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HomeMy WebLinkAbout1192 GerberIn Re: Thomas Gerber File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy 00- 014 -C2 Order No. 1192 3/26/01 3/12/01 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 and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998.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. Gerber, 00- 014 -C2 Page 2 I. ALLEGATION: That Thomas Gerber, a public official /public employee, in his capacity as a councilman for Ernest Borough, 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 by participating in discussions and actions of council, including but not limited to, interviewing applicants, reviewing qualifications and making recommendations that eventually resulted in his being selected as the borough water operator; when he participated in approving payments to himself for these services; and when his appointment was made without an open and public process, including prior public disclosure that he was the individual chosen for this position. II. FINDINGS: 1. Thomas Gerber has served as an Ernest Borough, Indiana County, council member since January 1998. a. Gerber was appointed to fill a vacant council position. 2. Gerber owned and operated Thomas Gerber Plumbing, Heating, and Air Conditioning (Gerber Plumbing) for approximately 45 years. a. Gerber Plumbing did general plumbing, heating, and air conditioning installation and repair. b. Gerber Plumbing was dissolved approximately seven years ago. c. Currently, Gerber only does work for select clients. 3. Ernest Borough maintains a water system and a water treatment facility for use by borough residents. 4. Ernest Borough employs a borough water operator who has been assigned the following duties in relation to the borough's water system: a. Taking water readings; b. Back - flushing water filter; c. Water analysis; d. Water plant equipment tests. e. Completing necessary reports to be filed with the Department of Environmental Protection (DEP). 5. Prior to his service as a member of borough council, Gerber was employed by the borough from 1975 to 1986 as the borough water operator. a. Gerber[s] compensation was approximately $950.00 per month during this period of employment. b. Gerber was instrumental in building the borough water plant. 6. Gerber has served as the borough water committee chairman from July 13, 1998, to the present. Gerber, 00- 014 -C2 Page 3 a. The water committee chairman is responsible for overseeing the borough water operator and water treatment facility. b. The water committee chairman gives the water report at council meetings. c. The water committee chairman serves as the liaison between the water operator and borough council. d. Gerber was chosen for this position because of his prior borough experience as a plumber. 7 From October 1996 to October 16, 1998, Douglas Wilner was employed as the full - time water operator for the borough. a. Wilner resigned from the full -time position on October 18, 1998. b. Wilner worked part time for the borough from October 16, 1998, until January 31, 1999. c. Wilner was DEP certified as a water operator. 8. Following Wilner's resignation on October 16, 1998, as the full -time water operator, Gerber began assisting with the borough's water operation. a. Gerber worked as the water operator in Wilner's absence. b. Gerber is not certified as an operator by DEP. c. Gerber was the only water plant operator after January 31, 1999. 9. Due to the fact that Gerber had been employed as the borough water operator prior to serving on council, Gerber worked as the water operator until an individual could be hired to fill the position vacated by Douglas Wilner. a. Members of council requested Gerber to serve in this capacity. 10. No official action was taken by council to approve Gerber working as the borough water operator in Wilner's absence. a. Council informally agreed to have Gerber act as water operator. b. Council did not approve a rate of compensation, work hours, or duties for Gerber. 11. At the borough council meeting held on December 14, 1998, council made a decision to hire a full -time water operator to replace Wilner. a. The borough wanted to hire an individual to fill the water operator position who was DEP certified to comply with DEP regulations. b. Gerber and Councilman Tortella were appointed to review applications, interview applicants, and make recommendations to council. c. Gerber seconded the motion which carried unanimously making the appointments to review and interview applicants. d. No abstention is noted in the meeting minutes for Gerber on this matter. Gerber, 00- 014 -C2 Page 4 12. The borough advertised for the water operator position in the Indiana Gazette classified ads on two occasions. a. The first advertisement ran from October 29, 1998, through November 4, 1998. b. The second advertisement ran from April 27, 1999, through May 2, 1999. c. Both advertisements were for a certified potable water system operator for a small water treatment plant. 13. A similar advertisement also ran in the April 30, 1999, Indiana Shopper's Guide. 14. Seventeen resumes were received in response to the advertisements for the water operator position. a. Gerber and Councilman Tortella reviewed these resumes. b. None of the applicants were DEP certified. 