HomeMy WebLinkAbout1237 Cuppels (2)In Re: Gary T. Cuppels
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
Michael Healey
99- 059 -C2; 00- 007 -C2
Order No. 1237
5/2/02
5/16/02
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
investi9ation, the Investigative Division served upon Respondent written notice of the specific
allegation(s). Upon completion of its investi9ation, 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 (deemed)(waived)(held). (The record is complete).
A Consent Agreement and Stipulation of Findings were submitted by the parties to the
Commission for consideration. The Stipulation of Findings is quoted as the Findings in this
Order. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Cuppels 99- 059 -C2; 00- 007 -C2
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ALLEGATION:
a. That Gary T. Cuppels, a public official /public employee, in his capacity as a Supervisor
for Exeter Township, Berks County, violated Sections 3(a)/1103(a), 3(c)/1103(c) and
3(f)/1103(f) provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. § §1103(a),
1103(c) and 1103( when he used the authority of his office and /or confidential
information obtained from holding public office for the benefit of himself and /or a
business with which he is associated by reviewing and participating in the drafting,
issuance and review of specifications, Requests for Proposals, and received
bids /proposals relating to township projects and participating in discussions and other
actions relating to township projects in his capacity as a township supervisor resulting
in a business which employs him as Vice President, being awarded contracts or
subcontracts related to township projects; when he participated in the supervision
and /or administration of such contracts or subcontracts; when he used the authority of
his position to insure that business was able to alter a bid that was submitted to the
township after the closing date for said bids resulting in the award of a contract by the
township to that business; and when he used his position to have the township hold
escrowed funds due a developer until that developer paid a private bill owed to the
business with which he is associated.
AND
b. That Gary T. Cuppels, a public official /public employee, in his capacity as a Supervisor
for Exeter Township, Berks County, violated Sections 3(a)/1103(a) and 3(c)/1103(c)
provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §§1103(a) and 1103(c)
when he participated in discussions, actions and votes of the board of supervisors to
create a paid position for himself with the township; and when he voted to approve
payments to himself; and when he used the authority of his elected office to participate
in discussions and actions of the board of supervisors resulting in the use of the
township solicitor to represent him in a lawsuit against the auditors over wages for his
township position, including voting to approve payments for legal and related services.
II. FINDINGS:
1. Gary Cuppels has served as an Exeter Township Supervisor since January 2, 1996.
2. Exeter Township is a Second Class Township located in Berks County.
a. Exeter Township is governed by a five member board of supervisors.
3. Gary Cuppels has been employed as an Executive Vice - President for the Vitillo
Corporation since 1991.
a. Cuppels' expertise is a professional land surveyor and planner.
4. The Vitillo group of entities is comprised of four (4) companies.
a. Vitillo Engineering Incorporated.
b. Vitillo Environmental Incorporated.
c. Vitillo Construction Incorporated (Environmental Constructors)
d. Emergency Data Corporation.
5. Personnel are shared within these entities on an as needed and expertise basis.
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6. In his capacity as Executive Vice- President of Vitillo Corporation, Gary Cuppels serves
as the manager for Vitillo Engineering, Inc.
a. Cuppels performs duties for the other Vitillo corporations as needed.
b. The duties Mr. Cuppels oversees include the review and approval of bids
subject to review by John Vitillo, President of the company.
c. Mr. Cuppels meets with project engineers to review invoices over which he has
control.
d. Cuppels reports directly to John Vitillo, Company President.
7. At the time that Cuppels began serving as a township supervisor in 1996, Exeter
Township employed a township manager to oversee the day to day activities of the
township.
a. The township manager resigned effective July 22, 1996.
b. The board discussed various options for replacing the manager.
c. The agreed upon option by the board was to abolish the manager position and
to allow staff to function under the supervision of the Board of Supervisors.
d. Supervisors would serve as liaisons to various township departments.
e. Gary Cuppels participated in these discussions.
8. In January, a list of the various township departments and the name of the supervisor
who would serve as department heads was developed.
9. During the January 13, 1997, Board of Supervisors regular meeting action was taken
by the board to appoint individual supervisors as directors of various township
departments.
a. A motion was made by Supervisor Craig Breneiser and seconded by Gary
Cuppels to appoint the supervisors as temporary employees with appropriate
salaries to be set by the township board of auditors in accordance with the
Second Class Township Code as follows:
Linda Buler:
Gary Cuppels:
Craig Breneiser:
Michelle Kircher:
Lachlan MacBean:
Director of Administration, Parks & Recreation
Director of Engineering and Highway Maintenance
Director of Public Safety and Human Resources
Director of Code Enforcement and Water
Director of Waste Water Treatment
b. The motion was approved by a 5 to 0 vote.
10. Cuppels was appointed Director of the Engineering and Highway Departments due to
his experience, expertise and desire to serve in that capacity.
11. On January 20, 1997, the board unanimously approved a motion by Cuppels to adopt
the Director of (Department /Service) job description, which included, in part, the
following:
General Definition: A director is assigned to provide liaison and coordination between
a limited scope of Township agencies, services, departments and personnel and the
Cuppels 99- 059 -C2; 00- 007 -C2
Page 4
Board of Supervisors. Assistance is provided in lanning, implementing and
maintaining the operations that fall within the assigned limits of the directorship.
A director will work both independently and in concert with managers and personnel to
accomplish the responsibilities within his scope of authority.
Supervision Received: A director is responsible solely to the Board of Supervisors.
Essential Duties:
• Plan, organize and direct activities in one (and occasionally more) of the
following areas of Township operations.
Administration, Parks & Recreation
Codes Enforcement & Water
Engineering & Highway Maintenance
Public Safety & Human Services
Waste Water Treatment
• Serve as advisor and liaison between the Board of Supervisors and the
assigned areas of operation.
• Assist with the financial management and planning for departments and
programs within the assigned areas of operation.
• Meet with appropriate personnel, agencies, groups, etc. and work independently
to develop and maintain programs intended for the benefit of the Township and
its residents.
• Perform other job - related duties as required or assigned within the assigned
area of operation.
12. During the board of supervisors' reorganization meeting of January 5, 1998, members
of the board of supervisors were reappointed to the various director positions.
13. Appointments made by the board on January 5, 1998, included the following:
a. DIRECTOR OF ENGINEERING and HIGHWAYS
MOTION by Mr. Breneiser, seconded by Mrs. Kircher to appoint Gary T.
Cuppels as Director of Engineering and Highways for Exeter Township for the
year 1998. Motion carried with Mrs. Buler, Mr. Breneiser, Mrs. Kircher and Mr.
Cuppels voting in favor.
14. On January 12, 1998, Cuppels' motion was unanimously approved authorizing
advertising of a meeting of the township board of auditors for the purpose of setting
bond limits for treasurer, secretary and finance officer and for the 1998 rate of
supervisors serving as directors of departments.
15. In March 1998 the duties of department directors were increased to include executing
contracts pertaining to their respective departments.
a. A motion expanding the duties was approved at the March 23, 1998, board
meeting upon a motion by Breneiser and a second by Cuppels.
16. Members of the board of supervisors were reappointed to various director positions
during the January 4, 1999, reorganization meeting.
Cuppels 99- 059 -C2; 00- 007 -C2
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17. Appointments were made by the board on January 4, 1999, included:
DIRECTOR OF ENGINEERING AND HIGHWAYS
MOTION by Mr. Breneiser, seconded by Mrs. Kircher to appoint Gary T. Cuppels as
Director of Engineering and Highways for Exeter Township for the year 1999. Motion
carried with Ms. Buler, Mr. Breneiser, Mrs. Kircher and Mr. Cuppels voting in favor.
18. The appointments of township supervisors to the director positions was again
discussed by the board of supervisors during the January 4, 2000, reorganization
meeting.
a. Cuppels' motion, seconded by Kircher to retain Linda K. Buler as Director of
Administration and Parks & Recreation, Gary T. Cuppels as Director of
Engineering & Highways, Michelle P. Kircher as Director of Code Enforcement
and Water Quality, Lachlan MacBean as Director of Wastewater Treatment and
Police and to appoint Deborah D. Fatora as Director of Community Relations
and Fire /Ambulance Services for Exeter Township for the year 2000 was
carried with Buler, Kircher, Cuppels and Fatora voting in favor. MacBean was
absent from the meeting.
19. Following the vote Supervisor Michelle Kircher questioned whether she should have
abstained from the vote.
a. Solicitor John Hoffert, who was present at the meeting, advised that board
members did not need to abstain from the vote because it would not be a
conflict of interest under the code.
20. During the years 1997 -1999, the township board of auditors annually approved
compensation for members of the Exeter Township Board of Supervisors employed by
the township.
a. The rate of compensation was fixed at $20 /hour with a cap of $400 /month.
21. On January 14, 1997, the board of supervisors directed a letter to the township
auditors requesting compensation be set for supervisors employed in the various
director positions.
22. In the year 2000, the Exeter Township Board of Auditors would not approve
compensation for supervisors serving as Director of Departments.
23. On January 10, 2000, the board of supervisors took action authorizing the solicitor to
bring any such appropriate legal action necessary, including an action in mandamus, to
require the auditors to approve compensation for the supervisors employed by the
township.
a. The action was approved by a 3 to 1 vote with one abstention upon a motion by
Cuppels, second by MacBean. Cuppels, MacBean and Buler voted in favor of
the motion. Kircher abstained and Fatora opposed.
24. On February 14, 2000, Exeter Township Solicitor John Hoffert, Jr., filed a Mandamus
Action against the township auditors in the Berks County Court of Common Pleas for
failing to set salaries of supervisors serving as department heads based on directions
from Supervisors Cuppels, MacBean and Buler.
a. The action filed by Hoffert, on behalf of Exeter Township Supervisors Gary
Cuppels, Linda Buler and Lachlan MacBean sought the following:
Cuppels 99- 059 -C2; 00- 007 -C2
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- Judgment against the auditors directing them to determine the
compensation for the current year for the supervisors employed by the
township as directed under the Second Class Township Code.
- Award reasonable attorney fees, costs and expenses.
25. Between March 3, 2000, and March 27, 2000, the representation of Cuppels, Buler
and MacBean was changed to Attorney Adam Krafczek.
26. On July 10, 2000, Solicitor John Hoffert requested the board of supervisors pay for the
transcription of depositions of Buler, Cuppels and Starr regarding the auditors litigation.
a. The invoice for the township was given by Krafczek to Hoffert to get board
authorization to pay the fee.
b. The invoices addressed to Adam B. Krafczek from Computerized Reporting
Services totaled $223.56.
c. A Motion was approved by a 3 to 0 vote with Cuppels and Buler abstaining.
d. 1/3 of the transcription fee totals $74.52.
27. On July 17, 2000, Supervisor Michelle Kircher rescinded her second on the motion
and subsequent vote of July 10, 2000, authorizing payment of the transcription fees.
a. Cuppels stated he would second the original motion made on July 10, 2000, by
Lachlan MacBean.
b. A motion was then made by MacBean to approve the payment which was
seconded by Cuppels and approved by a 3 to 1 vote with Cuppels, MacBean
and Buler voting in favor.
c. Cuppels claims that such action was taken on the advice of the township
solicitor.
28. The Mandamus Action filed by Cuppels, Buler and MacBean is pending as of
September 6, 2000.
29. Following his appointment as Director of Engineering and Highways Gary Cuppels
began submitting time sheets on a bi- monthly basis documenting hours worked as
department head.
a. These time sheets completed between January 1, 1997, and December 31,
1999, were used to determine compensation paid to Cuppels.
b. Cuppels' time sheets were submitted on a monthly basis detailing hours
worked.
c. The time sheets were not approved by any other member of the board.
30. Payments were issued by Exeter Township to Gary Cuppels based on time sheets
submitted by Cuppels.
31. Between January 1997 and January 2000 payments were issued to Gary Cuppels for
director duties totaling $7,043.63 [sic].
a. 1997: $1,791.71
Cuppels 99- 059 -C2; 00- 007 -C2
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1998: $2,452.23
1999: $2,796.69
32. Payments issued to supervisors for director /department head duties are approved by
the board of supervisors on a monthly basis as part of the payroll.
a. These payments have been unanimously approved by the board.
33. Gary Cuppels, in his capacity as an Exeter Township Supervisor, was one of two
signatures on two checks issued to him for services preformed as Director of
Engineering and Highways.
Date Check No. Amount
11/13/97 29291 $192.31
02/18/99 32961 $222.49
34. Since January 2000 Gary Cuppels has not been compensated by Exeter Township for
serving as Director of the Engineering and Highway Departments.
35. During the time period that Gary Cuppels has served as an Exeter Township
Supervisor, Vitillo Corporation, Vitillo Environmental and Vitillo Construction have
submitted bids and /or quotes for projects being bid by the township and home [sic]
been awarded township contracts relating thereto.
36. Exeter Township has awarded contracts for public projects by either solicitation for
requests for proposals (RFPs), price quotes or by advertising through the competitive
bid process.
a. Competitive bidding is utilized on projects in excess of $10,000, with the
exception of professional services.
b. The RFP process and price quotes are used for projects less than $10,000.
37. The board of supervisors authorizes the issuance of RFPs or directs that the projects
be advertised for bid.
38. Gary Cuppels, as have other members of the township board of supervisors,
participated in board actions seeking RFPs, price quotes, and authorizing competitive
bidding for projects in Exeter Township.
39. When soliciting RFPs for engineering and construction projects the Exeter Township
Engineer sends a[n] RFP package to a list of potential bidders.
40. John Theisen has served as the Exeter Township Engineer from approximately May
1988 through December 2001.
a. Theisen is generally the Exeter Township official responsible for preparing
specifications for bids and requests for proposals for engineering and
construction related projects.
41. In January 1997, Gary Cuppels became the township supervisor appointed as Director
of the Engineering and Highway Department of which Theisen was head.
42. Prior to January 1996, the companies associated with the Vitillo Corporation did limited
work in relation to township projects.
43. Companies associated with the Vitillo Group were put on the RFP list of bidders by
Cuppels 99- 059 -C2; 00- 007 -C2
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John Theisen after Gary Cuppels began serving as a township supervisor.
44. Within six months of getting elected to serve as an Exeter Township Supervisor, Gary
Cuppels attempted to secure business for the Vitillo Corporation.
a. By a letter dated July 31, 1996, to the Chairman of the Board of the Exeter
Township Supervisor, Cuppels requested that the Vitillo Group be considered
as a vendor to provide the services to the township regarding the adoption of the
Building Officials Code of America (BOCA).
1. The BOCA code is a building code requiring all residential and
commercial buildings be constructed in compliance with the BOCA code
as a minimum standard.
2. Cuppels advised the township the Vitillo Group had BOCA certified
instructors on staff and was willing to assist the township in the transition
of the new statewide building code.
3. The letter is signed Gary T. Cuppels, Executive Vice President, Vitillo
Group.
b. The letter sent by Cuppels was a mass mailing to all townships and boroughs in
Berks County and some of the surrounding counties.
45. In 1996 and thereafter, Vitillo Corporation, including Vitillo Engineering, Vitillo
Construction, and Vitillo Environmental regularly submitted bids, price quotes and
proposals to the township for engineering or construction projects.
46. Gary Cuppels, in his capacity as an Exeter Township Supervisor and Director of
Engineering and Highways, participated in the drafting or reviewing of specifications,
price quotes and RFPs and discussions for the following projects which were
eventually obtained by the Vitillo Corporation.
a. Pineland Park
b. GIS Survey
c. Storm Drainage Update Study
d. Schuylkill River Trail, Section 2 Survey
47. Since at least July 1998, questions have been raised regarding Gary Cuppels'
participation as an Exeter Township Supervisor in matters related to the Vitillo Group.
a. In a letter to the Exeter Township Supervisors dated July 15, 1998, Donald
Wilson, a member of the township Planning Commission and a former township
supervisor, questioned Cuppels' participation during the review of Vitillo plans,
including formal comments, prior to official action of the board.
1. Wilson claimed although Cuppels abstains from voting, his comments
could influence votes of the board.
b. On August 5, 1998, Jordan Bausher, Chairman of the Township Planning
Commission sent a letter to the township similar to Wilson's, which also
claimed:
1. "As the Vice President of Vitillo Corp. who is responsible for all
Cuppels 99- 059 -C2; 00- 007 -C2
Page 9
the Development Planning business Gary Cuppels has a serious
conflict of interest involving Exeter Township that is worrisome. It
is our understanding that Mr. Cuppels does not vote on plans
presented by Vitillo Corp. which is the correct thing to do,
however his specialized knowledge must have an influence on
the opinions of other Supervisors during discussions on any
plan. Developers seeking an engineering firm could well be
influenced by this connection. As supervisor in charge of the
Exeter's Engineering Dept. Mr. Cuppels compounds the conflict
of interest particularly as it applies to developers in that Vitillo
Corp. could well become the engineering firm of preference with
developers with projects in Exeter Township. Direct or indirect
control over who reviews plans is also problematic. If Vitillo plans
are reviewed "in house" the person reviewing the plans now
"works for" Gary Cuppels. Keep in mind that we are getting an
increasing number of projects from Vitillo Corp."
2. The letter requests that one of the supervisors replace Cuppels as the
supervisor in charge of engineering to diminish Cuppels' conflict of
interest exposure.
3. At township board of supervisor meetings Cuppels disclosed when his
employer, the Vitillo Group, was entering into a contract with the
township.
48. Between 1997 and 1999 when Gary Cuppels served as Director of the Township
Engineering Department, companies associated with the Vitillo Group have been
awarded by way of the competitive bid process one -third of all construction and
surveying projects in Exeter Township.
a. ECI or Vitillo Group have [sic] been awarded as low bidder 6 of 15 projects for a
total of $569,478.
b. No other company was awarded more than two (2) contracts.
c. The total of the other ten contracts combined was $259,109.00.
d. Vitillo also was a subcontractor on the GIS survey with a contract of $30,600
and was awarded a surveying contract for the Schuylkill River Trail, Section 2,
in an amount of $4,360.00.
The following findings relate to Exeter Township's award of bids for Handicap Ramp
Project No. 9
49. Since at least January of 1997, Exeter Township has awarded contracts for the
installation of handicap ramps on township sidewalks.
50. On January 20, 1997, the Exeter Township Board of Supervisors approved advertising
for sealed bids for the Handicap Ramp Contract, Number 9.
a. The motion to authorize the advertisement was seconded by Gary Cuppels.
b. The motion was approved unanimously.
51. On January 22, 1997, the specifications for Handicap Ramp Contract, Number9, were
written and assembled by Township Engineer John Theisen.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 10
a. The advertisement seeking bids for Handicap Ramp Project, Number 9,
appeared in the Reading Eagle /Reading Times on January 26 and 29, 1997.
52. Specifications were picked up or mailed to eight contractors in the Reading area
including Environmental Constructors, Inc.
53. On February 10, 1997, at 4:05 p.m., prior to the receipt of bids by Exeter Township,
Gary Cuppels telephoned John Theisen at the Exeter Township Municipal Building.
a. The purpose of Cuppels' call was to discuss with Theisen the splitting of the
handicap contract in order to avoid paying the prevailing wage rates.
b. Prevailing wage rates would increase costs of the project and require the
contractor to obtain a greater bid bond due to increased project costs.
c. Prevailing wage rates would also increase the cost to the township.
d. Such is common practice in municipalities.
54. Bids were submitted by Monday, February 17, 1997, for the Handicap Ramp Number 9
project from four of the firms receiving the specifications.
a. Bids were received from the following companies:
Bertolet Construction $17,871.00
E.J. Breneman $20,125.00
Dessco $20,567.75
Environmental Constructors $16,100.00
55. During the Board of Supervisors meeting of February 17, 1997, a motion was
approved to table action on the Handicap Ramp Project, Number 9 and refer bids to the
township engineering department for tabulation and recommendations.
a. Gary Cuppels was present during the meeting, participated in certain
discussions and voted on the motion.
56. On February 24, 1997, the board of supervisors awarded the Handicap Ramp
Contract., Number 9, to Environmental Constructors in the amount of $16,100.00.
a. Gary Cuppels abstained from the vote on this project.
57. Environmental Constructors initially invoiced Exeter Township for the Handicap Ramp
Number 9 project on May 31, 1997, invoice numbers 0003316 and 0003279.
a. These invoices totaled $802.50.
b. On July 14, 1997, Exeter Township check number 031748 was issued to
Environmental Constructors in the amount of $802.50.
c. This check was approved by the board of supervisors by unanimous vote on
July 14, 1997, in a general disbursement list which included other bills.
1. Gary Cuppels participated in the general disbursement vote approving
payment.
