HomeMy WebLinkAbout1280 HixonIn Re: George Hixon
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
02- 060 -C2
Order No. 1280
June 2, 2003
June 5, 2003
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 not filed and a hearing was deemed waived held. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Nixon 02- 060 -C2
Page 2
I. ALLEGATION:
That George Hixon, a (public official /public employee) in his capacity as a member of
the Houston Township Sewer Authority violated the following provisions of the State Ethics
Act (Act 93 of 1998) when as a former public official and /or employee he represented
Earthmovers, Inc. for compensation on matters before his former governmental body, the
Huston Township Sewer Authority within one year of leaving his position on the authority; and
when he failed to disclose Earthmovers Unlimited as a source of income in excess of $1,300
on a Statement of Financial Interests filed for the 1999 calendar year; when he failed to
disclose any sources of income on Statements of Financial Interests filed for the 2000
calendar year; and when he failed to disclose his office, directorship or employment in Hixon
Contracting on Statements of Financial Interests filed for the 1999 and 2000 calendar years.
Section 1103. Restricted activities.
(g) Former official or employee. - -No former public official
or public employee shall represent a person, with promised or
actual compensation, on any matter before the governmental
body with which he has been associated for one year after he
leaves that body.
65 Pa.C.S. §1103(g).
Section 1105. Statement of financial interests.
(b) Required information. - -The statement shall include the
following information for the prior calendar year with regard to the
person required to file the statement.
(5) The name and address of any direct or
indirect source of income totaling in the aggregate $1,300
or more. However, this provision shall not be construed to
require the divulgence of confidential information
protected by statute or existing professional codes of
ethics or common law privileges.
(8) Any office, directorship or employment of any
nature whatsoever in any business entity.
65 Pa.C.S. §1105(b).
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received information alleging
that George Hixon 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
June 13, 2002.
3. The preliminary inquiry was completed within sixty days.
4. On August 2, 2002, a letter was forwarded to George Hixon, 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 1940 0001 2179 5353.
b. The domestic return receipt bore the signature of Kathryn Hixon, with a delivery
Nixon 02- 060 -C2
Page 3
date of August 8, 2002.
5. On January 22, 2003, a letter was forwarded to George Hixon, by the Investigative
Division of the State Ethics Commission advising him that the allegations against him
cited in the August 2, 2002, notice of investigation were being amended to include
additional allegations.
a. Said letter was forwarded by certified mail no. 7000 1670 0005 2766 5118.
6. On January 24, 2003, the Investigative Division of the State Ethics Commission filed
an application for a ninety day extension of time to complete the investigation.
7. The Commission issued an Order on January 28, 2003, granting the extension.
8. Periodic notice letters were forwarded to George Hixon in accordance with the
provisions of the Ethics Law advising him of the general status of the investigation.
9. The Investigative Complaint was mailed to the Respondent on April 23, 2003.
10. George Hixon served as a member of the Huston Township Sewer Authority
("Authority"), Clearfield County, from August 10, 1999, until resigning effective August
3, 2001.
a. Hixon served as the chairman of the authority from September 14, 1999,
through the end of his service on the board on August 3, 2001.
11. The authority is comprised of five members who are appointed by the township board
of supervisors.
a. Authority members are not compensated.
12. The authority was organized in 1994 by the Huston Township Board of Supervisors.
a. The authority enacted a Sewage Facilities Act (Act 537) plan in 1994 requiring
the township to pursue a public sewage system.
13. The authority typically holds meetings on a monthly basis but holds meetings more
frequently as needed.
a. Motions are voted on by group consensus and individual votes are typically not
recorded in the meeting minutes.
b. While serving as chairman of the authority, Hixon did not typically vote on
motions except in the case of a tie.
14. From 1994 through early 2000, the authority utilized the services of Eads Group, Inc.,
as its engineer.
a. Eads completed an initial Act 537 plan for the authority.
b. Due to differing opinions on the authority and disagreements with Eads, there
was little progress by the authority in completing the provisions of the Act 537
plan.
15. The authority terminated its business relationship with Eads during its meeting on
January 11, 2000.
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a. Hixon, as a member of the authority, supported the decision to replace Eads.
16. The authority publicly advertised for interested engineering firms to apply for the
position.
a. The authority received proposals from five engineering companies.
b. Interviews were conducted with interested firms.
c. Hixon participated in the interviews.
17. Hess and Fisher Engineers, Inc., Clearfield, PA, were [sic] selected as the authority
engineer during the February 8, 2000, authority meeting.
a. The contract between the Authority and Hess and Fisher was not finalized and
approved until June 22, 2000.
b. Hess and Fisher were [sic] hired to revise the Act 537 plan, design the sewer
system and obtain the permits necessary to install the system.
c. Wilson Fisher primarily served as the engineer for the authority.
18. Within two months of Hess & Fisher being selected as Authority Engineer, George
Hixon approached Wilson Fisher and informed Fisher that Hixon's two sons would be
contacting Fisher regarding employment.
a. Hixon advised Fisher that his sons were college students and looking for
summer employment.
19. Hixon has two sons, Paul Hixon and Dan Hixon.
a. In 2000 Paul and Dan Hixon were college students.
20. In or about May 2000, Paul and Dan Hixon approached Wilson Fisher for summer
jobs.
a. Hixon's sons went to Fisher after consulting with their father, George Hixon.
21. When Hixon's sons approached Fisher the firm was not advertising for help nor were
they seeking to fill any positions.
a. Both Paul and Dan Hixon were subsequently hired by Wilson Fisher.
22. Paul and Dan Hixon began employment with Hess & Fisher on May 28, 2000, at a
salary of $15.00 per hour.
