18249
e. Erie Bearing (Employee)
1432 East 12t Street
Erie, PA 16503
4. Articles of Incorporation on file with the Pennsylvania Department of State
Temborski, 99- 070 -C2
Page 3
confirm Temborski's ownership interest in Hazleton Industrial Supply, SEPA,
K &A Rentals and American Industrial Resources, Inc.
a. Temborski is the CEO and Treasurer of SEPA.
b. Hazleton Industrial Supply was a subsidiary of SEPA since March 8,
1994.
c. Temborski is CEO of American Industrial Resources Inc.
1. Erie Bearings purchased this business around 1998.
2. Temborski retained ownership of the business name American
Industrial Resources.
d. K &A Rentals was a subsidiary of American Industrial Resources, Inc.
5. Temborski was an employee of Erie Bearings.
6. Hazleton Industrial Supply is a retail hardware store while American Industrial
Supply is a supply house specializing in items such as pumps, electric motors
and related components.
7 Hazleton Industrial Supply and American Industrial Resources had limited
business dealings with the HASD as early as 1993.
a. These dealings predated Temborski's tenure on the school board.
b. These purchases were made by way of a purchase order.
8. Between 1996 and 1998 Temborski, while simultaneously serving as a HASB
member, maintained regular business dealings with the school district under the
business headings Hazleton Industrial Supply Inc. and American Industrial
Resources, Inc.
9. Section 24 P.S. 3 -324 of the Public School Code of 1949 provides in part that
No school director shall, during the term for which he was elected or appointed,
as a private person engaged [sic] in any business transaction with the school
district in which he is elected or appointed."
10. On March 21, 1996, district superintendent, Dr. Geraldine Shepperson,
requested the Pennsylvania School Boards Association [to] provide the district
with some guidance as to "whether board members can conduct business with
the school district."
a. Attorney Stephen S. Russell responded on behalf of the PSBA.
b. Russell did not provide a legal opinion, although he did provide the
district with the following information for district solicitor Pasco Schiavo to
consider.
"Section 324 of the School Code, 24 P.S. §3 -324, clearly prohibits school
board members from doing business with the school district. To my way
of thinking, this is a rather clear prohibition. I believe that the Ethics Act
Temborski, 99- 070 -C2
Page 4
would also prohibit a school board member from "doing business" with the
school district. While the Ethics Act may permit certain business
relationships if "bids" are awarded through a "competitive, public process"
where the amount exceeds $500.00, the Commission, to my knowledge,
has never allowed business to be conducted regardless of the amount
because of Section 324 of the School Code."
11. The issue of whether Temborski could have business dealings with the district
was raised during the board's March 21, 1996, meeting. Minutes from that
meeting include the following recorded discussion on the subject.
a. "Marnell asked if it is legal to pay the bill from American Industrial
Resources which is owned by Mr. Temborski. Secretary Boyer stated that
he has correspondence from the PA School Boards Association and the
State Ethics Commission indicating that it is not legal to pay this bill.
Solicitor Schiavo stated that it is lawful to pay this bill. He explained that
while individual board members cannot do business with the district,
corporations owned by board members can do business with the district.
Marnell stated that he does not agree with Attorney Schiavo and feels it is
not legal to pay this bill. Secretary Boyer stated that he would like a legal
opinion from the solicitor relative to payment of bills. Marnell and
DeCosmo moved that a ruling be obtained from the State Ethics
Commission regarding the payment of bills from board member related
businesses. On roll call vote the motion prevailed unanimously.
b. Temborski was present at the meeting and participated in the action.
12. On April 18, 1996, HASD Solicitor Pasco Schiavo issued the board a solicitor's
opinion stating that corporations owned by Board Member Kenneth Temborski
could have business dealings with the district.
a. Schiavo's opinion was based primarily on Section 24 P.S. 3 -324 of the
School Code as it prohibits board members as individuals from having
business dealings with the district but does not contain any similar
language with respect to corporations.
b. Schiavo made reference, in his opinion, to the contracting provision of the
State Ethics Act, Section 403(f) of Act 9 of 1989 which prohibits contracts
valued at $500.00 or more with the public official's governmental body
unless the contract was awarded through an open and public process.
c. The State Ethics Commission was not contacted for an advisory opinion
by either Schiavo or Temborski regarding whether Temborski's
companies could contract with the school district.
13. Based on the information Temborski received from Solicitor Schiavo's April 18,
1996, opinion, Temborski continued to sell goods and materials to the school
district.
a. Purchases were made primarily by the district's maintenance department
through the issuance of purchase orders.
b. Purchases were not authorized by the school board with the exception of
bid items.