58. Environmental Constructors invoiced Exeter Township on July 31, 1997, invoice
number 0003518 in the amount of $15,297.50. The invoice indicated labor and
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materials to supply and install the ADA ramps.
a. Details on the July 31, 1997, invoice indicate that on July 27, 1997, project
manager Gary Cuppels worked 1.5 hours at the rate of $72.00 /hour for a total
of $108.00 of this invoice.
b. Gary Cuppels claims that this bill was sent in error and that the work he
performed was simply driving a Vitillo dumptruck in an emergency situation
because the normal driver was not available, and Mr. Cuppels was the only
other individual at Vitillo with a CDL license.
c. On August 25, 1997, the board of supervisors approved check number 032179
in the amount of $15,297.50 to Environmental Constructors, Inc.
1. Gary Cuppels abstained from voting to approve payment of this check.
2. Gary Cuppels signed check number 032179 authorizing payment.
The following findings relate to Exeter Golf Club Estates representation before Exeter
Township by the Vitillo Group
59. Enrico Filippini is President of Guiseppe Filippini, Inc, a land development company.
60. In 1986 [sic] Filippini began construction of a development in Exeter Township known
as Exeter Golf Club Estates.
61. On or about July 1996, Filippini contracted with Vitillo Group, Inc, to provide
engineering services for Phase IV of the Exeter Golf Club Estates.
a. Filippini met with John Vitillo, Gary Cuppels and Brian Boyer of Vitillo Group
when discussing plans and scope of work.
62. On or about September 23, 1996, Filippini utilized the services of Environmental
Constructors, a Vitillo Company, to perform construction services related to Phase III,
Section B of the Exeter Golf Club Estates.
a. Work to be completed by Environmental Constructors included site work,
sanitary sewer and water line installation, roadway and cul -de -sacs, erosion
and sediment controls and monuments.
63. In 1997, the Exeter Township Board of Supervisors took the following actions on
Phase IV of Exeter Golf Club Estates.
a. January 13, 1997:
b. February 24, 1997:
Unanimously approved Preliminary Plan for Phase IVwith
parking on one side of the street. Gary Cuppels
participated in the discussion and abstained from the vote.
Unanimously approved entering into a sewer extension
agreement with Exeter Golf Club Estates. Gary Cuppels
participated in the vote and participated in the discussion.
Gary Cuppels claims that the township solicitor authorized his vote on
this issue, although such authorization was not in writing and is not
included in the township minutes.
c. August 25, 1997: Deferred action on approving final plan of Exeter Golf
Club Estates. Gary Cuppels present, participated in the
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Earth Work: Soil and Erosion
Water Main Service
Storm Sewer
discussion.
d. September 8, 1997: Unanimously approved Plan IV with 28 feet wide streets.
Gary Cuppels was not present.
64. Gary Cuppels claims his discussion and participation in the above - referenced matters
was limited to roadway widths and other non - specific issues relating to the Exeter Golf
Club Estates plan.
65. During the construction phase of Phase III, Section B of Exeter Golf Club Estates, a
dispute arose between Vitillo and Filippini over the services provided by the Vitillo
Group.
66. A decision was made by Filippini sometime in or about September 1997 to no longer
utilize the services of any of the companies associated with the Vitillo Group.
67. At the time Filippini decided to end the business relationship with Vitillo, approximately
$20,000 was owed to Vitillo Group for engineering fees.
68. Developers in Exeter Township are required to escrow funds to cover the costs of
improvements being made to development sites.
a. The escrow funds are to cover costs for site improvements including streets,
sewer and water lines.
b. Escrow monies can only be released upon certification by the township that
improvements have been made.
1. Site improvements are inspected by the township engineer who reports
to the board whether escrow funds should be released.
2. The township board of supervisors then votes to release the escrow.
c. Once the township approves the escrow request, funds are available for the
developer to release to various contractors.
69. On or about September 5, 1997, Enrico Filippini escrowed in excess of $280,000 for
site improvements for Phase IV.
70. On or about October 7, 1997, Filippini submitted a request to the township for the
release of escrow funds totaling $66,199.96 for the following site improvements.
71. Filippini's request was reviewed by John Theisen on October 8, 1997, and then
referred to the board of supervisors for review and approval.
a. Theisen certified that the improvements listed in the request had been
completed.
72. The request was to be reviewed by the Exeter Township Board of Supervisors during
their October 13, 1997, meeting.
73. On the morning of October 13, 1997, John Vitillo faxed a letter to the Exeter Township
Board of Supervisors requesting the board withhold release of any escrow funds for
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Exeter Golf Club Estates. Vitillo's letter stated as follows:
"I respectfully request that the Exeter Township Board of
Supervisors withhold any and all escrow funds on the Exeter Golf
Club Estates Subdivision until all Vitillo Group, Inc., professional
services fees on the project are paid in full.
Your assistance in this matter is greatly appreciated."
74. Vitillo's letter was discussed during the board of supervisors meeting of October 13,
1997.
a. Questions arose whether the township had the authority to withhold escrow
funds because unescrowed professional fees were not paid.
b. Cuppels brought up the issue of Vitillo not being paid by Filippini and requested
a review by the township solicitor regarding whether the escrow money could be
withheld pending payment by Filippini to Vitillo.
c. Michael Rhodes, LSR Contractors (contractor for Filippini) questioned why the
contractor should be penalized because the developer did not pay the engineer.
75. After the Board's discussion, Township Solicitor John Hoffert recommended releasing
$40,000 of $66,199.96 and deferring action on the release of the balance until he had
an opportunity to contact Mr. Filippini's attorney.
a. A motion was then made by Breneiser, second by MacBean to authorize partial
release of escrow funds for Exeter Golf Club Estates in the amount of $40,000
with the release of the escrow balance of $26,199.66 contingent upon the
solicitor's recommendation.
1. The motion was approved by a 3 to 1 vote with Gary Cuppels abstaining.
76. Although Gary Cuppels abstained from the vote on October 13, 1997, to withhold the
escrow fund, he advanced the interests of his employer, the Vitillo Group, by
requesting that the township solicitor review whether the escrow request could be held.
77. On October 14, 1997, after being advised that a portion of the escrow was being
withheld, Filippini telephonically contacted the Vitillo Group.
a. A telephone call was placed to Vitillo's main telephone number at (717) 796-
1012at11:24a.m.
b. Filippini first spoke with John Vitillo regarding the letter and the withholding of
the escrow.
c. Filippini testified that he then asked to speak to Gary Cuppels.
1. Filippini testified that he wanted to speak to Cuppels because of
Cuppels' position on the board of supervisors and to advise that he
believed the action of withholding the escrow was not legal.
d. Filippini testified that he advised Cuppels that the township could not withhold the
escrow funds.
e. Filippini testified that Cuppels told him that once he paid Vitillo, the escrowed
funds would be released.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 14
f. Gary Cuppels denies having had a conversation as noted above with Filippini.
78. On that same date, October 14, 1997, Filippini issued check no. 1018 drawn on the
account of Guiseppe Filippini, Inc., in the amount of $19,788.19 to Vitillo Group, Inc.
a. The check was deposited by the Vitillo Group on October 20, 1997.
b. Filippini testified that he issued the check as a result of his conversation with
Cuppels.
1. Filippini testified that he believed that if he did not pay Vitillo, his escrow
monies would not be released.
79. John Vitillo wrote a letter to Guiseppe Filippini, dated October 20, 1997, which advised,
in part:
a. "After receiving your check in the amount of $19,788.19, I authorized the
release of the escrow funds at Exeter Township."
80. Exeter Township subsequently released the balance of the escrow funds.
81. Exeter Township had never previously held escrowed funds from a developer for the
reason that the developer and his engineer had a fee dispute.
a. Exeter Township has never held escrow funds under a similar situation after the
Exeter Golf Club Estate escrow issue.
The following findings relate to the award of a contract by the Exeter Township Board
of Supervisors for the 35 Street and Circle Avenue storm sewer project
82. During the May 19, 1997, board of supervisors meeting, Exeter Township Highway
Superintendent Clarence Hamm informed the Board of Supervisors of long standing
problems with the 35` Street and Circle Avenue storm sewer drainage.
a. Hamm informed that drainage problems had been temporarily repaired but that
more work needed to be done.
83. On June 2, 1997, the Board of Supervisors were [sic] informed by Township Engineer
John Theisen that he was getting a price to replace the storm sewer pipe at Circle
Avenue and 35` Street.
a. Cuppels was not present during this meeting.
84. On June 3, 1997, Theisen prepared a cost estimate for the 35 Street and Circle
Avenue Storm Sewer Project estimating the cost to be $9,415.00.
85. During the June 9, 1997, board of supervisors meeting, Theisen reported to the Board
of Supervisors that it would cost approximately $9,400.00 to repair the storm sewer
pipe.
a. Theisen further advised that he would obtain proposals for the project since the
costs will be under $10,000.
b. The Board of Supervisors did not vote on the issue.
86. By letter dated August 14, 1997, Theisen sent Requests for Proposals for the 35th
Cuppels 99- 059 -C2; 00- 007 -C2
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Street and Circle Avenue Storm Sewer Project to the following companies:
Lyons & Hohl
Brubacher Excavating
Schlouch Inc.
Empire Wrecking Inc.
LSR Excavating
M & A Excavating
Environmental Constructors
Dress co Construction
Bertolet Construction
Cedar Springs
87. The Requests for Proposal[s] informed the contractors that they must provide Theisen
with their written quotes by 9 AM on Friday, August 22, 1997, and that the township
hoped to award the contract on Monday, August 25, 1997.
88. It was generally the past practice of Exeter Township not to accept proposals, price
quotes or bids after the date and time deadline listed on the Request for Proposals.
89. Or] or before August 22, 1997, the following companies submitted proposals for the
35 h Street and Circle Avenue Storm Sewer Project:
Company Date of Proposal Date Submitted Amount
M & A Excavating August 21, 1997 August 22, 1997 $ 9,500.00
Environmental Constructors August 21, 1997 August 22, 1997 $ 9,762.00
Bertolet Construction Co. August 21, 1997 August 22, 1997 $ 19,300.00
90. The original proposal of Environmental Constructors (ECI), a subsidiary of the Vitillo
Group, was prepared and signed by Daniel H. Laudenslayer.
a. Daniel Laudenslayer is an employee of the Vitillo Group.
b. In August 1997, Laudenslayer was supervised by Salvatore Albert, a Vice
President of Environmental Constructors.
91. The proposal completed by Laudenslayer included price estimates for the project which
were reviewed with Albert on or about August 21, 1997.
92. The initial ECI proposal to Exeter Township was contained in a letter dated August 21,
1997, with a quote of $9,762.00.
a. The proposal was signed by Daniel Laudenslayer.
b. The letter was stamped received [by] Township of Exeter Engineering on
August 22, 1997.
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93. At the time of bid on the 35 Street and Circle Avenue project, ECI had not been
awarded any other township projects of this nature.
94. Once quotes are received by the township engineer, they are compiled and presented
to the board of supervisors for review.
a. The compilation of proposals titled a summary of the proposals received is
routinely completed by employees of the engineering department.
95. On Friday, August 22, 1997, Cheryl A. Franckowiak, an employee of the Exeter
Township Engineering Department, prepared a document titled "Summary of Proposals
Received: 35 & Circle Avenue Storm Sewer Project."
a. The summary prepared by Franckowiak noted that proposals were received on
August 22, 1997, from M & A Excavating $9,500.00; Environmental
Constructors, Inc. $9,762.00; Bertolet Construction Corp. $19,300.00.
96. Township Engineer John Theisen testified that copies of the document prepared by
Franckowiak were placed in the mail boxes of the township supervisors at the township
building, as per township policy, on August 22, 1997.
97. Gary Cuppels, in his capacity as Director of the Township Engineering Department,
would generally meet with Theisen on Friday afternoons.
98. Supervisor Cuppels, during his regular Friday afternoon visit to the township
building to review the activities of the engineering department, obtained a summary of
proposal document.
a. Cuppels submitted a timesheet to the township indicating he worked 1.5 hours
on August 22, 1997, in his capacity as Director of the Township Engineering
Department.
99. Either Friday afternoon, August 22, 1997, or Monday morning, August 25, 1997,
Cuppels called the township building and spoke to Franckowiak.
100. Cuppels directed Franckowiak to inform Theisen that the bid tally for Environmental
Constructors was $9,262.00.
a. The amount indicated by Cuppels was less than the original bid document of
Environmental Constructors dated August 22, 1997, in the amount of
$9,762.00.
b. Cuppels never spoke to Theisen.
101. Theisen testified that he received Cuppels' message and faxed Cuppels a copy of
Franckowiak's "Summary of Proposals Received For: 35 and Circle Avenue Storm
Sewer Project" indicating that the ECI bid was actually $9,762.00.
a. Gary Cuppels denies the above.
102. Salvatore Albert testified that on August 25, 1997, Cuppels directed Environmental
Constructors Secretary Kathy Herb to prepare a letter, dated August 21, 1997,
addressed to Exeter Township Engineer John Theisen, informing him Environmental
Constructors' initial proposal was inaccurate due to a typographical error.
a. Albert further testified that the letter indicated it was drafted by Environmental
Constructors Vice President Salvatore R. Albert.
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103. Salvatore Albert testified that Cuppels, as a Vitillo employee, directed Herb to prepare a
proposal, dated August 21, 1997, and to change the amount on the proposal from
$9,762.00 to $9,262.00 and to change the signatory from Daniel Laudenslayer to
Salvatore R. Albert.
104. Salvatore Albert testified that on August 25, 1997, three days after the deadline to
submit bids to Exeter Township, Cuppels presented the letter and the altered proposal
to Albert for Albert's signature.
a. Salvatore Albert testified that Cuppels requested that Albert sign the amended
proposal.
105. Salvatore Albert testified that he twice refused to sign the documents because he knew
the contents of the letter, including the date of the letter were not accurate, and the bid
amount had been amended.
106. Salvatore Albert testified that John Vitillo subsequently directed Albert to sign the
amended bid document after Albert advised him that Gary Cuppels wanted the bid
amount lowered.
107. Gary Cuppels denies the events as delineated by Albert and set forth in findings 102 to
106 above.
108. Any actions taken by Cuppels regarding Albert were taken as a Vitillo employee.
109. On or about August 21, 1997, the original proposal for the 35 Street and Circle
Avenue project was reviewed by Albert and Laudenslayer before being sent to the
township.
a. Both confirmed the original estimate of $9,762.00 was accurate.
b. Neither was aware of any typographical error resulting in the bid of $9,262.00.
110. Laudenslayer was never informed by Cuppels or any other Vitillo employee that there
was a typographical error in the original proposal or that the document was revised.
111. A copy of the letter and amended proposal, dated August 21, 1997, were [sic] faxed
from Vitillo Corporation to Theisen at the township building at 9:42 a.m., on August 25,
1997.
a. The letter and amended proposal were also delivered to the township sometime
on August 25, 1997.
112. Another "Summary of Proposals Received For: 35 & Circle Avenue Storm Sewer
Project" was prepared.
a. The second Summary of Proposals Received was dated August 22, 1997.
b. Cheryl Franckowiak could not recall if such was prepared on August 22 or
subsequent thereto.
113. The second Summary indicated Proposals were received the following on Friday,
August 22, 1997:
Environmental Constructors $ 9,262.00
M & A Excavating $ 9,500.00
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Page 18
Bertolet Construction Corporation $ 19,300.00
114. The proposals were presented to the Board of Supervisors at a regular supervisors
meeting, on Monday evening, August 25, 1997.
115. During that meeting, Cuppels informed the Board of Supervisors that Environmental
Constructors' first proposal contained a typographical error and a second proposal, in
the amount of $9,262.00, had been submitted to the township.
a. Gary Cuppels claims that he advised the board that they could reject the
proposal because it was received after the close of the deadline for receipt of
such proposals.
116. Supervisor Michele Kircher made a motion, seconded by Supervisor Craig Breneiser,
to accept the proposal submitted by Environmental Constructors in the amount of
$9,262.00.
a. Supervisor Cuppels abstained from the vote.
b. Cuppels never provided Franckowiak or Theisen with any direction or
instruction regarding the amended bid.
The following findings relate to Exeter Township's award of a contract for repairs of
catch basins in 1997
117. On or about August 9, 1997, the Exeter Township Board of Supervisors discussed
repairs to catch basins in the township.
118. Gary Cuppels, as a member of the board of supervisors and Director of the
Engineering and Highway Departments, participated in the board action resulting in the
decision to award a contract for the repairs.
119. On September 2, 1997, Township Engineer John Theisen prepared the written
specifications for the catch basin repair project.
a. Between September 5, 1997, and September 7, 1997, at Theisen's direction,
eleven companies were forwarded the specifications.
1. Of those eleven firms, Environmental Constructors, Inc., one of the
entities operating under the Vitillo Corporation, received the
specifications.
b. The specifications issued by Theisen required that bids be submitted by
September 22, 1997, at 4:15 p.m.
120. During the board of supervisors meeting of September 22, 1997, bids for the Catch
Basin Repair Project, Number 2, were received from three firms identified as follows:
EJ Breneman, Inc. $26,404.00
Bertolet Construction $24,240.00
Environmental Constructors, Inc. $24,138.00
121. During the supervisors meeting of September 22, 1997, a motion was unanimously
approved to table action on the bids and refer them to the engineering department for
tabulation.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 19
a. Gary Cuppels was present for the meeting and participated in the decision.
b. Gary Cuppels claims that he received the advice of the township solicitor that
he could participate in the above - referenced motion, although such was not
recorded in the township minutes.
122. On October 13, 1997, the Exeter Township Board of Supervisors awarded the contract
for the Catch Basin Repair Contract, Number 2.
a. The board voted to award the project to Environmental Constructors, Inc., in the
amount of $24,138.
1. Gary Cuppels abstained from the vote.
123. On January 22, 1998, Township Engineer John Theisen advised Environmental
Constructors to add two catch basins at Mayflower and Quince Streets to the Catch
Basin Repair Project at the contract unit prices.
a. The additional catch basins were added at an additional cost of $1,518.00.
124. Payments were made to Environmental Constructors by Exeter Township for the catch
basins number 2 project.
Date Check No. Amount
02/09/98 033457 $ 20,753.70
(included $15,484.50 for catch basin project)
03/09/98 033662 $ 9,559.50
04/13/98 033990 $ 612.00
$ 30,925.20
125. Gary Cuppels, in his capacity as an Exeter Township Supervisor, as an administrative
function, signed all three checks issued to Environmental Constructors, Inc. for the
catch basin project, but abstained from the votes to approve bill lists which included the
payments to ECI.
The following findings relate to an Indoor Air Assessment Study Approved by the
Exeter Township Board of Supervisors
126. In March of 1998 employees of the township complained of health problems that were
believed to be related to the quality of air in the township building.
a. It was agreed by the board to have the water treatment plant personnel use their
cameras to check the duct work to see if cleaning of the duct work is necessary.
b. Gary Cuppels reported that whatever measures are necessary to see if there is
a problem should be done.
c. On March 16, 1998, it was reported during the board meeting that no significant
problems were found by the sewer plant personnel in the township duct work.
1. Gary Cuppels suggested having someone actually test the building to
see to determine if there are existing problems.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 20
2. The township engineer was directed to obtain proposals for
consideration by the board.
127. On March 18, 1998, at 2:38 p.m. John Theisen faxed to Gary Cuppels a proposed
RFP for the indoor air assessment. The RFP was faxed to Cuppels at his Vitillo office.
Also attached to the draft RFP was a proposed invitation list which included
Environmental Research, Inc.
128. Mr. Cuppels volunteered the services of Dr. Tyagi, an employee of Environmental
Research, Inc., at no cost to the Township to help Theisen develop the RFP.
129. On that same date, March 18, 1998, at 4:45 p.m. Dr. Upendra Tyagi of Environmental
Research, Inc., faxed to John Theisen a revision to the indoor air assessment RFP.
a. The fax transmittal sheet from Dr. Tyagi indicated under special instructions:
As per our telephone conversation, please find proposed changes to the RFP.
b. The proposed changes to the RFP were faxed to Theisen approximately two
hours after Theisen had faxed the original to Gary Cuppels.
c. Mr. Theisen prepared the request for proposal with assistance from Dr. Tyagi
that was rendered at no cost to the Township.
130. Following receipt of the amendments from Cuppels and Dr. Tyagi, John Theisen
finalized the request for proposals on March 19, 1998.
a. The scope of work by the RFP outlined two phases for the project.
b. The RFP required that sealed roposals be received by 4:15 p.m. by Monday,
April 13, 1998, at the Exeter Township Municipal Building.
131. The proposed invitation list for the RFP included six companies.
a. One of the six companies was Environmental Research, Inc.
b. The contact person for Environmental Research, Inc., was identified as Dr.
Upendra Tyagi.
132. By April 13, 1998, quotes were received from the following firms:
Contractor Phase 1 Phase II
Environmental Research $2,442.00 Time and Materials
Galson Engineering $500.00 $2,600.00 — Time and Materials
High Safety Consultants $550.00 $2,274.00 (maximum)
Frederick Brill $1,810.00 Not listed
133. On April 15, 1999, the Board of Supervisors received the proposals.
a. A motion was made by Cuppels to table action on the Air Quality Testing
Proposals and refer to them to the township engineer for review. The motion
carried unanimously.