15. Gerber and Councilman Tortella agreed that only three of the applicants had the qualifications to be interviewed. a. These applicants were Donald Seigh, Paul Cribbs, and Robert Wallace. b. Gerber and Councilman Tortella did not eliminate any qualified candidates from consideration for the water operator position. 16. Councilman Tortella contacted Seigh and Cribbs for an interview. a. Both were no longer interested in the position. 17. Gerber and Councilman Tortella conducted Robert Wallace's interview. a. Wallace declined the position after inspecting the borough water system and being informed of the rate of pay for the position. 18. During the hiring process Gerber continued to act as borough water operator. a. Gerber was not an applicant for the position during this review process. 19. On several occasions during the hiring process, the issue of the vacant water operator position was brought up and tabled during regular council meetings. a. Because Gerber was performing the duties of the water operator the borough was not pressed to hire another individual. 20. In or about November 1999 the majority of council felt that Gerber should be compensated for his work at the water plant. a. Gerber was requested to submit an invoice for services rendered. 21. On November 8, 1999, Gerber submitted a Gerber Plumbing Job Invoice No. 2528 to the borough in the amount of $6,000.00 for the services rendered by him as the borough water operator from February 1, 1999, to November 1, 1999. Gerber, 00- 014 -C2 Page 5 a. Gerber's invoice did not document specific services provided. b. Gerber did not maintain worksheets detailing his time spent acting as borough water operator. 1. Gerber's invoice was based on an amount he was owed while serving as water plant operator from 1975 to 1986. c. The invoice was submitted by Gerber following the informal council decision. 21. Council unanimously approved a motion to pay Gerber for Invoice No. 2528 at the regular council meeting on November 8, 1999. a. Gerber was present for this meeting. b. Gerber claimed to have not voted for invoice No. 2528. c. No abstention is noted in the meeting minutes for Gerber on this matter. 22. Gerber received payment for Invoice No. 2528 with Borough Water Commission Account Check No. 2443 on November 10, 1999, in the amount of $6,000.00. a. Gerber endorsed Check No. 2443 and deposited it into a personal account. b. Gerber did not sign Check No. 2443 as a member of council. 23. Gerber was requested to repay the $6,000.00 that he was paid for Invoice No. 2528 by council at the January 3, 2000, meeting. a. Members of council began to have concerns about whether Gerber could be compensated as water operator due to his position on council. b. Gerber agreed to reimburse the borough. (See Finding No. 33). 1. Reimbursement was made on March 27, 2000. 24. Due to a lack of candidates for the position of water plant operator, Council decided to offer Gerber the position. a. Gerber agreed to accept the position due to the lack of a qualified candidate. 25. At the January 3, 2000, reorganization meeting, Gerber was officially hired by Council as the borough water operator. a. Gerber was present for this meeting. b. The motion to hire Gerber carried unopposed. 1. No roll call vote was recorded in the minutes. c. Gerber asserts to have not voted for the motion. d. No abstention is noted in the meeting minutes for Gerber on this matter. 26. Gerber's compensation as the water operator was set at $1,000.00 per month on January 3, 2000. Gerber, 00- 014 -C2 Page 6 a. Council approved compensating Gerber an additional $6,000.00 (in three additional $2,000.00 monthly payments) for the services that Gerber provided as the water operator between February and November 1999. 1. No roll call vote was recorded in the minutes. b. Gerber was directed to reimburse the borough the original $6,000.00 paid on his invoice before receiving any compensation. c. Gerber was present for this meeting. d. No abstention is noted in the meeting minutes for Gerber on this matter. 27. At the time of Gerber's official hiring on January 3, 2000, there were no qualified individuals interested in the water operator position. a. The position had not been advertised since April 1999. 28. Councilwoman Hannelore Garsick questioned Gerber receiving the compensation and requested an advice concerning this matter from Shelley Houk, Director of Research, Pennsylvania State Association of Boroughs. 29. In a January 14, 2000, letter Houk advised the following concerning Gerber: a. Section 3(f) of the State Ethics Act states that no public official or an immediate family member may have an interest in any contract with the borough valued at $500.00 or more unless the contract has gone through the public bidding process. b. A council member is not entitled to receive compensation from the borough as an employee unless that person is a "bona fide" employee of the borough. c. A working council member must abstain from voting on any issue affecting himself, as this is a conflict of interest, and he must submit a memorandum to the borough secretary stating the same. 30. At the borough council meeting on February 14, 2000, the borough secretary read Houk's January 14, 2000 letter. 31. On March 21, 2000, borough solicitor Beverly Gazza, Esquire, was contacted by a borough representative and was asked to write a letter of advice concerning this matter. 