Temborski, 99- 070 -C2
Page 5
c. Payments to businesses with which Temborski was affiliated were
approved by the school board as part of the routine payment of bills.
14. School district policy relating to purchases has been handled in the following
fashion:
a. Petty cash is utilized for items valued under twenty -five ($25) dollars.
b. Three (3) phone quotes are required for items valued up to $3,999.99.
c. Specifications and written proposals are required for items valued
between $4,000.00 and $9,999.99.
d. Competitive sealed bidding procedures are followed for items in excess of
$10,000.00.
15. Since at least 1996, the district has annually bid maintenance supplies used in
the normal course of business.
a. Items which are on contract based on competitive bidding are purchased
directly from the low bidder through the issuance of [a] purchase order.
16. Maintenance and custodial personnel had the authority to make purchases
under $3,999.99, utilizing the phone quote system.
a. The maintenance superintendent and /or his assistants had primary
responsibility for ordering needed supplies not already awarded as the
result of competitive bidding.
17. From 1996 to 1998, the HASD would annually seek bids for maintenance items,
tools and supplies.
a. Bid packets were prepared and compiled by the district's business
department.
b. The HASB annually took action to award maintenance contracts based on
completed bid tabulation forms.
18. Between 1996 and 1998 the HASD did not have any inventory controls in place.
a. This allowed district staff to order items on an as needed" basis.
b. Purchasing catalogs were used by the district's maintenance and
custodial staffs to order tools and supplies.
19. Local businesses such as Cedar Street Supply, Team Supply, Tapper Supply,
All Phase Electric, East Penn Electric, Hazleton Industrial Supply and American
Industrial Resources were utilized by the school district to purchase items on an
as needed" basis.
a. All businesses were located in the Hazleton area and have conducted
business with the school district since 1996.
Temborski, 99- 070 -C2
Page 6
20. During the spring of 1996, after receiving Schiavo's opinion that his companies
could contract with the school district, Temborski instructed maintenance
employees to contact Hazleton Industrial Supply and /or American Industrial
Supply for price quotes whenever possible.
a. Temborski gave this direction as a result of his position as Chairman of
the Buildings and Grounds Committee at public meetings.
21. Purchases made from Hazleton Industrial Supply (HIS) and American Industrial
Supply (AIS) were made by district maintenance employees following the
issuance of a district purchase order.
a. Maintenance personnel obtained quotes from HIS after receiving direction
from Temborski to obtain quotes for all companies in the area.
b. Purchase orders are generated from the district's business office as the
result of purchase information received from district's maintenance and
custodial staff.
c. Maintenance staff will locate the supplier.
22. From 1996 until 1998, questions regarding the propriety of Temborski's business
dealings with the district were raised during board meetings by other board
members and citizens.
23. Temborski made a recommendation before the board during their October 23,
1996, meeting to prohibit board members and /or members of their immediate
families from having business dealings with the district. The following motion
and discussion occurred on the topic:
a. "Temborski presented his recommendation that the following policy be
approved: Any member of the Board of Directors or his or her immediate
family is prohibited from engaging in any business transactions with the
Hazleton Area School District while serving as a member of the school
board. Immediate family is to include wife /husband, children, parents and
siblings. Business transaction is to include any transaction which would
result in profit or fee for service. Temborski and DeCosmo moved that the
recommendation be approved as presented. DeCosmo stated that he
feels while the sales from Temborski's business may be legal, they are
unethical. He noted that the sales from Mr. Temborski's company were
made without competitive bid. On questioning by Rossi, Solicitor Schiavo
stated that it is his opinion that the school board does not have the
authority to pass such a resolution. He explained that the school code
only limits the direct transaction from school director and the State Ethics
Act has defined the rules limiting family involvement in business
transactions. He stated that although he does not think the Board has a
right to limit a Director or his family from doing business with the District,
the action will stand until a court strikes it down. Marnell and DeCosmo
moved that the motion be amended to allow business dealings by board
members and his /her family by legal sealed bids as stipulated in the
school code. Rossi suggested that the Board wait in passing a policy in
order to make sure there is no future problems with it. Marnell and
McCann moved that the motion be tabled. On roll call, the motion was
tabled with Temborski opposed.
Temborski, 99- 070 -C2
Page 7
24. Temborski continued to sell goods to the District after his motion to prohibit
business dealings by board members with the school district failed.
a. Temborski took no action to discontinue doing business with the HASD
based on the competitive quotes and the solicitor's advice.
25. In November 1996 the HASD advertised for sealed bids for ice melt, basketball
uniforms and yearbook printing and publishing.
a. Legal ads were run in the Standard Speaker and Pottsville Republican on
November 1, 8 and 15, 1996.
b. Sealed bids were due into the district no later than 12:00 noon on
November 18, 1996.