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Page 21
134. The board reviewed the proposals for the indoor air assessment on April 27, 1998.
a. The general discussion was that some of the amounts seem excessive and
questions were raised whether the prices were for the entire building.
b. Gary Cuppels suggested that the township engineer contact the two apparent
low bidders to obtain a lump sum price for Phase 1 and Phase II combined.
135. By a memo dated May 7, 1998, Theisen advised the board of supervisors that he
obtained lump sum quotes from the two apparent low bidders.
a. The low bidders were identified as High Safety Consultants and Galson.
b. High Safety's lump sum quote for both phases was $1,644.00, while Galson's
was $2,800.00.
136. At the board of supervisors meeting of May 11, 1998, a motion was made by Cuppels,
which was seconded by MacBean to award the indoor air assessment project to High
Safety in the amount of $1,644.00. The motion was approved unanimously.
The following findings refer to an Exeter Township project known as Storm Drain
Study Update
137. On September 11, 1998, Township Engineer John Theisen authored a memo to the
board of supervisors advising that a prior storm drain study conducted in 1983 was
considerably outdated.
a. The observation was made during a review of an oil spill that got into the storm
sewer system.
b. In the memo Theisen further advised that he was directed by Supervisors
Breneiser and Cuppels to put together a Request for Proposals to have the
study brought up to date.
c. Theisen attached a draft RFP for the board's review which was dated
September 8, 1998.
d. This issue was first raised by Township Supervisor Breneiser.
138. Theisen testified that he discussed the RFP's scope of work with Gary Cuppels prior to
the Board of Supervisors making a determination on his request of September 11,
1998.
a. Gary Cuppels claims that he merely instructed John Theisen to proceed with
the project and RFP on his own.
139. On September 14, 1998, a motion by Cuppels was seconded by MacBean, which
authorized the engineer to seek RFPs for mapping the existing storm water
management system of the township.
a. The motion carried by unanimous vote with Supervisor Gary Cuppels
participating.
140. Ten engineering firms were identified on a proposed invitation list compiled by John
Theisen.
a. John Theisen testified that the list was provided to Gary Cuppels prior to RFPs
Cuppels 99- 059 -C2; 00- 007 -C2
Page 22
being sent.
b. Gary Cuppels denied being provided such list.
c. Vitillo Corporation was one of the ten firms listed on the invitation list.
141. Theisen sent invitations to the ten firms, including the Vitillo Corporation, on or about
September 17, 1998.
a. Responses were due by Monday, October 12, 1998.
142. On Friday, October 9, 1998, an addendum to the RFP was prepared by Theisen.
a. John Theisen testified that the addendum was prepared at Cuppels' request.
b. Gary Cuppels does not recall requesting the preparation of an addendum.
c. At 10:30 a.m. on October 9, 1998, Theisen faxed the addendum to Gary
Cuppels for his review and comments.
d. The addendum was faxed to Cuppels' office at Vitillo Corporation 775 -2258.
e. The addendum was faxed to Cuppels prior to the bidders receiving the fax.
143. John Theisen's fax of October 9, 1998, to Gary Cuppels regarding the addendum to
the storm drainage study RFP is contained in Vitillo Corporation's file, No. E98 -109.
a. File No. E98 -109 is Vitillo Corporation's work file for the project awarded to
them for the update of the storm drainage study.
b. Although the addendum was issued on Friday, October 9, 1998, bids were still
due by Monday, October 12, 1998.
144. RFPs were received from seven of the 10 firms receiving invitations to bid on October
12, 1998.
a. Of the firms submitting bids, Vitillo Corporation's bid was the lowest at
$9,700.00.
b. The next lowest bid was Ludgate Engineering at $16,500.00.
145. During the board of supervisors meeting of October 12, 1998, the storm drainage study
bids were opened.
a. A motion made by Cuppels to table action on the quotes until reviewed and
compiled by the Engineering Department carried unanimously.
146. On October 19, 1998, the Exeter Township Board of Supervisors awarded the Storm
Drain Study Update to Vitillo Corporation in the amount of $9,700.00.
a. The motion carried by a 3 to 0 vote with Supervisor Cuppels abstaining.
147. On April 19, 1999, the board approved an extension of time for Vitillo to complete the
storm drainage study update by a 4 to 0. Gary Cuppels abstained from the vote.
148. The primary Vitillo employee assigned to the Exeter Township Storm Drain Study
Update was Debra Thornburgh.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 23
149. During the initial phases of the storm drain study project, John Theisen provided
assistance to Thornburgh.
a. Theisen testified that he was requested by Gary Cuppels, in Cuppels' capacity
as an Exeter Township Supervisor and Director of the Township Engineering
Department, to help Thornburgh.
1. Theisen provided assistance for approximately 1/2 day.
b. On or about February 12, 1999, Theisen made a decision to no longer provide
assistance to Thornburgh.
c. Theisen believed that he was not required to do this type of work as it related to
the scope of work to be completed by Vitillo.
150. Gary Cuppels claims that he merely instructed Theisen to assist Thornburgh in locating
storm sewers that were not identified on the township map.
a. Cuppels claims that Theisen was tasked with performing this function and that
the RFP issued indicated that such would be completed by the township for the
successful vendor.
151. On February 12, 1999, Gary Cuppels to [sic] Theisen's office to discuss Theisen's
reluctance to help Thornburgh.
a. Cuppels requested Theisen to help Thornburgh with the field work for the storm
drain study.
b. Theisen did not provide additional assistance to Thornburgh.
152. Payments were made by Exeter Township to Vitillo as follows:
Date Check No. Amount
02/22/99 036664 $ 970.00
04/05/99 037015 $ 3,210.00
06/14/99 037606 $ 2,164.00
07/12/99 037858 $ 1,910.00
04/17/00 040167 $ 455.00
Total $ 9,700.00
a. Gary Cuppels claims that there was a price increase as a result of John
Theisen's refusal to help Debra Thornburgh as required by the RFP.
153. Cuppels, in his capacity as head of engineering for the Vitillo Group, reviewed invoices
submitted by Vitillo Group to the township for the storm drainage study.
154. A final invoice was submitted by Vitillo Corporation to Exeter Township on or about
February 15, 2000, in the amount of $1,455.00.
a. The invoice was approved for payment by the board of supervisors on April 17,
2000.
b. Cuppels abstained from the vote.
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155. As a Vitillo employee, Cuppels participated in meetings and discussions with other
Vitillo employees regarding the storm drainage study.
a. Other Vitillo employees included Debra Thornburgh and Brian Boyer.
b. The meetings occurred on January 26, 1999, January 27, 1999, and January
28, 1999, during the initial phases of the project.
c. The purpose of the meetings was to review storm report maps for locations and
pipes.
156. The meetings outlined above in Finding No. 155 were billed to Exeter Township on
Invoice No. 9221818 -IN dated January 31, 1999, in an amount of $970.00.
a. The township paid this amount by check number 036664 on February 22,
1999.
b. The payment was approved as part of a general disbursement bill listing by the
board of supervisors on February 15, 1999, by unanimous vote.
1. Gary Cuppels made the motion and voted to approve the bill list which
included the Vitillo bill.
The following findings relate to an Exeter Township project identified as Schuylkill
River Trail, Section 2
157. Since approximately October 1998, Exeter Township was involved in developing a
hiking trail through the township near the Schuylkill River, known as the Schuylkill
River Trail.
158. The township was attempting to obtain funding for the project through grants
administered through the Pennsylvania Department of Transportation.
159. On January 7, 1999, at approximately 9:00 a.m. Theisen faxed to Gary Cuppels, the
township's application for funding for the Pennsylvania Department of Transportation
for the Schuylkill River Trail, Section 2.
160. On January 11, 1999, the Exeter Township Board of Supervisors authorized the
township engineer to seek proposals for a survey to obtain easements for the second
section of the Schuylkill River Trail.
a. The motion authorizing the engineer to proceed was made by Breneiser,
second by Cuppels and approved unanimously.
161. On January 14, 1999, at 8:25 a.m. John Theisen faxed to Gary Cuppels the RFP
developed for the surveying services for the Schuylkill River Trail, Section 2.
a. The cover page to the fax communication sent by Theisen inquired of Cuppels
as to whether the RFP met with Cuppels' satisfaction.
b. The fax was sent to Cuppels at the Vitillo Corporation.
c. The fax is contained in the Vitillo records related to the project.
162. On January 25, 1999, on a motion b y Breneiser, seconded by Cuppels the Exeter
Township Board of Supervisors voted unanimously to adopt a resolution authorizing
township engineer John Theisen to apply for a state grant for the Schuylkill River Bike
Cuppels 99- 059 -C2; 00- 007 -C2
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Trail Extension.
163. By letter dated January 15, 1999, Theisen sent RFPs to three potential bidders as
follows with a due date of February 11, 1999, at 4:15 p.m.
Great Valley Consultants
Vitillo Corporation
Thomas R. Gibbons & Associates
164. Proposals for the Schuylkill River Trail, Section 2 surveying services were opened by
the township engineer on February 15, 1999, during a board of supervisors meeting.
a. All three companies receiving the RFPs submitted bids as follows:
Vitillo Corporation:
Great Valley Consultants:
Thomas R. Gibbons:
$ 4,200.00 plus $400.00 if additional
property is involved
$10,200.00
$10,400.00
b. A motion by Breneiser, second by Kircher to table action on the proposals until
reviewed by the township engineering department was carried unanimously with
Gary Cuppels participating in the vote.
c. Gary Cuppels claims that the township solicitor advised him that he could
participate in the above matter, although such advice is not recorded in the
township minutes.
165. On February 22, 1999, the board of supervisors awarded the Schuylkill River Trail,
Section 2 surveying service to Vitillo Corporation in the amount of $4,200.00 plus
$400.00 for option 1.
a. The motion was carried by a 4 to 0 vote with Gary Cuppels abstaining on the
vote.
166. Vitillo Group was paid the sum of $4,360.00 by check number 037309 by Exeter
Township on May 10, 1999.
a. The check is signed by Exeter Township Supervisors Lachlan MacBean and
Michelle Kircher.
b. The payment to Vitillo was approved at the Exeter Township Board of
Supervisors meeting of May 10, 1999.
1. Gary Cuppels abstained from the vote to pay the $4,360.00 to Vitillo
Corporation.
The following findings are related to the Exeter Township project known as Pineland
Park project
167. The Exeter Township Board of Supervisors considered the construction of a township
recreation area and park in an area of the township known as Pineland Park.
a. General discussions among the board of supervisors occurred for several years
prior to 1996.
b. The ground on which the township wanted to situate the park was located on
the grounds of the Daniel Boone Homestead which was owned by the
Cuppels 99- 059 -C2; 00- 007 -C2
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Commonwealth of Pennsylvania.
168. On January 13, 1996, the board of supervisors unanimously approved a resolution for
the township to seek grant funds from the Pennsylvania Keystone Recreation Park
and Conservation Fund Grant for the Pineland Park project.
a. At that time, the township estimated the project would cost $269,000 with the
township paying for half of the costs and the remaining half coming through the
state grant.
b. The resolution was unanimously approved by the board with Gary Cuppels
participating in the board vote.
169. By letter dated June 19, 1996, Exeter Township was notified by DCNR that a grant in
the amount of $134,500 had been approved from the second round funding under the
Keystone Community Grant Program Fund.
170. Throughout the summer and fall of 1996, Exeter Township entered into discussions
with the Commonwealth of Pennsylvania, Department of General Services, and the
Pennsylvania Historical Commission regarding the lease of space for the Pineland
Park project.
a. During the September 23, 1996, board meeting Gary Cuppels questioned an
escalation cause [sic] in the Pineland Park agreement with the Department of
General Services.
b. On October 14, 1996, a motion made by Cuppels, seconded by Breneiser,
carried unanimously to authorize changes to the Pineland Park lease
agreement with the Commonwealth to be forwarded to the Commonwealth for its
approval.
171. The Exeter Township Board of Supervisors unanimously approved a resolution on
December 9, 1996, authorizing Linda Buler, the Chairman of the Board to sign the
Pineland Park lease with the state.
a. Gary Cuppels participated in the vote.
172. The lease agreement between Exeter Township and the Commonwealth of
Pennsylvania was entered into on December 31, 1996.
a. The lease is signed by Linda Buler, in her capacity as Chairman of the Board,
of the Township Supervisors.
173. Prior to the signing of the lease with the Commonwealth, the board of township
supervisors authorized the township engineer to seek requests for proposals (RFPs)
for clearing the area of Pineland Park to be used as a park, as well as seeking RFPs
for a survey of the boundary and topographical information of the proposed park site.
a. Gary Cuppels was present during this public meeting and in agreement with the
authorizations.
174. Township Engineer John Theisen prepared a request for proposal (RFP) for the park
survey sometime prior to December 18, 1996.
a. The RFP was faxed to Gary Cuppels on December 18, 1996, for his review and
comment.
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175. On December 20, 1996, Gary Cuppels transmitted a fax to John Theisen from his
office at the Vitillo Corporation offering his comments to the RFP prepared by Theisen.
a. The fax transmittal sheet contained information from Cuppels advising Theisen
to feel free to cut and paste and add to the RFP.
b. The RFP required that bids be submitted by January 20, 1997, at 4:00 p.m.
176. During the December 16, 1996, board of supervisors meeting, Cuppels made a motion
which was unanimously approved to authorize the RFP for the survey of the Daniel
Boone Homestead.
a. The RFP prepared by Theisen and reviewed by Cuppels was then distributed to
potential bidders.
177. Although the Vitillo Corporation was one of the firms receiving the RFP from Exeter
Township and which submitted a bid, the contract was awarded to another company.
178. During the January 12, 1998, Board of Supervisors meeting, it was reported by
Cuppels that he had met with Theisen to discuss changes to the proposed layout of the
soccer /baseball field.
1.[sic] It was proposed by Cuppels that the soccer and baseball fields be split
into two separate fields.
179. On January 25, 1999, the board of supervisors, upon motion by Cuppels, second by
MacBean, approved the Pineland Park plans by unanimous vote.
a. A motion made by Kircher, second by Cuppels authorized the engineer to put
the Pineland Park project out for bid.
180. An advertisement for bids was placed in the Reading Eagle /Reading Times on January
27, 1999, January 31, 1999, and February 1, 1999.
a. The ad required that sealed bids for the Pineland Park project be submitted to
the township by February 22, 1999, at 4:15 p.m.
181. Following a pre -bid conference, Township Engineer Theisen testified that he received
telephone calls from at least two interested bidders requesting an extension beyond the
February 22, 1999, bidding deadline.
182. On February 19, 1999, at 10:00 a.m. Theisen reported to Gary Cuppels, in his capacity
as a township supervisor and Director of the Department of Engineering, regarding the
requests for extensions of the bidding deadline.
a. John Theisen testified that Cuppels instructed Theisen to stay with the
February 22 " deadline unless there was a total of three requests for
postponement by 2:00 p.m. that day.
1. No additional requests were received by 2:00 p.m. on February 19,
1999.
b. Gary Cuppels claims that he advised Theisen to contact the other township
supervisors on the extension issue in order to determine their feelings about
such.
183. Bids were received for the construction of the Pineland Park project by February 22,
Cuppels 99- 059 -C2; 00- 007 -C2
Page 28
1999.
a. It was reported by Theisen at the board of supervisors meeting on that date that
bids were received from twelve (12) corporations, including the Vitillo
Corporation.
1. On a motion by Cuppels, second by Breneiser, the board unanimously
approved to table action on the Pineland Park bids and referred the bids
to the engineering department for review and tabulation.
184. The Pineland Park project manual and specifications as developed by John Theisen
and reviewed by Gary Cuppels included base bid price for the construction of the
park and five options, including:
a. Pavilion, eight (8') foot chain link fence around the baseball outfield, ten (10')
foot chain link fence around the sand and volleyball court, ten (10') foot chain
link fence around the basketball court and an ice and street hockey rink with
fencing walls and equipment.
185. The bids that were opened by the board of supervisors on February 22, 1999, included
quotes from the following companies.
a. Vitillo Corporation - $299,692.50, Options - $149,262.00, Total - $448,954.50
b. Reading Site Contractors - $396,682.67, Options - $130,330.84, Total -
$527,013.51
c. E.H. Hertzog Inc. - $398,864, Options - $131,284.00, Total - $531,048.00
d. Slyway Excavating - $428,500.00, Options - $135,000.00, Total - $563,500.00
e. Lechmanik Inc. - $451,554.00, Options - $141, 013.00, Total - $592,567.00
f. S.C. & E. K. Fisher - $453,043.84, Options - $137,015.00, Total - $590,058.84
g. Ranier Corporation - $455,410, Options - $150,116.00, Total - $615,526.00
h. Grace Industries - $481,496.80, Options - $134,388.00, Total - $615,885.60
J.A. Taddei Corporation - $483,400.00, Options, $137,897.44, Total -
$621,297.44
j. M & A Excavating - $516,003.00, Options, $125,616.00, Total - $641,619.00
k. Purcell Construction - $542,127.00, Options - $129,470.00, Total -
$671,597.00
m. Empire Wrecking - $576,349.86, Options, $150,376.70, Total - $726,726.56
186. On March 8, 1999, the board of supervisors discussed awarding a contract to
construct the Pineland Park project, including options a through e.
a. Gary Cuppels participated in the discussion to the extent of asking how much
money was available in the recreation account to fund the project.
b. A decision to proceed was deferred pending a review and recommendation by
the Park Department regarding the options and a report from the finance officer
Cuppels 99- 059 -C2; 00- 007 -C2
Page 29
regarding the funding source.
187. On March 15, 1999, the board of supervisors took action to award a contract for the
construction of Pineland Park.
a. A motion was made by Breneiser, second by MacBean to award the Pineland
Park contract, including options a through d to Vitillo Construction, Inc., in the
amount of $358,954.50, including options (a) through (d).
b. The vote to approve the award of the contract was by a 4 to 0 vote with
Supervisor Cuppels abstaining.
188. The contract between Exeter Township and the Vitillo Corporation for the construction
of the Pineland Park project was entered into on March 15, 1999.
a. The contract was signed by Linda K. Buler, Chairman of the Board of
Supervisors, serving in the capacity as Director of Parks and Recreation, and
John Vitillo, President of Vitillo Construction Company.
189. The section of the contract regarding description of work performed included as item
number 5, rock excavation (contingent) and a quantity of approximately 100 cubic
yards to be removed.
a. Section 103.06 "Contract Quantities" provided that it is the contractor's
responsibility to notify the township engineer, in writing, should any quantities
exceed 10% of the total contract.
b. Any quantities in excess of the 10% shall not be authorized without the
issuance of a contract change order prior to actual installation and verification
by the Engineer.
c. Rock was defined as material that could not be ripped with a backhoe.
190. At the time of the drafting of the Pineland Park project manual and following the review
of the site, Township Engineer John Theisen testified that he did not expect rock
removal to be in excess of 100 cubic yards.
a. Theisen's claimed estimate, in part, was based upon the history of the land and
the type of rock formations in the area, consisting mainly of red shale.
191. John Theisen testified that following the award of the contract to Vitillo Construction for
the construction of the Pineland Park project, a preconstruction meeting was held at
the Exeter Township Municipal Building on March 20, 1999, at which time Theisen
notified Vitillo that he must be contacted immediately if any rock is encountered during
excavation.
a. Theisen further testified that he advised that he would inspect and measure the
rock with Vitillo Construction's foreman before approving any extra payments.
192. Rock was encountered during the initial excavation of the park site when digging a
sanitary sewer trench on Pineland Road.
a. Engineer John Theisen met at the site with John Vitillo to inspect the rock
consistent with the procedures outlined in Finding No. 234 [sic].
b. A rock quantity of 2.8 cubic yards was approved for removal by Theisen.
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Page 30
c. The type of rock identified was a red shale.
193. Township Engineer John Theisen was placed on indefinite leave by the board of
supervisors on April 15, 1999, because of a claimed medical condition.
194. During the period of time that John Theisen was on leave as Exeter Township
Engineer, the duties of the engineering department were performed by Gregory Koontz
and Cheryl Franckowiak, with Assistance from the Township consulting engineer.
a. At that time, Koontz and Franckowiak were subordinate employees of Theisen
in the Engineering Department.
b. Neither Koontz nor Franckowiak are engineers.
195. On April 21, 1999, six days after Theisen was placed on leave, Koontz met with John
Vitillo at the park site.
a. The meeting was requested by Vitillo who wanted Koontz to witness backhoe
probes.
1. The probes were conducted to indicate the presence and depth limit of
rock at the park site.
2. Gary Cuppels was not present at this meeting.
196. On May 3, 1999, Vitillo met with Exeter Township Supervisor Craig Breneiser and
Cheryl Franckowiak, an Assistant Township Code Enforcement Officer.
a. Vitillo initially wanted to meet with Greg Koontz but Koontz was not available.
b. Vitillo telephoned the Exeter Township Engineering Department and advised
Franckowiak he wanted to drop off estimates for rock removal.
1. A 2:00 p.m. meeting on May 3, 1999, was arranged.
c. Supervisor Breneiser, Vice - Chairman of the Board, was present for the
meeting.
d. Breneiser was requested to be at the meeting by Gary Cuppels.
1. Gary Cuppels claims that he had requested Breneiser to attend this
meeting because Board of Supervisor Chairperson Linda Buler was
unavailable and Cuppels advised Breneiser that he would not be able to
attend because of a potential conflict of interest.
e. Vitillo provided Breneiser and Franckowiak with estimates for rock removal in
areas identified as Rock Area "A ", Rock Area "B ", Utility trenches and building
area.
1. Neither Breneiser nor Franckowiak have the expertise to determine
whether the estimates provided by Vitillo were accurate.
2. Neither Breneiser nor Franckowiak requested a review by the consulting
engineer.
f. Following the meeting with Vitillo, Breneiser advised Franckowiak a memo
should be written to the board of supervisors.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 31
1. Breneiser wanted this issue put on the agenda for the May 10, 1999,
board of supervisors meeting.
2. Gary Cuppels was not present for the meeting between Vitillo, Breneiser
and Franckowiak.
197. A memo dated May 6, 1999, from Greg Koontz to the board of supervisors summarized
Koontz's April 21, 1999, meeting with Vitillo and the May 3, 1999, meeting between
Vitillo, Breneiser and Franckowiak.
a. Koontz's memo noted total rock estimates of 2,371 cubic yards at a cost of
$25.00 /cubic yard (total $49,275.00) to remove the rock and that an invoice
was forthcoming.
198. The Exeter Township Board of Supervisors took no action to approve the removal of
rock and the quantities as proposed by Vitillo during his May 3, 1999, meeting with
Franckowiak and Breneiser.
a. There is no record of the rock issue being approved or discussed during the
May 10, 1999, board of supervisors meeting.
199. Gary Cuppels claims that because the issue of rock removal was already addressed in
the contract between the township and Vitillo that there was no need to have the
township board of supervisors review or approve issues regarding the removal of rock.
200. On May 11, 1999, Vitillo Corporation submitted payment request no. 2 to Exeter
Township for the Pineland Park project.
a. Payment request no. 2 was a total billing of $86,180.50.
b. Of the $86,185.50, $54,400 was for the removal of 2,176 cubic yards of rock.
1. The 2,176 cubic yards was part of the 2,371 cubic yard estimate
prepared by Vitillo.
c. The payment was approved by the board of supervisors on May 1-4 7, [sic]
1999.
1. Gary Cuppels abstained from this vote.
201. Gregory Koontz, a certified landfill inspector, maintained a log book of inspections of
the Pineland Park project.
a. Included in his log were dates of inspections, equipment and man power
present at the site and description of the activity at the site.
202. Koontz's log details a meeting with John Vitillo at Pineland Park on May 13, 1999.
According to Koontz's log:
a. Daniel Laudenslayer and Jeff Schwegman, Vitillo employees were also present.
b. Koontz was called to site by Vitillo to witness rock probes on the north and east
end of the site and to discuss cuts and estimates of possible rock volumes.
c. Koontz offered solutions and alternatives to rock removal:
Cuppels 99- 059 -C2; 00- 007 -C2
Page 32
1. Revise elevations
2. Township bring in fill
3. Vitillo bring in fill
4. Excavate rock
d. Gary Cuppels was not present at this meeting.
203. Koontz sent a fax to Vitillo on Friday, May 14, 1999, at 6:07 a.m. indicating that he, per
the conversation of yesterday (05/13/99), would urgently like to discuss grade elevation
changes to avoid rock in the street hockey and basketball court areas.
a. Koontz was hoping to reduce costs to the township for extra rock removal by
offering alternatives including adding fill to the site.
b. Koontz was hopeful of using free fill the township had available to alleviate the
necessity of rock removal.
204. Koontz met with Vitillo, Schwegman and Laudenslayer at Pineland Park on Monday,
May 17, 1999.
a. A discussion ensued regarding cuts and fills and possible need to bring in fill
from Devon Green II site.
1. Koontz was to meet with the township highway foreman at Devon Green
regarding fill.
2. Based on the discussions, it was agreed to hold grades as designed.
b. Gary Cuppels was not present at this meeting.
205. Koontz met with John Vitillo on Ma y 24, 1999, and was provided with calculations and
profiles of rock in Area "C" located mainly in the north end of the soccer field.
a. Vitillo documents estimated a 1,092.4 cubic yards of rock at a cost of
$27,300.00.
b. On that same date Koontz met with Vitillo and Cuppels at the Pineland Park site
and discussed a change in location of the baseball field.
c. Gary Cuppels was not present at this meeting.
206. Following his discussion with Vitillo on May 13, 1999, and receipt of Vitillo rock
calculations on May 24, 1999, Koontz discussed the rock removal with Gary Cuppels.
a. Koontz testified that he discussed the rock issue with Cuppels due to Cuppels'
position as Director of the Engineering Department.
b. Koontz wanted direction as to the various options, including bringing in fill.
c. Koontz could not recall receiving any specific directions from Cuppels regarding
the rock issue.
d. Gary Cuppels claims that he did not discuss the rock issue with Koontz.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 33
207. Rock was identified by Vitillo Corporation as existing in the following areas of Pineland
Park:
a. Area "A" 340.3 cubic yards
Area "B" 1,835.7 cubic yards
Utility trenches 95.0 cubic yards
Building area 100.0 cubic yards
Total 2,371.0 cubic yards
b. Area "C" 1,092.4 cubic yards
208. The Area "C" rock profile is the rock area that Koontz testified that he discussed with
Gary Cuppels.
a. Gary Cuppels claims that he had no such discussion with Greg Koontz.
209. Vitillo submitted Payment Request No. 3 to Exeter Township by June 15, 1999, in an
amount of $49,973.00.
a. The invoice covered the period from May 17, 1999, through May 31, 1999.
b. Of that amount $27,325.00 was for rock removal (1,093 cubic yards).
1. This corresponds for the rock calculations for Area "C."
210. Exeter Township check no. 37666 in the amount of $49,973.00 was approved for
payment by the Exeter Township Supervisors on June 21, 1999.
a. Payment was made after review of the request by the township engineer, who
had returned from a leave of absence.
1. John Theisen testified that he was on leave at the time when Vitillo
claimed rock was removed and was not able to verify that rock was
removed.
b. Gary Cuppels abstained from the vote to approve check no. 37666.
211. Payments have been made to Vitillo Corporation by Exeter Township for the Pineland
Park project totaling $488,451.00.
212. Gary Cuppels, in his capacity as an Exeter Township Supervisor, as an administrative
function, signed the following checks authorizing payments to the Vitillo Corporation for
work on Pineland Park, although he did not vote on approval of these payments.
Date
Check No. Amount
10/25/99 38729 $ 55,635.61
11/08/99 38749 $ 59,570.01
12/13/99 39175 $ 21,498.20
03/13/00 39879 $ 7 315.10
Total $144,018.92
Cuppels 99- 059 -C2; 00- 007 -C2
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213. In an audit provided at the request of the Exeter Township Board of Auditors, the CPA
and consulting firm of Reinsel & Company found that Vitillo Construction, Inc., had the
lowest per unit cost for rock removal of all bidders.
a. The audit further determined that "in the event the contract would have been
awarded to the next lowest bidder, rock removal costs would have increased by
$20,530."
The following findings relate to the Exeter Township Geographic Information Systems
Project.
214. The Exeter Township Environmental Advisory Council (EAC) was founded in 1996, by
Gary Cuppels and Michelle Kircher.
a. EAC was established to advise the township board of supervisors on
environmental matters.
b. The first members of the EAC were appointed on October 28, 1996.
c. There were seven members appointed to the EAC by the Exeter Township
Board of Supervisors.
215. After its creation, the EAC had received documents from the Pennsylvania
Environmental Council which contained information on geographic information systems
(GIS).
a. The EAC was interested in pursuing the development of GIS.
216. The EAC thereafter contacted Dr. Robert Ziegenfus, Ph.D., a Professor at Kutztown
University who was skilled in GIS.
a. Ziegenfus had been contacted specifically by Deborah Stanley who was a
member of the EAC.
b. Stanley had been referred to Ziegenfus by the Berks County Planning
Department.
217. Ziegenfus was asked by the board of supervisors to participate as a consultant in
EAC's review of the potential development of GIS and was specifically requested to
provide some insight as to how they might begin to pull together township information
for the purpose of assisting the planning commission and the township generally, in
this respect.
218. The EAC also wanted to have the township participate and support the development of
a GIS project.
219. Township supervisors and the township engineer, John Theisen, attended some of the
presentations and discussed the potential system with the EAC.
220. At this time, Gary Cuppels was a township supervisor and the appointed director of the
township engineering department.
221. On May 18, 1998, at a meeting of the Exeter Township Board of Supervisors, Deborah
Stanley, a member of the EAC, requested funding from the board for a mapping
project.
a. Stanley advised that the EAC had researched a mapping project and had been
Cuppels 99- 059 -C2; 00- 007 -C2
Page 35
in touch with Berks County Planning Commission.
b. Mr. Cuppels wanted to make sure that the township was fully compatible with
the county.
c Mr. Breneiser would try to ascertain what the county's plans were.
d. The board deferred action, at that time, pending the receipt of additional
information.
222. On June 1, 1998, the Exeter Township Board of Supervisors once again considered
the EAC mapping proposal. The minutes reflect:
a. Debbie Stanley, from the EAC, asked the Board if they had the opportunity to
review the mapping proposal. Mr. Cuppels stated that he reviewed the proposal
as well as a study done for the County. He mentioned the County is unclear on
whether they will proceed with a GIS system. Mr. Cuppels wants to put this
matter on hold until such time as the County decides what it is planning to do.
The mapping project was thoroughly investigated by the members of the EAC,
but Mr. Cuppels is not anxious to proceed with the 1000 scale under any
circumstances. Mr. Cuppels stated that the base map must be very accurate
and that a 200 or 400 scale would be more appropriate. Mr. Breneiser was
concerned that if the County goes with a GIS system everything currently being
used will be trashed. Also if they use a system other than Arcview, will the EAC
proposal still be compatible? Mr. Breneiser will try to find out what the County is
planning to do and when. The EAC members present asked the Board if they
would be willing to meet with representatives of PCO and Associates to discuss
the system. The Board wanted to wait and see what the County's plans are.
The EAC members also asked the Board not to penalize the Board later if the
price would double between now and the time the project moves on. Mrs.
Kircher echoed this concern.
223. On June 17, 1998, Township Engineer, John Theisen, provided a memo to the Exeter
Township Board of Supervisors in relation to the potential GIS project.
a. Theisen indicated that he had been asked by Gary Cuppels to gather his
thoughts on such a system.
b. As part of the memo, Theisen outlined the then status of the Exeter Township
base mapping systems.
c. Theisen also outlined the potential uses for a GIS system.
224. During the course of the EAC and Theisen's research regarding the GIS project,
Theisen testified that a number of companies expressed an interest in submitting
proposals to develop such a system.
a. These companies included:
PCO & Associates
Chester Engineers of State College, Pennsylvania
Carroll Engineering Corporation from Warrington, Pennsylvania
Alfred Benesch & Companies, Pottsville, Pennsylvania.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 36
225. Interest in developing GIS for Exeter Township was also expressed by Gilmore &
Associates, Incorporated, a GIS consulting firm from New Britain, Pennsylvania.
a. Gilmore & Associates had contacted John Theisen in November of 1996
regarding the potential GIS project.
b. In addition to expressing an interest in relation to the GIS project, Gilmore &
Associates, Incorporated, forwarded a letter to John Theisen on November 11,
1996, regarding Gilmore's interest in performing other township projects.
c. Gilmore's correspondence to Theisen indicated that he (Theisen) had advised
Gilmore that Exeter Township requests proposals from a select group of
engineering firms for various municipal needs. Gilmore specifically requested
that Theisen add Gilmore & Associates to the list.
226. Gilmore & Associates developed a GIS for Spring Township, and Cumru Townships
which are Berks County Townships located in close proximity to Exeter Township.
a. Gilmore & Associates personnel made a GIS presentation to Theisen and
township staff in 1996.
b. Cuppels cited the Cumru System to the board of supervisors in March 1999 as
a good example of what was available (See Finding No. 231(b)) [sic].
227. None of the companies noted in Finding No. 224 and 225 that had expressed an
interest in submitting bids on Exeter Township's GIS project were notified of the
township's request for proposals for aerial photography and mapping.
a. Representatives of these firms indicated that they would not have used the
Vitillo Group as a subcontractor.
228. On February 15, 1999, at a regularly scheduled meeting of the Exeter Township Board
of Supervisors, Mr. Cuppels raised the issue of the geographic information system.
a. Cuppels asked the engineer to pursue the GIS system "post haste" because
there was substantial support for the project.
b. Cuppels suggested that a system be located that would suit the township's
needs and move ahead with it.
229. By way of memo dated March 4, 1999, John Theisen forwarded a memo to the
township board of supervisors outlining the nature and extent of a proposed GIS
project.
a. Theisen indicated that, in his opinion, Arcview seemed to be a favorite program
with the municipalities.
b. Theisen outlined what information should go into the system and how the
township should accomplish development of the system.
c. As part of his memo, Theisen indicated that the township would have to send
out an RFP and select a consulting firm.
d. Prior to the submission of the memo to the board, Theisen faxed a copy of his
memo to Gary Cuppels for his review and approval.
1. The memo was faxed to Cuppels at his Vitillo Corporation Office.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 37
230. On March 8, 1999, at a regularly scheduled meeting of the Exeter Township Board of
Supervisors, the board considered the geographic information system project.
a. Cuppels strongly urged that Cheryl Franckowiak be the person within the
Engineering Department to work on the project and attend some basic training
on the operation of the system once they determined what the software would
be. Cuppels further suggested that the board request proposals to have aerial
photos taken of the township to be used for the mapping. Cuppels indicated
that a good base map is needed regardless of what software was used.
b. Cuppels indicated that the process would require continuous updating and that
the map would only be as good as its last revision. Cuppels indicated that this
would be a long term commitment and encouraged the board and department
heads to visit the Cumru Township website to see what was available.
c. The board had no objection to the request for proposals for the aerial
photography phase of the project and Mr. Cuppels requested that a game plan
be established as soon as possible.
231. On March 10, 1999, John Theisen faxed a copy of the RFP for the aerial photography
for approval to Gary Cuppels at Cuppels' Vitillo office.
232. On March 10, 1999, the same day that he was reviewing and approving the RFP, Gary
Cuppels contacted Frank Weber, an employee of the L. Robert Kimball Associates
Engineering Firm, which were documented in an e-mail to other Kimball employees. In
the e-mail Weber noted that:
a. Cuppels, in his capacity as an employee of the Vitillo Group, had previous
business dealings with L. Robert Kimball & Associates as the two firms had
worked together on several projects.
b. Cuppels was identified as both a Vitillo employee and Exeter Township
Commissioner.
c. Cuppels advised Weber that he would be receiving a call from John Theisen
who would be forwarding a proposal which was to be awarded on March 23,
1999.
d. The proposal was for aerial photography for Exeter Township.
e. This was the first phase of the GIS project.
233. On that same day, March 10, 1999, Cuppels requested Theisen to send the RFPs for
the aerial photography phase of the GIS project to Kimball & Associates; Air Survey
Corporation; ARD; and PDS (3Di).
a. Cuppels' information to Theisen were [sic] given by fax transmission from
Cuppels at his Vitillo office at 12:28 p.m.
b. Cuppels claims that Theisen requested that he provide the names of firms to
whom he should send the RFP.
c. Gary Cuppels claims that John Theisen did not know the names of any
companies in the aerial photography and mapping business.
d. All four firms identified by Gary Cuppels are recognized leaders in the GIS field.
Cuppels 99- 059 -C2; 00- 007 -C2
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234. On March 10, 1999, Exeter Township issued an RFP for aerial photography of Exeter
Township.
a. The request for proposal specifically indicates that the photos will be used by
the township in developing a geographical information system.
b. Sealed proposals are to be provided by March 22, 1999, with a decision to be
rendered on March 23, 1999.
c. The RFPs were sent by Theisen only to the companies identified by Cuppels.
235. By way of memo dated March 11, 1999, John Theisen forwarded to the township board
of supervisors an article entitled "Arcview GIS."
a. Theisen's memo indicates that he was requested to forward the article to the
board by Gary Cuppels.
236. On March 22, 1999, at a regularly scheduled Exeter Township Board of Supervisors
meeting, it was noted that sealed proposals were received from Air Survey Corporation
(ASC), L. Robert Kimball & Associates, and PDS Services, Incorporated for aerial
photography services.
a. A motion was made by Mr. Cuppels, seconded by Mr. Breneiser to award the
aerial photography contract to the lowest responsible bidder upon review and
recommendation of the township engineer and Mr. Cuppels.
b. The motion carried with Ms. Buler, Mr. Breneiser, Mr. Cuppels and Mr.
MacBean voting in favor.
c. Gary Cuppels believed that time was of the essence due to the emergence of
the spring foliage and that the project should proceed immediately.
237. The aerial photograph contract was subsequently awarded to Air Survey Corporation
(ASC), the low bidder.
a. ASC completed this project on or before May 25, 1999.
238. On or about July 2, 1999, after the completion of the photography phase of the GIS
project, Charles Foster, from ASC, Inc., forwarded information to Gary Cuppels
regarding the drafting of a request for proposal for a GIS mapping bid.
a. Foster's information was based upon a similar request for proposal that had
been completed in the town of Cary, North Carolina.
b. Foster also forwarded to Cuppels a one page list of general notes indicating key
points to be considered. These points included: ground control and
monumentation, air triangulation and digital planimetric base mapping and a
comment that a minimum number of points would be needed for plan only
mapping with double the points to do contours.
239. On July 12, 1999, Gary Cuppels provided the information that he had received from
and discussed with Charlie Foster to John Theisen.
240. Sometime prior to July 15, 1999, Robert Ziegenfus was contacted by John Theisen
regarding the GIS project.
Cuppels 99- 059 -C2; 00- 007 -C2
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a. Ziegenfus was the consultant used by the EAC during the initial phases of the
GIS project research.
b. Theisen testified that he advised Ziegenfus that the township now believed it
was ready to take the initiative in establishing the GIS project.
c. Theisen advised that he would like to set up a meeting in order to discuss how
Exeter Township might acquire a GIS and what procedures should be
implemented.
241. On July 15, 1999, a meeting was held between Dr. Ziegenfus, Gary Cuppels and John
Theisen to outline the township's needs in relation to the GIS project and the steps that
should be taken.
a. At that time, Gary Cuppels played an active and ongoing role in developing the
outline for the township plans to implement the GIS project.
b. Cuppels, during this meeting, requested Theisen to talk to Charles Foster, from
ASC (the company that had conducted the aerial photography in the spring of
1999), in order to develop an RFP which would include items specifically
identified.
c. It was also determined that the first task of the project would be the
development of the RFP and that certain sections should be included in the
RFP.
d. At this meeting, Cuppels also stressed the need for installing survey
monuments.
242. On July 19, 1999, at a regularly scheduled Exeter Township Board of Supervisors
meeting, Gary Cuppels reported on the GIS project as follows:
a. Mr. Cuppels reported that he and the Engineer met with Robert Ziegenfus of
Kutztown University and that they now have a "road map as to how to proceed"
with the G.I.S.
b. Mr. Cuppels stated the software to be used would be Arcview because it is a
fairly user friendly program and he suggested that an R.F.P. be drawn up to do
the mapping now and embark on expanding the system from there. The Board
had no objection.
c. Cuppels advised that he would like to have someone in house, with the help of
summer interns from Kutztown and West Chester, gather the data and work on
the system after the mapping is complete. The first items to be entered would
be the sewer system and fire hydrants and then the Township can move
forward from there.
c.[sic] Mr. Ehman asked the board if the E.A.C. would get any credit for their efforts to
start a G.I.S.; and he noted that the E.A.C. had done a lot of legwork to move
ahead with a G.I.S. Mr. Cuppels stated that he was not looking for any credit;
however, he wanted to get the ball rolling on the project and he recognized the
work that the E.A.C. had done.
243. On July 20, 1999, John Theisen contacted Charles Foster, from ASC, in order to
discuss the development of an RFP.
a. Theisen and Foster discussed the proposal that had been forwarded by Foster
Cuppels 99- 059 -C2; 00- 007 -C2
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from the City of Cary, North Carolina Project and the information contained
therein.
244. During the morning of July 28, 1999, John Theisen met with Charles Foster, from
ASC, at the Exeter Township Building.
a. Foster and Theisen specifically discussed the contents of the RFP being issued
by Exeter Township. This conversation included discussion as to the horizontal
controls, spot elevations as opposed to contours as well as the inclusion of
street names in the final project.
245. During the afternoon of July 28, 1999, Gary Cuppels and John Theisen discussed the
content of the RFP.
a. Cuppels and Theisen discussed the order of accuracy, and Cuppels advised
Theisen to get all control points in Exeter Township as well as state plane
coordinates. Cuppels also advised Theisen to obtain the location of the
monuments on the ground in Exeter Township.
b. As part of this conversation, Cuppels requested Theisen to invite four
companies to submit proposals for the mapping portion of the GIS project.
c. The four mapping companies that Cuppels identified were L. Robert Kimball &
Associates; ADR, a New Jersey Company; Air Survey Corporation (ASC) and
PDS (later 3Di), from Virginia.
d. Gary Cuppels claims that John Theisen did not know the names of any
companies in the aerial photography and mapping business.
246. The mapping companies were the same four firms that Cuppels requested Theisen to
send RFPs to on March 10, 1999, for the aerial photography work.
247. The four mapping companies that Cuppels identified all had past business dealings
with the Vitillo Group or Gary Cuppels, as both Cuppels and Vitillo were in a business
that had dealings with mapping companies.
248. Theisen testified that he was specifically advised, by Gary Cuppels, not to send the
RFP once developed to any companies other than the ones he had identified.
a. Gary Cuppels denies telling Theisen not to send the RFP to other companies.
249. The telephone communication between Cuppels and John Theisen on the afternoon of
July 28, 1999, occurred shortly after Cuppels had lunch with Charles Foster, from
ASC.
250. At this luncheon meeting, Cuppels and Foster discussed the possibility of Vitillo
Corporation performing subcontracting work on the Exeter Township project for ASC.
a. Gary Cuppels claims that he advised Foster that he would have to abstain from
participation in the matter if Vitillo were to be selected as a subcontractor by his
company.
251. On August 5, 1999, John Theisen faxed Gary Cuppels a draft copy of the GIS RFP for
Cuppel's review and comments at his office at the Vitillo Group.
252. On August 16, 1999, at a regularly scheduled meeting of the Exeter Township Board
of Supervisors, Mr. Breneiser moved to accept a proposal from Robert Ziegenfus to
Cuppels 99- 059 -C2; 00- 007 -C2
Page 41
serve as GIS Project Manager /Consultant at a rate of $80.00 per hour. The motion
was seconded by Mr. MacBean with Buler, Breneiser, Kircher, Cuppels and MacBean
voting in favor thereof.
253. On September 1, 1999, Theisen, Cuppels and Ziegenfus once again met in relation to
the GIS project.
a. During this meeting, some discussion took place regarding the overall project
including the issue of the development and installation of ground monuments.
b. This part of the project would be completed by John Theisen and Gary Cuppels
and it was determined that they would make a decision as to the number of
monuments needed.
c. It was discussed at that meeting that they would need to ensure that there was
a firm that could do the monumentation work. Ziegenfus had no expertise in
this area and left those decisions completely to Cuppels and Theisen.
d. The monumentation work was the type of work performed by Gary Cuppels for
the Vitillo Group, as well as by other engineering and mapping firms.
254. As a result of this meeting, it was specifically determined that the issue of uncovering
and installing additional survey monuments in the township would be included in the
RFP and that a company with expertise in this area would be an important component
of the RFP.
a.
b.
c.
d.
John Theisen was to locate the existing monuments and include such in the
RFP.
Vitillo was a company with this type of expertise, along with other engineering
and mapping firms.
Gary Cuppels was the Vitillo employee in charge of this type of work.
At the time that the above decision was made, Cuppels was aware of the fact
that he had already met with Charles Foster, a representative of ASC, the
company that had been the successful bidder on the aerial photography phase
of the GIS project, in order to discuss the possibility of the Vitillo being utilized
by ASC as the company to perform this part of the mapping project as a
subcontractor to ASC.
255. Subsequent to the September 1, 1999, meeting, additional drafts of the RFP were
developed based upon the comments that occurred during that meeting between
Cuppels, Ziegenfus and Theisen.
256. Prior to the issuance of the RFP on November 18, 1999, Gary Cuppels contacted the
four companies that he had identified to receive the RFP to determine if they were still
interested in the project and to discuss with several of them the possibility of the Vitillo
Group being used as a subcontractor on the project.
a. As previously noted, Cuppels met with ASC representative Charles Foster on
July 28, 1999, where the subject of the potential use of the Vitillo Group as a
subcontractor came up.
257. On September 1, 1999, the same day that Cuppels, Dr. Ziegenfus and Theisen met to
work on the RFP (Finding No. 253) and discuss the GIS monument issue, Gary
Cuppels contacted Frank Weber, from L. Robert Kimball & Associates, regarding the
Cuppels 99- 059 -C2; 00- 007 -C2
Page 42
GIS project.
a. L. Robert Kimball & Associates was one of the four companies whom Cuppels
identified for Theisen to forward the mapping portion of the GIS project.
b. Frank Weber was aware that Cuppels was a township supervisor in Exeter
Township, Berks County.
c. Cuppels asked Frank Weber if L. Robert Kimball would be interested in
providing base mapping for a GIS program that the township was going to build.
Weber was aware that L. Robert Kimball had not been awarded the contract to
perform the aerial photography but that they still could provide the mapping
services by working with the company that did conduct the aerial photography.
258. Cuppels advised Frank Weber that the township would be soliciting bids from fourfirms
including L. Robert Kimball, ADR, PDS and ASC.
a. In an e-mail documenting the conversation Weber noted:
Cuppels advised Weber that he thought all of these firms maintained a high
level of competency and standards.
b. Cuppels further advised Weber that he was not going to put the request "out on
the street." Cuppels advised Weber that he had been burned by that process in
the past.
c. Cuppels advised Weber to look for the request for bids in middle to late
October.
d. Cuppels finally advised Weber that he would most likely provide the necessary
field survey using photo ID points to be picked by the base mapping contractor.
259. L. Robert Kimball & Associates had previously collaborated on projects with the Vitillo
Group.
a. Generally, the Vitillo Group would utilize the services of L. Robert Kimball &
Associates as a subcontractor on projects that the Vitillo Group was completing.
b. L. Robert Kimball & Associates had never used Vitillo Group as a subcontractor
on any projects where they were the primary contractor.
c. L. Robert Kimball & Associates had requested a proposal from Vitillo in the past
on another project.
260. Weber's contact at the Vitillo Group was Gary Cuppels.
261. Weber testified that he was of the impression that the township was not going to put
the proposal out for public bid.
262. As noted, one of the companies that Gary Cuppels identified for Theisen to send the
RFP was ADR Corporation of Pensauken, New Jersey.
263. On September 30, 1999, at a dinner of the Pennsylvania Society of Land Surveyors,
Gary Cuppels advised Andrew Pickford, Regional Manager of ADR, that Exeter
Township would be issuing an RFP for the GIS mapping project sometime in the fall or
early winter of 1999.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 43
a. ADR was aware of the fact that Exeter Township had conducted the aerial
photography phase of the GIS project as they were one of the companies that
had received an RFP in relation to that work.
264. Michael Shillenn, another employee of ADR, had known Gary Cuppels for
approximately ten years and had worked on several projects with Cuppels in the past.
a. ADR had never worked with or utilized the services of Vitillo Group prior to the
time that Gary Cuppels became affiliated with that entity.
b. The Vitillo Group did not exist prior to the time that Gary Cuppels became
affiliated with that entity.
265. On October 25, 1999, at a regularly scheduled meeting of the Exeter Township Board
of Supervisors, Cuppels moved to authorize advertising the GIS mapping RFPs in
accordance with the recommendation of the township engineer.
a. This motion was seconded by Mr. MacBean and carried with Buler, Breneiser,
Kircher, Cuppels and MacBean voting in favor thereof.
266. Shortly after the October 25, 1999, township board of supervisors meeting, Brian
Boyer, the manager of civil engineering at the Vitillo Group, and Gary Cuppels
discussed the extent and nature of the GIS project.
a. At this time, Cuppels advised Boyer that there existed a list of prequalified firms
who would be asked to bid on the township project.
b. Identification of the firms that were being asked by the township to submit
proposals was not confidential information.
267. Cuppels instructed Boyer to contact John Theisen to obtain the names and contacts
from the four companies so that Boyer could contact these companies in order to
arrange for Vitillo to submit a proposal to act as a subcontractor on the project.
268. At the time that Cuppels advised Boyer to contact Theisen in order to obtain the names
of the firms that would bid on the GIS mapping project, Cuppels had already advised
Theisen as to which companies were qualified to receive the RFP.
a. Cuppels had also previously contacted the firms that would receive the RFP to
advise them that the RFP would be issued and he had, in fact, already
discussed with several of these mapping companies the possibility of Vitillo's
involvement as a subcontractor on the project.
269. On October 28, 1999, Cuppels, Theisen and Ziegenfus once again met in order to
review and finalize the draft of the RFPs in order to ensure that all of the township
needs were addressed therein.
a. Ziegenfus made comments regarding the maps and the specifications he
thought should be in the RFP, especially in relation to the software.
b. Issues regarding control points, triangulation and monumentation were
discussed by Theisen and Cuppels, as such was outside of the expertise area
of Ziegenfus.
c. At the conclusion of this meeting, it was determined that the RFP was in a
condition that was ready to be issued.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 44
270. The issues in the RFP regarding control points, triangulation and monumentation,
which were specifically addressed by Gary Cuppels, are issues that Cuppels would
deal with as a surveyor with the Vitillo Group.
271. On November 18, 1999, Exeter Township formally released the RFP regarding the
mapping portion of the GIS project.
a. The RFP was not advertised as mandated by the Board of Supervisors on
October 25, 1999.
b. The RFP was forwarded by township engineer, John Theisen, only to the four
specific companies that Gary Cuppels had identified.
272. John Theisen testified that Gary Cuppels advised him not to forward the RFP to any
other companies.
a. Gary Cuppels denies the foregoing.
273. On or about November 19, 1999, Brian Boyer contacted John Theisen in accordance
with the advice of Gary Cuppels in order to request that Theisen provide Boyer with the
identity of the firms to whom he was forwarding the RFP on the GIS mapping project.
a. Theisen provided this information to Boyer as requested. This information was
not confidential.
274. On or about November 18, 1999, L. Robert Kimball & Associates had received the
request for proposal from John Theisen in relation to the GIS mapping project.
a. Frank Weber, from L. Robert Kimball & Associates had previously been notified
by Gary Cuppels in September of 1999 that the RFP would be issued. (See
Finding Nos. 258 and 259).
275. On November 24, 1999, Brian Boyer, of the Vitillo Group, contacted Frank Weber and
questioned Weber as to whether the Vitillo Group could provide the survey workfor the
Exeter Township proposal regarding the GIS services.
a. In documenting the contact from Brian Boyer, Weber wrote as follows:
"Background is that we are on the list of offerers because of Gary Cuppels, V.P.
at Vitillo, who knows us well but cannot approach us personally or directly
because he is politically tied to Exeter Twp. However, his company can do the
survey work if he is not involved ( ?). I do not understand but I imagine we
should Of reasonable and possible) give them the opportunity to be a part of the
team.... I imagine that they will be in contact with the competitive firms also... So
the survey cost issue may be equal to a level playing field... However, if we can
do the work for Tess, we could have an advantage. Exeter Township is in Berks
County, PA just east of Reading.
276. ADR Corporation of Pensauken, New Jersey, received the RFP from Exeter Township
on or about November 18, 1999.
a. Andrew Pickford, of ADR, had previously been notified of the issuance of the
RFP by Gary Cuppels in September of 1999.
277. The Air Survey Corporation received the RFP from the township on or about
November 22, 1999.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 45
a. Charles Foster of the Air Survey Corporation had provided information to Gary
Cuppels and John Theisen which was used in the initial formulation of the RFP
and had previously discussed with Gary Cuppels the possible utilization of the
services of the Vitillo Group as a subcontractor on the project in July of 1999.
b. Sometime prior to December 3, 1999, Brian Boyer had contacted Charles
Foster of ASC regarding the utilization of the Vitillo Group as a subcontractor on
the project.
278. The 3Di Company received the RFP from the township on or about November 22,
1999.
a. 3Di was formerly known as PDS Services, Incorporated.
b. Boyer contacted 3Di after the issuance of the RFP to discuss the utilization of
Vitillo as a subcontractor.
c. Daniel McIntire, a EDI regional manager, spoke with Boyer regarding the
project via telephone.
d. During this conversation, Boyer put McIntire on a speaker phone with Cuppels
and the three had some discussions about Vitillo's role in the project.
279. After the issuance of the RFP, the four companies that had received an invitation to bid
had various questions in relation to the nature and extent of the GIS project.
a. John Theisen testified that Gary Cuppels was involved as a township
supervisor in the review of the questions that were presented by the four
companies.
b. John Theisen testified that he faxed Gary Cuppels copies of the questions that
were being posed by the four companies for him to review.
c. John Theisen testified that Cuppels also participated in drafting an addendum to
the RFP to address the questions posed.
d. John Theisen testified that several of the questions concerned the issue of
monumentation, triangulation and ground controls.
e. Gary Cuppels does not recall receiving the fax from Theisen or participating in
drafting the addendum.
280. On December 6, 1999, at a regularly scheduled Exeter Township Board of Supervisors
meeting, Cuppels noted that the township was scheduled to receive bids for the GIS
mapping project on December lr and he requested that this be delayed by one week.
a. The board had no objection and the township engineer was instructed to send
out an addendum to the specifications.
b. The addendum addressed a number of questions that had been presented by
the bidding companies.
c. The deadline was extended to December 20, 1999.
281. On December 13, 1999, Brian Boyer, Manager of Civil Engineering for the Vitillo
Group, forwarded a letter to Frank Weber outlining the Vitillo Groups proposal for
participation as a subcontractor in Kimball's proposal that was going to be submitted to
Cuppels 99- 059 -C2; 00- 007 -C2
Page 46
Exeter Township for the mapping project.
a. In his letter, Boyer notes that "all survey field efforts will be under the direct
supervision of Mr. Gary T. Cuppels P.L.S., P.P., Executive Vice President with
our firm. Mr. Cuppels has a significant degree of experience in developing
geodetic control networks such as the requirements for this project indicate and
in fact is nationally recognized as an expert in geodetic control and GPS control
networks."
b. Vitillo's cost proposal for the services to be provided was:
Horizontal Field Surveys and Reports -
Option A Vertical Control
$ 30,600.00
$ 7,800.00
c. Boyer also provided, as part of the Vitillo proposal, resumes of all of the Vitillo
employees who would be participating in the project including that of Gary
Cuppels.
d. L. Robert Kimball & Associates decided that they would utilize the services of
the Vitillo Group as a subcontractor in their proposal for mapping of aerial
photography that was being submitted to Exeter Township, due to costs.
282. On December 13, 1999, Brian Boyer, manager of civil engineering for the Vitillo Group,
forwarded a letter to Andy Pickford, of ADR, Incorporated, outlining the Vitillo Group's
proposal for participation as a subcontractor in ADR's proposal that was going to be
submitted to Exeter Township for the mapping project.
a. The terms and conditions of Vitillo's proposal and costs in relation thereto were
identical to the proposals submitted to L. Robert Kimball and the other bidders
identified by Gary Cuppels to receive the RFP.
b. The proposal to ADR, Incorporated also identified Gary Cuppels as the Vitillo
employee who would supervise all survey field work for the project in Exeter
Township.
283. Pickford testified that he decided that since Gary Cuppels had given them a "heads up"
on the issuance of the RFP, ADR would offer the Vitillo Group the opportunity to
participate in their bid proposal as a subcontractor to do the surveying work.
a. ADR had never utilized the services of the Vitillo Group before as a
subcontractor.
b. ADR employee, Michael Shillenn was familiar with Gary Cuppels and had
known Cuppels for approximately ten years, having worked on other projects
with Cuppels.
284. On December 13, 1999, a letter similar to the one forwarded to the L. Robert Kimball
Company was forwarded to Malcom McKenzie of 3Di, in Sterling, Virginia, outlining the
Vitillo Group's proposal to act as a subcontractor on the Exeter Township GSI project.
The terms and conditions of Vitillo's proposal and costs in relation thereto were
identical to the proposals submitted to L. Robert Kimball and the other bidders selected
by Gary Cuppels to receive the RFP.
a. The proposal to 3Di also identified Gary Cuppels as the individual who will
supervise all survey field work for the project in Exeter Township.
285. On December 13, 1999, a letter similar to the one forwarded to L. Robert Kimball
Cuppels 99- 059 -C2; 00- 007 -C2
Page 47
Company and the other bidders from Brian Boyer, of the Vitillo Group, was forwarded
to Charles Foster of Air Survey Corporation in Sterling, Virginia outlining the Vitillo
Group's proposal to act as a subcontractor on the Exeter Township GIS project.
a. The terms and conditions of Vitillo's proposal and costs in relation thereto were
identical to the proposals submitted to L. Robert Kimball and the other bidders
selected by Gary Cuppels to receive the RFP.
b. The proposal to ASC also identified Gary Cuppels as the individual who would
supervise all field survey work for the project in Exeter Township.
c. As previously noted, Gary Cuppels had talked to Charles Foster on July 28,
1999, regarding the possibility that Vitillo Group could act as a subcontractor on
any proposal submitted by ASC regarding the Exeter Township GIS mapping
project.
286. Vitillo's proposal to the four companies identified by Gary Cuppels to bid on the Exeter
Township GIS project was prepared with the input and direction of Gary Cuppels at the
Vitillo Group.
a. Brian Boyer, at the Vitillo Group, was in charge of compiling all of the
information and preparing it in a form to be submitted to the four bidding
companies.
b. Gary Cuppels prepared and provided Boyer with all of the cost estimates and
cost proposals that would be submitted by the Vitillo Group.
c. Gary Cuppels, was also Brian Boyer's immediate supervisor.
287. Brian Boyer reported back to Gary Cuppels as his immediate supervisor on all of his
actions in relation to the GIS mapping project.
a. Boyer's reports back to Cuppels included his conversations and discussions
with the four bidding companies in an effort to have them utilize the services of
Vitillo Group as the subcontractor for the field survey work.
288. On December 17, 1999, L. Robert Kimball & Associates forwarded to John Theisen,
Exeter Township Engineer, its proposal for the GIS mapping project.
a. Kimball's proposal indicated that for the township wide mapping project, they
had enlisted the services of Vitillo Engineering, Incorporated, a subsidiary of
Vitillo Corporation, to perform the necessary horizontal and vertical control tasks
required.
b. The proposal further indicated that field control surveys would be performed
under the direct supervision of a professional land surveyor.
c. A professional land surveyor identified as noted above in the Kimball proposal
was Gary T. Cuppels.
d. A copy of Gary Cuppels resume was included in the Kimball proposal to Exeter
Township along with those of other Vitillo employees.
289. On December 20, 1999, ADR, Incorporated submitted its proposal to John Theisen for
the GIS mapping project.
a. In the executive summary portion of the proposal, ADR indicates that it will team
Cuppels 99- 059 -C2; 00- 007 -C2
Page 48
with the Vitillo Corporation to provide the photo control surveys and the
establishment of a system of ground control points throughout the township as
well as to install monuments at all ground control points.
b. The resume of Gary Cuppels was included in the ADR proposal as the Vitillo
representative who would supervise the field survey work.
290. On December 20, 1999, ASC, Incorporated submitted its proposal to John Theisen
regarding the GIS mapping project.
a. In its cover letter to the proposal, ASC indicates that ASC will be supported for
all ground surveying services by the Vitillo Group and that all survey work will
be directed by Gary Cuppels.
b. A copy of Gary Cuppels' resume was included in the ASC proposal to Exeter
Township.
291. On December 20, 1999, 3Di submitted its proposal to John Theisen for the GIS
mapping project.
a. The 3Di proposal included the association of Vitillo Corporation as the
coordinator of the existing ground control points and the monumentation phase
of the project.
b. A copy of Gary Cuppels' resume was included in the 3Di proposal to Exeter
Township.
292. The four bids received by Exeter Township regarding the mapping portion of the GIS
project were as follows:
Base Option Total
1. ADR $139640 $99879 $239510
2. ASC $136600 $61800 $198400
3. LRK $124000 $82900 $206900
4. PDS $ 79760 $50484 $130244
293. On December 29, 1999, a meeting was held with Cuppels, Theisen and Ziegenfus in
order to review the proposals that had been received in relation to the GIS project.
a. Ziegenfus had previously been contacted by Theisen who advised him that four
responses to the request for proposal had been received.
b. Ziegenfus arrived at the township building several hours before the scheduled
meeting so that he would have an opportunity to review all of the proposals prior
to being asked to discuss such.
294. Upon reviewing the four proposals that had been received, Ziegenfus realized that the
Vitillo Group was designated as a subcontractor to perform the survey, monumentation
control point portion of the work on all of the proposals that had been received by the
township.
295. At the December 29 meeting, Theisen, Cuppels and Ziegenfus reviewed and
discussed, at some length, the proposals that had been received.
a. Ziegenfus reviewed the proposals from a GIS mapping perspective, not from an
engineering point of view.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 49
b. Ziegenfus left the engineering to Cuppels and Theisen.
c. Gary Cuppels actively participated in the review of the proposals that had been
received and the decision to recommend the selection of 3Di the low bidder as
the contract provider.
296. The contract was awarded to 3Di, as low bidder.
a. Gary Cuppels abstained from the township's action regarding the award of the
contract.
297. On January 24, 2000, at a regularly scheduled Exeter Township Board of Supervisors
meeting, questions were raised by EAC member, Debbie Stanley, regarding the bid
specifications for the GIS project.
a. During the meeting when questions as to whether each of the Board members
reviewed the bid specification before they were sent out, Buler stated that she
did not review them in total; Kircher, MacBean and Fatora stated that they had
not reviewed them and Cuppels stated that he reviewed the entire package.
b. Regarding how the proposals were solicited, Cuppels responded that it was not
a bid, rather it was a sealed proposal for professional services. Cuppels stated
that the Township solicited proposals from the original firms that submitted bids
for the aerial photography work back in March.
c. Debbie Stanley, a member of the EAC, questioned why the firms who had come
in to give the EAC presentations were not given the opportunity to submit a
proposal. The minutes for the meeting indicate that Cuppels stated that Dr.
Ziegenfus recommended the firms who were invited to present a proposal.
d. Stanley asked what the reasoning was for having the scale as detailed as 1" to
100' and 1" to 200'; she felt that this would be used for surveying not planning.
Cuppels indicated that it was necessary to develop an accurate base map for
future use at the Township level. He felt that 1" to 500' would cause the map to
loose [sic] too much detail. Cuppels stated that the Township wanted to
concentrate on the area where there is significant infrastructure.
e. Cuppels stated that the scale was another recommendation of Dr. Ziegenfus, to
which Ms. Stanley disagreed. She stated that she met extensively with Dr.
Ziegenfus and also recalled that the Supervisors wanted to hold off on G.I.S.
until the County decided what it was going to do. She stated that the County
would never use a 1" to 100' scale and that this would make it difficult to share
information with the County. Cuppels stated that this was not true and that the
Township's G.I.S. would be much more accurate than anything the County
would do.
f. Stanley asked if the accuracy was necessary at the Township level for planning
or if it was for a more detailed purpose. Stanley stated that G.I.S. is for planning
purposes and other municipalities using a less detailed scale find it to be
perfectly fine. She stated that given the amount of money the detailed mapping
would cost it was clearly beyond the scope for planning purposes.
Cuppels stated that planning is only one of the functions of G.I.S. but more
importantly the Township needs to know where it's [sic] infrastructure is for
planning and construction purposes. Stanley stated that the Township is not in
the construction business and should be concerned only with enough detail for
planning purposes. Stanley was concerned that the Township would be
g.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 50
spending tax dollars on something that would be way too detailed. She was
also concerned that the software that was going to be used, the database that
was to be a part of it, and any training for individuals to use the information was
not disclosed in the specifications.
h. Stanley asked who would have access to the information to which Cuppels
responded that the Township hopes to make it available over the Internet.
Stanley was concerned because the specifications stated that the successful
firm would have exclusive utilization of copyright privileges. Cuppels explained
that this would be a proprietary right given to the successful firm because the
Township does not want to be in the map business. Stanley wanted to know
why we are trying to do the mapping in such detail if it is not needed and the
Township will not be selling the maps.
She asked the Board to table action on the award of the contract until all of the
Supervisors could review the bids in detail and agree to it unanimously. Fatora
asked Stanley what other municipalities are using for scale to which she
responded 1" to 400' or 1" to 500' scales. Stanley felt that the base map as
proposed is going to negate the purpose of a G.I.S. overlay system. She stated
that the base map should just show the Township boundaries, streets and
streams. Kircher asked if there were samples of other Communities from the
Company that submitted the best proposal.
298. Although the minutes of meeting reflect that Cuppels indicated during the supervisors
meeting that Dr. Ziegenfus had recommended the four companies that were invited to
submit proposals, such was not true.
a. Gary Cuppels claims that he does not recall making such statements in the
manner reflected in the minutes, but agrees that the minutes reflect such.
b. Ziegenfus testified that he played no role in selecting the companies that were
invited to submit proposals.
c. Gary Cuppels claims that Ziegenfus participated in the selection of the
companies to the extent that Ziegenfus was opposed to the participation of the
L. Robert Kimball Company due to certain work that they had performed for
Berks County of which he was aware.
299. Although Cuppels indicated during the January 24, 2000, supervisors meeting that Dr.
Ziegenfus had recommended the scale to be utilized for the GIS project, such was
arrived at with the participation of Ziegenfus, Theisen and Cuppels.
a. This comports with Cuppels' public statements on June 1, 1998, when he
recommended a 200 scale. (See Finding No. 222).
b. Notes maintained by Dr. Ziegenfus from the July 15, 1999 meeting indicate
"Cuppels felt 1" = 100', 1" = 200' or 1" = 400' depending on density."
300. In relation to the developing of a GIS mapping plan, more detail necessitates more
monuments in order to complete the project, and it also provides a more accurate map
and control points to be used for the GIS identification.
a. An increase in the number of monuments needed in order to complete the GIS
mapping project would result in additional work for the company doing the
ground control, monumentation and triangulation portion of the project.
301. At a regularly scheduled meeting of the Exeter Township Board of Supervisors on
Cuppels 99- 059 -C2; 00- 007 -C2
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February 14, 2000, Commissioner MacBean made a motion to award the GIS mapping
contract to 3Di, Incorporated in the amount of $79,740.
a. The motion was seconded by Ms. Buler and failed by a vote of 2 -1 with Fatora
and Cuppels abstaining.
302. At a regularly scheduled Exeter Township Board of Supervisors meeting on February
21, 2000, the award of the GIS contract was again presented to the board and a motion
was made to award the contract to 3Di, Incorporated in the amount of $79,740.
a. The motion carried with Buler, Kircher and MacBean voting in favor and Mr.
Cuppels abstaining and stating for the record the reason for the abstention.
303. After the award of the contract to 3Di for the GIS mapping project, Gary Cuppels, as an
employee of the Vitillo Group, actively worked on the Exeter Township GIS project.
a. Cuppels worked with Daniel Laudenslayer, Mike Kelley and other Vitillo
employees on this project.
b. Vitillo Corporation billed 3Di by way of invoices for the services rendered by the
Vitillo Corporation in relation to the GIS mapping project, including the hours
worked by Gary Cuppels on the project.
c. Vitillo Engineering invoiced 3Di on April 30, 2000 in the amount of $9,180 and
on May 31, 2000, in an amount of $6,120.
304. John Theisen testified that on two occasions in June 2000, Gary Cuppels approached
John Theisen, and directed Theisen to determine why the township had not yet paid
the 3Di Corporation the funds owed.
a. Gary Cuppels denies that he had this conversation with Theisen.
305. John Theisen testified that based on the direction from Gary Cuppels, Theisen
contacted Malcolm McKenzie at 3Di to inquire why there was a delay in 3Di billing the
township for work completed in relation to the GIS project.
a. Gary Cuppels denies that he had this conversation with Theisen.
306. 3Di submitted its first invoice to the township dated July 12, 2000. The invoice
included a description of services as follows:
Survey - 50% complete $ 15,300
Analytical Triangulation 3,120
Prints 260
Diapositives 832
$ 19,512
307. 3Di's invoice included services provided by Vitillo Engineering under the subcontract
Vitillo had with 3Di for the GIS project.
308. Exeter Township issued check no. 041279 to 3Di on August 28, 2000, in an amount of
$19,512.
309. 3Di's records indicate the following payments were made to Vitillo Engineering as of
November 2, 2000.
Date of Vitillo's Invoice Date of payment to
Cuppels 99- 059 -C2; 00- 007 -C2
Page 52
Received by 3Di to Vitillo Engineering Amount
05/17/00 09/21/00 $9,180.00
06/30/00 10/06/00 $6,120.00
07/31/00 10/06/00 $4,590.00
310. The proposed cost to 3Di for the work performed by the Vitillo Group was $30,600.
a. The Vitillo Group discontinued providing services to 3Di for the GIS project and
as a result was only compensated in the amount $19,890.00.
311. At a regularly scheduled meeting of the Exeter Township Board of Supervisors on July
10, 2000, the issue of the GIS mapping project was considered.
a. At this time, Gary Cuppels inquired of the township engineer if he had heard
anything about the status of the GIS mapping project.
b. Cuppels advised the board that the company that was hired to do the mapping
project (3Di, Incorporated) had subcontracted with the Vitillo Group and that he
(Cuppels) was not managing the project.
c. Cuppels advised that Dr. Robert Ziegenfus had been hired by the township to
coordinate and manage the process.
312. The information that Cupppels p rovided to the township board of supervisors on July 10,
2000, that he was not hired manage the project left out the fact that he was
supervising the field survey work.
a. The information submitted by Brian Boyer to all of the four companies that had
proposed Vitillo Group as its subcontractor indicated that the field survey would
be under the direct supervision of Gary Cuppels.
b. Brian Boyer, of the Vitillo Group, testified that Gary Cuppels was the individual
at the Vitillo Group who was directly in charge of the field survey work on the
GIS mapping project, as he was the most experienced individual from the Vitillo
Group in this field.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Gary T. Cuppels, hereinafter
Cuppels, 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 seg., 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 allegations before us from these two consolidated cases are as follows:
a. That Cuppels, in his capacity as a Supervisor for Exeter Township, Berks County,
violated Sections 3(a)/1103(a), 3(c)/1103(c) and 3(f)/1103(f) provisions of the Ethics
Act when he used the authority of his office and /or confidential information obtained
from holding public office for the benefit of himself and /or a business with which he is
associated by reviewing and participating in the drafting, issuance and review of
specifications, Requests for Proposals, and received bids /proposals relating to
township projects and participating in discussions and other actions relating to
township projects in his capacity as a township supervisor resulting in a business
which employs him as Vice President, being awarded contracts or subcontracts related
Cuppels 99- 059 -C2; 00- 007 -C2
Page 53
to township projects; when he participated in the supervision and /or administration of
such contracts or subcontracts; when he used the authority of his position to insure
that business was able to alter a bid that was submitted to the township after the
closing date for said bids resulting in the award of a contract by the township to that
business; and when he used his position to have the township hold escrowed funds
due a developer until that developer paid a private bill owed to the business with which
he is associated.
AND
b. That Cuppels, in his capacity as a Supervisor for Exeter Township, Berks County,
violated Sections 3(a)/1103(a) and 3(c)/1103(c) of the Ethics Act when he participated
in discussions, actions and votes of the board of supervisors to create a paid position
for himself with the township; and when he voted to approve payments to himself; and
when he used the authority of his elected office to participate in discussions and
actions of the board of supervisors resulting in the use of the township solicitor to
represent him in a lawsuit against the auditors over wages for his township position,
including voting to approve payments for legal and related services.
Pursuant to Section 3(a)/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 211102. 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
f
of ce 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. §402/65 Pa.C.S. §1102.
Section 3(a)/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 3(f)/1103(f) of the Ethics Act provides:
Section 311103. 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
Cuppels 99- 059 -C2; 00- 007 -C2
Page 54
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)/65 Pa.C.S. §1103(f).
Section 3(f)/1103(f) of the Ethics Act 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.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings for these two consolidated cases. The parties' Stipulated Findings are quoted above
as the Findings of this Commission. We shall now summarize the relevant facts as contained
therein.
Cuppels has served as a Supervisor in Exeter Township since January of 1996. In a
private capacity, Cuppels is employed as Executive Vice President for the Vitillo Corporation.
The Vitillo Group comprises four companies: Vitillo Engineering, Inc., Vitillo Environmental,
Inc., Vitillo Construction, Inc., and Energy Data Corporation.
The first case under consideration involves allegations of Cuppels' position of
employment as the Director of Engineering and Highway Maintenance and secondly the
utilization of the township solicitor to sue the township auditors to set Cuppels' compensation
as a township employee. After the township manager resigned in 1996, the board abolished
that position and utilized the supervisors to serve as liaisons with the various township
departments. Each supervisor was appointed as a director of one of the township
departments. Cuppels became the Director of Engineering and Highway Maintenance at a
January 1997 meeting of the board of supervisors. Cuppels was reappointed to that position
at board meetings in January of 1998 and 1999.
When the supervisors requested the township auditors to set compensation for the
supervisors employed as directors, the board of auditors refused. In January of 2000, the
board of supervisors authorized the solicitor to bring legal action to require the auditors to
approve such compensation. That action was authorized in a 3 -1 -1 vote with Cuppels making
and voting for the motion. After the township solicitor filed a mandamus action against the
auditors on behalf of Cuppels and two other supervisors, a request was made by the solicitor
for the board of supervisors to pay for the transcription of depositions. Cuppels initially
abstained on the vote to approve the invoice. However, after another supervisor rescinded her
second of the motion and vote, Cuppels then seconded the motion and voted to pay the legal
fees. The mandamus action remains pending as of September 2000.
For the period from January 1997 through December 1999, Cuppels submitted time
sheets as Director of Engineering and Highway Maintenance and received compensation
totaling $7,043.63 [sic]. Cuppels participated as to the approval process for such payments as
Cuppels 99- 059 -C2; 00- 007 -C2
Page 55
well cosigned two checks that were issued to him by the township for performing such
services. Since January 2000, Cuppels has not received compensation for serving as the
Director of Engineering and Highway Maintenance.
The second case involves Cuppels' involvement as to the award of township contracts
for ten different projects. Whenever Exeter Township awards a contract, it utilizes an
advertised competitive bid process for projects that will be in excess of $10,000. If the project
cost will be under $10,000, the township uses an RFP process and price quotes. When the
township solicits bids for engineering or construction projects, the township engineer sends an
RFP to companies from a list of potential bidders.
Before Cuppels became a township supervisor and Director of Engineering and
Highway Maintenance, the Vitillo Group did limited work in relation to township projects.
Companies associated with the Vitillo Group were put on the RFP list of providers by the
township engineer after Cuppels became a supervisor. Within six months of his election,
Cuppels attempted to secure township business for the Vitillo Corporation. Cuppels, as
Executive Vice President of Vitillo Corporation, sent a mass mailing to all the townships,
including Exeter, that the Vitillo Group had BOCA certified instructors on staff and could assist
townships as to the new statewide building code.
Thereafter, Vitillo Engineering, Vitillo Construction (Environmental Constructors), and
Vitillo Environmental regularly submitted bids and price quotes to Exeter Township for
engineering or construction projects. Cuppels, as an Exeter Township Supervisor and
Director of Engineering and Highway Maintenance, regularly participated in the review and
draft of specifications or price quotes for projects that were eventually obtained by the Vitillo
Group. See, Fact Finding 46. For the period from 1997 to 1999, the Vitillo Group was
awarded, through the competitive bid process, approximately one -third of all construction and
surveying projects in Exeter Township.
The following is an individualized summary of various township projects. The summary
delineates the circumstances of each project as well as Cuppels' involvement.
The first project concerns Exeter Township's Handicap Ramp Project #9. In January
of 1997, the board approved advertising for sealed bids for the project after the specifications
were prepared by the township engineer, John Theisen. The specifications were supplied to
eight contractors including Environmental Constructors, Inc. Bids were received from four
companies, one of which was Environmental Constructors, Inc., as the low bidder. Initially, the
board tabled action with Cuppels participating and voting in favor of that motion.
Approximately one week later, the board awarded the ramp contract to Environmental
Constructors, with Cuppels abstaining on the vote. Environmental Constructors submitted
three invoices to the township as to the handicap ramp project. As to the first two invoices,
Cuppels participated in the general disbursement vote to approve payments. As to the second
vote, Cuppels abstained from voting to approve payment but cosigned the check in payment.
Parenthetically, as to the third invoice, there is an indication that Cuppels worked one and one -
half hours at the rate of $72.00 per hour on the project. Cuppels claims the invoice was sent
in error, asserting that he simply drove a dump truck in an emergency situation because the
regular driver was not available.
The second township project involves the Exeter Golf Club Estates. A land
development company began the building project in 1986 [sic]. The contractor, Enrico
Filippini, contacted the Vitillo Group to provide engineering services for a phase of the project.
Cuppels was one of the individuals from the Vitillo Group who discussed the plans and scope
of the project with Filippini. The contractor also utilized the services of Environmental
Constructors, Inc. to perform construction services in another phase of the project. In 1997,
the township board approved the preliminary plan for phase four of Golf Club Estates.
Cuppels participated in the discussion but then abstained on the vote. Cuppels also
Cuppels 99- 059 -C2; 00- 007 -C2
Page 56
participated in the discussion and voted on the approval of a sewer extension into Golf Club
Estates.
During phase three of the construction in Exeter Golf Club Estates, a dispute arose
regarding the services provided by the Vitillo Group. In September of 1997, Filippini decided
to no longer utilize the services of the Vitillo Group. At that time, Filippini owed Vitillo
approximately $20,000 in engineering fees. When Filippini submitted a request to the
township to release $280,000 held in escrow as a project requirement, Township Engineer
Theisen reviewed the request, determined that the improvements had been completed and
referred the request to the board of supervisors for review and approval. However, John Vitillo
faxed a letter to the board of supervisors requesting the board withhold the release of the
escrow funds for the reason that professional service fees had not been paid in full. At the
board of township supervisors meeting in October 1997, Cuppels raised the escrow funds
issue and requested the solicitor to review whether the escrow could be withheld pending
payment by Filippini to Vitillo. In so doing, Cuppels advanced the interest of the Vitillo Group.
After the solicitor recommended a partial release of the escrow, the board approved that action
with Cuppels abstaining.
After Filippini learned that a portion of the escrow was being withheld, he contacted the
Vitillo Group and spoke to Cuppels. According to Filippini's testimony, he advised Cuppels
that the township could not withhold the escrow funds but Cuppels responded that the escrow
funds would be released once the fees were paid to Vitillo. Cuppels denies that he had such a
conversation with Filippini. After Filippini issued a check to the Vitillo Group for the balance of
the services, John Vitillo wrote a letter to Filippini advising that he would authorize the release
of the escrow funds from the township. The township subsequently released the balance of
the funds to Filippini, even though Exeter Township had never previously withheld escrowed
funds because of a dispute between a developer and engineer.
The next Exeter Township contract concerns the matter of a storm sewer project for
35 Street and Circle Avenue. Because the township had continuing problems with the storm
sewer drainage at 35th Street and Circle Avenue, the board directed Township Engineer
Theisen to obtain pricing to replace the storm sewer pipe. Since Theisen determined that the
cost of the project would be under $10,000, he sought proposals for the project without going
through a formally advertised bid process. Although Theisen contacted ten companies, only
three submitted proposals, one of which was Environmental Constructors, Inc. The township
engineer compiled the three quotes: M &A Excavating, the low bidder at $9,500;
Environmental Constructors, Inc., the middle bidder at $9,762; and Bertolet Construction, the
high bidder at $19,300. Consistent with township policy, copies of the quotes were placed in
the mailboxes of the township supervisors.
After Cuppels obtained a summary of the proposals, he contacted an employee of the
Exeter Township Engineering Department and directed her to inform Theisen that the bid for
Environmental Constructors, Inc. was $9,262. After Theisen received Cuppels message,
Theisen faxed a copy of the summary indicating that the bid of Environmental Constructors,
Inc. was $9,762. There is testimony which reflects that Cuppels directed an Environmental
Constructors, Inc. secretary to prepare a letter to Theisen indicating that there was a
typographical error in the proposal. There is also testimony to indicate that Cuppels directed
the secretary to change the amount on the proposal from $9,762 to $9,262 and to change the
signatory of the letter. Environmental Construction's Vice President, Salvatore Albert, twice
refused to sign the document on the basis that the contents of the letter and the date were
inaccurate, and the bid amount was changed. Finally, John Vitillo directed Albert to sign the
amended bid because Cuppels advised that he (Cuppels) wanted the bid amount lowered.
Cuppels asserts that his actions were taken not as a supervisor but as a Vitillo employee.
The original proposal by Environmental Constructors, Inc. was reviewed by two of its
employees who both verified that the original estimate of $9,762 was accurate without any
typographical error as to the amount. A second summary of proposals was submitted which
Cuppels 99- 059 -C2; 00- 007 -C2
Page 57
showed Environmental Constructors, Inc. as the low bidder at $9,262. After the summary was
submitted to the township, Cuppels informed the board that the first proposal of Environmental
Constructors, Inc. contained a typographical error and Environmental Constructors, Inc.
submitted a second bid of $9,262. Environmental Constructors, Inc. received the contract by
a vote of the board with Cuppels abstaining.
The next township contract involves the matter of catch basins in 1997. After it was
determined that there was a need to repair catch basins, Cuppels participated in a board action
to award a repair contract. The township engineer prepared specifications and forwarded them
to eleven companies one of which was Environmental Constructors, Inc. Of the three bids
that were received for the catch basin repair project, one was from Environmental
Constructors, Inc. which submitted the low bid. Initially, the catch basin repair project was
tabled with Cuppels' participation. At a subsequent meeting, the contract was awarded to the
Environmental Constructors, Inc. Cuppels abstained as to the vote. Upon completion of the
project, a payment was made to Environmental Constructors, Inc. by Exeter Township.
Cuppels, as a supervisor, abstained from the votes to approve the bill lists for those payments
but signed all three checks issued to Environmental Constructors, Inc.
The next township project for consideration is the Indoor Air Assessment Study.
During 1988, township employees complained about health problems which they believed
were related to the air quality in the township building. The board decided to have cameras
inserted into the ductwork to check if cleaning would be necessary. After no significant
problems were found in the ductwork, Cuppels suggested that the building be tested to
determine if there were any existing problems. Township Engineer Theisen prepared a
proposal for an indoor air assessment of the township building. Cuppels volunteered the
services of Dr. Tyagi, an employee of Environmental Research, Inc., to help the township
engineer develop an RFP for the project. Dr. Tyagi reviewed the proposal and made certain
revisions for the indoor assessment RFP which he faxed to Theisen. After certain
amendments were made to the RFP, the proposal was sent to six companies, one of which
was Environmental Research, Inc. The contact person for Environmental Research, Inc. was
identified as Dr. Tyagi. In April of 1998, four quotes were received, one of which was from
Environmental Research, Inc. At the next board of supervisors meeting, Cuppels made and
voted for a motion to table the action and refer the matter to Theisen for review. After the
engineer advised the board that he obtained two lump sum quotes, the board took action to
award the indoor air assessment project to High Safety. Cuppels is not associated with High
Safety.
Another Exeter Township project is the Storm Drain Study Update. After Township
Engineer Theisen wrote a memo to the supervisors advising that the 1983 storm drain study
was outdated, he was directed by Cuppels and another supervisor to prepare an RFP for a
current study. At a September 1998 board meeting, Cuppels made and voted for a motion to
authorize the township engineer to seek RFP's for mapping the existing storm water
management system in the township. The township engineer sent bid invitations to ten firms
including the Vitillo Corporation as per a list prepared by Theisen and provided to Cuppels.
Cuppels denies receiving the list. An addendum to the RFP was prepared by Theisen at the
request of Cuppels. The addendum was issued on Friday, October 9, 1998, and faxed to
Vitillo Corporation. However, the bids due date of Monday, October 12, 1998, was not
extended. Seven firms submitted invitations including the Vitillo Corporation which submitted
the low bid.
The board subsequently awarded the contract to the Vitillo Corporation. Cuppels
abstained on that vote. Debra Thornburgh, who was the Vitillo employee assigned to the
Exeter Township storm drain study, received assistance from Township Engineer Theisen as
per Cuppels' request. Although Cuppels asked Theisen to further help Thornburgh, Theisen
was reluctant to provide additional assistance to her because such work was to be done by
Vitillo. Subsequently, there was a price increase as to the contract which Cuppels attributed to
Theisen's refusal to offer assistance to Thornburgh. When the final invoice was submitted by
Cuppels 99- 059 -C2; 00- 007 -C2
Page 58
Vitillo Corporation to Exeter Township, Cuppels abstained on the vote to approve payment.
Parenthetically, Cuppels participated in meetings and discussions with other Vitillo employees
regarding the storm drainage study. The time for those meetings was subsequently billed to
the township and payment was approved as part of a group of bills through a unanimous vote.
Cuppels made the motion and voted to approve the list of bills which included the Vitillo
invoice.
The Schuylkill River Trail, Section 2, is another project that was undertaken in Exeter
Township. The township sought to develop a hiking trail in the township and attempted to
obtain funding through a grant from PennDOT. After the township board authorized Theisen
to seek proposals for a survey for obtaining easements for the second section of the trail, he
faxed the RFP to Cuppels at the Vitillo Corporation. In January of 1999, Cuppels seconded a
successful motion to authorize the township engineer to apply for a State grant. Theisen then
sent RFP's to three potential bidders for the surveying services, one of which was the Vitillo
Corporation. In February of 1999, the board awarded the surveying services contract to Vitillo
Corporation as the low bidder. Cuppels abstained on that vote. The Vitillo Group received
payment from the township for the services. Cuppels abstained on the vote to pay Vitillo
Corporation.
The next township project under consideration involves the Pineland Park Project. In
1996, discussions occurred by the board of supervisors for the construction of a township
recreation area and park in the area known as Pineland Park. In January of 1996, the board
unanimously approved a resolution to apply for grants from the Pennsylvania Keystone
Recreation Park and Conservation Fund Grant for the Pineland Park Project. After DCNR
awarded a grant to the township, the board entered into discussions with the Commonwealth
of Pennsylvania and the Pennsylvania Historical Commission regarding the lease of space for
the Pineland Park Project. A lease agreement for Pineland Park was signed by the township
and the Commonwealth in December of 1996. Prior to signing the lease, the board of
supervisors authorized the township engineer to seek proposals for clearing the area of
Pineland Park that would be used for the park and as well as proposals for a survey of the
boundary and topographical information for the proposed park site. After Theisen prepared
the RFP for the park survey, he faxed it to Cuppels' office at the Vitillo Corporation for his
review and comment. At a board meeting in December of 1996, Cuppels made a successful
motion to authorize RFP's for the survey . The RFP was then distributed to potential bidders.
Although Vitillo Corporation was one of the firms that received the RFP, the contract was
awarded to a company with which Cuppels is not associated.
Approximately one year later at a board meeting, Cuppels reported that he met with the
township engineer and proposed that the soccer and baseball fields be split into two separate
fields. In January of 1999, following a motion by Cuppels, the board of supervisors approved
the plans for Pineland Park. Cuppels seconded a motion to authorize the engineer to solicit
bids for the Pineland Park Project and the township then advertised for sealed bids. After
Township Engineer Theisen received telephone calls from two interested bidders requesting
an extension for the bidding deadline, he conveyed that information to Cuppels who instructed
Theisen to retain the original deadline. Bids were received from twelve corporations, including
the Vitillo Corporation. The manual and specifications for the bids called for a base bid for the
park construction plus five options. Twelve companies submitted bids with options as detailed
in Fact Finding 185. In a March 1999 board meeting, a motion was made to award the
Pineland Contract with four of the five options to the Vitillo Construction. The motion passed
with Cuppels abstaining.
One of the provisions in the contract provided for rock excavation in excess of 100
cubic yards. Following the award of the contract to Vitillo Construction, Township Engineer
Theisen advised that he was to be immediately notified of any rock during the excavation as
per the contract. When rock was encountered during an initial excavation, Theisen met with
John Vitillo and approved the removal of the rock. After the township engineer was placed on
indefinite leave due to a claimed medical condition, two subordinates, Koontz and Franckowiak
Cuppels 99- 059 -C2; 00- 007 -C2
Page 59
neither of whom were engineers, performed Theisen's duties. In April of 1999, shortly after
Theisen was placed on leave, Vitillo wanted to meet with Koontz regarding backhoe probes
that were indicative of rock at the park site. Since Koontz was unavailable, Vitillo met with a
supervisor and Franckowiak and provided estimates for rock removals in the park area. Since
neither the supervisor nor employee had expertise in determining the accuracy of the rock
estimates, a memo was written to the board of supervisors. The memo indicated that the rock
estimates were for 2,371 cubic yards which would generate $49,275 in supplemental charges.
In May of 1999, the Vitillo Corporation submitted an invoice that included an additional
payment of $54,400 for the removal of 2,176 cubic yards of rock. The board of supervisors
took no action to authorize the removal of rock. Cuppels asserts that the rock removal was
already addressed in the existing contract. The board however approved payment to Vitillo
Corporation with Cuppels abstaining.
In May of 1999, Vitillo called Koontz to the site to discuss possible rock volumes.
Koontz at that time offered alternatives such as revising the elevations or bringing in fill.
Koontz followed up with a fax to Vitillo for a discussion regarding grade elevation changes to
avoid rock in the hockey and basketball court areas. In a subsequent meeting among Koontz,
Vitillo and others, it was agreed to hold the grades as designed. Vitillo calculated that 1,092.4
cubic yards of rock would have to be removed at a cost of $27,300. Koontz met with Vitillo
and Cuppels and suggested a change in location of the baseball field. Koontz had
discussions with Cuppels regarding the rock issue which Cuppels denies. In June of 1999,
Vitillo submitted another payment request to the township as a supplemental claim of $27,325
for rock removal. The payment was approved by the board with Cuppels abstaining. The
payments from the township to the Vitillo Corporation for the Pineland Park Project totaled
$488,451. Although Cuppels did not vote on the approval of any of the payments to Vitillo
Corporation, he did sign the checks as a supervisor.
The last project under consideration is the Exeter Township Geographic Information
Systems Project. In 1996, the township formed an Environmental Advisory Council (EAC),
that obtained documents from the Pennsylvania Environmental Council as to Geographic
Information Systems (GIS). Since EAC members wanted to have the township participate and
support a GIS project, EAC requested funding from the board of supervisors for a mapping
project. In a June 1998 meeting, the board deferred taking action on the EAC mapping
proposal due to concerns of county action and potential compatibility problems with their
township GIS system. Cuppels specifically stated that he wanted to put the matter on hold
until such time as the county decided on its own course of action. At that time there were a
number of companies interested in submitting proposals to develop a GIS system for the
township. See, Fact Findings 224, 225.
At a February 1999 board meeting, Cuppels raised the GIS system and asked the
engineer to proceed expeditiously because there was substantial support for the project. At a
March 1999 board meeting, Cuppels suggested that the board seek proposals to have aerial
photos taken of the township for mapping purposes. Shortly thereafter, Theisen faxed a copy
of the RFP for aerial photography to Cuppels at his Vitillo office. On the same day, Cuppels
contacted Frank Weber of L. Robert Kimball Associates Engineering Firm, advising that an
RFP for aerial photography for Exeter Township would be forwarded from the township
engineer. Cuppels also requested Theisen to send the RFP's to three other companies that
were leaders in the GIS field. Sealed bids were opened at a March 1999 board meeting from
three companies, one of which was L. Robert Kimball Associates. However, the contract was
awarded to Air Survey Corporation (ASC) as low bidder.
After Charles Foster from ASC suggested to Cuppels that the township draft an RFP
for GIS mapping, Cuppels provided that information to Theisen. Subsequently, in a July 1999
meeting among Cuppels, Theisen, and Robert Ziegenfus who was a GIS consultant, Cuppels
played an active role in developing an outline for the township to implement the GIS project.
At a July 1999 board meeting, Cuppels reported that there was an outline in place for
proceeding with GIS. Cuppels stated that the Arcview system should be used because it was
Cuppels 99- 059 -C2; 00- 007 -C2
Page 60
user friendly. Cuppels further proposed that there should be someone in -house to gather data
and work on the system after the mapping was complete. In July of 1999, Cuppels met with
the township engineer to discuss the content of an RFP for the GIS project. Cuppels
requested the township engineer to solicit four companies to submit RFP's for the mapping
portion of the GIS project. Those four companies were the same that were contacted
regarding the aerial photography work. All four of those companies had prior business
dealings with the Vitillo Group or Cuppels. Township Engineer Theisen testified that he was
specifically directed by Cuppels not to send the RFP's to any company other than the four
identified by Cuppels. Cuppels denies that he directed the township engineer to limit his action
as to distributing RFP's.
Cuppels met with Charles Foster from ASC to discuss the possibility of the Vitillo
Corporation performing subcontract work for ASC on the Exeter project. Following a meeting
among Theisen, Cuppels, and Ziegenfus regarding the GIS project on September 1, 1999, it
was determined that the issue of uncovering and installing additional survey monuments in the
township should be included in the RFP and that a company with expertise in the area would
be an important component of the RFP. Vitillo was a company that had the expertise in this
area along with other engineering and mapping firms. Cuppels, as an employee of Vitillo, was
in charge of that type of work for the company.
On September 1, 1999, Cuppels discussed the GIS monument issue with Frank
Weber from L. Robert Kimball Associates. Cuppels asked Weber if L. Robert Kimball would
be interested in providing base mapping for the GIS program and informed him that the
township would be soliciting bids from his firm and three other firms. L. Robert Kimball
Associates had previously collaborated on projects with Vitillo Corporation. In fact, Gary
Cuppels was Weber's contact at the Vitillo Group.
At an October 1999 board meeting, Cuppels made a successful motion to authorize the
advertising of RFP's for the GIS mapping. Shortly thereafter, Cuppels instructed Brian Boyer,
the Manager of Civil Engineering from the Vitillo Group to contact Township Engineer Theisen
and obtain the names and contacts of the four companies that would be bidding so that Vitillo
could submit proposals to them as a subcontractor for the township project. Cuppels had
already advised the township engineer as to which companies were qualified to receive the
RFP's. Cuppels met with Theisen and Ziegenfus to review and finalize the draft of the RFP.
The issues in the RFP concerning control points, triangulation and monumentation were only
discussed by Cuppels and Theisen. Those were the issues that Cuppels would deal with as a
surveyor with the Vitillo Group. The RFP was formerly released by the township in November
of 1999 without any advertisement. The RFP was forwarded by the township engineer to the
four companies specified by Cuppels. Because of certain RFP addendums, the deadline for
submitting bids was extended to December 20, 1999.
In November of 1999, Boyer contacted Frank Weber from L. Robert Kimball
Associates inquiring as to whether the Vitillo Group could provide survey work for its Exeter
Township proposal on the GIS project. Boyer also contacted Charles Foster of ASC regarding
the utilization of Vitillo Group as a subcontractor on the GIS project. Similarly, after 3Di
Company received the RFP request from the township, a conversation ensued among Boyer,
Cuppels and Daniel Macintyre, EDI's regional manager, regarding Vitillo's role in the project.
On December 13, 1999, Boyer sent a letter to Frank Weber of L. Robert Kimball Associates
regarding the Vitillo's proposal for participation as a subcontractor in the Kimball's proposal.
Similarly, Boyer sent a letter to Andy Pickford of ADR outlining Vitillo's proposal for
participation as a subcontractor in ADR's proposal. Pickford testified that since Cuppels had
given him a "heads up" on the issuance of an RFP, ADR offered Vitillo the opportunity to
participate in their bid. In this regard, ADR had never previously utilized the services of the
Vitillo Group as a subcontractor. A similar type letter was sent to Malcolm Mckenzie of 3Di
outlining Vitillo's proposal to act as a subcontractor on the Exeter Township GIS project.
Finally, Boyer also sent a letter to Charles Foster of the Air Survey Corporation outlining
Vitillo's proposal to act as a subcontractor on the Exeter Township GIS project. Vitillo's
Cuppels 99- 059 -C2; 00- 007 -C2
Page 61
proposal to the above four companies bidding on the Exeter Township GIS project was
prepared with the input and direction of Cuppels and forwarded to his subordinate, Boyer.
When the bids for the GIS project were submitted by the four companies, each bid had
a provision that Vitillo would provide support work on the GIS project. When Cuppels,
Theisen, and Ziegenfus reviewed the four proposals, Ziegenfus realized that Vitillo was
designated as a subcontractor to perform the survey, monumentation, and control point portion
of the work in every proposal received by the township. After the GIS project was awarded to
3Di as the low bidder, questions were raised at a January 2000 board meeting by EAC
members regarding the specifications in the GIS project. In particular, one board member
questioned why the township did not solicit proposals from original firms that gave EAC
presentations. Cuppels responded that it was the consultant , Ziegenfus, who recommended
the firms that did the aerial photography work to present proposals. As to another question of
why a one to a hundred scale was used which would create difficulty in sharing information
with the county, Cuppels responded that the scale was Ziegenfus' recommendation and the
township's GIS would be more accurate. Cuppels' statement that it was Ziegenfus who
recommended the four companies was untrue. Ziegenfus testified that he in fact played no
role in selecting the companies that were invited to submit proposals. Cuppels statement that
Ziegenfus recommended the one to a hundred scale was also untrue as such was decided
through the participation of Ziegenfus, Cuppels and Theisen.
The GIS mapping contract to 3Di was awarded by a motion on which Cuppels
abstained. Cuppels as an employee of the Vitillo Group actively worked on the Exeter
Township GIS project. Township Engineer Theisen testified that on two occasions Cuppels
inquired why the township had not paid 3Di for funds owed and why there was a delay in the
3Di billing to the township for work completed as the GIS project. Cuppels denies this. The
Vitillo Group received $19,890 for providing services to 3Di as to the township GIS project. At
a July 2000 board meeting, Cuppels advised that the Vitillo Group had received a subcontract
on the 3Di township mapping project and that Cuppels was not managing the project.
However, Cuppels failed to inform the board that he was supervising the field survey work for
the Vitillo Group on the township project.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case. As noted, the parties in a
Consent Agreement set forth a proposed resolution of the allegations as follows:
1. Cuppels violated Section 3(a) /1103(a)of the Ethics Act when he participated in various
actions, discussions and decisions regarding the township's implementation of a
geographic information system mapping project at a time when he could reasonably
anticipate that a business with which he was associated would be utilized as a
subcontractor by the companies submitting bids to complete such project;
2. Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he
participated in discussions and actions of the board regarding supervisors serving as
department directors which resulted in his appointment to the compensated position of
Director of Engineering and Highway Maintenance and when he voted on bill lists
approving payment for services in such position and cosigned checks issued to himself
for services related thereto;
3. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the use of the legal
services of the township solicitor to represent him as a Plaintiff in a lawsuit against the
township auditors, in that the only identified financial gain amounted to $74 which was
de minimis;
4. Cuppels unintentionally violated Section 3(a)/1103(a) Ethics Act when he participated
in discussions of the Exeter Township Board of Supervisors to withhold release of
escrowed funds to a developer at a time when such developer owed fees to a business
Cuppels 99- 059 -C2; 00- 007 -C2
Page 62
with which he was associated for services rendered;
5. Cuppels unintentionally violated Section 3(a)/1103(a) Ethics Act when he participated
in various township discussions, actions and completion of a storm drain study update
at a time when there was a reasonable expectation that a business with which he was
associated would submit a bid in relation to such project.
6. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the su of
an amended bid after the deadline for submission of bids relating to the 35 Street and
Circle Avenue project, based upon insufficient evidence to establish a use of office by
Gary Cuppels to have the township accept and consider such bid;
7. Cuppels did not violate Section 3(a)/1103(a) Ethics Act as to the township's acquisition
of a contractor to perform an indoor air assessment study, as such contract was not
awarded to a business with which he was associated;
8. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to a township's award
of a contract for Catch Basin repairs in 1997, as his actions, which included
participating in the township's action to table the award of such contract until the bids
were tabulated and signing three checks in payment to a business with which he was
associated after he had abstained on approving such payments were de minimis in
nature;
9. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the township's
actions in seeking proposals and awarding a contract in relation to the development of
the Schuylkill River Trail — Section 2, as all of his actions were de minimis;
10. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the township's
actions in seeking proposals and awarding a contract in relation to the development of
Pineland Park, as all of his actions were de minimis;
11. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the township's
actions in seeking proposals and awarding a contract in relation to the development of
the Handicapped Ramp No. 9, as all of his actions were de minimis; and
12. Cuppels did not violate Section 3(f)/1103(f) of the Ethics Act as to the projects
identified as the geographic Information system mapping project, storm drain study
update, 35 Street and Circle Avenue project, indoor air assessment study, catch
basin repairs, Schuylkill River Trail- Section 2, Pineland Park, and Handicapped Ramp
No. 9, as all such projects were awarded through an open and public process that
included either a request for bids or a request for sealed proposals.
In addition, Cuppels agrees to:
1. Make payment in the amount of $8,775.00 in settlement of this matter payable to the
Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics
Commission within thirty days of the mailing date of the final adjudication in this matter;
2. Neither seek nor hold any other public office or position of public employment in Exeter
Township after the expiration of his current term of office as an Exeter Township
Supervisor; and
3. Resign as the Director of the Exeter Township Department of Engineering and
Highway Maintenance within thirty (30) days of the mailing date of this order and not
serve in that position during the remainder of his service as an Exeter Township
Supervisor.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 63
Initially, we note that there are two separate allegations (from the first of the two
consolidated cases) regarding Cuppels that do not involve various Exeter Township projects.
The first concerns Cuppels' appointment to the compensated position of Director of
Engineering and Highway Maintenance and his actions of voting to approve payments and
cosigning checks in payment to himself. The second allegation concerns the utilization of the
township solicitor to represent him in a lawsuit against the auditors over his wages as a
township employee.
Concerning the first allegation, the stipulated findings reflect that Cuppels voted to
approve payments to himself and also cosigned checks in payment for the work he performed
as Director of Engineering and Highway Maintenance. Such actions were uses of authority of
office. See, Juliante, Order 809. Such uses of authority of office resulted in a private
pecuniary benefit consisting of the compensation he received. The pecuniary benefits were
private as being unauthorized in law. In this regard, the record reflects that the township
auditors refused to set compensation for the supervisors acting as directors. Such is a
requirement under the Second Class Township Code. See, Section 6506(a) of the Second
Class Township Code, 53 P.S. §6506(a). Accordingly, Cuppels unintentionally violated
Section 3(a)/1103(a) of the Ethics Act when he participated in actions resulting in his
appointment to Director of Engineering and Highway Maintenance and voted to approve bill
lists and cosigned checks in payment to himself for performing such services.
As to the utilization of the solicitor to file a lawsuit against the township auditors, such
action was a use of authority of office. The use of authority of office resulted in a private
pecuniary benefit to Cuppels in that he personally did not have to pay for such legal expenses
for depositions. The pecuniary benefit was private because Cuppels could not use the
township solicitor for matters that related to his position as an employee of the township. See,
Szymanowski, Opinion 87 -002; Hessinger, Order 931, affirmed in part R.H. vs SEC, 673A.2d
1004 (Pa. Commw. 1996). However, according to the stipulated findings, the discernable
amount of pecuniary benefit is $74. There is a statutory exclusion to the definition of conflict
under Section 3(a)/1103(a) which involves matters that are de minimis. See, Schweinsberq,
Order 900. That de minimis exclusion is applicable given that the pecuniary benefit is only
$74. Hence, Cuppels did not violate Section 3(a))/1103(a) of the Ethics Act for utilizing the
solicitor to file suit against the auditors at township expense in that the identifiable private
pecuniary benefit was $74 and de minimis.
We shall now review the other aspect of the case concerning Cuppels' involvement in a
number of Exeter Township projects. From the stipulated facts, we readily glean that Cuppels
had a mission to use his position of township supervisor for the financial gain of the Vitillo
Group, a business with which he is associated. Following Cuppels' election to the board, the
Vitillo Group jumped from limited work with the township to approximately one third of all
construction and survey work. Cuppels as a supervisor used his positions of Supervisor and
Director of Exeter Township Department of Engineering and Highway Maintenance to
advance the financial interests of the Vitillo Group. But for the fact that Cuppels was a
Supervisor /Director, he could not have been in a position to steer the board and the township
engineer to his goal of having township contracts awarded to the business with which he is
associated, the Vitillo Group. This is evident through a review of Cuppels' actions which
reflect a blurring of his actions between that of a public official and private businessman. As
we noted in Crisci, Opinion 89 -013, the public and private interests are distinct with the public
interest preeminent. It is obvious to us that Cuppels considered the public interest to be
aligned with the financial interests of the Vitillo Group.
Regarding Section 3(f)/1103(f) vis -a -vis the township projects, we note that all of the
township projects in issue were awarded through the preparation and distribution of RFP's.
Section 3(f)/1103(f) allows a public official or the business with which he is associated to
contract with his governmental body but if the contract is $500 or more, the contract must be
awarded through on open and public process. Since the procedure for awarding township
contracts complied with Section 3(f)/1103(f), we find no violation of that provision. Hence,
Cuppels 99- 059 -C2; 00- 007 -C2
Page 64
Cuppels did not violate Section 3(/1103(f) of the Ethics Act when the Vitillo Group, the
business with which he is associated, contracted with the township in that such contracts were
awarded through an open and public process.
We shall now apply Section 1103(a) of the Ethics Act seriatim as to each of the
township projects with which Cuppels was involved.
As to the Handicapped Ramp No. 9 project, Cuppels abstained on the vote to award
the contract. However, Cuppels voted on the bills list to pay two invoices of Environmental
Constructors, one of four entities composing the Vitillo Group. In addition, Cuppels cosigned a
check in payment to Environmental Constructors. Although such actions were uses of
authority of office, we agree that such actions were de minimis based upon the stipulated facts
in this case. Accordingly, Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act
regarding his actions as a Supervisor /Director on the Handicapped Ramp No. 9 Project in that
such actions were de minimis.
Concerning the Exeter Golf Club Estates, the Vitillo Group provided engineering
services to the development company. Subsequently, the developer terminated Vitillo but still
owed it approximately $20,000 in engineering fees. When the developer sought the release of
over $66,000 that was held in escrow by the township pending the completion of certain
improvements, Theisen sent the matter to the board for review and approval. However,
Cuppels requested the township solicitor to review the issue. The solicitor recommended a
partial escrow release which the board granted. After Vitillo received payment of its fees, John
Vitillo indicated that he would authorize the township to release the balance of the escrow.
Cuppels' actions as to the escrow in our view was an attempt on his part to forestall the
escrow release until Vitillo received payment. Prior to this incident, the township never
considered a payment held by a developer to a third party as a basis for not releasing escrow
funds. Accordingly, Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act
when he participated in actions of the board of supervisors to withhold the release of escrow
funds to a developer who owed engineering fees to a business with which Cuppels is
associated.
The next allegation in this group of township projects concerns the Storm Sewer
Project for 35 Street and Circle Avenue. The township solicited bids from ten companies and
received three quotes. Environmental Constructors, Inc. submitted the middle bid. After the
summary of bids were placed in the township supervisors' mailboxes, Cuppels became very
active in redoing Environmental Constructors, Inc's. bid. Actions were taken by Cuppels as
an employee of the Vitillo Group to have a company secretary prepare a letter to the township
engineer indicating that there was a typographical error as to the proposal and submit a bid
under a different signatory in the lesser amount. Cuppels' action as a supervisor essentially
consisted of informing the board that Environmental Constructors, Inc's. first proposal
contained a typographical error. Cuppels abstained on the vote of the board which awarded
the contract to Environmental Constructors, Inc. as the second round low bidder. Based upon
such stipulated facts, we do not find that there is sufficient evidence to establish a violation by
Cuppels as to the award of the Exeter Township contract to Environmental Constructors, Inc.
Accordingly, based upon insufficient evidence as to use of authority of office, Cuppels did not
violate Section 3(a)/1103(a) of the Ethics Act regarding the award of an Exeter Township
coptract to Environmental Constructors, Inc., a business with which he is associated, for the
35' Street and Circle Avenue Project.
The next allegation for our consideration involves the township catch basins in 1997.
The township solicited proposals from 11 companies, including Environmental Constructors,
Inc., which was one of the three companies that responded and submitted the low bid.
Cuppels abstained as to the vote to award the contract to Environmental Constructors, Inc.
Further, Cuppels abstained from votes to approve the bills list for payments to Environmental
Constructors, Inc. Cuppels signed all three checks issued to Environmental Constructors,
Inc. for the catch basin project. Given the Consent Agreement and the facts and
Cuppels 99- 059 -C2; 00- 007 -C2
Page 65
circumstances of this case, we conclude that Cuppels did not violate Section 3(a)/1103(a) of
the Ethics Act when he abstained as to the award of a township contract to the Environmental
Constructors, Inc., a business with which he is associated, abstained on votes to approve bill
lists to Environmental Constructors, Inc. and signed three township checks issued to
Environmental Constructors, Inc. for services provided under the contract, in that his actions
were de minimis.
Turning to the allegation about the indoor air assessment study, the RFP for the indoor
air assessment study was sent to six companies including Environmental Research, Inc. of
the Vitillo Group. However, the board of supervisors awarded the project to High Safety, a
company with which Cuppels is not associated. We find that Cuppels did not violate Section
3(a)/1103(a) of the Ethics Act as to the award of the township project for the air assessment
study to High Safety in that such contract was awarded to a business with which Cuppels is
not associated.
The next allegation under consideration involves the township storm drain study
update. After the township decided to update its study and sent RFP's to ten firms including
the Vitillo Corporation, an addendum to the RFP was prepared by the township engineer at the
direction of Cuppels. That addendum was faxed to the Vitillo Corporation when prepared on
October 9, 1998. The bid deadline of October 12, 1998, was not extended however. Seven
firms including the Vitillo Corporation submitted bids. Vitillo Corporation received the contract
as low bidder. Cuppels was actively involved as to this project. Cuppels made and voted for a
motion authorizing the township engineer to seek proposals. In addition, an addendum to the
RFP was prepared by the township engineer at the request of Cuppels. This addendum was
completed just three days before the bidding deadline. These actions were uses of authority
of office by Cuppels as to the storm drain study update. Subsequently, the Vitillo Corporation,
a business with which Cuppels is associated, received the low bid of the contract. Cuppels
participated in meetings with other Vitillo employees regarding the storm drainage study. The
time for those meetings was subsequently billed to the township and paid as part of a group of
bills through a unanimous vote. Further, Cuppels made a motion and voted to approve the bill
list which included the Vitillo invoice. Accordingly, Cuppels unintentionally violated Section
3(a)/1103(a) of the Ethics Act when he used the authority of office as to the award of a
township contract for a storm drain study update to the Vitillo Corporation, a business with
which Cuppels is associated.
Another allegation concerns Cuppels' involvement with the Schuylkill River Trail,
Section 2, Township Project. When the township sought to develop a hiking trail in the
township and authorize the township engineer to seek proposals for a survey, one of the three
RFP's went to the Vitillo Corporation which submitted the low bid. However, Cuppels
abstained on the vote as well as the vote to pay the Vitillo Corporation for services. From the
stipulated findings, Cuppels' actions were limited to directing the township engineer to seek
RFP's, apply for a state grant, and table action on the RFP's pending review. Although the
consent agreement of the parties proposes a finding of no violation on the basis of a de
minimis exclusion, we believe from the stipulated facts that there is no discernable use of
authority of office on the part of Cuppels as to this particular allegation. Without a use of
authority of office, there can be no violation of the Ethics Act. Accordingly, we find that
Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the Schuylkill River Trail,
Section 2, Township Project in that there was no use of authority of office on the part of
Cuppels as to the award of this contract to a business with which he is associated.
The next allegation under consideration is the Pineland Park Project. Before the
township began the project, the board decided to do a park survey. An RFP was prepared and
forwarded to p otential bidders, one of which was the Vitillo Corporation. However, the contract
was awarded to another company as to which Cuppels is not associated. As to the Pineland
Park Project itself, an RFP was advertised for sealed bids. Although interested bidders
requested an extension of the bidding deadline, Cuppels instructed Theisen to retain the
original deadline date. The RFP called for a base bid plus five possible options as to the Park.
Cuppels 99- 059 -C2; 00- 007 -C2
Page 66
Twelve companies submitted bids and the board awarded the contract to Vitillo Construction
with Cuppels abstaining. After the project began, problems arose as to rock which had to be
excavated. For the removal of such rock, Vitillo Construction submitted several supplemental
invoices which were paid by the board with Cuppels abstaining. The total that Vitillo
Corporation received for the Pineland Park Project was $488,451. Although Cuppels did not
vote on the approval of any of the invoices to pay Vitillo Corporation, he did sign the checks as
a supervisor. There were uses of authority of office on the part of Cuppels as to this project.
He signed the checks in payment to Vitillo Corporation, a business with which he is associated
as part of the Vitillo Group. In addition, he participated in certain matters by virtue of his
position of Supervisor /Director, as for example, directing the engineer not to extend the bidding
deadline that was requested by two other firms. There was a financial gain in this case
consisting of the fees that the Vitillo Corporation received from the township as to the Pineland
Park Project contract. As per our reasoning for the Handicapped Ramp No. 9 Project, we
accept that the actions of Cuppels as a public official for the Pineland Park Project were de
minimis. Accordingly, Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act regarding
the Pineland Park Project for Exeter Township in that his actions were de minimis.
The last project under consideration for Exeter Township involves the Geographic
Information Systems (GIS) Project. The first aspect of the GIS Project concerned the need for
aerial photos of the township to be used for mapping. Cuppels told the township engineer
which companies would be invited to submit bids for that phase of the project. That contract
was awarded to Air Survey Corporation (ASC) as the low bidder. ASC is not a business with
which Cuppels is associated. As to the actual implementation of the GIS Project, Cuppels
played an active role in developing the outline. Cuppels met with the township engineer as to
the content of the RFP for the GIS project. Cuppels requested the township engineer to solicit
RFP's from the same four companies that were contacted regarding the aerial photography
work. All of those companies had past dealings with the Vitillo Group or Cuppels. For all four
companies, either Cuppels individually or through a subordinate, Brian Boyer, had discussions
with those companies regarding the opportunity of the Vitillo Group to act as a subcontractor
on the GIS Project. The bids submitted by each company had a clause that Vitillo would
provide support work on the GIS Project.
After the contract was awarded to 3Di as low bidder, questions were asked by members
of the Environmental Advisory Council (EAC), an entity created by the township relative to the
implementation of the GIS Project. When EAC members questioned why bids were only
limited to four companies or why a certain scale was used for the system, Cuppels responded
that it was consultant Ziegenfus's recommendation. Cuppels' false response was an attempt
on his part to deflect blame and responsibility from himself as to such matters. During the
project, Cuppels, as a Vitillo Group employee, worked on the township GIS Project. Cuppels
was also vocal as to matters involving the process of payments for 3Di or as to delays in
billing. The Vitillo Group received $19,890 for providing services to 3Di on the township GIS
Project.
The actions of Cuppels were uses of authority of office. But for the fact that Cuppels
was a Supervisor, he could not been in a position to limit the bidders, have input as to the
specifications for the bids, and advocate for payments and processing for 3Di, the company
which was awarded the bid and which utilized Vitillo Group for work on the GIS Project.
Cuppels' actions of limiting the bidders ensured that Vitillo Corporation would get subcontract
work regardless of which firm received the bid. The uses of authority of office resulted in a
private pecuniary benefit to Vitillo Group, a business with which Cuppels is associated. Such
actions of Cuppels violated Section 3(a)/1103(a) of the Ethics Act. See, Amato, Opinion 89-
002, where we held that it would be a conflict for a public official to participate in matters where
he had a reasonable expectation that a business with which he is associated would receive a
subsequent financial gain as to a separate matter that was pending before his governmental
body by a different company. In this case, Cuppels not only had a reasonable but a certain
expectation because the bids were limited to four companies he chose. Those companies
agreed to provide subcontract work to Vitillo Group on the GIS Project. Cuppels violated
Cuppels 99- 059 -C2; 00- 007 -C2
Page 67
Section 3(a)/1103(a) of the Ethics Act when he participated in matters involving the Exeter
Township GIS Project whereby the Vitillo Group, a business with which he is associated,
obtained a subcontract from the firm that received the township GIS Project contract.
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, Cuppels is directed to make payment
of $8,775 through this Commission to the Commonwealth of Pennsylvania within 30 days of
the date of mailing 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.
As discussed above, the extensive involvement by Cuppels in these many township
projects is indicative of the course of conduct on his part to use public office for the personal
financial gain for the Vitillo Group, a business with which he is associated. As to these
projects, Cuppels was engaged in extensive activities to facilitate or ensure that the Vitillo
Group would financially benefit from these township projects. Such actions are absolutely
antithetical to both the letter and spirit of the Ethics Act. It is obvious to us that Cuppels is an
individual who has not and probably never will comprehend that public office is a public trust.
Fortunately for the residents of Exeter Township, Cuppels has agreed to no longer seek public
office or hold public employment in the township following the expiration of his current term.
IV. CONCLUSIONS OF LAW:
a. Gary T. Cuppels, as a supervisor for Exeter Township, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
b. Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he
participated in actions resulting in his appointment to Director of Engineering and
Highway Maintenance and voted to approve bill lists and cosigned checks to himself
for compensation that was not approved by the township board of directors.
c. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act for the utilization of the
solicitor against the auditors as to a lawsuit to set his compensation as a township
employee in that the identifiable private pecuniary benefit was $74 and de minimis.
d. Cuppels did not violate Section 3(f)/1103(f) of the Ethics Act when the Vitillo Group, a
business with which he is associated, contracted with the township as to various
projects in that such contracts were awarded through an open and public process.
e. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act regarding his actions as
a Supervisor /Director as to the award of a township contract to Environmental
Constructors, a business with which he is associated, on the Handicapped Ramp No. 9
Project in that such actions were de minimis.
f. Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he
participated in actions of the board of supervisors to withhold the release of escrow
funds to a developer of Exeter Golf Club Estates, who owed engineering fees to the
Vitillo Group, a business with which Cuppels is associated.
Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act regarding the award of
an Exeter Township contract to nvironmental Constructors, Inc., a business with
which he is associated, for the 35 Street and Circle Avenue Project, based upon an
insufficiency of evidence.
g.
h. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act when he abstained as to
the award of a township contract for the catch basins to the Environmental
Cuppels 99- 059 -C2; 00- 007 -C2
Page 68
Constructors, Inc., a business with which he is associated; abstained on votes to
approve bill lists to Environmental Constructors, Inc.; and signed three township
checks issued to Environmental Constructors, Inc. for services provided under the
contract, in that Cuppels' actions were de minimis.
Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the award of the
township project for the air assessment study to High Safety in that such contract was
awarded to a business with which Cuppels is not associated.
j. Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used
the authority of office as to the award of a township contract for a storm drain study
update to the Vitillo Corporation, a business with which Cuppels is associated.
k. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the Schuylkill River
Trail, Section 2, Township Project in that there was no use of authority of office on the
part of Cuppels as to the award of this contract to the Vitillo Corporation, a business
with which he is associated.
Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to his actions
regarding the Pineland Park Project which contract was awarded to Vitillo Construction,
a business with which he is associated, for Exeter Township in that his actions were de
minimis.
m. Cuppels violated Section 3(a)/1103(a) of the Ethics Act when he participated in matters
involving the Exeter Township GIS Project whereby the Vitillo Group, a business with
which he is associated, obtained a subcontract from the firm that was awarded the
township GIS Project contract.
In Re: Gary T. Cuppels
ORDER NO. 1237
File Docket: 99- 059 -C2; 00- 007 -C2
Date Decided: 5/2/02
Date Mailed: 5/16/02
1. Gary T. Cuppels, as a Supervisor for Exeter Township, unintentionally violated Section
3(a)/1103(a) of the Ethics Act when he participated in actions resulting in his
appointment to Director of Engineering and Highway Maintenance and voted to
approve bill lists and cosigned checks to himself for compensation that was not
approved by the township board of directors.
2. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act for the utilization of the
solicitor against the auditors as to a lawsuit to set his compensation as a township
employee in that the identifiable private pecuniary benefit was $74 and de minimis.
3. Cuppels did not violate Section 3(f)/1103(f) of the Ethics Act when the Vitillo Group, a
business with which he is associated, contracted with the township as to various
projects in that such contracts were awarded through an open and public process.
4. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act regarding his actions as
a Supervisor /Director as to the award of a township contract to Environmental
Constructors, a business with which he is associated, on the Handicapped Ramp No. 9
Project in that such actions were de minimis.
5. Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he
participated in actions of the board of supervisors to withhold the release of escrow
funds to a developer of Exeter Golf Club Estates, who owed engineering fees to the
Vitillo Group, a business with which Cuppels is associated.
6. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act regarding the award of
an Exeter Township contract to nvironmental Constructors, Inc., a business with
which he is associated, for the 35 Street and Circle Avenue Project, based upon an
insufficiency of evidence.
7. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act when he abstained as to
the award of a township contract for the catch basins to the Environmental
Constructors, Inc., a business with which he is associated; abstained on votes to
approve bill lists to Environmental Constructors, Inc.; and signed three township
checks issued to Environmental Constructors, Inc. for services provided under the
contract, in that Cuppels' actions were de minimis.
8. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the award of the
township project for the air assessment study to High Safety in that such contract was
awarded to a business with which Cuppels is not associated.
9. Cuppels unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used
the authority of office as to the award of a township contract for a storm drain study
update to the Vitillo Corporation, a business with which Cuppels is associated.
Cuppels 99- 059 -C2; 99- 007 -C2
Page 70
10. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to the Schuylkill River
Trail, Section 2, Township Project in that there was no use of authority of office on the
part of Cuppels as to the award of this contract to the Vitillo Corporation, a business
with which he is associated.
11. Cuppels did not violate Section 3(a)/1103(a) of the Ethics Act as to his actions
regarding the Pineland Park Project which contract was awarded to Vitillo Construction,
a business with which he is associated, for Exeter Township in that his actions were de
minimis.
12. Cuppels violated Section 3(a)/1103(a) of the Ethics Act when he participated in matters
involving the Exeter Township GIS Project whereby the Vitillo Group, a business with
which he is associated, obtained a subcontract from the firm that was awarded the
township GIS Project contract.
13. Per Consent Agreement of the parties, Cuppels will no longer seek public office or hold
public employment in Exeter Township following the expiration of his current term.
14. Per the Consent Agreement of the parties, Cuppels will resign his position as Director
of Engineering and Highway Maintenance in Exeter Township within 30 days of the
date of mailing of this Order.
15. Per the Consent Agreement of the parties, Cuppels is directed to make payment of
$8,775 through this Commission to the Commonwealth of Pennsylvania within 30 days
of the date of mailing 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,
LOUIS W. FRYMAN, CHAIR