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HomeMy WebLinkAbout1266 KeeferIn Re: William Keefer 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 02- 033 -C2 Order No. 1266 12/24/02 12/30/02 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 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. 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. Keefer 02- 033 -C2 Page 2 I. ALLEGATION: That William Keefer, a ublic official /public employee) in his capacity as a Councilman for Monaca Borough, Beaver ounty, violated the following provisions of the State Ethics Act (Act 93 of 1998) when he contracted with the borough for the sale of concrete barriers in excess of $500.00 without an open and public process; when he used the authority of his office for a private pecuniary gain by voting to approve payment issued to him for the sale of concrete; and when he failed to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999. Section 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). Section 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. §1103(f). Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term 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. §1102. Section 1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial Keefer 02- 033 -C2 Page 3 interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part - time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. §1104(a). Section 1104. Statement of financial interests required to be filed (d) Failure to file required statement. - -No public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed a statement of financial interests as required by this chapter. 65 Pa.C.S. §1104(d). II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that William Keefer violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on March 27, 2002. 3. The preliminary inquiry was completed within sixty days. 4. On May 23, 2002, a letter was forwarded to William Keefer, by the Investigative Division of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7001 0360 0001 4061 4935. b. The domestic return receipt bore the signature of William Keefer, with a delivery date of May 28, 2002. 5. Periodic notice letters were forwarded to William Keefer in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on November 18, 2002. 7. William Keefer has served as a Monaca Borough Councilman since January 1998. a. Keefer previously served on Monaca Borough Council from January 1980 through February 1, 1983. Keefer 02- 033 -C2 Page 4 b. Keefer was employed by Monaca Borough as the Public Works Director from February 1983 through January 1998. 8. In or around the fall of 2001, Monaca Borough was looking to purchase concrete barriers for use as a safety barrier around a borough playground. a. The barriers were to be used at the playground located adjacent to the borough pump house on Atlantic Avenue. b. The barriers were to be purchased as a result of a recommendation made by the borough's insurance carrier. 9. The borough was unable to locate concrete barriers for the project due to the demand caused by the events of September 11, 2001. 10. In late November 2001, William Keefer purchased various items from William Zajac, owner of Four Seasons Landscape and Building Supply Company, a company that was going out of business. a. Keefer paid cash for the items. b. Included in the items purchased by Keefer, were 12 round -top concrete barriers and 12 jersey concrete barriers. 1. The cost of the barriers was $400.00 ($16.66 each). 11. Keefer purchased the barriers and other items for a lawn care business his son, Eric Keefer, was starting. 12. In late November or early December 2001, Monaca Borough purchased for [sic] round top concrete barriers from Eric Keefer. a. There was no public bid or advertisement prior to the purchase. 13. Keefer acted as the liaison between the borough and his son in determining the cost of the barriers. a. No other borough official had contact with Eric Keefer in regard to the purchase of the barriers. b. William Keefer discussed the price for the barriers with Eugene Caltury, council president. 14. Council President Eugene Caltury authorized the purchase of the barriers from Eric Keefer. a. Caltury was aware at that time that concrete barriers were difficult to locate. 15. On December 3, 2001, a generic invoice, no. 162760, was submitted to the Borough of Monaca by Keefer for the concrete barriers in the amount of $600.00. a. The invoice noted four round -top 12 -foot concrete barriers at $150.00 each. 16. The December 3, 2001, invoice was prepared by William Keefer and submitted to the borough on behalf of his son. a. Keefer handwrote his son's name and address at the top of the invoice. Keefer 02- 033 -C2 Page 5 b. Keefer recorded his address, 1308 Center Road, Monaca, instead of his son's address. 1. Eric Keefer's address is 1306 Center Road, Monaca. 17. At the December 11, 2001, Monaca Borough Council meeting several residents questioned the purchase of the barriers. a. Residents felt the barriers were an eyesore. 18. Monaca Borough check no. 6695, dated December 13, 2001, was issued to Eric Keefer in the amount of $600.00. a. The ayment covered the purchase of four round -top 12 -foot concrete barriers at $150.00 each. 19. Check No. 6695 was included on the bill list approved for payment at the December 11, 2001, regular Monaca Borough Council meeting. a. Keefer was present and participated in the vote to approve payment of the bills. b. The bills were approved for payment by a unanimous vote, 10/0. 20. Signature authority for Monaca Borough's general fund is held by council president, vice president and the borough treasurer. a. Two signatures are required on borough checks. b. Keefer did not sign the check issued to his son. 21. Check no. 6695, issued to Eric Keefer, was cashed by Eric Keefer. a. Signatures of William Keefer and Eric Keefer appear on the reverse side of the check. 