26. The district received three (3) bids for the ice melt portion of the contract.
a. Bids for ice melt were received from Master Chemical Products, Inc., P.O.
Box 1185, Wilkes- Barre, PA 18773 -1185; Yost's Agway, RR #2, Box
299, Sugarloaf, PA 18249; and Hazleton Industrial Supply, 1107 West
15th Street, Hazleton, PA 18201.
b. District bid tally documents reflect sealed bids were received in the
following amounts:
Hazleton Industrial Supply: $6,263.40
Master Chemical Products, Inc.: $7,411.80
Yost's Agway: $8,052.00
27. Temborski abstained from the board vote taken on November 21, 1996, to award
the ice melt contract to Hazleton Industrial Supply.
a. Temborski did not disclose his financial interest in Hazleton Industrial
Supply at the time of his abstention.
b. Temborski's relationship to Hazleton Industrial Supply was widely known
at the time of the vote.
28. Ice melt was the only item bid by Hazleton Industrial Supply or American
Industrial Resources during the 1996 -1997 school year.
29. Temborski participated in board action taken on September 19, 1996, to award
bids for maintenance items and tools.
a. Neither Hazleton Industrial Supply nor American Industrial Resources
submitted any bids for the 1996 -1997 school year with the exception of
ice melt.
30. Both Hazleton Industrial Supply and American Industrial Resources, Inc., sold
goods and materials to the district during 1996 that were not part of the
maintenance bid process.
a. Neither business was on the list of companies awarded bids for
maintenance items or tools.
Temborski, 99- 070 -C2
Page 8
1. Temborski participated in board actions taken to award these bids
to other companies.
b. The items sold by Temborski's business' were not bid by other companies
or on the district's bid tally sheets for the 1996 -97 school year.
c. These purchases were made pursuant to district purchasing policies.
31. Hazleton Industrial Supply was not awarded contracts by competitive bid
process until November 1996 when the contract for ice melt was awarded.
a. Purchases were made from HIS and AIR in 1996 using the phone quote
system.
32. Temborski participated in board action taken to award bids for the 1997 -1998
school year which include[d] HIS.
a. The district bid approximately 253 items in the tools and maintenance
supply categories for the 1997 -1998 school year.
b. Hazleton Industrial Supply was [the] low bidder on approximately sixty -
seven (67) items for the 1997 -1998 school year.
33. Minutes from the board's August 21, 1997, meeting included the following official
action to award bids for the 1997 -1998 school year.
a. The secretary presented for approval by the Board the award of contracts.
Bonomo and Scarcella moved that the contracts be awarded as
presented. On roll call, the motion prevailed unanimously.
Present: Bonomo, Cipriano, DeCosmo, Marnell, Mussoline, Rossi,
Scarcella, Schnee, Temborski
b. Hazleton Industrial Supply was awarded bids in the following amounts:
Category Total
since $ 2,602.86
Paint $ 521.26
Tools $ 8,616.26
Adhesives $ 5.99
Fasteners $ 34.63
Abrasives $ 347.98
Total $ 12,128.98
34. Temborski participated in board action to award bids totaling $12,128.98 to his
company, Hazleton Industrial Supply on August 21, 1997.
a. Temborski thought that he could vote on the bids since they were handled
by way of competitive sealed bidding. Additionally, contracts were
awarded in categories that he did not bid on.
35. Financial records of the HASD reflect that the following invoices were paid from
Hazleton Industrial Supply while Temborski served as a board member. These
Temborski, 99- 070 -C2
Page 9
invoices were the result of purchases made consistent with district purchasing
procedures relating to items less than $4,000.00 phone quotes or sealed bids.
Check Invoice
Invoice No. P.O. No. Check No. Date Amount
013041/013123 2565 23349 06/20/96 $ 604.34
013124 2610 23349 06/20/96 $ 210.45
013040 2498 23349 06/20/96 $ 510.49
013356 2780 23654 06/28/96 $ 59.61
013357 2751 23654 06/28/96 $ 314.67
013358 2779 23654 06/28/96 $ 198.00
013359 2767 23804 06/28/96 $ 187.61
013495 2806 23804 06/28/96 $ 99.00
013507 2821 23804 06/28/96 $ 140.34
013508 2822 23804 06/28/96 $ 88.00
013730 67 1114 08/16/96 $ 167.93
013731 64 1114 08/16/96 $ 24.16
5 ck. #1018 None 1018 09/27/96 $ 863.97
014479 543 1579 10/09/96 $ 92.35
227 669 1579 10/09/96 $ 135.00
276 731 1579 10/09/96 $ 149.00
285 669 1579 10/09/96 $ 162.00
269 639 1707 10/18/96 $ 215.95
14481 869 1923 11/21/96 $ 319.72
1155 950 2555 01/16/97 $ 790.80
1256 1460 2555 01/16/97 $1,423.50
1330 1331 2555 01/16/97 $ 109.01
1503 1460 2894 02/20/97 $1,064.00
1636 1460 2984 02/20/97 $ 532.00
1763 1460 3239 03/20/97 $ 570.00
1844 1460 3239 03/20/97 $ 532.00
1959 1460 3239 03/20/97 $ 532.00
2374 1460 3539 04/17/97 $ 532.00
3007 2079 4005 06/19/97 $ 213.40
3087 2107 4005 06/19/97 $ 45.50
3326 2151 4333 06/30/97 $ 40.80
3955 None 5131 10/16/97 $1,083.00
3976 None 5131 10/16/97 $1,083.00
4678 948 5486 11/04/97 $ 12.95
4679 770 5486 11/04/97 $ 20.04
4770 710 5486 11/04/97 $ 46.40
4771 709 5486 11/04/97 $ 24.38
4772 705 5486 11/04/97 $ 164.05
4773 706 5486 11/04/97 $ 133.86
4774 949 5486 11/04/97 $ 7.52
4775 707 5486 11/04/97 $ 86.48
4776 703 5486 11/04/97 $ 91.62
4777 704 5486 11/04/97 $ 97.46
4778 899 5486 11/04/97 $ 11.34
4802 898 5486 11/04/97 $ 111.44
4805 1099 5486 11/04/97 $ 6.00
4818 709 5486 11/04/97 $ 21.27
4819 708 5486 11/04/97 $ 27.10
Temborski, 99- 070 -C2
Page 10
4820 702 5486 11/04/97 $ 59.94
4829 1367 5486 11/04/97 $ 34.92
4894 1468 5486 11/04/97 $ 12.95
4895 1467 5486 11/04/97 $ 12.95
4906 1437 5486 11/04/97 $ 148.77
4907 1438 5486 11/04/97 $ 18.50
4908 1452 5486 11/04/97 $ 274.80
4909 1439 5486 11/04/97 $ 616.68
4910 1469 5486 11/04/97 $ 554.68
4969 1469 5893 12/11/97 $ 68.60
4972 1466 5893 12/11/97 $ 49.43
5016 1469 5893 12/11/97 $ 326.95
5017 1452 5893 12/11/97 $ 112.68
5019 708 5893 12/11/97 $ 43.98
5020 709 5893 12/11/97 $ 29.32
5021 705 5893 12/11/97 $ 58.64
5022 706 5893 12/11/97 $ 29.32
5023 1437 5893 12/11/97 $ 29.32
5024 710 5893 12/11/97 $ 29.32
5025 1438 5893 12/11/97 $ 29.32
5026 702 5893 12/11/97 $ 323.27
5056 1538 5893 12/11/97 $ 308.48
5145 1469 5893 12/11/97 $1,738.88
5283 1466 5893 12/11/97 $ 363.86
5284 1469 5893 12/11/97 $ 14.86
5358 1469 5893 12/11/97 $ 13.98
5027 1439 5893 12/11/97 $ 406.26
5036 1466 5893 12/11/97 $ 339.68
5037 1469 5893 12/11/97 $4,623.52
5364 1466 5893 12/11/97 $ 51.14
5482 1439 6621 02/19/98 $ 87.60
5628 1736 6621 02/19/98 $ 157.08
5018 1466 6810 02/19/98 $ 97.51
5378 1466 6810 02/19/98 $ 131.85
4970 1466 6879 02/26/98 $ 77.38
4779 769 7515 03/06/98 $ 14.59
4911 1466 7515 03/06/98 $ 122.09
5282 1538 7515 03/06/98 $ 39.50
4102 1466 7582 03/19/98 $ 153.48
5961 1871 7582 03/19/98 $ 158.40
5900 1788 7787 03/26/98 $ 109.15
7884 73 9246 09/17/98 $ 59.43
Total $25,888.57
36. Financial records of the NASD reflect that the following invoices were received
from American Industrial Resources, Inc. while Temborski served as a board
member and paid by the school district. These invoices were the result of
purchases made consistent with district purchasing procedures.
Invoice No.
115539
Check Invoice
P.O. No. Check No. Date Amount
1957 22271 03/21/96 $ 66.40
Temborski, 99- 070 -C2
Page 11
07/18/96
08/21/96
10/17/96
11/21/96
01/16/97
02/19/97
03/20/97
04/16/97
06/19/97
07/17/97
10/16/97
11/20/97
12/18/97
02/19/98
03/19/98
116243
116244
117155
117237
117746
119509
a.
b.
Meeting Date
03/21/96
05/16/96
06/27/96
Company
American Industrial
American Industrial
American Industrial
Hazleton Industria
American Industrial
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
American Industrial
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
Hazleton Industria
2131
2009
2083
2549
2708
720
22955
22955
23292
23292
23600
1853
37. Hazleton Industrial Supply and American Industrial Resources received
payments from the HASD totaling $27,622.62 between January 1996 and
September 17, 1998.
Hazleton Industrial Supply - $25,888.57
American Industrial Resources - $1,734.05
Check No. Amount
22271 $ 66.40
22955 747.84
23292 422.90
23349 1,325.28
23600 435.00
23654 572.28
23804 514.95
1114 192.09
1579 538.35
1853 61.91
1707 215.95
1923 319.72
2555 2,323.31
2894 1,596.00
3239 1,634.00
3539 532.00
4005 258.90
4333 40.80
5131 2166.00
5486 2,596.10
5893 8,990.81
6621 244.68
7582 311.88
05/16/96
05/16/96
06/20/96
06/20/96
06/28/96
11/21/96
Total
$370.20
$377.64
$348.10
$ 74.80
$435.00
$ 61.91
$1,734.05
38. Purchases from Temborski's companies were approved by the HASD as part of
the routine payment of bills.
a. Bill lists are compiled by the district's business department.
b. Bill lists are included as part of the board members meeting packets.
c. Meeting packets are provided to board members approximately one (1)
week prior to their regular meeting.
d. Bill lists are voted on in their entirety by a single motion.
39. Payments issued to Hazleton Industrial Supply and American Industrial
Resources, Inc., were included with monthly bill lists. Bill lists and meeting
minutes reflect Temborski's participation in approving these payments as
follows:
Recorded Vote Official Action
7 -1 -1 Abstained
8 -1 Vote
8 -1 Vote
6 -0 -2
8 -0
Fragmented
Fragmented
Fragmented
Fragmented
9 -0
9 -0
9 -0
9 -0
8 -0
6 -0
Fragmented
7 -1
7 -2
Vote
Vote
Voted No
Abstained
Abstained
2� Vote
Vote
Vote
Vote
Vote
Motion, Vote
Vote
2 Vote
Vote
Voted No
Temborski, 99- 070 -C2
Page 12
09/17/98 Hazleton Industrial 9246 59.43 8 -0 Second, Vote
Votes listed as fragmented indicate that several votes were taken
regarding specific bills or some board members either abstained or voted
against a specific bill.
40. Temborski participated in fourteen (14) separate actions taken to approve
payments totaling $22,329.06 to Hazleton Industrial Supply and American
Industrial Supply between March 21, 1996, and September 17, 1998.
a. Temborski approved payments totaling $20,723.32 to Hazleton Industrial
Supply.
b. Temborski approved payments totaling $1,605.74 to American Industrial
Resources.
41. During the summer of 1996 the HASD maintenance department needed a
generator for maintenance and emergency use.
a. Maintenance Director Joseph Cortese solicited three (3) phone quotes for
a generator.
b. Cortese did not contact Temborski or any of his businesses for a quote.
42. Temborski reviewed the three (3) quotes Cortese obtained and rejected them at
a public committee meeting.
a. The committee believed that the quotes obtained by Cortese were well
beyond what was needed and at a cost of $2,300.
b. Temborski helped redefine the district's needs and the committee
reissued the bid specs at a public meeting.
c. Hazleton Industrial Supply submitted a bid under the reissued specs.
43. Sealed bids were not utilized for this purchase.
a. The projected cost of the contract was in excess of $500.00.
44. Temborski's actions were not consistent with Solicitor Schiavo's advice that
purchases in excess of $500.00 be made through an open and public process.
45. On October 21, 1996, HASD purchase order No. 950 was issued to Hazleton
Industrial Supply in the amount of $742.00 for an 8 horsepower generator. No
shipping charges were included as part of this purchase order.
46. Hazleton Industrial Supply provided and invoiced the HASD for a 10 horsepower
generator on December 5, 1996.
a. Total charges were one (1) 10 hp generator - $742.00 and shipping -
$48.00.
b. Shipping charges were not included as part of the district's purchase
order.
Temborski, 99- 070 -C2
Page 13
c. The larger generator was provided at the same cost as the smaller one.
47. The invoice for the generator was combined with two (2) other invoices paid by
district check No. 2555 issued to Hazleton Industrial supply on January 16,
1997.
a. Check No. 2555 was approved as part of the routine payment of bills
during the boards January 16, 1997, meeting.
b. Temborski abstained from this vote.
48. The generator was the only item sold by Temborski to the district with a value in
excess of $500.00 which was not purchased by way of competitive sealed bids.
49. Temborski ceased doing business with the HASD on September 17, 1998,
because of continued questions over the propriety of his dealings.
50. Hazleton Industrial Supply and American Industrial Supply worked on a profit
margin of 10 %.
a. These businesses realized a gross financial gain of $27,622.62 as a
result of dealings they had with the HASD.
1. Hazleton Industrial Supply: $25,888.57
2. American Industrial Resources: $ 1,734.05
b. These businesses realized a profit of approximately $2,762.26 as a result
of dealings they had with the district. [The] profit [was] based on ten
(10 %) percent of the gross financial gain.
c. The private pecuniary benefit included the sale of a generator totaling
$790.00.
51. Temborski believed that at all times he was acting in accordance with and under
the approval of the Advice of the District Solicitor.
II. DISCUSSION:
At all times relevant to this matter, the Respondent, Kenneth Temborski, hereinafter
Temborski, has been a public official subject to the provisions of the Public Official and
Employee Ethics Law ( "Ethics Law"), 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 seq, which Acts are
referred to herein as the "Ethics Act."
The issue is whether Temborski violated Sections 3(a) or 3(f) of the Ethics Act as to
the allegation that he, as a public official, used the authority of his office for a private
pecuniary benefit when he participated in actions of the school board that resulted in
purchases made from Hazleton Industrial Supply, American Industrial Resources, Inc., and
Erie Bearings, Inc., companies of which he was the owner, a part -owner or employee; and
when businesses with which he was associated entered into contracts with the school
district for purchases in excess of $500.00 without an open and public process.
Temborski, 99- 070 -C2
Page 14
Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public
employee is prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989 as follows:
Section 2. 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. "Conflict" or "conflict of interest" 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 P.S. §402.
Section 3(f) of Act 9 of 1989 provides:
Section 3. Restricted activities
(f) 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 P.S. §403(f).
In addition, Section 3(f) of Act 9 of 1989 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
Temborski, 99- 070 -C2
Page 15
official /public employee is associated unless the contract is awarded through an open and
public process including prior public notice and subsequent public disclosure.
facts.
Having noted the issues and applicable law, we shall now summarize the relevant
Temborski served as a member of the Hazleton Area School Board (School Board)
from December 1995 through November 1999 and as Chairman of the Hazleton Area
School District (School District) Buildings and Grounds Committee from approximately
December 1995 to May 1996. In a private capacity, Temborski was the owner of several
businesses including Hazleton Industrial Supply (HIS), a retail hardware store, and
American Industrial Resources, Inc. (AIR), a supply house specializing in items such as
pumps, electric motors and related components. There is another business listed in the
Stipulation of Findings as American Industrial Supply (AIS), which we assume is the same
entity as AIR, hereinafter referred to as AIR /AIS.
Between 1996 and 1998, Temborski regularly sold goods and materials to the
School District through HIS and AIR /AIS. During that time, the School District's policy
regarding purchases was to use petty cash for items under $25.00, solicit three telephone
quotes for items up to $3,999.99, obtain specifications and written proposals for items
between $4,000.00 and $9,999.99, and follow competitive sealed bidding procedures for
items in excess of $10,000.00.
The School District paid for purchases by compiling bill lists that sometimes
included invoices from HIS and AIR /AIS. The bill lists were provided to School Board
members to review one week prior to their regular meeting. School Board members then
voted on bill lists in their entirety by a single motion.
The School District's Maintenance Department, which was under the direction of the
Buildings and Grounds Committee, purchased the majority of maintenance items, tools and
supplies on an as needed basis" from local business including HIS and AIR /AIS.
Maintenance and custodial personnel were authorized to make purchases up to $3,999.99
by obtaining telephone quotes and to make purchases for items on contract directly from
the low bidder through purchase orders.
At the March 21, 1996, School Board meeting, a question arose as to the propriety
of Temborski's business dealings with the School District. School Board members
specifically questioned whether it was legal for the School District to pay a bill from
AIR /AIS. After a disagreement ensued over the matter, the School Board Secretary
requested a legal opinion from the Solicitor relative to the School District paying a bill from
a business owned by a Board member. The School Board, including Temborski, then
voted unanimously to obtain a ruling from the State Ethics Commission on the issue.
On April 18, 1996, the School District Solicitor issued a legal opinion concluding
that a corporation owned by Temborski would not be prohibited from having business
dealings with the School District. The Solicitor based his opinion upon Section 3 -324 of
the Public School Code, which prohibits a school director, as a private person, from
engaging in any business transaction with the school district in which he is elected or
appointed. The Solicitor also referred to Section 3(f) of the Ethics Act relating to contracts
with the governmental body and the requirement of an open and public process as to
contracts valued at $500.00 or more. Neither the Solicitor nor Temborski ever contacted
the State Ethics Commission for an advisory opinion as to the matter. Based upon the
Solicitor's opinion, Temborski continued to sell goods and materials to the School District,
and as Chairman of the Buildings and Grounds Committee, instructed employees in the
Temborski, 99- 070 -C2
Page 16
Maintenance Department to contact HIS and /or AIR /AIS for price quotes whenever
possible.
During the summer of 1996, the Maintenance Director solicited three telephone
quotes for a generator. At a public committee meeting, Temborski reviewed the quotes,
rejected them and rewrote the bid specifications. Temborski then reissued the bid
specifications at a public meeting and submitted a quote on behalf of HIS, which turned out
to be the low bidder. In October 1996, the School District issued a purchase order to HIS
for one generator. In December 1996, HIS invoiced the School District $742.00 for the
generator and $48.00 for shipping charges. Although the projected cost of the generator
was in excess of $500.00, the contract was not awarded to HIS through an open and public
process.
During the 1996 -1997 school year, the School District made purchases from
Temborski's businesses. The only item bid by HIS or AIR /AIS in that time frame was for
ice melt. On eleven separate occasions between June 20, 1996, and June 30, 1997, the
School District purchased goods valued in excess of $500.00 from HIS without an open
and public process.
During the 1997 -1998 school year, the School District requested bids for
approximately 253 items in the tools, maintenance, and supplies categories. HIS was the
low bidder for 67 of those items. At the August 21, 1997, School Board meeting,
Temborski participated in Board action to award bids to HIS totaling $12,128.98.
Between March 21, 1996, and September 17, 1998, the School District's monthly bill
lists included invoices from HIS and AIR /AIS. School Board minutes reflect that Temborski
participated in fourteen actions to approve payments to HIS and AIR /AIS totaling
$22,329.06.
HIS and AIR /AIS sold a total of $27,622.62 worth of goods and materials to the
School District. Based upon a 10% profit margin, HIS and AIR /AIS realized a profit of
$2,762.26.
Having summarized the above relevant facts, we must now determine whether the
actions of Temborski violated Sections 3(a) and 3(f) of Act 9 of 1989.
The parties have submitted a Consent Agreement together with a Stipulation of
Findings wherein they propose to resolve the case by finding a violation of 3(a) and 3(f) of
the Ethics Act when Temborski instructed employees in the School District Maintenance
Department to contact HIS and /or AIR /AIS for price quotes for the sale of supplies to the
School District; reviewed and rejected quotes obtained for the purchase of a generator,
rewrote the bid specifications, and submitted a bid on behalf of HIS; participated in actions
of the School Board to award a contract to supply various goods and materials to the
School District for the 1997 -1998 school year; participated in fourteen separate actions of
the School Board to approve payments totaling $22,329.06 to HIS and AIR /AIS between
March 21, 1996, and September 17, 1998; and participated in eleven separate actions of
the School Board regarding the purchase of items in excess of $500.00 from HIS without
an open and public process; and by Temborski agreeing to make the payment of
$2,762.26 through this Commission to the Commonwealth of Pennsylvania in eleven equal
installments of $230.18 per month, commencing with the first installment of $230.18 within
thirty days of the issuance of this Order and ending with a payment of $230.28.
We shall review the instant case in the context of the issues and proposed
disposition as agreed to by the parties.
Temborski, 99- 070 -C2
Page 17
As to Section 3(a) of the Ethics Act, the record reflects that Temborski used the
authority of his office to generate business for HIS and AIR /AIS, two businesses with which
he was associated. First, Temborski, as Chairman of the Buildings and Grounds
Committee, directed employees in the Maintenance Department to contact HIS and /or
AIR /AIS for price quotes for materials and supplies whenever possible. Such action on the
part of Temborski resulted in multiple purchases being made by the School District from
those businesses in 1996. Second, Temborski reviewed and rejected three quotes
obtained by the Maintenance Director for a generator, rewrote the bid specifications, and
submitted a bid on behalf of HIS, which, not surprisingly, turned out to be the low bidder.
As a result of Temborski's involvement in the bid process, the School District purchased a
$742.00 generator from HIS. Third, Temborski participated in actions of the School Board
to award contracts totaling $12,128.98 to HIS for various goods and materials for the 1997-
1998 school year. Finally, Temborski participated in fourteen separate School Board
actions to approve payments to HIS and AIR /AIS totaling $22,329.06. Temborski's actions
constituted uses of authority of office. See, Juliante, Order 809. The uses of authority of
office by Temborski resulted in private pecuniary benefits to HIS and AIR /AIS, businesses
with which he was associated. Accordingly, Temborski violated Section 3(a) of the Ethics
Act when he used the authority of his office to obtain private pecuniary benefits for
businesses with which he was associated when he engaged in the above enumerated
activities.
As to Section 3(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 purchases made by
the School District for goods valued in excess of $500.00 from HIS. In that the cost of the
purchased items exceeded $500.00, a contract to sell the same should have been
awarded through an open and public process. However, there were eleven instances
where the School District made purchases from a business with which Temborski was
associated when those purchases were in excess of $500.00 and not awarded through an
open and public process. Accordingly, since such contracts exceeded $500.00 and were
not awarded through an open and public process, we find that Temborski violated Section
3(f) of the Ethics Act in all such cases.
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, Temborski is directed to make the payment of $2,762.26 through this
Commission to the Commonwealth of Pennsylvania in eleven equal installments of
$230.18 per month, commencing with the first installment of $230.18 within thirty days of
the issuance of this Order and ending with a payment of $230.28. 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. Temborski, as a member of the Hazleton Area School Board, was a public official
subject to the provisions of Act 9 of 1989.
2. Temborski violated Section 3(a) of the Ethics Act when he instructed employees in
the Hazleton Area School District Maintenance Department to contact Hazleton
Industrial Supply and /or American Industrial Resources /American Industrial Supply,
two businesses with which he, as owner, was associated, for price quotes for the
sale of supplies to Hazleton Area School District.
Temborski, 99- 070 -C2
Page 18
3. Temborski violated Section 3(a) of the Ethics Act when he participated in Hazleton
Area School District's purchase of a generator from Hazleton Industrial Supply, a
business with which he, as owner, was associated, by reviewing and rejecting the
quotes for the generator, rewriting and reissuing the bid specifications, and
submitting a quote on behalf of Hazleton Industrial Supply.
4. Temborski violated Section 3(a) of the Ethics Act when he participated in actions of
the Hazleton Area School Board to award contracts for various supplies and
materials to a business with which he was associated for the 1997 -1998 school
year.
5. Temborski violated Section 3(a) of the Ethics Act when he participated in fourteen
separate actions of the Hazleton Area School Board to approve payments totaling
$22,329.06 to Hazleton Industrial Supply and American Industrial
Resources /American Industrial Supply, two businesses with which he, as owner,
was associated.
6. Temborski violated Section 3(f) of the Ethics Act when, in eleven separate actions,
the Hazleton Area School Board purchased items in excess of $500.00 without an
open and public process from Hazleton Industrial Supply, a business with which he,
as owner, was associated.
In Re: Kenneth Temborski
File Docket: 99- 070 -C2
Date Decided: 12/12/00
Date Mailed: 12/27/00
ORDER NO. 1175
1 Temborski, as a member of the Hazleton Area School Board, violated Section 3(a)
of the Ethics Act when he instructed employees in the Hazleton Area School District
Maintenance Department to contact Hazleton Industrial Supply and /or American
Industrial Resources /American Industrial Supply, two businesses with which he, as
owner, was associated, for price quotes for the sale of supplies to Hazleton Area
School District.
2. Temborski violated Section 3(a) of the Ethics Act when he participated in Hazleton
Area School District's purchase of a generator from Hazleton Industrial Supply, a
business with which he, as owner, was associated, by reviewing and rejecting the
quotes for the generator, rewriting and reissuing the bid specifications, and
submitting a quote on behalf of Hazleton Industrial Supply.
3. Temborski violated Section 3(a) of the Ethics Act when he participated in actions of
the Hazleton Area School Board to award contracts for various supplies and
materials to a business with which he was associated for the 1997 -1998 school
year.
4. Temborski violated Section 3(a) of the Ethics Act when he participated in fourteen
separate actions of the Hazleton Area School Board to approve payments totaling
$22,329.06 to Hazleton Industrial Supply and American Industrial
Resources /American Industrial Supply, two businesses with which he, as owner,
was associated.
5. Temborski violated Section 3(f) of the Ethics Act when, in eleven separate actions,
the Hazleton Area School Board purchased items in excess of $500.00 without an
open and public process from Hazleton Industrial Supply, a business with which he,
as owner, was associated.
6. As per the Consent Agreement, Temborski is directed to make the payment of
$2,762.26 through this Commission to the Commonwealth of Pennsylvania in
eleven equal installments of $230.18 per month, commencing with the first
installment of $230.18 within thirty days of the issuance of this Order and ending
with a payment of $230.28
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,
Daneen E. Reese, Chair