32. In a March 29, 2000, letter that was forwarded to the borough secretary, Solicitor Gazza made the following recommendations regarding hiring a council member as an employee: a. That it is important that the Borough records reflect that the Council member /employee did not participate in any decisions concerning his employment; b. That the Council member /employee refrain from voting on any matter concerning his employment; and c. That the minutes of all meetings identify, by name, how each Council member voted on any matter involving the Council member /employee. By Gerber, 00- 014 -C2 Page 7 identifying each Council member by name, we will be able to confirm that the Council member /employee did not vote and that there were sufficient votes (other than the vote of the Council member /employee) to sustain the decision of Council. 33. On or about March 27, 2000, Gerber made reimbursement to the borough in the amount of $6,000.00. a. Gerber submitted to the borough Treasurer's (cashier's) Check No. 08017623 from S &T Bank on March 27, 2000. b. Gerber was not paid any additional compensation as the water operator prior to reimbursing the borough. 34. Gerber routinely participated in council actions regarding the borough water plant prior to Solicitor Gazza's advice. a. Subsequent to Solicitor Gazza's advice, Gerber has abstained from all council actions regarding the water plant. b. Gerber's abstentions are noted in meeting minutes. c. Gerber did not submit a memorandum to council outlining his conflict of interest. 35. Gerber has received the following payments in association with services as the borough water operator since being officially hired on January 3, 2000: a. Date Check # Gross Amount Net Amount 03/29/00 878 $2,000.00 $1,791.00 04/12/00 883 1,000.00 895.50 04/26/00 884 2,000.00 1,791.00 05/10/00 890 1,000.00 895.50 05/24/00 893 2,000.00 1,791.00 06/07/00 895 1,000.00 895.50 07/05/00 900 1,000.00 895.50 08/02/00 907 1,000.00 895.50 09/01/00 918 1, 000.00 895.50 Total: $12,000.00 $10,746.00 b. The $1,000.00 payments were made for work from the previous month. c. The three $2,000.00 payments were repayment of Invoice No. 2528. 36. From January 2000 through August 2000, Gerber has received payments totaling $12,000.00. a. Of the $12,000 Gerber received, $6,000.00 was for services in 1999, from February 1, 1999, to November 1, 1999, (Invoice No. 2528) prior to a salary being set by council. b. Gerber received $6,000.00 as compensation for the eight months from January through August 2000 as the officially hired water operator. Gerber, 00- 014 -C2 Page 8 37. Gerber was not paid for services rendered as the water operator from November 1999 through February 2000. a. The January- February 2000 payment was not made because Gerber had not reimbursed the borough the $3,000 [sic] as of February 2000. b. Gerber was eligible to receive $2,000.00 for January to February 2000, which was not paid. 38. Gerber received payments totaling $12,000.00 for duties performed as Ernest Borough Water Plant Operator during the period February 1999 through August 2000. a. Gerber participated in discussions and actions of council resulting in his appointment to the compensated position. III. DISCUSSION: At all times relevant to this matter, the Respondent, Thomas Gerber, hereinafter Gerber, 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 Gerber violated the following provisions of the Ethics Act when he participated in the Borough's hiring process, which eventually resulted in the Borough hiring him as Water Operator; participated in approving payments to himself for his services as Water Operator; and accepted his appointment as Water Operator without an open and public process, including prior public disclosure that he was the individual chosen for this position. 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 Act 93 of 1998 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. "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 Gerber, 00- 014 -C2 Page 9 facts. business with which he or a member of his immediate family is associated. 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 Gerber has served as a member of the Ernest Borough Council since January 1998. Prior to Gerber's appointment to Council, he was employed as the Borough Water Operator from 1975 to 1986. Gerber resumed his duties as Water Operator in October 1998 after the full -time Water Operator on duty at that time began working part -time. Gerber worked as Water Operator in an unofficial capacity, as Council took no action to approve his position, rate of compensation, work hours, or responsibilities. After the full- time Water Operator left in January 31, 1999, Gerber was the only Water Operator working for the Borough. Gerber, 00- 014 -C2 Page 10 In December 1998, Council decided to hire a full -time DEP certified Water Operator. The position for Water Operator was advertised twice in two local publications, in response to which the Borough received seventeen resumes. Gerber participated in reviewing the resumes and choosing the applicants to be interviewed. Ultimately, none of the applicants chosen accepted the position. Gerber continued to unofficially serve as Water Operator while the position remained vacant. In or about November 1999, the majority of Council felt that Gerber should be compensated for his work at the Borough Water Plant and asked him to submit an invoice for his services. On November 8, 1999, Gerber submitted an invoice for $6,000 for services rendered as Water Operator from February 1, 1999 to November 1, 1999. Council unanimously approved a motion to pay Gerber's $6,000 invoice. Gerber claims to have abstained on Council's action to approve payment of his invoice; however, the record does not reflect his abstention. Shortly after Gerber was paid, Council Members questioned the propriety of a council member receiving compensation as a water operator. At the January 3, 2000 meeting, Council asked Gerber to refund the $6,000 he received in November 1999. Gerber agreed to reimburse the Borough in full. Due to a lack of qualified individuals interested in the Water Operator position, Council decided to officially hire Gerber for the job. At the January 3, 2000 reorganization meeting, a motion to hire Gerber as Borough Water Operator carried without opposition. No roll call vote is recorded in the minutes. Gerber claims to have abstained from voting for the motion; however the record does not reflect his abstention. At the January 3, 2000 reorganization meeting, Gerber's compensation as Water Operator was set at $1,000 per month. Council also approved compensating Gerber $6,000 in three monthly installments of $2,000 for services rendered between February and November 1999. No roll call vote is recorded in the minutes. Gerber claims to have abstained on the vote regarding his compensation; however, the record does not reflect his abstention. On March 27, 2000, Gerber reimbursed the Borough $6,000. From March 29, 2000 to September 1, 2000, the Borough paid Gerber a total of $12,000. Six thousand dollars of Gerber's total compensation were for services rendered from February 1, 1999 to November 1, 1999. The remaining $6,000 were for services rendered after Council officially hired Gerber as Borough Water Operator. Having summarized the above relevant facts, we must now determine whether the actions of Gerber violated Sections 1103(a) and 1103(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 Gerber's participation in discussions and actions of Borough Council leading to his appointment and compensation as Borough Water Operator; and a payment of $500 by Gerber in settlement of this matter within 30 days of the issuance of this Order through this Commission to Ernest Borough. As to Section 1103(a) of the Ethics Act, there were uses of authority of office on the part of Gerber. But for the fact that Gerber was a Borough Council Member, he would not have been in a position to review applications, interview applicants and make recommendations to Council regarding the compensated position of Water Operator. Gerber's involvement in the hiring process resulted in the Borough officially hiring him as Water Operator, for which he received compensation at the rate of $1,000 per month. In the stipulated facts, Gerber asserts that he abstained from matters regarding his employment and compensation as Water Operator, including the payment by the Borough Gerber, 00- 014 -C2 Page 11 to Gerber of an additional $6,000. However, Council Minutes reflect that there was no roll call vote and no abstention by Gerber regarding such matters. Further, the $6,000 Gerber received was compensation that was not set by Council. The uses of authority of office by Gerber resulted in a private pecuniary benefit to him consisting of payments received for duties performed as Water Operator. Accordingly, Gerber technically violated Section 1103(a) of the Ethics Act when he used the authority of office to obtain a private pecuniary benefit for himself by reviewing applications, interviewing applicants and making recommendations to Council regarding the compensated position of Water Operator, which resulted in Gerber being hired for that position. As to Section 1103(f) of the Ethics Act, it appears that the Investigative Division, through the exercise of prosecutorial discretion, has chosen not to pursue the allegation as to the appointment of Gerber to the Water Operator position without an open and public process. We therefore need not address that particular issue. 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, Gerber is directed to make the payment of $500 through this Commission to the Borough of Ernest 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. Thomas Gerber, as a Member of Ernest Borough Council, is a public official subject to the provisions of Act 93 of 1998. 2. Gerber technically violated Section 1103(a) of the Ethics Act when he reviewed applications, interviewed applicants and made recommendations to Council regarding the compensated position of Water Operator, which resulted in Gerber being selected for that position. In Re: Thomas Gerber ORDER NO. 1192 File Docket: 00- 014 -C2 Date Decided: 2/26/01 Date Mailed: 3/12/01 1 Gerber, as a Member of the Ernest Borough Council, technically violated Section 1103(a) of the Ethics Act when he reviewed applications, interviewed applicants and made recommendations to Council regarding the compensated position of Water Operator, which resulted in Gerber being selected for that position. 2. As per the Consent Agreement, Gerber is directed to make payment in the amount of $500 through this Commission to the Borough of Ernest within thirty (30) days of the date of issuance of this order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR