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HomeMy WebLinkAbout1267 DavisonIn Re: Dennis D. Davison 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- 003 -C2 Order No. 1267 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 9 of 1989, P.L. 26, 65 P.S. §§ 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed. A hearing was neither requested nor held. The admitted averments are quoted as the Findings in this Order. The record is complete. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Davison 02- 003 -C2 Page 2 I. ALLEGATION: That Dennis Davison, a public official /public employee in his capacity as Police Chief for Scott Township, Lackawanna County, violated the following provisions of the Ethics Act (Act 93 of 1998) when he used the authority of his office for a private pecuniary gain for himself and /or a business with which he is associated by using his public position to obtain a $1,000 rebate for the repair of police vehicles from a township vendor which was deposited into the township police association account with which Davison is associated. 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 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. §1102. II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received information alleging that Dennis Davison violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the information the Investigative Division initiated a preliminary inquiry on January 7, 2002. 3. The preliminary inquiry was completed within sixty days. 4. On March 5, 2002, a letter was forwarded to Dennis Davison, 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 5086. b. The domestic return receipt bore the signature of Dennis Davison, with a delivery date of May 11, 2002. 5. On June 25, 2002, the Investigative Division of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. Davison 02- 003 -C2 Page 3 6. The Commission issued an order on July 1, 2002, granting the ninety day extension. 7. Periodic notice letters were forwarded to Dennis Davison in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on November 8, 2002. 9. The Investigative Division avers that Dennis Davison has served as the Chief of Police for Scott Township, Lackawanna County, for the past twenty -eight (28) years. a. As Chief of Police, Davison has supervisory responsibility overfive full-time and four part -time officers. b. Davison denies the above and asserts that he was a police officer for 28 years and the Chief of Police for only approximately 17 years. 10. Funding for the Scott Township Police Department comes from the township Board of Supervisors as a general fund appropriation. a. The police department does not have its own operating account independent of the board of supervisors. b. The board of supervisors purchase [sic] all equipment and materials needed to operate the police department including vehicles. 11. Employees of the Scott Township Police Department contribute to a police association account. a. Each member of the police department makes a weekly contribution of approximately $10.00. b. This account is a private account for police association members. c. No township funds are contributed to this account. d. This account is under the control of Chief Davison and Lt. Scott Sayer. e. The township board of supervisors do [sic] not have access to this account. 12. The Scott Township Police Association account is used to purchase goods and services not covered by the department's budget. a. The primary goal of the account is to have funding available for legal services needed as part of contract negotiations. b. The account is also used to purchase incidental items such as coffee, tea, cups, etc. which could not be purchased using township funds. 13. The Scott Township Police Department typically has three vehicles for use by its nine officers. 14. On November 2, 2000, the township's 1997 Ford Crown Victoria police cruiser hit a deer, sustaining damage in the amount of $7,805.20. a. On November 9, 2000, Selective Insurance Company of South Carolina issued check no. 1888825 in the amount of $7,705.20 to Scott Township. Davison 02- 003 -C2 Page 4 b. This check covered the damage to the cruiser minus the township's $100.00 deductible. 15. Borgna's Body Shop and Sales, R.D. #1, Olyphant, PA 18447, agreed to repair the township's cruiser for the insurance estimate. a. Borgna's Body Shop had previously performed repair services for Scott Township. b. Borgna's Body Shop is located within the geographic boundaries of Scott Township. 16. Chief Davison informed the board of supervisors and public of the damage to the cruiser during the board's November 16, 2000, meeting. a. Davison indicated that the cruiser was expected back in service within three weeks. 17. On December 18, 2000, Borgna's Body Shop issued invoice no. 1115 to Scott Township in the amount of $7,805.20 for repairs to the police cruiser. a. This invoice was signed by Dennis Davison approving the work as completed. 18. According to notations on the invoice, the cruiser was not repaired to the estimate. a. Borgna's did not replace the dash panel or fender mounding called for on the estimate. b. Chief Davison decided that these repairs did not need to be made based on the mileage and life expectancy of the vehicle. c, Supervisor Jack Beecroft also approved of these repairs not being made. 1. Beecroft's approval is noted on the repair invoice. d. Borgna's also replaced a tire, hub cap and air bag module which were not included as part of the repair estimate. 1. Borgna's valued these repairs /parts to be approximately $500.00. 19. In 2000, the Scott Township Police Department, specifically Chief Davison, was hopeful of the township purchasing a radar signal device for use with speed control. a. The police department had received numerous complaints of speeding on township roads. 20. The township board of supervisors did not authorize township funding for the device. 21. Chief Davison wanted to use funds from the police association account to fund the purchase of the radar signal. a. The township generally has limited funds to allocate to the police department. 22. The Investigative Division avers that Davison solicited a donation from Borgna's Garage to assist with payment of the radar signal. Davison 02- 003 -C2 Page 5 a. Borgna agreed to make a donation. b. Davison denies the above and asserts that he did not solicit a donation from Borgna's Body Shop. 23. In addition to the $500 worth of donated parts and repairs, Borgna's contributed $500 of his own funds towards the purchase of a radar signal for the police department. a. This contribution combined totaled $1,000.00; $500 parts /$500 currency. b. Borgna noted on the invoice that the $1,000.00 was a "give back on job money is to go for radar." 24. On December 21, 2000, Scott Township issued check number 604 in the amount of $7,805.20 to Borgna's Body Shop and Sales. a. This check was deposited into the business account of Borgna's Body Shop and Auto Sales under the endorsement Frank Borgna. 25. Also on December 21, 2000, Frank Borgna issued Borgna's Auto Sales check number 1869 in the amount of $1,000.00 to the Scott Township Police Association. a. The notation in the memo portion of this check stated "back on job police car." b. Borgna intended for his $1,000 donation to be applied to the purchase of a speed control device for the police department. c. The payment was made in this manner so that the funds could be deposited in the police association account. 26. Chief Davison deposited Borgna's check into the Scott Township Police Association account on January 11, 2001. a. Chief Davison has signature authority for this account. b. These funds remained in this account until April 30, 2002. c. These funds were maintained in the police association account while additional grant funding for the speed control device was applied for. 27. Chief Davison addressed the board of supervisors at the December 21, 2000, meeting regarding the cruiser and a donation from Frank Borgna. a. Davison informed the board and public that township resident and business owner Frank Borgna donated $1,000 towards the purchase of a speed monitor and Representative James Wansacz would assist with funding. b. Davison informed the board that these devices cost between $2,800 and $9,940. 28. The $1,000 donation made by Frank Borgna continued to be maintained in the police association account while additional funding was being secured. a. Several verbal requests from township residents to turn this money over to the township general fund were made by Chief Davison. b. Chief Davison took no action on these requests out of concern that the Davison 02- 003 -C2 Page 6 donation could be converted to another use if he did not maintain control of it. c. Davison avers that the only conversation (complaint) was from the township secretary and if there were any comments from the public at a township meeting, he was not present. 29. On February 6, 2002, the Scott Township Board of Supervisors took action authorizing the township's secretary /treasurer Tom Wicks to apply for a DCED grant to purchase a speed warning device. a. Davison avers that because a grant application expires each calendar year, a second application was resubmitted from which the township received a grant. 30. On March 1, 2002, Scott Township's grant application was approved by DCED. a. Specifically approved was $5,000 in grant funding to assist the police force purchase a portable trailer mounted speed monitoring device. b. DCED contract number 212 - 192 -1536 was assigned to the Scott Township grant. c. This grant funding was deposited into the township's general fund account. 31. On April 30, 2002, Chief Davison issued police association check number 154 in the amount of $1,000 to the Scott Township Supervisors. a. This amount was to be added to the $5,000 grant and applied towards the purchase of a speed control device for the police department. 32. During the supervisors June 20, 2002, meeting, "Secretary/Treasurer Wicks announced that the funds had been received and deposited for the grant that has been received to help offset the purchase price of the mobile speed awareness sign. It was suggested that perhaps there might be residents and /or business owners that might want to contribute to the cost of purchasing this piece of equipment." a. To date, no funds have been expended on this equipment. b. The township is in the process of converting these grant funds towards the purchase of a new police vehicle. 33. During the entire time Borgna's $1,000 donation was in the police association account, the account balance never fell below $2,852.85 (02/11/02). III. DISCUSSION: At all times relevant to this matter, the Respondent, Dennis D. Davison, hereinafter Davison, has been a public 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 se as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Davison, as the Scott Township Chief of Police violated Section 1103(a) of the Ethics Act when he obtained a $1,000 rebate for the repair of police vehicles from a township vendor which was deposited into the township police association account with which Davison is associated. Davison 02- 003 -C2 Page 7 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. 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. As previously noted, the admitted averments are quoted as the Findings. Davison has been employed in Scott Township for the past 28 years, first as a police officer and then as Police Chief. Although funding for the Scott Township Police Department comes from the Board of Supervisors through a general appropriation, the employees contribute to their police association account. The township does not have access to the police association account which is used primarily to purchase goods and services or legal services for contract negotiations which are not covered by the department's budget. The township does not contribute funds to that account which is under the control of Davison and a police lieutenant. In November 2000, one of the township's police vehicles sustained damage totaling $7,805.20. The municipal insurance carrier issued a check in the amount of $7,705.20, after excluding the $100.00 deductible as per the insurance policy. Borgna's Body Shop and Sales, which performed repair services for the township on previous occasions, agreed to repair the vehicle for the insurance estimate. After Borgna's Body Shop performed the repair work on the vehicle, it submitted an invoice to the township in the amount of $7,805.20. However, a review of the invoice reflects that the vehicle was not repaired as per the damages delineated in the original estimate. This occurred because Davison determined that certain repairs did not need to be made, based upon the mileage and life expectancy of the vehicle. The value of such repairs which were not made was approximately $500.00. In 2000, Davison believed that the township should purchase a radar unit because of the numerous complaints of speeding on township roads. Since the township board of supervisors did not authorize township funding for a radar unit, Davison wanted to use funds from the police association account to purchase the unit. The Investigative Division avers that Davison solicited a donation from Borgna's Garage to assist with the purchase of the radar unit. However, Davison denies that he made such a solicitation. Borgna not only contributed $500.00 worth of parts and repairs, but also $500.00 of his own funds towards the purchase of the radar unit for the police department. Borgna noted on the invoice that $1,000.00 was a return on a township repair job for a radar unit. In December of 2000, the township issued a check to Borgna's Body Shop and Sales in the amount of $7,805.20. Thereafter, Borgna's Body Shop and Sales issued a check in the amount of $1,000.00 to the township police association. One thousand dollars was maintained in the police association account while additional grant funding was sought for the radar device. In February of 2000, the board of supervisors took action to authorize the township secretary /treasurer to apply for a DCED grant for the purchase of a radar unit. In March of 2000, DCED approved the township's application for a $5,000.00 grant to assist the police department in purchasing a portable trailer mounted speed monitoring device. In April of 2002, Davison issued a police association check in the amount of $1,000.00 to the supervisors in conjunction with the $5,000.00 grant for the purchase of the speed control device for the police department. Currently, the funds have not been expended for the purchase of a radar unit and the township is in the process of converting the funds for the purchase of a new police vehicle. Davison 02- 003 -C2 Page 8 Having summarized the above relevant facts, we must now determine whether the actions of Davison violated Sections 1103(a) of the Ethics Act. In applying the provisions of Section 1103(a) of the Ethics Act to the instant matter, there are two outstanding issues. The first issue concerns whether there was a use of authority of office on the part of Davison as police chief. The allegation is that Davison used the authority of office as to the solicitation of $1,000.00 from Borgna's Body Shop and Sales. The Investigative Complaint avers, but Davison denies, that he solicited a donation from Borgna's Garage. Given the foregoing, we do not find that there is clear and convincing proof under the Ethics Act that there was a use of authority of office on the part of Davison. Second, as to the pecuniary benefit of the $1,000.00 from Borgna's Garage consisting of the $500.00 rebate as to the repairs and $500.00 as a cash donation, the issue becomes whether the pecuniary benefit inured to either Davison or a business with which he is associated. The record indicates that $1,000.00 did not go to Davison but to the police department association. The term "business with which he is associated" is defined under the Ethics Act as follows: § 1102. Definitions "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. §1102. Since the record does not establish that Davison is an owner, officer, employee, director or has a financial interest in the police department association, that entity is not a business with which he is associated as that phrase is defined under the Ethics Act. Accordingly, we find that the record does not establish either a use of authority of office on the part of Davison or the receipt by him or a business with which he is associated of a private pecuniary benefit. Without a use of authority of office, there can be no violation of Section 1103(a) of the Ethics Act. See, McGuire and Marchitello v. SEC, 657 A.2d 1346 (Pa. Commw. 1995), No. 2613 and 2614 C.D. 1994. Further, assuming that there is no allegation of an attempt to violate the Ethics Law, there can be no violation of Section 1103(a) of the Ethics Act if there is no receipt of a private pecuniary benefit. See, Pirolli, Order 1005. Therefore, Davison did not violate Section 1103(a) of the Ethics Act as to the deposit of the $1,000.00 rebate for the repair of the police vehicle from Borgna's Garage into the township police association account in that there was neither a use of authority of office nor the receipt of a private pecuniary benefit by Davison. IV. CONCLUSIONS OF LAW: 1. Davison, as the Chief of Police for Scott Township, is a public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Davison did not violate Section 1103(a ) of the Ethics Act as to the deposit of $1,000.00 rebate for the repair of the police vehicle from Borgna's Garage into the township police association account in that there was neither a use of authority of office nor the receipt of a private pecuniary benefit by Davison. In Re: Dennis D. Davison ORDER NO. 1267 File Docket: 02- 003 -C2 Date Decided: 12/24/02 Date Mailed: 12/30/02 1. Dennis D. Davison, as the Chief of Police for Scott Township, Lackawana County, did not violate Section 1103(a) of the Ethics Act as to the deposit of $1,000.00 rebate for the repair of the police vehicle from a township vendor into the township police association account in that there was neither a use of authority of office nor the receipt of a private pecuniary benefit by Davison. BY THE COMMISSION, Louis W. Fryman, Chair