HomeMy WebLinkAbout1264 VanGordenIn Re: Peter VanGorden
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Daneen E. Reese
Frank M. Brown
Donald M. McCurdy
Michael Healey
01- 048 -C2
Order No. 1264
12/4/02
12/16/02
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 filed and a hearing was waived. The record is complete. A Consent Agreement
and Stipulation of Findings were submitted by the parties to the Commission for consideration.
The 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
VanGorden 01- 048 -C2
Page 2
I. ALLEGATION:
That Peter VanGorden, a (public official /public employee) in his capacity as roadmaster
for Elkland Borough, Tioga County, violated Sections 1103) and 1104(a) provisions of the
State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §1103(a) and §1104(a) when he used the
authority of his position for a private pecuniary benefit of himself and /or a business with which
he is associated by utilizing township equipment, manpower and materials, including assisting
a business with which he is associated and for joint business ventures between himself and
Dusty Derr, including but not limited to using the borough backhoe, loaders, trucks, torches
and employees; and when he failed to file Statements of Financial Interests in his capacity as
Supervisor of the Department of Public Works for calendar years 1995 through 2000.
II. FINDINGS:
1. Peter VanGorden has been employed by Elkland Borough as the supervisor of the
borough's Department of Public Works since February 18, 1986.
a. VanGorden has been employed by Elkland Borough since August 18, 1969.
2. As Supervisor of the Public Works Department, VanGorden has supervisory
responsibility over the department's heavy equipment operators and laborers.
a. The borough's Department of Public Works consists of three (3) full -time
employees, VanGorden, Dennis Loucks and Delbert Gee.
3. VanGorden's job description as Public Works Supervisor includes, in part, the
following position requirements, regular duties and responsibilities.
Regular Duties and Responsibilities:
1. Maintain a motor preventive maintenance plan for all equipment within the
DPW's infrastructure, defining the activity to be performed and the frequency at
which the activity is to be performed.
2. Maintain an accurate reporting of all preventative maintenance performed for
each piece of equipment in accordance with the master preventive maintenance
plan.
3. Maintain an accurate Time and Attendance record for each day's activity.
4. Submit a weekly record of the daily T &A records to the Elkland Borough's
administrative secretary /treasurer in accordance with current payroll schedule.
5. Maintain an accurate work order report of all DPW activities performed or
scheduled to be performed, in accordance with the Borough's Work Order
System.
6. Submit a monthly Work Order Status report for the Elkland Borough Council
within 4 days prior to a scheduled meeting, for distribution with that meeting
agenda.
7. Attend monthly meeting of Elkland Borough Council.
8. Prepare a proposed budget for the Public Works Department for each new year
under the direction of the Borough's Street Committee Chairman.
9. Assist in civic related activities as assigned by the Elkland Borough Council.
VanGorden 01- 048 -C2
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10. Perform other related duties as required by the Elkland Borough Council.
4. In addition to his stated job duties, VanGorden has the authority to:
a. Hire part -time help as needed;
b. Recommend and make purchases within certain limits;
c. Obtain phone quotes on behalf of the borough;
d. Enter into contracts with residents for the rental of borough equipment;
e. Swap borough equipment, materials and labor in exchange for needed goods or
services for the borough.
5. VanGorden, as Supervisor of Public Works, received compensation from the borough
based on the following annual rates approved by borough council: .. .
Year Hourly Rate
1996 $11.43
1997 $11.77
1998 $12.12
1999 $12.48
2000 $13.28
2001 $13.68
2002 $14.09
6. VanGorden in his official capacity as Public Works Superintendent has access to
borough equipment including a 1995 Ford F -70 with plow, 1997 Chevy dump truck with
plow, 2001 Case backhoe 580, 2000 Bobcat loader with sweeper, for use on borough
and non - borough jobs.
7. Residents of Elkland are permitted to buy top soil, gravel and rent various equipment
from the borough for an established fee.
a. Arrangements for purchases or rentals are made through VanGorden or the
borough office for this service.
b. Gravel and topsoil are either delivered by borough employees using a borough
truck or loaded onto a personal vehicle.
1. This service is available so long as it doesn't interfere with normal
borough operations.
c. Equipment is operated by borough employees, primarily VanGorden.
8. Since 1996, Elkland Borough established rental rates for the personal use of borough
equipment, and sales prices for topsoil and gravel delivered as follows:
Labor per man:
Backhoe with operator:
Dump truck with operator:
Top Soil (small truck):
Top Soil (large truck):
River Gravel:
$20.00 per hour
$50.00 per hour
$45.00 per hour
$25.00
$40.00
$25.00
VanGorden 01- 048 -C2
Page 4
9. Arrangements for equipment rental and material sales are made through either the
borough office or by contacting VanGorden directly.
a. VanGorden was responsible for scheduling all private work, including sales of
topsoil and gravel in conjunction with borough projects.
b. Private work could be performed during normal working hours as well as
evenings and weekends.
10. VanGorden was to receive his standard hourly wage if the private work was performed
during regular business hours.
a. VanGorden was able to negotiate his own labor rates when performing private
work after hours.
b. VanGorden was responsible for paying the borough a $30 per hour rental fee
for equipment used on personal jobs he completed after his regular work hours.
11. VanGorden's charges for equipment rental to residents and the resulting payments to
the borough were to be based on hour meter readings from the borough backhoe.
a. VanGorden did not maintain an hour meter reading log for any of the borough's
equipment.
b. VanGorden did not sign out borough equipment.
c. VanGorden was not required to disclose hour meter readings prior to June
2002.
1. Prior to June 2002 the borough relied on VanGorden to provide an
accurate accounting.
2. The policy enacted in June 2002 occurred as a result of the current
investigation.
d. VanGorden did not provide private customers with hour meter readings as part
of their invoices.
12. Total charges for topsoil and gravel are based on VanGorden's representation as to the
quantity of material delivered.
a. The borough does not maintain inventory records of quantity of gravel or topsoil
stored.
b. Inventories are under the control of VanGorden.
c. Topsoil was stock piled from Public Works projects as well as borough
acquisition, when needed.
1. VanGorden would identify the need to replenish borough inventories.
d. River gravel was obtained from gravel bars situated in Cowanesque River and
Kizer Creek.
e. The borough was responsible for removing stone from these sites as part of
flood control measures.
VanGorden 01- 048 -C2
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13. VanGorden performs labor and equipment for people separate from his borough duties
on an as needed basis.
a. VanGorden does not operate a construction or contracting business privately
on a full -time basis.
b. VanGorden relies on borough equipment, materials and contacts to generate
private business.
14. VanGorden, on occasion, assists Mark "Dusty" Derr with various work activities in
Elkland Borough.
a. VanGorden receives compensation from Derr in the form of cash payments
and /or exchanges of services.
15. Mark "Dusty" Derr is self - employed owning rental properties, a recycling business and
performs other manual labor jobs he can secure.
a. Derr, at times, also contracts with the Elkland Borough Public Works
Department.
16. Derr owns a dump truck, front end loader and bobcat which he has made available for
borough use on both an exchange and fee for service basis.
17. Since at least 1996, VanGorden, and Mark "Dusty" Derr have, on occasion, performed
personal work for Elkland residents using borough equipment and /or materials
including topsoil, gravel, backhoe and dump trucks.
18. VanGorden has had the authority to collect payments from private citizens for any
services which were related to private projects completed individually or in conjunction
with Derr.
a. Payments were made both by cash and check.
b. Checks were typically made payable to Elkland Borough and turned over to
borough secretary Pam Fish for processing.
c. Cash received made by VanGorden was also to be turned into Secretary Fish.
19. VanGorden would periodically instruct Fish to mail an invoice to a resident if payment
wasn't made to VanGorden.
a. VanGorden would instruct Fish of the amount to invoice the resident in these
situations.
20. Elkland Borough did not maintain a log of the dates and times borough equipment was
being used by VanGorden on private jobs.
a. Council relied on VanGorden to report the private work.
21. VanGorden performed personal work for borough residents using borough equipment
both during normal business hours and after hours.
a. No restrictions were placed on VanGorden as to when the work could be
performed.
b. Some of this was performed with Mark Derr.
VanGorden 01- 048 -C2
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22. Terry Meyers, Route 1, Osceola, PA 16942, hired Mark Derr to haul 65 loads of gravel
to his residence to serve as base material for a driveway installation between March
23, 2001, and April 2, 2001.
a. VanGorden assisted Derr on this project.
23. Derr obtained the gravel from Elkland Borough with the assistance of VanGorden.
a. In his capacity as Public Works supervisor, VanGorden authorized Derr to
receive the gravel.
b. Derr used his own dump truck to haul the gravel.
c. Dennis Loucks, Elkland Borough Public Works employee, at VanGorden's
direction, loaded Derr's dump truck at least 15 times using the borough
backhoe.
1. Stone was loaded by Loucks on borough time.
d. VanGorden loaded the remaining 50 loads of stone into Derr's truck, also on
borough time, using the boroughs backhoe.
1. A total of 65 loads was delivered to the Myers property.
e. VanGorden rode along with Derr while the stone was being delivered.
f. Meyers' property was located approximately eight (8) miles roundtrip from the
borough's gravel supply.
g. Each trip took approximately one (1) hour to complete.
24. Neither Derr nor VanGorden paid Elkland Borough the $1,625 for the cost of the 65
loads of river gravel based on a cost of $25.00 per load.
25. Borough council was allowing Derr to take the gravel in return for Derr cleaning a
gravel bar from a stream.