23. Duties performed by Paul Hixon included responsibilities for the authority sewer project
including obtaining easements from township residents and other field work.
a. Paul Hixon remained employed on a part -time basis during 2001 and 2002.
b. Paul Hixon received a raise to $18.00 per hour on August 6, 2001.
24. Dan Hixon was employed by Fisher during the summer of 2000 and summer of 2001
working on the Hess & Fisher website.
a. Dan Hixon terminated his employment with Hess & Fisher during July 2001.
Date
Time
Purpose
(Fs)
08/07/01
1.0
HTSA design, ,Cindy S. (1), Gerald H. (1), George H. (1),
Paul ('L)(1), details sched., bid
08/20/01
1
HTSA, design, detail, John Williams (1), Tom (2), GH (1),
sched.
09/25/01
2.0
HTSA, design, RUS bid requirements,
Melody K., Cindy S. (1), GH (2), Tom (2) permits
09/27/01
0.25
HTSA, design, GH ( ?), details, specs.
10/01/01
1.0
HTSA design, Tom (2), Cindy S. (1), Randy (2), GH (1), Dick
L. (WA)
10/25/01
2
HTSA, design, GH (2) detail, Tom (2), Bob G. (2), plans,
clarification, Bob H. (1 Lee
10/30/01
3.0
HTSA Const /inspect, GH (2), various vendor (1), Bill H. (1),
tab bids, Tom (2), Tim G. (1)
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25. Hixon's sons were compensated as follows by Hess and Fisher.
Year Dan Hixon Paul Hixon
2000 $ 6,165.00 $ 9,093.75
2001 $ 780.00 $ 30,213.66
2002 $ 0.00 $ 445.50
Total $ 6,945.00 $ 39,752.91
26. From February 2000 through July 2001, during Hixon's service on the authority, he
assisted Fisher in the development of the project specifications and plans.
a. Hixon participated in meetings and discussions with Fisher relative to the plans
and specifications of the project.
1. These discussions included the type of system to use, the service area
and estimates of the cost of the system.
27. By the end of July 2001, the Authority had completed the plan specifications and cost
estimates and was ready to begin the process of seeking bids for the project.
a. The township was awaiting final approval from its main funding source, the U.S.
Department of Agriculture.
28. Hixon resigned from the authority board effective August 3, 2001.
a. Hixon's main reason for resigning was his desire to bid on portions of the sewer
project.
29. Hixon remained in contact with the Authority project, particularly Wilson Fisher,
following his resignation from the Authority.
a. Hixon participated in meetings with Fisher, authority members and
representatives of RUS (the authority's main funding source).
b. Many of the meetings concerned the design details, construction schedule and
bid requirements.
30. Personal work logs of Wilson Fisher confirm meetings which Hixon attended regarding
the project design and bid requirements between August 7, 2001, and October 31,
2001, the period when project costs and design were finalized and the project put out
for bid.
Date
Time
Purpose
(Fs)
10/31/01
2.0
HTSA, const /inspect, Tom T. (1), Tom (1), Jeff B. (1), George
H. (1), Jerry (4), Bob G. (1), detail, sched, Paul (2)
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31. The authority received funding for the project from the US Department of Agriculture —
Rural Development, Rural Utilities Service (RUS) in the form of a loan /grant.
a. RUS provided funding via a fifty percent loan — fifty percent grant.
32. On September 19, 2001, the RUS gave the authority approval to advertise for bids on
the project.
a. The RUS gave this approval after accepting the plans submitted by the
authority that were prepared by Hess and Fisher.
33. The authority publicly advertised the project on September 28, 2001, and October 2,
2001, and bid the project as four separate contracts as follows:
a. Contract #HTSA -1: Construction of small diameter pressure sewage collection
systems in the Village of Penfield, Huston Township — Phase 1 Service Area
b. Contract #HTSA -2: Construction of small diameter pressure sewage collection
system in the Villages of Mill Run, Hollywood and Tyler, Huston Township —
Phase 1 Service Area
c. Contract #HTSA -3: Construction of sewage treatment plant and associated
facilities, Village of Hollywood, Huston Township — Phase 1 Service Area
d. Contract #HTSA -4: Delivery of 337 complete factory -built and tested
centrifugal grinder pump stations and one duplex grinder pump station (with pre -
approval of manufacturer), Huston Township — Phase 1 Service Area
e. The bids were advertised in local publications including the Dubois Courier -
Express, Altoona Mirror, Clearfield Progress and State College Centre Daily
Times, Dodge Report, and the Altoona Builders Supply in or around
September /October 2001.
1. Included in the advertisement was a notice of mandatory pre -bid
conference to be held on October 10, 2001.
f. Bids were required to be delivered to Hess and Fisher by 4:00 p.m. by October
29, 2001, and opened at 5:00 p.m. on the same date.
34. Earthmovers Unlimited, Inc., Kylertown, PA is a heavy excavation, rigging and light
demolition company.
a. Earthmovers has done limited municipal sewer projects in the past.
b. John Niebauer is the owner of Earthmovers.
35. Hixon previously worked as a subcontractor for Earthmovers primarily working on a
snow removal project.
a. Earthmovers and Hixon have had a business relationship for approximately five
years.
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Page 7
36. Matt Petrini is an excavating contractor whose business is based near Huston
Township.
a. Earthmovers subcontracts most of its small jobs to Petrini.
b. Earthmovers and Petrini have had a business relationship for approximately 20
years.
c. Petrini and Hixon have worked together in the past.
37. In October 2001, Niebauer learned of the Huston Township sewer project from the
Dodge Report and through discussions with Matt Petrini.
a. The Dodge Report is a listing of all government /municipal jobs available for bid.
b. Petrini was in Niebauer's office when Niebauer reviewed the Huston Township
sewer project in the Dodge Report.
1. Petrini was from the Huston Township area and suggested to Niebauer
that Earthmovers submit a proposal for a portion of the project.
2. Petrini also suggested to Niebauer that Hixon be involved in the project
because Hixon was also from Huston Township and was knowledgeable
of the project.
38. On October 10, 2001, the authority held a mandatory pre -bid conference for all
individuals or companies interested in submitting a bid on any contract for the project.
a. Hixon attended the conference as a representative of Hixon Contracting.
1. The roster sheet from this meeting verified Hixon's attendance and that
Hixon was representing Hixon Contracting.
39. Hixon's representation occurred less than two months after his resignation from the
authority and following his participation in meetings with authority members and the
authority engineer regarding the sewer system design, specifications and bid
requirements.
40. Between September and October 2001, Hixon met with Niebauer in Niebauer's office
to present him with a project budget proposal for contracts one and two of the Huston
Township project.
41. The purpose of Hixon meeting with Niebauer was to propose a working relationship to
bid on and obtain contracts from the authority.
a. Hixon's budget proposal for the project was handwritten and informal.
b. Hixon's estimate totaled $1,293,000.00 which was identical to the estimate
prepared by Fisher.
c. Hixon had been meeting with Fisher and authority members during August
through October 2000 when specifications and costs were finalized. (See
Finding No. 30).
42. Niebauer's in -house engineer Jeff Bush, reviewed Hixon's proposal to determine if the
figures were reasonable.
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Page 8
a. Bush typically prepares Earthmovers' proposals.
43. After reviewing the figures, Bush informed Niebauer that Hixon's estimate was
reasonable and that Earthmovers could complete the project for the amount of Hixon's
estimate.
a. Bush spent significantly less time reviewing Hixon's proposal than he spends
preparing his own proposals.
b. Bush did not try to verify if Hixon's amounts for specific parts of the project were
accurate but rather if the total cost was accurate.
44. Niebauer decided to submit bids for contracts one and two of the sewer project based
on Hixon's estimates.
45. Hixon and Niebauer entered into a verbal agreement that if Earthmovers were awarded
a contract(s) Hixon would become an employee of Earthmovers on the project and
receive the following compensation.
a. $1,000 per week for serving as a superintendent on the project.
b. One -third of the profit on the project Of there was any).
c. Hixon's duties consisted of supervising a crew of employees installing the
"finger" lines of the sewer main line.
1. The employees were to include his sons, Paul and Dan Hixon, who had
terminated their employment with Hess & Fisher at about the time that
George Hixon resigned from the authority.
46. Matt Petrini was given a similar compensation package.
a. Petrini also supervised a crew of sewer line installers.
47. Niebauer was not aware of Hixon's service on the authority prior to submitting the bid
for the project.
a. Hixon did not disclose his service on the authority to Niebauer.
b. Niebauer was later informed of this fact by the authority engineer.
48. On October 29, 2001, bids were opened by the authority.
a. Authority engineer Wilson Fisher determined Earthmovers, Inc., to be the low
bidder of contracts I and II.
b. Earthmovers' bids for Contract I was $757,039.08 and Contract II was
$542,910.92.
c. The combination bid for both contracts was $1,293,000.00.
d. The next low bidder was Greenland Construction at $1,700,000.00.
49. By letter dated November 7, 2001, Hess and Fisher notified Earthmovers that it was
the lowest bidder on contracts one and two of the project.
a. The engineer's letter indicated that Earthmover's bid was very close to the
Nixon 02- 060 -C2
Page 9
engineer's estimate included in the bid packet provided to all interested
contractors.
b. This letter was addressed to Niebauer.
50. By letter dated February 25, 2002, Hess and Fisher forwarded an official Notice of
Award of Contract to Earthmovers.
51. The authority held a pre- construction conference on March 20, 2002, for the
companies awarded contracts.
a. A roster sheet from this meeting verified that Hixon attended this meeting on
behalf of Earthmovers.
1. Petrini and Bush also attended on behalf of Earthmovers.
b. Hixon represented Earthmovers approximately eight months after leaving his
position as chairman of the authority.
52. By letter dated April 15, 2002, Hess and Fisher forwarded a Notice to Proceed to
Earthmovers enabling them to begin construction on the project.
53. Earthmovers began working on the project in April 2002.
54. As Earthmovers' superintendent on the project, Hixon is responsible for installing
sewer lines throughout the township.
a.
Hixon's duties included hiring and supervising a crew of employees.
1. Hixon's sons and brother were also employees of Earthmovers during
the time when Hixon was representing Earthmovers' interests before the
authority.
2. Hixon was instrumental in securing positions with Earthmovers for his
son and brother.
b. Hixon is Earthmovers' liaison to the authority and attends the majority of the
authority meetings as a representative of Earthmovers.
c. Hixon's responsibilities also include making minimal on the job purchases for
which he is reimbursed.
55. In addition to supervising sewer line installation, Hixon also served as an Earthmovers
liaison to the sewer authority.
56. Wilson Fisher's log confirms that Hixon continued to meet with Fisher, authority board
members and funding representatives following the award of contracts to Earthmovers
on November 7, 2001, and Earthmovers' Notice to Proceed on April 15, 2002.
a. The meetings were in relation to construction inspections, schedules, funding
source requirements.
b. All of these meetings occurred within one year of Hixon resigning his position
on the authority.
