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HomeMy WebLinkAbout1233 WilsonIn Re: Michael D. Wilson 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 01- 021 -C2 Order No. 1233 2/4/02 2/15/02 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 Act, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 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." Respondent submitted a letter admitting to all findings and did not request a hearing. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 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. Wilson, 01- 021 -C2 Page 2 I. ALLEGATION: That Michael Wilson, a public official in his capacity as Supervisor for Warsaw Township, Jefferson County, violated the Sections 4(a)/1104(a) and 3(a)/1103(a) of the Ethics Act (Act 93 of 1998) when he failed to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999; when he subsequently submitted backdated Statement of Financial Interests on a form not printed until January 2000; when he participated in discussions and actions of the board of supervisors resulting in a contract being awarded to Wilson's Heating Service, a business owned by his brother. II. FINDINGS: 1. Michael Wilson has served as a supervisor for Warsaw Township, Jefferson County, since February 1994. a. Wilson was appointed to fulfill an unexpired term at a special meeting held on February 22, 1994. b. Wilson was subsequently elected to a full six -year term. 2. Wilson has served as township roadmaster since January 3, 1995. a. Wilson is the only township supervisor employed by the township on a full - time basis. 3. In the late summer /early fall of 2000, the Warsaw Township Supervisors decided to convert its heating system from oil furnaces to natural gas furnaces due to rising fuel oil costs. The Warsaw Township Municipal Building is divided into two separate areas. a. Warsaw Township tapped into the natural gas line that had been installed at the Volunteer Fire Department building approximately three years prior. b. During their discussions regarding the conversion to natural gas, the board of supervisors opted to purchase new gas furnaces rather than converting the existing oil furnaces, which were approximately twenty years old. c. Michael Wilson participated in the discussions. 4. Michael Wilson was delegated the responsibility by the board to obtain quotes for the installation of new furnaces. a. Wilson, as the only full -time township employee, was available to contact vendors. 5. Michael Wilson contacted the following companies to request estimates to install new natural gas furnaces: Wilson's Plumbing and Heating Service McDonald Plumbing and Heating Johnson Heating and Air Conditioning Gary's Stoves 6. Larry Wilson is the sole owner /operator /employee of Wilson's Plumbing and Heating Service. a. Larry Wilson is the brother of Wilson Wilson, 01- 021 -C2 Page 3 b. Michael Wilson has no ownership interest in Wilson's Plumbing and Heating Service. 7 Prior to the receipt of bids, Michael Wilson accompanied both Larry Wilson (owner of Wilson's Plumbing and Heating Service) and Jeffrey Johnson (owner of Johnson Heating and Air Conditioning) when each inspected the township building to determine the building's heating needs. a. David McDonald (owner of McDonald Plumbing /Heating /Refrigeration, Inc.) did not inspect the township building in person and McDonald generated his estimate from building specifications he received via the telephone. b. Gary's Stoves did not bid on the project. 8. Three estimates were received by Warsaw Township regarding the replacement of the township furnaces. Company Date of Estimate Estimate Wilson's Plumbing and Heating Service September 19, 2000 $4,200.00 McDonald Plumbing /Heating /Refrigeration, September 29, 2000 $4,350.00 Inc. Johnson Heating and Air Conditioning October 2, 2000 $4,990.00 a. Wilson's estimate included the installation of two 300,000 BTU natural gas Beacon - Morris heaters, all gas piping for heaters inside the building, and all materials and labor. b. McDonald's estimate included the installation of two Beacon - Morris 175,000BTU high efficiency unit heaters; ceiling mounted hanging heaters; 1 1 /4 gas line from meter to unit heaters with necessary valves and shut -offs; all venting, wiring and thermostats to make complete heating system installation; and all materials and labor. c. Johnson's estimate included the installation of two Reznor F -300 300,000 BTU natural gas heaters, installation of gas piping from the back of the township building to both heaters; the wiring of the main power and controls; and all materials and labor. 9. Sealed estimates received for the replacement of the township's heating system were presented to the township supervisors and discussed at the October 2, 2001, regular meeting. a. Minutes document the presence of all three supervisors at the meeting. b. Township Secretary /Treasurer Alan Lindemuth opened the bids and presented the information to the supervisors. c. Supervisor Harold Reynolds made the motion to purchase the gas furnaces from Wilson Heating. d. Michael Wilson seconded the motion. e. Minutes document that the motion passed unanimously. f. There is no record of an abstention by Wilson. Wilson, 01- 021 -C2 Page 4 10. Wilson did not publicly disclose his relationship with Larry Wilson prior to voting on the awarding of the contract. a. The sibling relationship between Wilson and Larry Wilson was common knowledge in the township. 11. Larry Wilson submitted an invoice to Warsaw Township dated December 1, 2000, for the installation of two 300,000 BTU natural gas Beacon - Morris heaters in the amount of $4,200.00. a. Larry Wilson's invoice was based on the written estimate provided to the township on September 19, 2000. 12. Larry Wilson's invoice was placed on the November 2000 township bill list for approval at the December 4, 2000, regular supervisor's meeting. a. Warsaw Township supervisors receive the monthly bill list immediately prior to the public meetings for review. b. Supervisors' questions and /or concerns regarding the monthly bill list are addressed during the public meeting. 13. During the December 4, 2000, board of supervisors meeting, Wilson made the motion to pay the bills and accept the treasurer's report. a. The bill list included the Wilson Plumbing & Heating invoice. b. Minutes document that the motion passed unanimously. c. There is no record of an abstention by Wilson. 14. Wilson did not publicly disclose his relationship with Larry Wilson prior to voting on the paying of the November bill list. 15. Larry Wilson was issued check # 0292, dated December 4, 2000, from the Warsaw Township General Fund in the amount of $4,200.00. a. Secretary /Treasurer Alan Lindemuth's and Supervisor Reynolds' signatures appear as the two required signatures on the check. b. The endorsement on the check states, For deposit only, Wilson Heating Service." 16. Wilson Plumbing and Heating estimated its profit for the installation of the furnaces at 20 %, including equipment, parts and labor. a. Profit to Wilson Plumbing and Heating for the installation based on 20% profit is $840.00 ($4,200.00 x 20 %). 17. Larry Wilson provided other services to Warsaw Township through Wilson's Plumbing and Heating Service prior to the installation of the new furnaces. a. Larry Wilson provided various services at the municipal building when the township Volunteer Fire Department and the township office shared the same building. 1. These services included maintenance of the existing heating system. Wilson, 01- 021 -C2 Page 5 b. Larry Wilson had been utilized by Warsaw Township at times prior to Wilson becoming a township supervisor. 18. Larry Wilson serviced two furnaces at the township municipal building on December 29, 1998. a. Work performed included service and replacement of two oil nozzles on the existing furnaces. 19. Larry Wilson submitted an invoice to Warsaw Township dated December 29, 1998, for the servicing of two furnaces in the amount of $100.00. a. Larry Wilson's payment was based on the cost of replacement parts ($10.00) and labor ($90.00). 20. Larry Wilson's payment was placed on the January 1999 township bill list for approval at the February 1, 1999, regular supervisor's meeting. a. Minutes document the presence of all three supervisors at the meeting. 21. Michael Wilson made the motion to pay the bills and accept the treasurer's report at the February 1, 1999, public meeting. a. Minutes document that the motion passed unanimously. b. There is no record of an abstention by Wilson. 22. Larry Wilson was issued check # 9527, dated January 5, 1999, from the Warsaw Township General Fund in the amount of $100.00. a. Wilson's signature appears as one of two required authorizing signatures on check # 9527. b. The endorsement on the check states, "For deposit only, Wilson's Heating Service." The following findings relate to the allegation that Michael Wilson failed to file a Statement of Financial Interests for the 1998 calendar year and subsequently backdated the form. 23. On February 22, 2001, a Statement of Financial Interests Compliance Review was conducted for at the home office of the Warsaw Township Secretary/ Treasurer, Alan Lindemuth. a. The review had been scheduled by investigators for the State Ethics Commission prior to February 22, 2001. 24. Michael Wilson's Statements of Financial Interests for calendar years 1997, 1998, 1999, and 2000 were reviewed during the compliance review. 25. Wilson filed Statements of Financial Interests in his position as a Warsaw Township Supervisor for calendar years 1997, 1999, and 2000 on January 6, 1998; February 13, 2000; and February 19, 2001 respectively. 26. The review of Statements of Financial Interests on file with Warsaw Township confirmed a Statement of Financial Interests for Michael Wilson filed for calendar year 1998. Wilson, 01- 021 -C2 Page 6 a. Wilson's 1998 calendar year Statement of Financial Interests was dated March 3, 1998. b. The Statement of Financial Interest form utilized by Wilson for the filing of the 1998 calendar year statement contained a revision date of 01/00. 27. Statement of Financial Interests Forms SEC -1 Rev. 01/00 were received by the State Ethics Commission from the printer in January 2000. 28. The Statement of Financial Interest forms SEC -1 Rev. 01/00 were mailed by the State Ethics Commission to municipalities throughout the Commonwealth on January 21, 2000. a. On March 3, 1998, the purported dated of the filing of Wilson's 1998 calendar year Statement of Financial Interests, the form used had not yet been printed. 29. Wilson admitted he submitted the backdated form after being notified that the State Ethics Commission was conducting a compliance review and that a form for him for the 1998 calendar year was not on file. a. Wilson, along with other township officials, backdated the forms, giving the impression they were timely filed. III. DISCUSSION: At all times relevant to this matter, the Respondent, Michael D. Wilson, hereinafter Wilson, has been a public official subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., (Ethics Act). The allegations are that Wilson violated Sections 1104(a) and 1103(a) of the Ethics Act when he failed to file a Statement of Financial Interests (FIS) for the 1998 calendar year by May 1, 1999, and then subsequently submitted a backdated FIS form not printed until January 2000; and when he participated in discussions and actions of the board of supervisors as to a contract with Wilson's Heating Service, a business owned by his brother. Pursuant to Section 1103(a) of the Ethics Act, 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 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 Wilson, 01- 021 -C2 Page 7 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 1104(a) of the Ethics Act quoted above requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Having noted the issues and applicable law, we shall now summarize the relevant facts. Wilson has served as a Supervisor in Warsaw Township since February 1994 and as the only full -time employee of the township. In the latter part of 2000, the Warsaw Township Supervisors considered converting the heating systems in the municipal building from oil to natural gas furnaces due to rising fuel oil prices. Given the age of the existing oil furnaces, the supervisors decided to purchase new gas furnaces rather than to convert the existing oil furnaces. The board delegated to Wilson the responsibility to obtain quotes for the installation of new furnaces. Wilson contacted four businesses for quotes, one of which was Wilson's Plumbing and Heating Service, a proprietorship owned by Wilson's brother Larry. Three businesses submitted bids ranging from a high of $4,990 to a low bid of $4,200 from Wilson's Plumbing and Heating Service. The bids were received and opened by the township supervisors at an October 2001 meeting of the board. At that meeting, Supervisor Reynolds made a motion to purchase the gas furnaces from Wilson Heating followed by a second from Wilson. The minutes reflect that the motion passed unanimously with no abstention by Wilson. Wilson did not publicly disclose his relationship with his brother Larry prior to his voting on the award of the contract. However, the relationship between Wilson and his brother was common knowledge in the township. Following the furnace installations, Larry Wilson submitted an invoice to Warsaw Township in the amount of $4,200 as per his written bid. Larry Wilson's bill was included in the bill list for the December 4, 2000, board meeting. During the meeting, Wilson made a motion to pay the township bills which motion passed unanimously. Once again, Wilson did not publicly disclose his relationship with Larry Wilson prior to voting on the bills list. Thereafter, the township issued a check in the amount of $4,200 in full payment to Larry Wilson for installation of the gas furnaces. Larry Wilson received a profit of approximately $840 for the installation of the two furnaces at the township building. Subsequently, Larry Wilson serviced the two furnaces and billed the township $100. That invoice was placed on a bill list which was unanimously approved for payment. Wilson cosigned the township check made in payment to Larry Wilson. Regarding Wilson's FIS's, this Commission gave notice to the township secretary that it would be conducting a compliance review on February 22, 2001. At the time, Wilson's FIS's for the calendar years 1997 through 2000 inclusive were reviewed. The FIS filed by Wilson for the calendar year 1998 reflects a written filing date of March 3, 1998. However, the FIS form used by Wilson had a SEC -1 (REV. 01 -00) designation which indicates that that particular form was mailed by the Commission to municipalities throughout the Commonwealth on January 21, 2000. Hence, the purported filing date of Wilson, 01- 021 -C2 Page 8 March 1, 1998, by Wilson was written on an FIS form that was not printed at that time. Subsequently, Wilson admitted that he backdated his 1998 calendar year FIS because he received notice that the Commission was conducting a compliance review and he knew that his 1998 calendar year FIS was not on file. Wilson backdated the FIS form to give the impression that it was timely filed. Having summarized the above relevant facts, we must now determine whether the actions of Wilson violated Sections 1104(a) and 1103(a) of Act 9 of 1989. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find that Wilson violated Section 1103(a) of the Ethics Act when he participated in the process to purchase the furnaces for the municipal building from Wilson Plumbing and Heating Service, a business owned by his brother; that Wilson violated Section 1104(a) of the Ethics Act when he failed to timely file and backdated his FIS for the calendar year 1998; and that Wilson make payment of $200 to Commonwealth of Pennsylvania through this Commission within 30 days of the issuance of this Order: $100 for failing to file an FIS for the 1998 calendar year by May 1, 1999, and $100 for violating Section 1103(a) of the Ethics Act regarding his participation in the purchase of furnaces from his brother's company. In applying Section 1103(a) of the Ethics Act to the instant matter, there were uses of authority of office on the part of Wilson in this case. Wilson was the supervisor who was delegated the responsibility of contacting vendors for the purpose of submitting bids to replace the township furnaces. In addition, Wilson seconded the motion and voted to award the bid to Wilson's Plumbing and Heating Service. Further, Wilson made the motion and voted to approve Larry Wilson's invoice in payment for his installation of the furnaces. Such actions were the uses of authority of office. See, Juliante, Order 809. Such uses of authority of office resulted in a private pecuniary benefit consisting of the profit of $840 that was made on the purchase and installation of the furnaces. That private pecuniary benefit inured to Larry Wilson who, as Wilson's brother, is a member of his immediate family as that term is defined under the Ethics Act. Payment was issued to Wilson's Plumbing and Heating Service which is wholly owned by Larry Wilson. Hence, Wilson's Plumbing and Heating Service is a business with which a member of Wilson's immediate family is associated as that term is defined under the Ethics Act. Accordingly, Wilson violated Section 1103(a) of the Ethics Act when he participated in the purchase of furnaces for the municipal building from Wilson Plumbing and Heating Service, a business owned by his brother. Wilson as a Warsaw Township Supervisor, is required to annually file an FIS on or before May 1s` for the prior calendar year. In this case, not only did Wilson fail to file an FIS for the calendar year 1998 on or before the May 1 St deadline, he signed his name and backdated an FIS form that was not in print or mailed out by this Commission at the time of the purported filing. Accordingly, Wilson violated Section 1104(a) of the Ethics Act when he failed to timely file and backdated his FIS for the calendar year 1998. We determine that the Consent Agreement submitted by the parties sets forth 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, Wilson is directed to make payment of $200 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing date of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Wilson, as a Supervisor in Warsaw Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. Wilson, 01- 021 -C2 Page 9 2. Wilson violated Section 1103(a) of the Ethics Act when he participated in the purchase of furnaces for the municipal building from Wilson Plumbing and Heating Service, a business owned by his brother. 3. Wilson violated Section 1104(a) of the Ethics Act when he failed to timely file and backdated his Statement of Financial Interests for the calendar year 1998. In Re: Michael D. Wilson ORDER NO. 1233 File Docket: 01- 021 -C2 Date Decided: 2/4/02 Date Mailed: 2/15/02 1 Wilson, as a Supervisor in Warsaw Township, violated Section 1103(a) of the Ethics Act when he participated in the purchase of furnaces for the municipal building from Wilson Plumbing and Heating Service, a business owned by his brother. 2. Wilson violated Section 1104(a) of the Ethics Act when he failed to timely file and backdated his Statement of Financial Interests for the calendar year 1998. 3. Per the Consent Agreement of the parties, Wilson is directed to make payment of $200 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing date 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