HomeMy WebLinkAbout1289 FulkersonIn Re: Timothy Fulkerson
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
Daneen E. Reese
Frank M. Brown
Donald M. McCurdy
Michael Healey
02- 069 -C2
Order No. 1289
6/23/03
7/8/03
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. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
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I. ALLEGATION:
That Timothy Fulkerson, a public official /public employee, in his capacity as Mayor,
City of New Castle, Lawrence County, violated Section 1103(a) of the Public Official and
Employee Ethics Law 65 Pa.C.S. §1103(a) when used the authority of his office for a private
pecuniary benefit of himself and /or a business with which he is associated, including but not
limited to participating in actions of the City leading to the award of a grant to the Women's
Shelter /Rape Crisis Center of Lawrence County, for the construction of a women's shelter;
and when his company, Fulkerson Construction and Roofing, subsequently obtained a sub-
contract to perform construction related services.
II. FINDINGS:
1. Timothy Fulkerson has served as the full time mayor of the City of New Castle since
January 1, 1996.
a. The mayor is the chief administrator of the city and is directly responsible for the
administration of all city departments.
2. New Castle is a third class city which is governed by the Third -Class City Optional
Charter Law.
a. The optional charter law provides that the mayor and city controller execute all
contracts and documents on behalf of the city after approval of city council.
b. City council is the legislative body of the city and is comprised of five members.
3. City council is responsible for approving the application for and acceptance of any
grant funds to be obtained by the city.
a. The approval of city council is necessary for the mayor and controller to sign or
execute any application or contract.
b. The mayor and city council both may seek and apply for grants.
c. The application and acceptance of all grants require the approval of city council.
4. The city business administrator's office is responsible for carrying out the directives of
council regarding the application for grants on behalf of council and the mayor.
a. The business administrator, John DiMuccio, reports to the mayor and to city
council.
b. The mayor is responsible for the daily supervision of the business
administrator's office and employees.
5. The mayor is responsible for overseeing the business administration and signing all
documents related to all grants.
a. The mayor is more familiar with the activities related to grants being applied for
by his office.
6. Fulkerson is the sole owner and chief executive officer of Fulkerson Construction and
Roofing Company (FCRC).
a. FCRC is a general contracting and roofing company.
Fulkerson 02- 069 -C2
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b. FCRC has been incorporated in Pennsylvania since December 1990.
c. Fulkerson is a salaried employee of FCRC.
7. Fulkerson is not involved in the day -to -day activities of FCRC.
a. Fulkerson has an administrative staff to oversee the daily business of FCRC.
8. Fulkerson is ultimately responsible for approving all major business decisions regarding
FCRC.
9. Fulkerson is kept informed of the activities of FCRC by his employees during staff
meetings usually held on Saturday mornings.
a. The employees would update the status of current projects and on potential
projects.
10. The Women's Shelter /Rape Crisis Center of Lawrence County (Women's Shelter) is a
non - profit organization that helps victims of domestic violence and rape.
a. Jeanette Rice has served as the Executive Director of the Women's Shelter
since 1993.
11. In or around 1998, the Women's Shelter began considering upgrading its facilities.
a. The Women's shelter decided to purchase vacant property and build new
buildings rather than renovate its existing buildings.
b. The new shelter facility would consist of an emergency shelter, administrative
space, counseling space, and transitional housing.
c. Funding for the new facility was to be obtained through fund - raising, grants, and
loans.
12. The Women's Shelter purchased property on State Street on the edge of the city limits
to build its new facilities.
13. In December 1999, the Women's Shelter was approved to receive a grant in the
amount of $523,012.00 from the Federal Housing and Urban Development Authority
(HUD) for the purpose of new construction of transitional housing with supportive
services.
a. The grant specified that $247,450.00 of the funds was to be used for the
purpose of constructing transitional housing.
b. The remainder of the grant was to be used for supportive services, operating
costs, and administration.
c. The HUD grant specified that the Women's Shelter was responsible for
obtaining dollar- for - dollar matching funds.
14. In July 2000, the Women's Shelter competitively bid and awarded a contract to
Marsico Corporation, Pittsburgh, PA to serve as general contractor on the project in the
amount of $2.9 million.
15. Marsico was responsible for selecting and hiring all subcontractors used for the
construction of the Women's Shelter project.
Fulkerson 02- 069 -C2
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16. Women's Shelter Executive Director Rice wanted to secure the necessary matching
funds from the Pennsylvania Department of Community and Economic Development
(DCED) Home Investments Partnership Program (HOME).
a. The HOME funds are provided to states by the federal government.
b. DCED earmarked HOME funds for use as matching funds to the HUD Grant.
c. The HUD funds distributed by DCED are required to be used for the
construction of transitional housing.
17. DCED mandated that the HOME funds would be used as matching funds for any
recipient of the HUD grant provided that a branch of local government applied for and
received the funds.
18. In April 2001, the Women's Shelter requested that the City apply for the DCED Home
funds grant on behalf of the Women's Shelter.
a. The Women's Shelter was not a branch of local government and could not
apply directly for the grant.
19. On May 22, 2001, city council held a public hearing regarding the Women's Shelter
request to apply for the grant.
a. Fulkerson was not present and did not participate in the public hearing.
20. On May 24, 2001, city council passed Resolution 2001 -059 authorizing the filing of an
application to DCED.
a. The resolution specified that $247,450.00 was to be requested from DCED.
1. This represents the match for the HUD grant to be used for transitional
housing.
b. Fulkerson was present and participated in the discussion at the public meeting
regarding the DCED grant application.
21. The grant application form and accompanying information was completed and compiled
by Michael Millfried, Director of Development, Women's Shelter.
a. Millfried completed the information with the assistance of the city business
administrators office.
1. The city business administrator's office ensured that the application was
in DCED's Single Application form and that all supporting
documentation was in order.
Tamara Gibson, Financial Officer, Department of Community
Development, City of New Castle, was primarily responsible for assisting
the Women's Shelter with its application.
22. On June 6, 2001, FCRC submitted a bid proposal to Marsico to serve as a
subcontractor on the Women's Shelter project.
a. The proposal was primarily completed by Albert Conte, an FCRC employee.
b. Conte's duties with FCRC included estimating projects, purchasing, and project
management.
Fulkerson 02- 069 -C2
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23. Conte became aware of the Women's shelter project through his familiarity with and
contacts at Marsico.
a. Marsico had not solicited a bid from FCRC.
24. Fulkerson was made aware of his company's intention of submitting a proposal for the
Women's Shelter project at a Saturday morning meeting prior to the June 6, 2001, bid
submission.
a. Conte completed and submitted the proposal with Fulkerson's knowledge and
approval.
25. FCRC's original proposal to Marsico was in the amount of $839,046.00 and included
bids on all major portions of the project.
26. On July 16, 2001, Fulkerson, in his official capacit as Mayor, signed the DCED
application seeking the matching funds grant for the JVomen's Shelter.
a. Rice co- signed the application on behalf of the Women's Shelter.
b. Fulkerson signed the application submitted to DCED after his company
provided a bid to Marsico to serve as a subcontractor on the project.
27. No public disclosures were made that Fulkerson's company had or was submitting a
bid to Marsico to perform subcontracting work on the project.
28. Fulkerson, as the mayor for the City of New Castle, is listed as the Applicant/ Sponsor
on the grant application.
a. DiMuccio, the city business administrator, is listed as the contact on the
application.
b. The Women's Shelter is listed as the Company /Occupant.
29. The application included form DCED- HOME 187 (5 -97), Statement of Assurances,
which states, in part, the following:
a. Section R, Conflict of Interest:
"It (the recipient) will comply with the conflict of interest provisions in 24 CFR
92.356, 24 CFR 85.36 and OMB Circular A -110, as applicable; and will
establish safeguards to prohibit employees from using positions for a purpose
that is or gives the appearance of being motivated by the desire for private gain
for themselves or others, particularly those whom they have family, business, or
other ties."
b. Fulkerson signed the Statement of Assurances on July 16, 2001.
c. Fulkerson signed the Statement of Assurances after submitting a bid to Marsico
to serve as a subcontractor on the project but prior to the award of any contract
to perform such work.
30. On August 22, 2001, FCRC entered into a contract with Marsico to perform services in
relation to the construction of the shelter.
Fulkerson 02- 069 -C2
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a. Standard Form Agreement Between Contractor and Subcontractor and
Supplementary Conditions and Addendum was signed by Fulkerson, on behalf
of FCRC, and Louis Marsico, on behalf of Marsico.
b. Marsico had not previously contracted with FCRC.
31. Marsico solicited and received bids from several contractors for other aspects of the
project.
a. The subcontract awarded to FCRC by Marsico was not for all of the aspects of
the project bid on originally by FCRC.
32. On October 15, 2001, the DCED awarded the City of New Castle DCED Home
Investment Partnerships Program Grant Contract No. 21- 190 -0044.
a. The amount of the contract was $247,450.00.
b. The effective date and period of the grant was October 15, 2001 through
October 14, 2006.
c. The contract was signed by Fulkerson and Anthony Toscano, City Controller,
on behalf of the City of New Castle on October 29, 2001.
1. Fulkerson signed the contract two months after being awarded the major
subcontract for the construction of the project.
d. The contract was signed by DCED Office of Chief Counsel Jill Busch on
October 31, 2001, and Deputy Secretary Emily J. White on November 1, 2001.
33. The DCED Home Investment Partnerships Program Contract No. 21- 190 -0044
included the following provisions:
a. Article V, titled Compliance with Applicable Statutes and Department
Regulations, subsection 0)(7), states that, "Except with the consent of the
Commonwealth, the Contractor shall not have a financial interest in any other
contractor, subcontractor, or supplier providing services, labor or material on
this project."
1. The contract defines financial interest as ownership of more than 5% in
any business or holding a position as an officer, director, trustee,
partner, employee, or the like or holding any position of management.
b. Article VIII, titled Interest of Parties and Others, specifies that, "No officer,
member, employee, independent contractor, or elected official of the
Commonwealth and no member of its governing body who exercises any
functions or responsibilities in the review or approval of services being
performed under this Contract shall participate in any decision relating to this
Contract which reflect his /her personal interest or the interest of any
corporation, partnership, or association in which he /she is directly or indirectly
interested; nor shall any such officer, member, elected official or employee of
the Commonwealth or any member of its governing body have any interest
direct or indirect in this Contract or the proceeds thereof. Article V I I I also states
that, "The contractor covenants that the contractor (including directors, officers,
members, and employees of the contractor) presently has no interest and shall
not acquire any interest, directly or indirectly, which would conflict in any
manner or degree with the performance of services required to be performed
under this Contract. The contractor further covenants that no person having
such interest shall be employed in the performance of services for this
Fulkerson 02- 069 -C2
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Contract."
c. Article X of the Contract titled Bidding Requirements, specifies, "If the
contractor is a political subdivision or other entity for which open and
competitive bidding procedures have been established by law, the contractor
shall comply with those procedures if they are applicable to the project being
funded with grant funds.
d. Fulkerson signed the DCED grant contract after his company, FCRC, had
received a subcontract on the project that was to be funded, in part, by this
grant.
34. FCRC began work as per the subcontract agreement on August 25, 2001, and worked
through January 19, 2002.
35. Marsico approved and added five extra orders to FCRC's subcontract totaling
$8,257.00.
a. With the addition of the extra orders, the total subcontract amount increased to
$360,257.00.
36. FCRC submitted payment applications to Marsico requesting payment for work
completed on the project.
a. William Daugherty signed the payment applications on behalf of FCRC.
37. FCRC received payments from Marsico for work as per the subcontract agreement in
the amount of $342,207.85.
a. The payment to FCRC on 02/19/02 represents half of the ten percent retainage
allowed per the subcontract agreement.
b. As of this date, Marsico still owes FCRC five percent ($17,949.15) retainage of
the total amount.
38. The payments received by FCRC from Marsico totaled approximately 10% of the total
revenues of FCRC during the period from September 2001 through April 2002.
a. Total Revenue: $3,375,761.00
b. Marsico Payments: $342,207.00
39. FCRC financial statements prepared by an independent CPA show that FCRC
operated at a financial loss in the amounts of $67,455 for 2001 and $25,534 for 2002.
40. Based upon a discussion with Fulkerson wherein he disclosed his company's
subcontract on the Women's Shelter Construction Project, James Manolis, City of
New Castle Solicitor, raised concerns regarding FCRC serving as a subcontractor on
the Women's Shelter project because of Fulkerson's actions as mayor in applying for
the grant funding and his ownership of FCRC.
a. Fulkerson had requested that Monolis [sic] look into this issue.
41. On June 27, 2002, Manolis wrote a letter to Donna Enrico, Grants Manager, DCED,
requesting DCED's position on the matter and requested that DCED grant an
exception to the Contractor Integrity provision of the grant contract.
a. Manolis requested the exception based on the following reasons:
Fulkerson 02- 069 -C2
Page 8
1. The exception would provide a significant cost benefit to the program
and Project that would otherwise not be available.
2. Undue hardship will result to the City of New Castle and Timothy M.
Fulkerson when weighed against the public interest served by avoiding
the prohibited conflict.
3. Other reasons including that the mayor was not involved in the day -to-
day activities of FCRC, FCRC was contractually obligated to complete
the work when it signed the subcontract with Marsico, the work began
before submitting the application to DCED, and that Fulkerson was
obligated to execute the grant documents because the City of New
Castle operates under the Third Class City Optional Charter.
42. Jill Busch, Deputy Chief Counsel for DCED, after reviewing the relevant portions of the
grant agreement, concluded in substance as follows:
a. The parties appeared to have met the open and competitive bidding requirements
of the grant agreement.
b. There was no violation of the grant agreement by the City or its officers as the
City acted only as a pass through and did not exercise any functions in the review
or approval of activities being performed under the grant; that is the construction.
c. Mayor Fulkerson breached the grant agreement when his company performed
services on the project as a subcontractor.
d. No further action would be taken by DCED as the funds were utilized for the
intended project.
e. The matter would be referred to the Office of Inspector General for review.
43. On September 6, 2002, the Sub - recipient Agreement between the City of New Castle
and the Women's Shelter was signed by all parties.
a. Fulkerson signed the agreement on behalf of the City of New Castle along with
Anthony Toscano.
b. Rice signed the agreement on behalf of the Women's Shelter.
c. The city subsequently issued payment to the Women's Shelter in the amount of
$247,500.
1. This was the amount received by the City from DCED.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Timoth y Fulkerson, hereinafter
Fulkerson, 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 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 allegation is that Fulkerson, as New Castle Mayor, violated Section 1103(a) of the
Ethics Act when he participated in actions of the City leading to the award of a grant to the
Women's Shelter /Rape Crisis Center of Lawrence County, for the construction of a women's
Fulkerson 02- 069 -C2
Page 9
shelter, as to which his company, Fulkerson Construction and Roofing, subsequently obtained
a sub - contract to perform construction related services.
Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is
prohibited from engaging in conduct that constitutes a conflict of interest.
The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows:
Section 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 Pa.C.S. § 1102.
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.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Since January of 1996, Fulkerson has served as the full -time mayor of the city of New
Castle, a third class city governed by the Third Class City Optional Charter Law. In a private
capacity, Fulkerson is the sole owner and CEO of Fulkerson Construction and Roofing
Company (FCRC), a general contracting and roofing company.
In New Castle, although the mayor and city council may both seek and apply for grants,
the city council is responsible for approving the application and accepting any grant funds.
The mayor is responsible for overseeing the administration of all city departments and the
city's business administrator's office is responsible for carrying out the directives of council
regarding applications for grants on behalf of council and the mayor.
The Women's Shelter /Rape Crisis Center of Lawrence County (Women's Shelter), a
non - profit organization that helps victims of domestic violence /rape, considered upgrading its
facilities sometime around 1998. Rather than renovate its existing buildings, theWomen's
Shelter decided to purchase vacant property and build new buildings consisting of an
emergency shelter, administrative space, counseling space and transitional housing. The
financing for the new facilities was to be obtained through fund - raising, grants and loans.
After the Women's Shelter purchased property on State Street, it received approval in
December 1999 for a grant in the amount of $523,012 from the Federal Housing and Urban
Development Authority (HUD).
Fulkerson 02- 069 -C2
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In July of 2000, the Women's Shelter competitively bid and then awarded a contract
totaling $2.9 million to Marsico Corporation of Pittsburgh to serve as the general contractor on
its project. Marsico had the responsibility for selecting and hiring all subcontractors to be used
for the construction on the Women's Shelter project.
The Women's Shelter sought to secure matching funds from the Pennsylvania
Department of Community and Economic Development (DCED) Home Investments
Partnership Program (HOME). Since DCED mandated that HOME funds would be used as
matching funds for any HUD grant recipient provided a branch of local government applied for
and received the funds, the Women's Shelter requested the city to apply for the DCED HOME
Funds Grant on its behalf. After the city council held a public meeting regarding the Women's
Shelter request to apply for a grant, it passed a resolution in May of 2001 authorizing the filing
of the application to DCED for $247,450 in grant funds for the Women's Shelter project.
Fulkerson participated at that public meeting regarding the DCED grant application.
On June 6, 2001, FCRC submitted a bid proposal to Marsico to be a subcontractor on
the Women's Shelter project. The FCRC bid proposal was primarily completed by Albert
Conti, an FCRC employee, who became aware of the Women's Shelter project through his
familiarity and contacts with Marsico. Fulkerson learned of FCRC's intention to submit a bid
proposal for the Women's Shelter project prior to the actual submission date of June 6, 2001.
The FCRC original roposal to Marsico was in the amount of $839,046 and included bids on
all major portions of the Women's Shelter project.
In July of 2001, Fulkerson as mayor signed the DCED application seeking the
matching funds for the Women's Shelter project. Thus, Fulkerson signed the application
submitted to DCED after FCRC provided a bid to Marsico to serve as subcontractor on the
project. Fulkerson as mayor was listed as the applicant /sponsor on the grant application for
the Women's Shelter. The grant application contained a Statement of Assurances which had
a conflict of interest provision. See, Fact Finding 29. Fulkerson signed the Statement of
Assurances even though FCRC had already submitted a bid to Marsico.
FCRC on August 22, 2001, entered a contract with Marsico to perform various
services in relation to the construction of the Women's Shelter. In October of 2001, DCED
awarded a grant to the city of New Castle in the amount of $247,450. The contract was
signed on behalf of the city by Fulkerson as mayor and the city controller. The DCED contract
had a provision requiring compliance with applicable statutes and department regulations as
well as a conflict of interest provision. See, Fact Finding 33.
After FCRC began working on the subcontract in August of 2001, Marsico approved
and added five extra orders to FCRC's subcontract totaling $8,257, thereby increasing the
value of the subcontract to $360,257. Subsequently, FCRC received payments from Marsico
in the amount of $342,207.85 with Marsico still owing FCRC a 5% retainage totaling
$17,949.15.
Based upon discussions with Fulkerson, the city solicitor raised concerns regarding
FCRC serving as a subcontractor on the Women's Shelter project because of Fulkerson's
actions as mayor in applying for the grant while owning FCRC. The solicitor reviewed the
issue based upon Fulkerson's request and on June 27, 2002, wrote a letter to DCED
requesting a grant exception as to the contract integrity provision of the grant contract.
Thereafter, the Deputy Chief Counsel of DCED, in responding to the grant exception request,
concluded: the parties appear to have met the open and competitive bidding requirements; the
city did not violate the grant agreement in that it acted as a conduit; Fulkerson breached the
grant agreement when his company performed services on the project; DCED would take no
further action because the funds were utilized for the intended project; and the matter would be
referred to the office of Inspector General for review. Finally, on September 6, 2002, a sub -
recipient agreement was signed by the Women's Shelter and Fulkerson and the city controller
on behalf of the city which resulted in the city issuing payment to the Women's Shelter of the
$247,500 that was received from DCED.
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Page 11
Having summarized the above relevant facts, we must now determine whether the
actions of Fulkerson violated Section 1103(a) of the Ethics Act.
The parties' Consent Agreement sets forth a proposed resolution of the allegations.
The Consent Agreement proposes that this Commission find an unintentional violation of
Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) when
Fulkerson, in his position as Mayor of New Castle City, participated in certain actions of the
City to obtain grant funding to construct a Woman's Shelter /Rape Crisis Center at a time when
he knew or should have known that his company, Fulkerson Construction and Roofing
Company, had bid on and /or received a subcontract to perform work relating to such
construction. Fulkerson agrees to make payment in the amount of $� 000 to the
Commonwealth of Pennsylvania through this Commission no later than the 30 day after the
issuance of the final adjudication in this matter.
In applying the provisions of Section 1103(a) of the Ethics Act to the instant matter,
there were uses of authority of office on the art of Fulkerson. But for the fact that Fulkerson
was mayor, he could not have been involved as to the application for matching funds to DCED
for the Women's Shelter. Fulkerson participated in the process and, in fact, signed the grant
application as the applicant/sponsor. Such actions by Fulkerson in the grant process were
uses of authority of office on his part. See, Juliante, Order 809. The uses of authority of
office in this case by Fulkerson resulted in a pecuniary benefit consisting of the subcontract
that was awarded to FCRC. The pecuniary benefit was a private one because there was no
authorization in law for FCRC, Fulkerson's business, to participate as a subcontractor in the
Women's Shelter building project. In fact, such action was prohibited as per the conflict of
interest provisions within the DCED application. Finally, that private pecuniary benefit inured
to FCRC which is a business with which Fulkerson is associated as that term is defined in
Section 1102 of the Ethics Act, 65 Pa.C.S. Section 1102. However, it is noted that Fulkerson
himself requested the city solicitor to look into the issue as to Fulkerson's actions as mayor in
applying for the grant funding to the Women's Shelter project when his business, FCRC,
submitted a bid as a subcontractor to Marsico, the general contractor for the project.
Accordingly, Fulkerson unintentionally violated Section 1103(a) of the Ethics Act when he as
New Castle City Mayor participated in actions of the city to obtain grant funding for the
Women's Shelter project at a time when he knew or should have known that his company,
FCRC, had bid and received a subcontract to perform work on the construction of the
Women's Shelter project. See, Grimone Order 1082; Wagner, Order 1069; Taliff, Order954.
We determine that the Consent Agreement submitted by the parties sets forth the
proper disposition for this case, based upon our review as reflected in the above analysis and
the totality of the facts and circumstances. Fulkerson is directed to make payment in the
amount of $2,000 to the Commonwealth of Pennsylvania, Department of Treasury and
forwarded to the Pennsylvania State Ethics Commission no later than the 30 days after the
issuance of the final adjudication in this matter. Compliance with the foregoing will result in the
closing of this case with no further action by this Commission. Noncompliance will result in
the institution of an order enforcement action
IV. CONCLUSIONS OF LAW:
1. Timothy Fulkerson, as a Mayor of the City of New Castle, is a public official subject to
the provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Fulkerson unintentionally violated Section 1103(a) of the Ethics Act when he
participated in certain actions of the City to obtain grant funding to construct a
Noman's Shelter /Rape Crisis Center at a time when he knew or should have known
that his company, Fulkerson Construction and Roofing Company, had bid on and /or
received a subcontract to perform work relating to such construction.
In Re: Timothy Fulkerson
File Docket: 02- 069 -C2
Date Decided: 6/23/03
Date Mailed: 7/8/03
ORDER NO. 1289
1. Timothy Fulkerson, as Mayor of the City of New Castle, unintentionally violated
Section 1103(a) of the Ethics Act when he participated in certain actions of the City to
obtain grant funding to construct a Woman's Shelter /Rape Crisis Center at a time
when he knew or should have known that his company, Fulkerson Construction and
Roofing Company, had bid on and /or received a subcontract to perform work relating to
such construction.
2. As per the Consent Agreement of the parties, Fulkerson is directed to make payment in
the amount of $2,000 in costs and in settlement of this matter to the Commonwealth of
Pennsylvania, Department of Treasury and forwarded to the Pennsylvania State Ethics
Commission no later than 30 days after the issuance of the final adjudication in this
matter.
a. Compliance with the foregoing will result in the closing of this case with no
further action by this Commission.
b. Noncompliance will result in the institution of an order enforcement action
BY THE COMMISSION,
Louis W. Fryman, Chair