26. VanGorden was paid $684.00 in wages while he loaded and assisted in the deliver of
the gravel to the Meyers property.
a. Wages are based on 50 trips at 1 hour per trip, multiplied by VanGorden's
hourly wage of $13.68 during March /April 2001.
27. Derr invoiced Meyers for 65 loads of gravel at $70 per load on April 2, 2001, for a total
of $4,550.
a. Meyers issued three (3) separate checks to Derr to pay for the gravel.
b. Meyers issued personal check number 1082 in the amount of $2,275 to Derr
on April 2, 2001.
1. This check was cashed by Derr at Citizens and Northern Bank on April
3, 2001.
c. Meyers issued personal check number 1084 in the amount of $1,137.50 to
Derr on April 10, 2001.
1. This check was cashed by Derr at Citizens and Northern Bank on April
VanGorden 01- 048 -C2
Page 7
11, 2001.
d. Meyers issued personal check number 1090 in the amount of $1,137.50 to
Derr on May 11, 2001.
1. This check was cashed by Derr at Citizens and Northern Bank on
May 14, 2001.
28. Derr asserted that VanGorden assisted him on the driveway project and that he paid
VanGorden $400 to $500 for his help.
29. VanGorden's asserted that he received no compensation or other payment from Derr.
30. No additional evidence exists in support of either assertion.
31. VanGorden was responsible for reimbursing the borough for the personal use of its
backhoe if the property owner paid him directly instead of the borough.
a. Borough receipts include the following five (5) reimbursements made by
VanGorden since 1996:
Date
10/08/96
10/08/96
06/27/00
04/16/01
05/31/00
Receipt No.
18929
18930
22541
23350
22483
Total
Amount
$ 55.00
$ 308.00
$ 30.00
$ 30.00
$ 60.00
$ 483.00
Work
1 hr backhoe /1 hr sm dump truck
3 hrs backhoe & materials
1 backhoe
Backhoe
2 hours backhoe
32. VanGorden did not identify to the borough owners names or dates of service of the
personal work for which he compensated the borough.
33. The following residents paid the borough directly for topsoil, gravel and /or equipment
rental arranged through VanGorden.
Date Receipt No. Amount
08/29/96 18825 $ 60.00
09/10/96 18865 $ 65.00
02/11/97 19406 $ 308.90
04/25/97 19521 $ 25.00
06/16/97 19648 $ 25.00
06/17/97 19654 $ 35.00
10/08/97 19937 $ 225.00
05/18/98 20367 $ 25.00
05/18/98 20368 $ 25.00
05/21/98 20371 $ 50.00
05/27/98 20375 $ 25.00
06/05/98 20397 $ 50.00
06/11/98 20407 $ 25.00
08/03/98 20571 $ 50.00
08/05/98 20576 $ 30.00
11/02/98 20778 $ 143.92
12/03/98 20848 $ 25.00
04/07/99 21093 $ 40.00
04/29/99 21126 $ 820.00
Name
Robin Sherman
Don Carman
Angie Pickett
Irene DeWolf
Mary Delige
Pete Miller
Acorn
Chas Southard
John Bolcar
Danny Wheeler
Bill Whalen
Bill Schoonover
Peter Martin
Chas Szybist
William Pettit
Guy Tanner
Ron Gee
Dawn Marsiglio
Elma Fanelli
Work
Backhoe
Topsoil /gravel
Repair Water Line
Topsoil
1 load topsoil
Backhoe
Backhoe /gravel
Topsoil
Topsoil
1 load topsoil and gravel
Topsoil
1 load topsoil and gravel
Topsoil
Gravel & sidewalk fee
Gravel
Repair Sewer Line
Load Topsoil
1 Load Topsoil
Backhoe (4 hrs)
10 loads topsoil,
4 loads river gravel
VanGorden 01- 048 -C2
Page 8
05/21/99 21189
08/02/99 21842
08/04/99 21857
09/07/99 21931
Date Receipt No. Amount
10/20/99 22018 $ 90.00
10/20/99 22020 $ 50.00
10/29/99 22037 $ 130.00
05/03/00 22423 $ 460.00
05/08/00 22445 $ 25.00
05/24/00 22476 $ 50.00
06/13/00 22528 $ 50.00
06/28/00 22543 $ 120.00
07/05/00 22552 $ 50.00
08/18/00 22656 $ 25.00
10/02/00 22737 $ 50.00
11/06/00 22809 $ 90.00
11/14/00 22073 $ 25.00
12/04/00 22113 $ 70.00
02/02/01 22190 $ 150.00
04/06/01 22319 $ 75.00
04/05/01 22320 $ 100.00
04/16/01 23351 $ 50.00
04/20/01 23359 $ 100.00
04/24/01 23365 $ 50.00
05/21/01 23437 $ 25.00
06/05/01 23466 $ 125.00
$ 50.00 Mel Benz
$ 400.00 John Robbins
$ 55.00 Moose Lodge
$ 200.00 Elma Fanelli
Name
Wendell Baker
Eric Grist
Zack Fanelli
Ray Gausline
Wendy Graham
Randy Brockway
Dawn Marsiglio
Carol Fish
Floyd Crasson
Charlene Runyan
Della Hopper
Zane King
Bill Hall
Dave Smith
Ed Gardner
Joella Masher
Willie Rice
Joella Masher
Ruth Wright
Bill Schoonover
Chas Southard
Lois Churchill
06/25/01 23504 $ 105.00 Willie Rice
07/02/01 23517 $ 25.00 Albert Bianco
07/20/01 23569 $ 50.00 Deb Thongton
1 hour backhoe
8 hours backhoe
1 hr backhoe -
1 hr dump truck
2 hrs backhoe,
1 hr dump truck,
1 load topsoil,
3 loads gravel
Work
3 hrs backhoe
1 hour backhoe
Gravel, topsoil
Gravel sales
1 load river gravel
1 hour backhoe
Topsoil
3 loads top soil
Gravel and form
sidewalk
1 sm load top soil
1 hour backhoe
3 hours backhoe
Gravel
Backhoe & broken meter
Backhoe
3 loads gravel
4 loads gravel
1 hour backhoe
2 hours backhoe
2 loads gravel
1 load topsoil
1 hr backhoe,
3 loads gravel
1 hr backhoe,
3 loads gravel
Soil - 1 truck load
Gravel and sidewalk
forms
34. VanGorden verbally instructed Secretary Fish how much to invoice.
35. VanGorden did not supply Fish with hour meter logs or materials used lists.
36. On July 28, 1999, Elkland Borough received a Community Development Block Grant
in the amount of $85,000 to replace sanitary sewer lines on Buffalo Street within the
borough.
a. These repairs were required by the Department of Environmental Protection to
eliminate a problem with storm water infiltration into the sanitary sewer system.
b. Borough labor was committed to the project to satisfy a matching funds
requirement on the borough's part.
37. VanGorden was in charge of the Buffalo Street sewer project as a result of his position
as supervisor of Public Works.
a. Physical work on Buffalo Street began during the summer of 2001 and is
VanGorden 01- 048 -C2
Page 9
currently ongoing.
b. Borough employees Dennis Loucks and Delbert Gee assist VanGorden on the
project.
c. Kenneth Maines and Dominic Trentini have assisted on the project on a part -
time, as needed basis.
1. Trentini assisted on a part -time basis between August 6, 2001, and
September 6, 2001.
2. Trentini was compensated at a rate of $6.90 per hour.
3. Maines currently is assisting on a part -time basis at the rate of
$6.90 /hour.
d. Jonathon Polite worked on the project during 2002 to satisfy a fine for the Tioga
County Adult Probation Department.
1. Polite also was hired to work part -time for two (2) weeks on May 13,
2002, and worked from May 15, 2002, to June 12, 2002.
2. Polite was compensated at a rate of $7.11 per hour.
38. Mark Derr was employed by the borough as a part -time laborer on the sewer project
working twenty (20) days between August 6, 2001, and August 31, 2001.
a. Derr was compensated at a rate of $6.90 per hour.
b. Derr was also hired as a sub - contractor for equipment rental for 2002 at a rate
of $30.00 per hour by council during their May 13, 2002, meeting.
1. Derr did not have to perform any physical labor in 2002, his sole
responsibility was truck operator.
c. Derr's truck was used at VanGorden's direction.
39. VanGorden was responsible for scheduling the part -time help on the project.
a. This included determining the need for the rental of Derr's equipment.
1. Derr's hours for equipment rental were recorded by way of the borough
time clock.
40. After excavation began for the removal of the old sewer line it was learned that an
abandoned gas line owned by PP &L Gas Utilities was located directly above the old
sewer line.
a. This gas line was the exclusive property and responsibility of PP &L Gas
Utilities.
b. This line needed to be removed in order to remove the old sewer line.
41. VanGorden contacted Stephen D. Wilson, Service Supervisor, PP &L Gas Utilities
seeking permission to remove and dispose of the pipe.
a. Wilson verbally authorized VanGorden to take the pipe.
VanGorden 01- 048 -C2
Page 10
42. The old gas line was removed from Buffalo Street at the same time the sewer line was
being removed.
a. Borough equipment and manpower were utilized to facilitate the gas lines
removal.
43. As the gas line was removed it was cut into three (3) foot sections, stacked in piles,
and temporarily placed in property owners yards on Buffalo Street.
a. The borough cut -off saw and torches were used to cut the gas line into three (3)
foot sections.
b. The pipe was cut into lengths at VanGorden's direction so that it would be
easier to handle.
1. Pipe in lengths three (3) feet and under are known as short steel for
recycling purposes.
2. Short steel has a higher recycling value than longer lengths due to its
ease of binding and transport.
44. Borough employees Dominic Trentini, Mark Derr and Jonathon Polite all cut gas lines
on borough time, using borough equipment.
a. This work was done at the direction of VanGorden.
b. No records were maintained detailing the amount of time spent removing,
cutting and stacking the old gas line.
c. Trentini spent 1/2 hour a day for the 24 days he worked on the project in 2001.
d. Polite spent one hour each day for the 21 days he worked on the project in
2002.
e. Derr spent one hour each day over the 20 days he worked on the project in
2001.
45. Gas powered cut off or chop saws can be rented from Wade's Rental in Addison, New
York.
a. The rental rate for this equipment is $40 per day.
46. Part -time employees spent the following time cutting pipe into three foot sections:
a. Dominic Trentini % hour x 24 days = 12 hours
b. Jonathon Polite 1 hour x 21 days = 21 hours
c. Mark "Dusty" Derr 1 hour x 20 days = 20 hours
47. In 2001 and 2002 part -time employees of the borough were compensated as follows
for cutting the salvaged gas line.
a. Dominic Trentini 12 hours @ $6.90 /hour = $ 82.80
b. Jonathan Polite 21 hours @ $7.11 /hour = $ 149.31
VanGorden 01- 048 -C2
Page 11
c. Mark Derr 20 hours @ $6.90 /hour = $ 138.00
Total $ 370.00
48. Costs for renting chop saws for use by employees in cutting the salvaged lines is as
follows:
a. Trentini
b. Polite
c. Derr
2 days @ $40.00 = $ 80.00
3 days @ $40.00 = $ 120.00
3 days @ $40.00 = $ 120.00
Total $ 320.00
49. The old gas line was loaded into Derr's truck for removal from Buffalo Street several
times.
a. No payment was made to the borough for the cost of the labor and equipment
fees associated with its removal.
50. VanGorden and Derr took some of the old pipe to the borough public works shed.
51. VanGorden's directing employees and equipment to be used in the assistance of the
salvage operation resulted in a costs saving as follows for Derr:
Equipment Rental:
Employee Wages:
$ 320.00
$ 370.11
Total $ 690.11
52. Gas line was sold by Derr to recycling facilities.
53. Derr sells scrap steel to recycling facilities including Swarthout's Recycling, 1514
County Route 19, Beaver Dams, New York 14812 and Staiman Recycling
Corporation, 201 Hepburn Street, Williamsport, PA 17703 -1235.
a. Payments were made to Derr in the form of both cash and check for scrap
metal depending on its value.
54. Derr received payments from Staiman Recycling Center in 2002 totaling $1,852.25 for
the recycling of short steel.
Payee Amount
Mark Derr $ 317.90
Mark Derr $ 338.25
Mark Derr $ 234.90
Mark Derr $ 258.30
Mark Derr $ 228.60
Mark Derr $ 254.70
Mark Derr $ 219.60
Total $1,852.25
Description
Steel, 3 foot & under
Steel, 3 foot & under
Steel, 3 foot & under
Steel, 3 foot & under
Steel, 3 foot & under
Steel, 3 foot & under
Date
06/06/02
05/02/02
04/30/02
04/04/02
03/22/02
03/19/02
03/11/02
Check Number
084355
084286
084106
083247
082838
082607
082412
55. Personal bank accounts of Mark Derr and accounts under the control of Peter
VanGorden have significant amounts of cash deposits into them during the time period
when the gas lines were being salvaged.
56. Peter VanGorden has cash deposits totaling $18,931.76 into Citizens & Northern Bank
Account number 1165165 between 1996 and 2001.
VanGorden 01- 048 -C2
Page 12
a. Annual cash deposits totaled:
1996 $ 2,799.00
1997 $ 850.00
1998 $ 4,109.00
1999 $ 2,639.50
2000 $ 5,182.46
2001 $ 3,351.80
Total: $18,931.76
57. Between 1996 and 2001 VanGorden, in his capacity as Elkland Borough Public Works
Supervisor, failed to file Statements of Financial Interests.
a. This included filings for the 1996, 1997, 1998 and 1999 calendar years.
58. Statements of Financial Interests forms on file with Elkland Borough included the
following filings by VanGorden:
a. Calendar Year:
Filed:
Position:
Creditors:
Direct /Indirect Income:
All Other Financial Interests:
b. Calendar Year:
Filed:
Position:
Occupation /Profession:
Real Estate Interests:
Creditors:
Direct /Indirect Income:
Office, Directorship or
Emp. in any Business:
Financial Interests in any
Legal Business for Profit:
2001
01/23/02 on SEC form 1/2002
Public Works Foreman
Martin's Chevy
Elkland Borough
None
2000
03/06/01 on SEC Form 1/99
Councilman (Candidate)
Working Foreman
None
Citizens of Northern Bank
Elkland Borough
None
None
59. VanGorden failed to disclose on Statements of Financial Interest for calendar years
2000 and 2001 sources of income in excess of $1,300 as a direct /indirect source of
income.
60. VanGorden failed to disclose on any Statements of Financial Interests gifts or any
other sources of income.
61. VanGorden did not disclose on Statements of Financial Interests income received from
Mark Derr.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Peter VanGorden, hereinafter
VanGorden, has been a public (official)(employee) subject to the provisions of the Public
Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as
codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65
Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act."
The allegations are that VanGorden, as the Elkland Borough Public Works Supervisor,
violated Sections 3(a)/1103(a) and 4(a)/1104(a) of the Ethics Act when he utilized township
VanGorden 01- 048 -C2
Page 13
equipment, manpower and materials for private pecuniary benefits by assisting a business with
which he is associated and joint business ventures between himself and another, and when
he failed to file Statements of Financial Interests (SFI's) for calendar years 1995 through
2000.
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 9 of 1989/Act 93 of 1998 as follows:
Section 2/1102. Definitions
"Conflict" or "conflict of interest." Use by a public official
or public employee of the authority of his office or employment or
any confidential information received through his holding public
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 4(a)/1104(a) of the Ethics Act requires that each public official /public employee
must file a Statement of Financial Interests for the preceding calendar year, each year that he
holds the position and the year after he leaves it.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
VanGorden has been employed by Elkland Borough as the Supervisor of the Public
Works Department since February of 1986. VanGorden has supervisory responsibility over
the department's heavy equipment operators and laborers. In addition to his stated job duties,
VanGorden has the authority to hire part -time help, recommend and make purchases within
certain limits, obtain telephone quotes, arrange contracts with residents for borough equipment
rentals, and swap borough equipment, materials, and labor in exchange for goods or services.
VanGorden as Public Works Supervisor has access to borough equipment including the
dump truck, plow truck, backhoes, and loaders.
The borough, which has a policy of renting its equipment to private citizens, has
developed a rental rate for equipment and materials. Arrangements for equipment rentals or
material sales are made by contacting VanGorden or the borough office. VanGorden has the
responsibility to schedule all private work which may be performed during normal working
hours, evenings or weekends. For performing private work, VanGorden would receive his
standard hourly wage during normal working hours but could negotiate his own labor rates
VanGorden 01- 048 -C2
Page 14
after hours. VanGorden was required to pay the borough $30.00 per hour rental fee for any
borough equipment used on personal jobs he performed after his regular work hours.
VanGorden s charges for equipment /materials were to be based upon the hourly meter
readings of the borough equipment and his own assurance as to the quantity of material used.
In a private capacity, VanGorden assisted Mark Derr (Derr) with various contracts in
the borough with VanGorden receiving compensation from Derr in the form of cash payments
or exchanges of services. Derr is a self - employed individual who rents properties, has a
recycling business, and performs manual labor jobs. Derr, at times, also contracts with the
Elkland Borough Public Works Department. Derr owns a dump truck, front -end loader and
bobcat which he makes available to the borough either on a fee or exchange basis. Since at
least 1996, VanGorden and Derr have performed personal work for Elkland residents using
borough equipment or materials. However, Elkland Borough did not maintain a log of the
dates and times borough equipment was used by VanGorden on private jobs. At times
VanGorden would work with Derr during regular work hours or after hours to perform personal
work for borough residents using borough equipment. Although VanGorden was responsible
for reimbursing the borough for backhoe use if the property owner did not make direct payment
to the borough, VanGorden did not identify owner's names or dates of service of personal
work whenever he made payments to the borough. VanGorden verbally instructed a borough
employee as to an invoice amount without supplying hourly metered logs or materials lists.
Having generally noted the interrelation between VanGorden's activities and borough
operations, specific instances will now be detailed. When Terry Meyers hired Derr to haul 65
loads of gravel to his residence in the spring of 2001, VanGorden assisted Derr on the project.
Derr obtained the gravel from Elkland Borough with the assistance of VanGorden. A public
works employee, at VanGorden's direction, loaded Derr's dump truck at least 15 times during
working hours using the borough backhoe. VanGorden during normal working hours then
loaded the remaining 50 loads into Derr's truck using the borough's backhoe. Since delivery
to Meyers' property was approximately eight miles round -trip, each trip took one hour to
complete. Neither Derr nor VanGorden paid Elkland Borough the $1,625 for the cost of the
65 loads of gravel. However, borough council did allow Derr to take the gravel in return for
Derr cleaning a gravel bar from a stream. VanGorden was paid $684 in wages while he
loaded and assisted Derr as to the gravel delivery to the Meyers property. Derr invoiced
Meyers $4,550 for the 65 loads of gravel. Although Derr asserts that he paid VanGorden
$400 -$500 for his help, VanGorden states that he received no payment from Derr.
In the summer of 1999, the borough received a Community Development Block Grant
to replace certain sewer lines within the borough. VanGorden was in charge of the project as
the Public Works Supervisor. Derr was employed by the borough as a part -time laborer on the
project. When excavation began, it was found that there was an abandoned PP &L gas line
over the sewer line. After PP &L gave the borough permission to remove and dispose of the
old gas line, it was cut up and removed in three -foot sections with borough employees using
borough equipment on borough time to perform the task at VanGorden's direction. The value
for the borough employee's wages and equipment rental for cutting up the PP &L gas lines was
$690.11. Although VanGorden and Derr took some of the pipe to the Public Works shed, it
appears that the bulk of the gas line sections were loaded into Derr's truck for sale to a
recycling facility. Derr received $1,852.25 for the pipes. During the time when the gas lines
were being sold for salvage, the personal bank accounts of Derr and VanGorden had
significant cash deposits. VanGorden had cash deposits of $18,931.76 into an account in
Citizens and Northern Bank between 1996 and 2001.
Between 1996 and 2001, VanGorden, as the Elkland Borough Public Works
Supervisor, failed to file SFI's. The only SFI's on file with Elkland Borough for VanGorden are
for the calendar years 2000 and 2001. For those two SFI's, VanGorden only listed Elkland
Borough as a source of income. VanGorden failed to disclose gifts or any other sources of
income. Further, VanGorden did not disclose income received from Derr on those SFI's.
VanGorden 01- 048 -C2
Page 15
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
The parties in their Consent Agreement propose the following:
a. Insufficient evidence exists to establish a violation of Section 3(a)/1103(a) of the Ethics
Act regarding VanGorden's use of borough equipment, personnel and time to complete
a driveway project for which he received both private and borough compensation.
b. No violation of Section 3(a)/1103(a) of the Ethics Act regarding the use of borough
personnel, equipment and facilities to perform private projects without compensating
the borough for the personal use of such equipment in accordance with borough policy,
based upon insufficient evidence to establish that such compensation was not paid.
c. No violation of Section 3(a)/1103(a) of the Ethics Act regarding the use of borough
equipment, personnel and time in order to remove piping material and then recycle
such material for compensation, based upon insufficient evidence to establish that
VanGorden received any such compensation.
d. A violation of Section 4(b)/1104(b) [sic] of the Ethics Act when VanGorden failed to file
SFI's in his capacity as Supervisor of the Department of Public Works for calendar
years 1996 through 1999.
In addition, VanGorden agrees to make payment in the amount of $1,000 to the
Commonwealth of Pennsylvania through this Commission within thirty days of the issuance of
the final adjudication in this matter.
In applying Section 3(a)/1103(a) of the Ethics Act to the allegation of VanGorden's use
of borough equipment and personnel for a driveway project, there were uses of authority of
office on the part of VanGorden. But for the fact that VanGorden was the Public Works
Supervisor, he could not have utilized the borough equipment and personnel to assist Derr as
to the driveway installation project. However, the record does not establish that VanGorden
received a private pecuniary benefit for this project. In this regard, Derr asserts he paid
VanGorden $400 -$500 for his work on the project while VanGorden asserts he received no
payment from Derr. Assuming a case does not contain an allegation of an attempt to violate
the Ethics Act, there can be no violation of the Ethics Act without the receipt of a private
pecuniary benefit. Accordingly, we find that VanGorden did not violate Section 3(a)/1103(a) of
the Ethics Act regarding his use of borough equipment and personnel to complete a driveway
project based upon an insufficiency of evidence as to whether he received a private pecuniary
benefit. See, Wagner, Order 1028.
Turning to the allegation regarding the use of borough equipment, personnel, and
facilities to perform private projects without compensating the borough, there were again uses
of authority of office on the part of VanGorden. As noted above, by virtue of his position,
VanGorden was able to utilize borough equipment and facilities in pursuant of private
business. The borough has a policy as to reimbursement for the utilization of the borough
equipment, personnel or materials for private purposes. However, the record in this case does
not establish that VanGorden failed to make such reimbursements to the borough. The
difficulty in establishing a violation as to this allegation is the requirement of clear and
convincing proof to establish a negative, namely, that VanGorden did not reimburse the
borough for the use of its equipment, personnel, or materials. Accordingly, VanGorden did not
violate Section 3(a)/1103(a) of the Ethics Act regarding the utilization of borough equipment,
personnel, and materials for private purposes based upon an insufficiency of evidence that
VanGorden did not reimburse the borough for such usage.
As to the allegation concerning the use of borough equipment and personnel for the
removal of piping relative to the sewer line project, there were uses of authority of office by
VanGorden 01- 048 -C2
Page 16
VanGorden by his direction of borough personnel and usage of borough equipment. The
question becomes whether VanGorden received a private pecuniary benefit. In this regard,
the record reflects that Derr received $1,852.25 for the piping that he sold to a recycling
facility. However, there is no showing that VanGorden received any financial gain as to this
transaction. Accordingly, we find that VanGorden did not violate Section 3(a)/1103(a) of the
Ethics Act as to the usage of borough equipment and personnel to remove piping material
which was sold to a recycling facility, based upon an insufficiency of evidence that VanGorden
received a private pecuniary benefit.
Finally as to the SFI allegation, the record reflects that VanGorden failed to file SFI's for
the calendar years 1996 through 1999 even though he was required to do so as Public Works
Supervisor. Accordingly, VanGorden violated Section 4(a)/1104(a) of the Ethics Act when he
failed to file SFI's as Public Works Supervisor in Elkland Borough for calendar years 1996
through 1999. VanGorden is directed within 30 -days of the date of mailing of this Order to file
SFI's for the calendar years 1996 through 1999 with Elkland Borough with copies filed with
this Commission for verification purposes. In addition, as to the SFI's that VanGorden filed for
the calendar years 2000 and 2001, if VanGorden has any financial interests which he failed to
disclose, he is directed to file amended SFI's for calendar years 2000 and 20001 within 30-
days of the date of mailing of this Order with the originals filed at Elkland Borough and copies
filed with this Commission. Lastly, we do not address the allegation concerning the 1995
calendar year SFI in that it appears that the Investigative Division is not pursuing that aspect
of the allegation.
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, VanGorden is directed to ay $1,000
to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing
date of this Order. Compliance by filing SFI's for the calendar years 1996 through 1999 and
making payment of $1,000 will result in the closing of this case with no further action by this
Commission. Noncompliance will result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. VanGorden, as the Elkland Borough Supervisor of the Department of Public Works is
a public official /employee subject to the provisions of Act 9 of 1989 as codified by Act
93 of 1998.
2. VanGorden did not violate Section 3(a)/1103(a) of the Ethics Act regarding his use of
borough equipment and personnel to complete a driveway project based upon an
insufficiency of evidence as to whether he received a private pecuniary benefit.
3. VanGorden did not violate Section 3(a)/1103(a) of the Ethics Act regarding the
utilization of borough equipment, personnel, and materials for private purposes based
upon an insufficiency of evidence that VanGorden did not reimburse the borough for
such usage.
4. VanGorden did not violate Section 3(a)/1103(a) of the Ethics Act as to the usage of
borough equipment and personnel to remove piping material which was sold by another
to a recycling facility, based upon an insufficiency of evidence that VanGorden
received a private pecuniary benefit.
5. VanGorden violated Section 4(a)/1104(a) of the Ethics Act when he failed to file SFI's
as Public Works Supervisor in Elkland Borough for calendar years 1996 through 1999.
In Re: Peter VanGorden
ORDER NO. 1264
File Docket: 01- 048 -C2
Date Decided: 12/4/02
Date Mailed: 12/16/02
1. VanGorden, as the Elkland Borough Supervisor of the Department of Public Works did
not violate Section 3(a)/1103(a) of the Ethics Act regarding his use of borough
equipment and personnel to complete a driveway project based upon an insufficiency
of evidence as to whether he received a private pecuniary benefit.
2. VanGorden did not violate Section 3(a)/1103(a) of the Ethics Act regarding the
utilization of borough equipment, personnel, and materials for private purposes based
upon an insufficiency of evidence that VanGorden did not reimburse the borough for
such usage.
3. VanGorden did not violate Section 3(a)/1103(a) of the Ethics Act as to the usage of
borough equipment and personnel to remove piping material which was sold by another
to a recycling facility, based upon an insufficiency of evidence that VanGorden
received a private pecuniary benefit.
4. VanGorden violated Section 4(a)/1104(a) of the Ethics Act when he failed to file SFI's
as Public Works Supervisor in Elkland Borough for calendar years 1996 through 1999.
5. VanGorden is directed within 30 -days of the date of mailing of this Order to file SFI's
for the calendar years 1996 through 1999 with Elkland Borough with copies filed with
this Commission for verification purposes. In addition, as to the SFI's that VanGorden
filed for the calendar years 2000 and 2001, if VanGorden has any financial interests
which he failed to disclose, he is directed to file amended SFI's for calendar years 2000
and 20001 within 30 -days of the date of mailing of this Order with the originals filed at
Elkland Borough and copies filed with this Commission.
6. Per the Consent Agreement of the parties, VanGorden is directed to pay $1,000 to the
Commonwealth of Pennsylvania through this Commission within 30 days of the mailing
date of this Order.
7. Compliance with 5 and 6 will result in the closing of this case with no further action by
this Commission. Non - compliance will result in the institution of an order enforcement
action.
BY THE COMMISSION,
Louis W. Fryman, Chair