22. In a sworn statement provided to the State Ethics Commission investigators on June 10, 2002, Keefer provided the following in regard to the concrete barriers. a. He was first made aware of the borough's need for barriers during a conversation with Council President Eugene Caltury. b. He did not purchase the items for his son's lawn care business until after his conversation with Caltury. c. At the time he purchased the lawn care items, he became aware that 24 concrete barriers were included. d. He paid $400.00 for the 24 barriers, or $16.66 each. e. He did not obtain a receipt and paid for the barriers and other items in cash. f. He made Caltury aware that his son had concrete barriers for sale. g. Caltury subsequently advised him that the borough was interested in purchasing four of the round top barriers. h. He advised his son, Eric Keefer, who established the price of $150.00 for each barrier, not including delivery. Keefer 02- 033 -C2 Page 6 1. Borough workers and equipment transported the barriers to the playground on Atlantic Avenue, Monaca, PA. Eric Keefer retained the proceeds of the sale. k. Keefer has not received any roceeds from his sons [sic] business; his son has not repaid him for the cost of the barriers or any other items Keefer purchased for him. He was unaware of the contracting provisions of the Ethics Law. 23. On June 10, 2002, Keefer reimbursed Monaca Borough for the concrete barriers with personal check no. 222 in an amount of $600.00. a. Under his signature on the front of the check Keefer wrote, "No new bill will be sent." b. Keefer's reimbursement was made after he provided a sworn statement to Ethics Commission investigators on that same date. 24. Monaca Borough Acting Manager Pat Hogan issued Receipt No. 34920 to Keefer on June 10, 2002, for the reimbursement. 25. Keefer's personal check no. 222 was deposited into the borough's account at Sky Bank on June 10, 2002. 26. The borough is in possession of the four concrete barriers received from Eric Keefer. a. No other payment has been made by the borough for the barriers. 27. On June 12, 2002, Acting Borough Manager Pat Hogan issued a letter to the State Ethics Commission advising of the reimbursement received by the borough for the concrete barriers purchased from Eric Keefer. a. The letter was initiated at William Keefer's request. The following findings relate to Keefer's failure to file a Statement of Financial Interests 28. A Statement of Financial Interests Compliance Review was conducted by the Investigative Division of the State Ethics Commission of Monaca Borough on April 5, 2002. 29. No Statement of Financial Interests was on file with Monaca Borough for William Keefer for calendar year 1998. a. Statements of Financial Interests on file for Keefer included calendar years 1997, 1999, 2000. 30. Keefer filed a Statement of Financial Interests for the 1998 calendar year with the Borough of Monaca on June 10, 2002. a. Keefer filed the form after being advised by a State Ethics Commission investigator on June 10, 2002, that no form for 1998 was on file with the borough. Keefer 02- 033 -C2 Page 7 31. The financial gain realized by Eric Keefer as a result of the use of the authority of office by William Keefer to facilitate the sale of four concrete barriers to the Borough of Monaca was $600.00. III. DISCUSSION: Respondent William Keefer (also referred to herein as "Respondent," "Keefer," or "Respondent Keefer") has at all times relevant to this matter been a public official subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Act is referred to herein as the "Ethics Act." The allegations are that Keefer, in his capacity as a Councilman for Monaca Borough, Beaver County, violated Sections 1103(a), 1103(f), 1104(a), and 1104(d) of the Ethics Act when he contracted with the borough for the sale of concrete barriers in excess of $500.00 without an open and public process; when he used the authority of his office for a private pecuniary gain by voting to approve a payment issued to him for the sale of concrete; and when he failed to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999. Pursuant to Section 1103(a) of the Ethics Act quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. Specifically, Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The Ethics Act defines the term "immediate family" to include "[a] parent, spouse, child, brother or sister." 65 Pa.C.S. § 1102. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103(f)fl 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. Section 1104(a) of the Ethics Act quoted above requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1104(d) of the Ethics Act quoted above prohibits a public official from taking the oath of office, entering or continuing the duties of his public office, or receiving compensation from public funds unless he has filed a statement of financial interests as required by the Ethics Act. Having noted the issues and applicable law, we shall now summarize the relevant facts. Given Respondent's failure to file an Answer to the Investigative Complaint, the facts as averred in the Investigative Complaint are deemed admitted by the Respondent. 65 Pa.C.S. § 1108(e); 51 Pa. Code § 21.5(k). Keefer has served as a Monaca Borough Councilman since January 1998. Keefer also previously served as a Monaca Borough Councilman from January 1980 through February 1, 1983, and as the Monaca Borough Public Works Director from February 1983 through January 1998. In or around the fall of 2001, Monaca Borough ( "Borough ") was seeking to purchase Keefer 02- 033 -C2 Page 8 concrete barriers for a particular project. The borough was unable to locate concrete barriers for the project due to the demand caused by the events of September 11, 2001. In late November 2001 Keefer purchased items including concrete barriers from a company that was going out of business. Keefer purchased the items for a lawn care business that his son, Eric Keefer, was starting. The total cost to Keefer for 12 "round -top" concrete barriers and 12 "jersey" concrete barriers was $400.00 ($16.66 each). In late November or early December 2001, the Borough purchased four round top concrete barriers from Eric Keefer. There was no public bid or advertisement prior to the purchase. Respondent Keefer acted as the liaison between the Borough and his son in determining the cost of the barriers. No other borough official had contact with Eric Keefer regarding the purchase of the barriers. Keefer discussed the price for the barriers with Council President Eugene Caltury ( "Caltury "), who authorized the purchase of the barriers from Eric Keefer. Caltury was aware at that time that concrete barriers were difficult to locate. On December 3, 2001, Respondent Keefer submitted a generic invoice to the Borough in the total amount of $600.00 for four round -top 12 -foot concrete barriers at $150.00 each. The December 3, 2001, invoice was prepared and submitted to the Borough by Respondent Keefer on behalf of his son. Keefer handwrote his son's name and an address at the top of the invoice, using his own address, rather than his son's (different) address (Finding 16). Subsequently, the Borough issued check no. 6695, dated December 13, 2001, in the amount of $600 to Eric Keefer as payment for the concrete barriers. The check was included on a bill list and was approved for payment at the December 11, 2001, regular Borough Council meeting. Respondent Keefer was present and participated in the unanimous vote to approve payment of the bills. Respondent Keefer did not sign check no. 6695 in his capacity as a Borough Councilman. The check was issued to Erik Keefer (Findings 18, 21), but bears signatures of William Keefer and Eric Keefer on the reverse side of the check (Finding 21). Respondent Keefer provided a sworn statement to State Ethics Commission investigators on June 10, 2002, as detailed at Finding 22. The financial gain realized by Eric Keefer as a result of the use of the authority of office by Respondent Keefer to facilitate the sale of four concrete barriers to the Borough was $600.00. On June 10, 2002, Keefer reimbursed the Borough for the concrete barriers with a personal check in the amount of $600.00. Such reimbursement was made after Keefer provided his sworn statement to Ethics Commission investigators. Finally, per the undisputed Findings of the Investigative Complaint, a Statement of Financial Interests Compliance Review of the Borough conducted on April 5, 2002, established that no Statement of Financial Interests was on file with the Borough for Respondent for calendar year 1998. Statements of Financial Interests were on file for Keefer for calendar years 1997, 1999, and 2000. Keefer filed a Statement of Financial Interests for the 1998 calendar year with the Borough on June 10, 2002, following discussions with a State Ethics Commission investigator as to the absence of the form. Having summarized the above relevant facts, we must now determine whether the actions of Keefer violated Sections 1103(a), 1103(f), 1104(a), and /or 1104(d) of the Ethics Act. As we apply the facts to the allegations, we are mindful that due process requires that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (1991). Keefer 02- 033 -C2 Page 9 Based upon our review of the record, we find that there is clear and convincing evidence to support several violations under the allegations. Clear and convincing evidence is "testimony that is so 'clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. - In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (Pa. 1998) (Citation omitted). It is alleged that the Respondent violated Sections 1103(a), 1103(f), 1104(a), and 1104(d) of the Ethics Act when he: (1) contracted with the Borough for the sale of concrete barriers in excess of $500.00 without an open and public process; (2) used the authority of his office for a private pecuniary gain by voting to approve a payment issued to him for the sale of concrete; and (3) failed to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999. We shall address the enumerated allegations seriatim. With regard to the first allegation, involving contracting, the facts are that Respondent Keefer acted on his son's behalf as to the purchase by the Borough of the concrete barriers. Erik Keefer did nothing to secure the contract, and no borough official other than Respondent had contact with Eric Keefer regarding the purchase of the barriers. Respondent acted as a liaison between his son and the Borough in discussing the price for the barriers with Caltury. It was Respondent who prepared and submitted to the Borough the December 3, 2001, invoice for the concrete barriers, affixing his son's name but his own address to the invoice. Thus, although Respondent was not an actual party with obligations of his own under the contract, he did in fact secure the contract with the Borough on behalf of his son, acting essentially as the agent of his son. Such contracting occurred without any open and public process as required by Section 1103(f) of the Ethics Act. (We would parenthetically note that under Section 1103(f), an open and public process would have been required regardless of whether Respondent or his son was the party to the contract.) Given the absence of the requisite open and public process as to the contract, which contract was in excess of $500.00, we hold that Respondent violated Section 1103(f) of the Ethics Act when he /his son contracted with the Borough for the sale of concrete barriers to the Borough for an amount in excess of $500.00 without an open and public process. The second allegation is that Respondent used the authority of his office for a private pecuniary gain by voting to approve a payment issued to him for the sale of concrete. Factually, the Borough issued check no. 6695 in the amount of $600 as payment for the concrete barriers. Respondent Keefer participated in the Borough Council's unanimous vote to approve payment of the bill list which included this particular payment. Respondent's participation in the vote to approve the payment constituted a use of the authority of Respondent's public office which resulted in a private pecuniary gain to his son. See, e.q., Kurtz, Order 1116. The check was issued to Erik Keefer (Findings 18, 21), but bears signatures of William Keefer and Eric Keefer on the reverse side of the check (Finding 21). Accordingly, we hold that Respondent violated Section 1103(a) of the Ethics Act when he participated in the December 11, 2001, vote of Borough Council to approve a payment, check no. 6695 in the amount of $600, issued to him /his son. The third allegation involves Respondent's failure to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999. Keefer 02- 033 -C2 Page 10 A Statement of Financial Interests Compliance Review of the Borough conducted by the Investigative Division on April 5, 2002, established that no Statement of Financial Interests was on file with the Borough for Respondent for calendar year 1998. Statements of Financial Interests were on file for Keefer for calendar years 1997, 1999, and 2000. Keefer filed a Statement of Financial Interests for the 1998 calendar year with the Borough on June 10, 2002, following discussions with a State Ethics Commission investigator as to the absence of the form. Based upon the facts before us, we hold that Keefer violated Section 1104(a ) of the Ethics Act when he failed to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999. As for Section 1104(d), which prohibits a ublic official from taking the oath of office, entering or continuing the duties of his public office, or receiving compensation from public funds unless he has filed a statement of financial interests as required by the Ethics Act, we note that the record before us does not include the necessary facts to enable us to properly analyze this particular portion of the allegations. The only official duties of Respondent detailed in the Findings are those performed in 2001 pertaining to the concrete barriers. No other official duties performed by Respondent have been asserted as the basis for a violation of Section 1104(d), nor has there been any reference to any compensation Keefer may have received from public funds during non - compliance as to the 1998 calendar year Statement of Financial Interests. We hold that Keefer did not violate Section 1104(d) of the Ethics Act as to his failure to timely file a Statement of Financial Interests for the 1998 calendar year based upon an insufficiency of evidence. Section 1107(13) of the Ethics Act empowers this Commission to impose restitution in instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. Keefer has already reimbursed the Borough in the amount of $600.00 representing the Borough's full purchase price for the concrete barriers purchased from Keefer's son. Finally, Keefer has filed a Statement of Financial Interests for the 1998 calendar year with the Borough. Based upon all of the above, this Commission shall take no further action in this case which is closed. However, Keefer, as a public official, must conduct his future activities in accordance with the provisions of the Ethics Act. IV. CONCLUSIONS OF LAW: 1. William Keefer ( "Keefer "), as a Borough Councilman for Monaca Borough ( "Borough "), has at all times relevant to these proceedings been a public official subject to the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which Act is referred to herein as the "Ethics Act.' 2. Keefer violated Section 1103(f) of the Ethics Act when he /his son contracted with the Borough for the sale of concrete barriers to the Borough for an amount in excess of $500.00 without an open and public process. 3. Keefer violated Section 1103(a) of the Ethics Act when he participated in the December 11, 2001, vote of Borough Council to approve a payment, check no. 6695 in the amount of $600, issued to him /his son. 4. Keefer violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 1998 calendar year by May 1, 1999. Keefer 02- 033 -C2 Page 11 5. Keefer did not violate Section 1104(d) of the Ethics Act as to his failure to timely file a Statement of Financial Interests for the 1998 calendar year based upon an insufficiency of evidence. In Re: William Keefer ORDER NO. 1266 File Docket: 02- 033 -C2 Date Decided: 12/24/02 Date Mailed: 12/30/02 1. William Keefer ( "Keefer "), a public official in his capacity as a Borough Councilman for Monaca Borough ( "Borough "), violated Section 1103(f) of the Ethics Act when he /his son contracted with the Borough for the sale of concrete barriers to the Borough for an amount in excess of $500.00 without an open and public process. 2. Keefer violated Section 1103(a) of the Ethics Act when he participated in the December 11, 2001, vote of Borough Council to approve a payment, check no. 6695 in the amount of $600, issued to him /his son. 3. Keefer violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 199 calendar year by May 1, 1999. 4. Keefer did not violate Section 1104(d) of the Ethics Act as to his failure to timely file a Statement of Financial Interests for the 1998 calendar year based upon an insufficiency of evidence. BY THE COMMISSION, Louis W. Fryman, Chair