57. Hixon met with Fisher and authority members and funding representatives on the
following dates:
Date
Time
(F�s)
Purpose
11/12/01
2.0
HTSA flood plan, Amy Maltoltz, John Michael, lunch with
George Hixon, const /inspec Tim G., focs GH (1) (2), rus
requirements, schedule
11/20/01
3.0
HTSA, const /inspec, John Williams (1), Melody K. (1),
Lambert R (VM), status, George Hixon (2), 2 from McElevy,
two letters to RUS with documents, Cindy (1)
11/27/01
3.05
HTSA, consulting, GH (2), bons, schedule, weather, valves,
Melody (1), Cindy (VM), apply for assistance forms (Lunch
with George H. (NIC))
11 /28/01
5
HTSA, const /inspect, Lambert R. (1), Cindy S. (1), focus,
budget, Melody (1), forms, GH (1), bid schedule
11/30/01
3.0
HTSA, const /inspect, George H. (1), schedule, fittings, BSA
(2), [Bob R., Dan M., ? (NCRPC), Halstrom, Fran C. 204],
Scott Camp connection (later)
12/26/01
3
HTSA, const /inspect, files, HTSA (2), bid cert, RUS, George
H. (1), cert., schedule bids, restoration, Cindy S. (1), meeting
12/27/01
1.25
HTSA, const /inspect, letter to Earthmovers, GH (1), schedule
01/16/02
N/A
Expenses: Business dinner and drinks @ Fireman's Club
with Cindy Smith, Huston Twp., George Hixon,
Earthmovers, discussed construction, schedules, and SEO
Complaint, cash $22.60
02/20/02
1
HTSA, const /inspect, Kord A. (1), status, Lambert R. (VM),
Melody (VM), GH (1), pipes (casing), dig, Tom (2)
02/21/02
1
HTSA, const /inspect, Lambert R. (VM), Melody (1), GH (1),
pipe meters for carrier and casing, Tom (2)
03/01/02
1.75
HTSA, const /inspect, GH (2), sched., plan, detail, Marshal
(1), Melody (VM), Jerry W. (VM), Kristen (1) (Earthmovers)
documents
03/20/02
5
HTSA, const /inspect., pre - constr. documents, mtg @ Firehall
w /Lambert R. contractors, Dick Lewis, Fred Berry, Don R.,
Fran C., Mark M., Larry L., Nelli B., on -site with GH (lunch
with GH, Matt P., Jeff B. (NIC))
03/22/02
1
HTSA, const /inspect., GH (1), tax exempt, letter to Jerry W.
plus HTSA (4), specs, agreement
04/02/02
1.75
HTSA, const /inspect. Tom Mc. (2), sched., forms, Art Morris
(5(1)), insur. certs, GH (1) (2), PennDOT, bids and insur
certs, Dick Lewis (1), Pat (VM), pick -up
04/10/02
2
HTSA, const /inspect, GH (1), PennDOT, resolution, Jeff B.
(1), insur. cert., Paul (2), bid forms, documents
04/12/02
1.0
HTSA, const /insppect, GH (1), PennDOT requests, video,
Paul (1), Conts #'s, forms, Bob, valuex, Notice to Proceed,
Jeff B. (1)
04/15/02
3.0
HTSA, const /inspect., letters and materials to Dick Lewis (1),
GH (1) (2), letter to conts with N /P, Kay D. (1), Larry K. (1),
Cindy S. (1), Paul (1)
04/16/02
2
HTSA, const /inspect, Dick L's (sec), Randy (1), forms, Larry
K. (1), Jeff B. (1), GH (1), sched., detail, e-mail from Melody
04/19/02
1.0
HTSA, const /inspect, GH (1), pay est., Tim G. (1), detail, per
client
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Nixon 02- 060 -C2
Page 11
58. Job conference meetings are held at least once per month relative to the authority
project.
a. The job conferences are required by RUS and are attended by representatives
of RUS, the authority, the contractors, and other relevant entities.
b. The purpose of the job conferences is to discuss project progress and payment
requisitions.
c. Fisher attended and recorded minutes of the job conferences.
59. Job conference meeting minutes confirm Hixon's attendance at the conferences on
behalf of Earthmovers within one -year after serving as an authority board member and
chairman as follows:
a. June 12, 2002
June 19, 2002
July 17, 2002
b. Minutes also confirm Hixon's attendance at the conferences subsequent to
August 2002.
c. Hixon was the only Earthmovers' representative present at the job conferences.
60. Hixon's attendance at the job conferences as a representative of Earthmovers within
one -year after serving as an authority board member and chairman occurred at a time
when Earthmovers was serving as a contractor for and being paid by the authority.
a. Hixon was receiving compensation from Earthmovers during this period specific
to work completed on the authority project.
61. Authority meeting minutes confirm Hixon's attendance at additional authority meetings
on behalf of Earthmovers within one -year after serving as an authority board member
and chairman as follows:
a. January 16, 2002
June 11, 2002
July 17, 2002
b. Hixon's attendance at authority meetings held from February 2002 through May
2002 is not known, as no minutes exist for those meetings.
c. Minutes confirm Hixon's continued attendance at authority meeting on behalf of
Earthmovers subsequent to August 2002.
62. Hixon's attendance at authority meetings as a representative of Earthmovers within
one -year after serving as an authority board member and chairman occurred at a time
when Earthmovers was serving as a contractor for and being paid by the authority.
a. Hixon was receiving compensation from Earthmovers during this period specific
to work completed on the authority project.
63. In addition, Hixon, as a representative of Earthmovers, continued to meet with Fisher
during the construction phase of the project during the time period April 29, 2002,
through July 22, 2002, within one year after leaving service as an Authority member.
Date
Time
(F�s)
Purpose
04/29/02
1.25
HTSA, const /inspect, GH (1), Dick Lewis (1)
04/30/02
2
HTSA, const /inspect, GH 1), Dick Lewis (1), PennDOT
approval, Tim Mc. (1), (VM) fusion welds, Art Morris, sched.
05/03/02
6
HTSA, const /inspec., Tim Mc. (3), sched., work elements,
GH (VM), PH (VM), Larry K. (1), sign, CO (wire), bores,
letter to HTSA, W. Barnes, letter posted, status, EPA
renewal
05/07/02
1
HTSA, const /inspect, GH (1), shop drawings, specs., Bruce
H. (1), prevail wage, Paul H. (1)
05/13/02
1.5
HTSA, const /inspect, Julie (1), fax of pay est. #1, Jeff B. (1),
Files, Date, Tim Mc. (1), George H. (1), schedule, pay est.
#1, from Barnes
05/22/02
1
HTSA, inspect, Tim Mc. (1), compaction state, GH (1),
schedule valves
05/23/02
2
HTSA, inspect, on -site, GH (1), Mill Run, old twp. rd, Tim
Mc. (VM)
06/05/02
0.25
HTSA, inspection, Cindy S. (1), Lambert R. (VM), GH (VM),
ccsc, Burnside, Bonanno, Kozel, Angela Price (VM), Rick
Hoover (1), Boro council, citzens
06/06/02
0 . 5
George Hixon, bituminous site, Bob Elkin (2), site detail,
sched.
06/07/02
1
HTSA, inspect, Jeff B. (1), sched, pay est. GH (1) sched.,
inspection, work periods, Lambert R. (VM), Paul H. (1), Rolo
06/10/02
1
HTSA, inspect, GH (1), Tim Mc. (1), sched., letters from
RUS, Jeff B. (1), Wendy (1), testing, Ron Brown (VM)
06/21/02
2
HTSA, inspect, on -site, Dick Lewis (1), signs, GH, Matt P.,
PH (2), layout detail, Mill Run, options
06/24/02
1.25
HTSA, inspect, GH (1), PH (1), Mike (2), old 255, deeds,
drilling, Randy (2)
06/25/02
2
HTSA, inspect on -site inspection, WWTP, Tim Mc. (2), GH
(1), PH (2), drilling locations, alignment
06/26/02
1
HTSA, inspect, Tim Mc. (1), Pat (2), GH (1), 1 field, focus,
Art Morris, (1), sched. tks
07/08/02
3
HTSA, inspect, Amy M. (1), Melody (1), GH (1), Tim McD.
(1), tax testing, borings, sched.
07/09/02
2
HTSA, inspect GH (1), sched, pay, Lambert R. (1), mobile
home park, pay, detail, Pat (2), RR, Tim Mc. (VM)
07/10/02
2.5
HTSA, inspect, Tim Mc (2), ROW, Dick Lewis (2), GH (1),
Aletta S. (1), Pat (2), Cindy S. (1), 2 letters to RUS, job conf.
edits
07/22/02
1.5
HTSA, constr., Tim Mc (1), GH (1), Paul H. (1), Larry K. (1),
Nick Dilullo (1), ROW's, Jeff B. (1), pav est. 1,2,3 fax.
Nixon 02- 060 -C2
Page 12
64. On June 19, 2002, Hixon sent correspondence to the authority on behalf of
Earthmovers within one year after serving as an authority board member and
chairman.
a. The correspondence submitted by Hixon was a request from Earthmovers for
road closures while installing the system.
65. Hixon's submission of correspondence on behalf of Earthmovers to the authority within
one -year after serving as an authority board member and chairman occurred at a time
when Earthmovers was serving as a contractor for and being paid by the authority.
Check Date
Check No.
Amount
04/19/02
1877*
$ 1,000.00
04/22/02
1885
$ 1,000.00
05/03/02
1925
$ 2,000.00
05/17/02
1974
$ 2,000.00
05/31/02
2041
$ 2,000.00
06/14/02
2085
$ 2,000.00
06/28/02
2172
$ 2,000.00
07/12/02
2222
$ 2,000.00
07/26/02
2293
$ 2,000.00
Total:
Total:
$ 16,000.00
Check Date
Check No.
Amount
1. II
1.
999.00
$ 29
07/25/02
50056
08/13/02
50083
$ 69,378.07
08/22/02
50095
$ 104,345.54
09/30/02
51157
$ 75,523.52
11/25/02
51282
$ 39,118.63
01/29/03
135681
$ 14,599.95
03/04/03
136017
$ 39,247.21
03/25/03
136048
$ 2,977.07
Total:
$ 484,660.42
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Page 13
a. Hixon was receiving compensation from Earthmovers during this period specific
to work completed on the authority project.
66. Earthmovers has been paid $484,660.42 by the authority for work completed through
March 2003 as follows:
67. During the one year period after serving on the authority while working for Earthmovers
on the authority project, Hixon received $16,000.00 compensation in association with
the authority project from April 2002 through August 3, 2002, from Earthmovers as
follows:
a. The actual amount of check no. 1877 was $1,100.00 that included $100.00 for
expense reimbursement. (The reimbursement was not included in the total
listed above).
b. Hixon also received other reimbursement checks from Earthmovers during this
period that were not included on the list above.
c. Hixon has continued to receive payments from Earthmovers through December
2002 in the form of salary, reimbursements and rental equipment fees.
1. Hixon received equipment rental fees from Earthmovers starting in
November 2002.
d. Hixon and Earthmovers ended their agreement on March 21, 2003, with Hixon
to receive payments totaling $10,000.
68. Hixon, as a member of the authority, was required to file Statements of Financial
Interests (SFI) for calendar years 1999, 2000 and 2001 by May 1 of the following
year.
69. Hixon filed SFIs for calendar years 1999, 2000 and 2001 as follows:
Nixon 02- 060 -C2
Page 14
Calendar Year Date Filed
1999 01/11/00
2000 01/03/01
2001 01/10/02
70. Hixon failed to disclose information on his 1999 and 2000 SFIs as follows:
a. Hixon failed to disclose income received from Earthmovers Unlimited, Inc., on
his 1999 SFI.
1. IRS Form W -2 verified that Hixon received $1,875.00 in gross wages
from Earthmovers in 1999.
b. Hixon failed to complete the sections for Direct or Indirect Sources of Income
and Real Estate Interests as required on his 2000 SFI.
c. Hixon failed to disclose his interest in Hixon Contracting on the 2000 calendar
year Statement of Financial Interests.
71. Within one year of leaving service as a member and chairman of the Huston Township
Authority, Hixon represented private business interests before the authority.
a. Hixon represented Hixon Contracting at a pre -bid conference held by the
authority on October 10, 2001.
b. Hixon appeared as a representative of Earthmovers, Inc., at a March 20, 2002,
pre- construction conference before the authority.
c. Hixon served as Earthmovers' liaison with the authority, including attending
meetings and conferences as follows:
January 16, 2002
June 11, 2002
June 12, 2002
June 19, 2002
July 17, 2002
d. Hixon met with the authority engineer, members of the authority, and funding
representatives on at least forty -eight (48) occasions between August 7, 2001,
and July 22, 2002.
72. Hixon's representation came at a time when he was employed by Earthmovers as a
construction supervisor.
a. During the time when he represented Earthmovers, Hixon was paid $16,000.
b. Hixon realized a private pecuniary gain of $16,000.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, George Hixon, hereinafter Hixon,
has been a public official subject to the provisions of the Public Official and Employee Ethics
Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et 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."
Nixon 02- 060 -C2
Page 15
Following termination of governmental service, Hixon became a former public official
subject to the provisions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. §1103(g).
The allegations are that Hixon, as a member of the Houston Township Sewer Authority
(Authority), violated Sections 1103(g) and 1105(b)(5) and (8) of the Ethics Act when he:
represented Earthmovers Unlimited, Inc. (Earthmovers) for compensation before his former
governmental body, the Authority, within one year of leaving his position; failed to disclose
Earthmovers as a source of income in excess of $1,300 on a Statement of Financial Interests
(SFI) filed for the 1999 calendar year; failed to disclose any sources of income on the 2000
calendar year SFI; and failed to disclose his office, directorship or employment in Hixon
Contracting on the 1999 and 2000 calendar years SFI's.
Under Section 1103(g) of Act 93 of 1998, a former public official /public employee is
prohibited from representing a person for compensation on any matter before the
governmental body with which he was associated for a period of one year after he leaves that
body. The terms "governmental body ", " person ", and " represent" are defined in the Ethics Act
as follows:
Section 1102. Definitions
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division, service,
office, officer, administration, legislative body, or other
establishment in the Executive, Legislative or Judicial Branch of
a state, a nation or a political subdivision thereof or any agency
performing a governmental function.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership, committee, club
or other organization or group of persons.
"Represent." To act on behalf of any other person in any
activity which includes, but is not limited to, the following:
personal appearances, negotiations, lobbying and submitting bid
or contract proposals which are signed by or contain the name of
a former public official or public employee.
65 Pa.C.S. § 1102.
Section 1105(b) of Act 93 of 1998 requires in part that every public official /public
employee and candidate list the name and address of any direct or indirect source of income
totaling in the aggregate of $1,300 or more, and his office, directorship or employment in any
business entity.
Having noted the issues and applicable law, we shall now summarize the relevant facts.
Hixon served as a member of the Authority from August 1999 until the effective date of
his resignation on August 3, 2001. The Authority which was organized by the Huston
Township Board of Supervisors is comprised of five members who do not receive
compensation. The Authority enacted a Sewage Facilities Act plan in 1994 requiring the
township to pursue a public sewage system.
Hixon served as the chairman of the Authority Board from September 14, 1999 through
August 3, 2001, and typically did not vote on motions except to break tie votes. Motions are
voted on by group consensus and individual votes are usually not recorded in the minutes.
Although the Authority utilized the services of Eads, Inc. as its engineer from 1994 through
2000, the Authority terminated its relationship with Eads, Inc. at a board meeting on January
Nixon 02- 060 -C2
Page 16
11, 2002. Hixon supported that action of the board. The Authority then publicly advertised for
an Authority engineer. Hess and Fisher Engineers, Inc. (Hess and Fisher) was one of five
engineering firms that applied for the position of Authority engineer. The board selected Hess
and Fisher as the Authority engineer at its meeting on February 8, 2000.
A few months after Hess and Fisher was selected as Authority engineer, Hixon
approached Wilson Fisher (Fisher) about the possibility of hiring Hixon's two sons, Paul and
Dan, for summer employment. Hixon's two sons were hired even though Hess and Fisher did
not advertise for any help. For the three year period from 2000 to 2002, Dan Hixon earned a
total of $6,945 and Paul Hixon earned $39,752.91.
Between February of 2000 and July of 2001, Hixon assisted Hess and Fisher in the
development of the project specifications and plans for the Authority sewer project. Hixon's
involvement included discussions concerning the type of system, the service area, and
estimated costs. After the Authority had completed its work in July of 2001, it awaited final
approval for funding from the U. S. Department of Agriculture. Hixon then resigned from the
Authority in order to bid on portions of the sewer project. Following his resignation from the
Authority, Hixon remained in contact with Fisher as to the Authority project. Details of Hixon's
involvement are delineated in Fact Findings 29 and 30.
After the Authority received funding from the U. S. Department of Agricultural /Rural
Development, Rural Utility Service (RUS), approval was given in September 19, 2001, to
advertise for project bids. The Authority publicly advertised for bids on the project on
September 28 and October 2, 2001. The bids for the project were broken down into four
separate contracts.
Hixon met with Niebauer who is the owner of Earthmovers, a heavy excavation, rigging,
and light demolition company. At the meeting, Hixon proposed a working relationship with
Niebauer in order to bid on the Authority contracts. Hixon previously worked as a
subcontractor for Earthmovers and had a five year relationship with the firm.
On October 10, 2001, the Authority held a mandatory pre -bid conference for all
individuals or companies interested in submitting bids. Hixon attended the conference as a
representative of Hixon Contracting. This occurred less than two months after Hixon resigned
from the Authority. Hixon prepared an estimate in the amount of $1,293,000, the identical
estimate prepared by Hess and Fisher for the Authority. In this regard, Hixon had meetings
with Hess and Fisher and Authority members during August through October 2001 when the
specifications and costs were finalized. Niebauer took Hixon's estimate for review by his in-
house engineer who determined that the figures were reasonable. Thereafter, Niebauer
submitted bids for two of the four contracts for the Authority.
Hixon and Niebauer entered into a verbal agreement whereby, if Earthmovers were
awarded one or two of the contracts, Hixon would receive compensation as an Earthmover
employee for working as a superintendent on the project at $1,000 a week plus one -third of
any profit on the project. Hixon's duties would consist of supervising a crew of employees
including his sons, Paul and Dan, who terminated their employment with Hess and Fisher
about the same time Hixon resigned from the Authority. At the time that Niebauer submitted
his bids on the Authority project, he was unaware that Hixon was a former member of the
Authority.
After the bids were opened on October 29, 2001, Earthmovers was awarded two of the
four contracts from the Authority on its combined bid of $1,293,000, the next lowest combined
bid being $1,700,000. The Authority held a preconstruciton conference on March 20, 2002,
for the companies that were awarded the contracts. Hixon appeared on behalf of Earthmovers
which occurred approximately eight months after he left the Authority. Earthmovers began
working on the project in April of 2002. Hixon had the responsibility for installing sewer lines
throughout the township and acted as Earthmovers' liaison to the Authority. Hixon continued
Nixon 02- 060 -C2
Page 17
to meet with Fisher, Authority board members, and funding representatives for the period of
time between the award of the contracts on November 7, 2001, to the Notice to Proceed on
April 15, 2002. The specifics of such meetings between Hixon and Fisher or Authority board
members are delineated in Fact Finding 57.
As to job conference meetings which were required for the project by the RUS, Hixon
attended such conferences on behalf of Earthmovers within one year after terminating service
with the Authority. Specifically, Hixon attended conferences on June 12, June 19 and July
17, 2002, as the representative of Earthmovers on the Authority project.
Hixon also attended Authority meetings on behalf of Earthmovers within the one -year
period following his termination of service. Such meetings occurred on at least January 16,
June 11, and July 17, 2002. During the one year period following termination of service,
Hixon represented Earthmovers in meetings with Fisher during the construction phase of the
project. The details of such meetings are delineated in Fact Finding 63. Hixon, during the one
year period after termination of service with the Authority, also submitted various
correspondence to the Authority on behalf of Earthmovers.
In working for Earthmovers on the Authority project, Hixon received $16,000 in
compensation from April 2002 to August 3, 2002. Such compensation was received within
the one year period following termination of his service with the Authority. Hixon received
additional payments from Earthmovers, but such amounts were beyond the one year period
after termination of service with the Authority. The representation actions that Hixon made
before his former governmental body, the Authority, within one year after termination of service
are summarized in Fact Finding 71.
As an Authority member, Hixon filed SFI's for the calendar years 1999 through 2001.
However, Hixon failed to disclose on his 1999 SFI the income he received from Earthmovers,
failed to complete the sections on direct or indirect sources of income and real estate interests
on his 2000 calendar year SFI, and failed to disclose his interest in Hixon Contracting on his
2000 calendar year SFI.
Having summarized the above relevant facts, we shall now apply the provisions of the
Ethics Act to those findings. Section 1103(g) of the Ethics Act prohibits representation of a
person by a former public official /public employee for actual or promised consideration before
his former governmental body for a period of one year after termination of service. The
operative words or phrases in Section 1103(g) are the following former public official,
represent, person, consideration, and former governmental body. We shall consider each of
these terms and phrases.
Since Hixon was a member and chair of the Authority until his resignation on August 3,
2003, he was a public official. See, Aman, Opinion 91 -006. Following Hixon's resignation, he
became a former public official under the Ethics Act. See, Dellmuth, Order 1058. The
Authority was Hixon's governmental body. Upon termination of service by Hixon, the Authority
became the former governmental body with which he had been associated following
termination of service. See, 65 Pa.C.S. §102. The compensation that Hixon received from
Earthmovers constituted consideration. See, Antico, Order 1061. The term "person" is very
broad and includes an individual, an entity, a governmental body, or even the former public
official himself. See, Confidential Opinion 93 -005. Finally, the term "represent" is defined in
the Ethics Act very broadly to mean "[t]o act on behalf of any other person in any activity... .
65 Pa.C.S. §1102 Hixon was prohibited from representing a person (Earthmovers, Hixon
Contracting, himself) for consideration before the Authority for a period of one year after
termination of service.
In this case, once the Authority began to proceed with the sewer project, Hixon became
very involved as an Authority member. Hixon was active with the Authority engineer as to the
plans and specifications of the project. Hixon was involved in discussions as to the type of
Nixon 02- 060 -C2
Page 18
system, the service area and the estimated costs for the system. Hixon then left the Authority
with the specific intent of bidding upon and performing contract work on the Authority project.
Hixon entered into a contract to act as a construction supervisor for the project with
Earthmovers which submitted two bids and received two contracts on the Authority's sewer
project. Since Hixon received $16,000 in the one year period following termination of his
service for representing Earthmovers before the Authority, he received consideration for his
representation of Earthmovers.
There were numerous representations by Hixon within the one year period following
termination of service with his governmental body. In particular, Hixon represented Hixon
Contracting at a pre -bid conference held at the Authority in October 2001 as well as
Earthmovers at a preconstruction conference in March of 2002. Hixon also served as a
liaison between Earthmovers and the Authority by attending meetings and conferences as
delineated in Fact Finding 71.c. Following termination of his service, Hixon met with the
Authority engineer, members of the Authority, and funding representatives on dozens of
occasions in the one year period following termination of his service. Such actions by Hixon
constituted prohibited representation before his former governmental body in the one year
period. Hixon violated Section 1103(g) of the Ethics Act when he represented persons for
compensation before his former governmental body, the Authority, in the one year period
following termination of service with the Authority. See, Antico, supra.
This is not a case of Hixon being unaware of his actions. To the contrary, Hixon, as an
Authority member, was involved in the various aspects of the Authority sewer project. Hixon
specifically resigned because of his desire to bid on portions of the sewer project. See, Fact
Finding 28. Hixon left and aligned himself with Earthmovers which bid on two of the four
projects. Hixon capitalized on his former service with the Authority as a means of obtaining
these contracts. The estimate that Hixon submitted, $1,293,000, to Niebauer was identical to
the estimate prepared by the Authority engineer. This did not occur by happenstance. The
bid amount was prepared by Hixon who knew the amount of the estimate prepared by the
municipal engineer. Hixon's former position and the information he acquired placed him in a
position to obtain business contracts for Earthmovers following his termination of service with
the Authority. This is precisely the machinations that Section 1103(g) bars, namely, the
advantages and information that a former public official has in order to obtain financial gain
following termination of service with his former governmental body.
As to the SFI allegations, the record reflects that Hixon failed to disclose income in
excess of $1,300 from Earthmovers on his SFI for the 1999 calendar year. In addition, Hixon
failed to complete the sections as to sources of income and real estate interest on his SFI for
the 2000 calendar year. Finally, Hixon failed to disclose his interest in Hixon contracting for
the SFI for the 2000 calendar year. The record does not contain any information about
Hixon's interest in Hixon Contracting as to his 1999 calendar year.
In light of the above, we find that Hixon violated Section 1105(b ) of the Ethics Act when
he failed to disclose income in excess of $1,300 from Earthmovers on his 1999 calendar year
SFI. Hixon violated 1105(b ) of the Ethics Act when he failed to complete the sections as to
sources of income on his SFI for the calendar year 2000. In this regard, since the matter of
the real estate section on the SFI is not part of the allegation, we cannot consider it. Hixon
violated Section 1105(b) of the Ethics Act when he failed to disclose his interest in Hixon
Contracting on the 2000 calendar year SFI. Finally, Hixon did not violate Section 1105(b ) of
the Ethics Act regarding any interest in Hixon Contracting for the 1999 calendar year SFI
based upon an insufficiency of evidence.
Hixon is directed to file amended SFI's for calendar years 1999 and 2000 correcting the
above deficiencies. Originals must be filed with the Authority with copies filed with the
Commission for compliance verification purposes. Failure to comply will result in an institution
of an order enforcement action.
Nixon 02- 060 -C2
Page 19
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. Restitution is warranted under the facts in this case, given the orchestration by
Hixon before and after his service on the Authority to ensure his subsequent financial gain in
contracts that were awarded by the Authority for the sewer project. Accordingly, Hixon is
directed within 30 days of the date of mailing of this Order to make payment in the amount of
$16,000 through this Commission to Huston Township Sewer Authority Non - compliance will
result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Hixon, as a member of the Huston Township Sewer Authority, was a public official
subject to the provisions of Act 93 of 1998.
2. Following termination of service with the Huston Township Sewer Authority on August
3, 2001, Hixon became a former public official subject to Section 1103(g) of the Ethics
Act, 65 Pa.C.S. §1103(g).
3. Hixon violated Section 1103(g) of the Ethics Act when he represented Earthmovers for
compensation before his former governmental body, the Authority, during the one year
period following termination of service.
4. Hixon violated Section 1105(b) of the Ethics Act when he failed to disclose income in
excess of $1,300 from Earthmovers on his 1999 calendar year SFI.
5. Hixon violated 1105(b) of the Ethics Act when he failed to complete the section as to
sources of income on his SFI for the calendar year 2000.
6. Hixon violated Section 1105(b) of the Ethics Act when he failed to disclose his interest
in Hixon Contracting on the 2000 calendar year SFI.
7. Hixon did not violate Section 1105(b) of the Ethics Act regarding any interest in Hixon
Contracting for the 1999 calendar year SFI based upon an insufficiency of evidence.
In Re: George Hixon
ORDER NO. 1280
File Docket: 02- 060 -C2
Date Decided: June 2, 2003
Date Mailed: June 5, 2003
1. Hixon, as a former member of the Huston Township Sewer Authority violated Section
1103(g) of the Ethics Act when he represented Earthmovers for compensation before
his former governmental body, the Authority, during the one year period following
termination of service.
2. Hixon violated Section 1105(b) of the Ethics Act when he failed to disclose income in
excess of $1,300 from Earthmovers on his 1999 calendar year SFI.
3. Hixon violated 1105(b) of the Ethics Act when he failed to complete the section as to
sources of income on his SFI for the calendar year 2000.
4. Hixon violated Section 1105(b) of the Ethics Act when he failed to disclose his interest
in Hixon Contracting on the 2000 calendar year SFI.
5. Hixon did not violate Section 1105(b) of the Ethics Act regarding any interest in Hixon
Contracting for the 1999 calendar year SFI based upon an insufficiency of evidence.
6. Hixon is directed within 30 days of the date of mailing of this Order to file amended
SFI's for calendar years 1999 and 2000 correcting the above deficiencies. One copy
should be filed with the Authority with a copy filed with the Commission for compliance
verification purposes.
7. Hixon is directed within 30 days of the date of mailing of this Order to make payment in
the amount of $16,000 through this Commission to Huston Township Sewer Authority.
8. Non - compliance with paragraphs 6 and 7 will result in the institution of an order
enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair