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HomeMy WebLinkAbout1290 BixlerIn Re: Thomas Bixler File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Frank M. Brown Donald M. McCurdy Paul M. Henry 02- 030 -C2 Order No. 1290 9/15/03 9/29/03 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 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 and a hearing was held. The record is complete. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Bixler 02- 030 -C2 Page 2 I. ALLEGATION: That Thomas Bixler, a (public official /public employee) in his capacity as a supervisor for South Newton Township, Cumberland County, violated the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for the private pecuniary gain of a business with which he is associated, including but not limited to participating in actions and decisions of the board of supervisors resulting in services being provided for the maintenance of township vehicles with Keystone Fleet Services where he is employed; when services in excess of $500 were awarded to Keystone Fleet Services without an open and public process; and when he failed to disclose all sums of income in excess of $1,300 on Statements of Financial Interests forms filed for the 2001 calendar year. § 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). § 1103. Restricted activities (f) Contract. - -No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa.C.S. § 1103(f). § 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 office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Bixler 02- 030 -C2 Page 3 § 1105. Statement of financial interests (a) Form. - -The statement of financial interests filed pursuant to this chapter shall be on a form prescribed by the commission. All information requested on the statement shall be provided to the best of the knowledge, information and belief of the person required to file and shall be signed under oath or equivalent affirmation. 65 Pa.C.S. § 1105(a). § 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. 65 Pa.C.S. § 1105(b). II. FINDINGS: A. Pleadings 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Thomas Bixler violated provisions of the State Ethics Act (Act 93 of 1998). 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on March 14, 2002. 3. The preliminary inquiry was completed within sixty days. 4. On May 13, 2002, a letter was forwarded to Thomas Bixler, 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 3335. b. The domestic return receipt bore the signature of Michelle Bixler, with a delivery date of May 15, 2002. 5. Periodic notice letters were forwarded to Thomas Bixler in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on November 7, 2002. 7. Thomas Bixler has served as a South Newton Township Supervisor since March 4, 1997. Bixler 02- 030 -C2 Page 4 a. Bixler is also employed by the township on a part -time basis as a road worker. 8. Professionally, Bixler has been employed by Keystone Fleet Services, Inc., 277 Mulberry Drive, Mechanicsburg, PA 17055, as a truck mechanic since approximately 1998. 9. South Newtown [sic] Township does not have any full -time employees with the expertise to maintain township equipment and vehicles. a. The township has utilized the services of private garages for such care and maintenance. 10. Prior to 2000, South Newton Township vehicles were repaired at Coons Garage, 7 Furnace Hollow Road, Shippensburg, PA. a. Coons Garage was utilized on an as- needed basis. b. Vehicle repairs and maintenance performed by Coons Garage were never bid by the board of supervisors. 11. Sonny Coons, owner of Coons Garage, decided to terminate his business relationship with South Newtown [sic] Township during the spring of 2000. a. Coon's no longer was interested in repairing township vehicles. 12. The South Newton Township Board of Supervisors did not advertise for any business to replace Coons Garage as the township repair facility. 13. Bixler recommended that township trucks could be repaired at his place of employment, Keystone Fleet Services, Inc. a. Keystone Fleet Services is not located within the geographic boundaries of South Newton Township. 14. The decision to take township vehicles to Keystone Fleet Services was approved by the supervisors at their June 13, 2000, meeting. 15. Minutes from the Supervisor's June 13, 2000, meeting include the following recorded action taken to authorize Keystone Fleet Services to repair township trucks: June 13, 2000: "Motion Bouch, seconded Rick (Meily), to take trucks number 1 and 2 to Keystone Fleet for inspections and minor work, not to exceed $100 per truck; Coon's Garage informed them that they would no longer be interested in working on township trucks, vote unanimous. Present: Bouch, Bixler, Meily." 16. Repairs to the trucks were discussed at the supervisors' July 11, 2000, meeting. a. The discussion focused on costs of repairs exceeding the $100.00 limit set at the June 13, 2000, meeting. b. Minutes from that meeting reflect "inspection of trucks to Keystone, Bixler explained that problems were encountered, causing the price to be higher than anticipated. Per anticipated previous meeting, it was agreed to spend no more than $100 per vehicle, the cost of the 1995 GMC was $103.52, the 1998 GMC was $310.45. Motion: Bouch, second, Bixler to approve the overage. Vote: Unanimous." 17. Bixler continued to take township vehicles to his place of employment for repair after Bixler 02- 030 -C2 Page 5 the initial authorization on June 13, 2000. a. None of these repairs were bid. 18. Bixler obtained permission from Anthony R. Buziuk, owner of Keystone Fleet Services, Inc., to bring township vehicles to Keystone for repair and maintenance work. a. Bixler would bring the township trucks to Keystone to be repaired. b. Keystone did not submit any formal bid or proposal to South Newton Township to serve as the designated repair facility for township trucks. c. Bixler informed Buziuk that he could not be involved with repairing the vehicles at Keystone since he was a South Newton Township supervisor. 19. Bixler was a full -time employee of Keystone Fleet Services, Inc., during the period of time when township vehicles were being repaired. a. Bixler is an hourly employee of Keystone. b. Bixler's compensation is not dependent upon the volume of work completed. c. Bixler does not receive bonuses or commissions for generating new business for Keystone. 20. Bixler plays no role in determining repair costs or billings. 21. Since June 16, 2000, a total of seven (7) repair invoices were submitted by Keystone Fleet Services to the township. a. Two (2) invoices were for repairs in excess of $500. b. Neither of these repairs were [sic] put out for any competitive bidding. 22. On July 18, 2001, township check 2390 in the amount of $1,374.25 was issued to Keystone Fleet for invoice no. BAY045314 dated July 5, 2001. Repairs included replacing four tires and state inspection. Total repairs were invoiced as follows: a. Part Price Labor Total 411R-773 Tires $ 1,151.00 $79.00 Casing Charge $ 70.00 Included Valve Stems $ 3.50 Included State Inspection $ 39.50 Inspection Sticker $ 1.00 Adjust Brakes -- $19.75 $1,374.25 b. South Newton Township did not seek any bids for these repairs. c. The cost of these repairs was known to be in excess of $500 prior to any repairs being performed. d. Bixler arranged for these repairs to be performed by Keystone in his official capacity as township supervisor. e. Bixler participated in board action taken on July 18, 2001, to ratify payment of this invoice (See finding no. 30). Bixler 02- 030 -C2 Page 6 23. On December 13, 2001, township check no. 2579 in the amount of $868.88 was issued to Keystone Fleet for invoice BAY047434. Repairs performed included state inspection, transmission service, air, fuel and oil filters, spark plugs, washer fluid and repair oil leak with miscellaneous hardware. a. This repair was comprised primarily of labor in the amount of $588.55 with an additional $255.02 for parts. b. South Newton Township did not seek any bids for these repairs. c. The total cost of this service was in excess of $500.00. d. Bixler arranged for these repairs to be performed by Keystone in his official capacity as township supervisor. e. Bixler participated in board action taken on December 11, 2001, to ratify this invoice. 24. Keystone invoiced the township for vehicle services on the following dates and was paid as follows: Date 06/15/00 06/16/00 01/31/00 06/12/01 07/05/01 09/18/01 12/11/01 a. b. Check Date No. 07/11/00 MOD 03/06/01 2220 06/12/01 2365 07/18/01 2390 09/19/01 2466 12/11/01 2579 Invoice Amt. $ 310.45 $ 103.52 $ 191.13 $ 30.73 $ 1,374.24 $ 81.11 $ 868.88 25. Township payments issued to monthly bill lists. Amount $ 413.97 $ 193.13 $ 30.73 $ 1,374.25 $ 81.11 $ 868.88 Twp. Check No. 1909 2220 2365 2390 2466 2579 Keystone Fleet Services were included as part of Bill lists are read to the supervisors prior to being voted on. Bill lists are voted on in their entirety by a single motion. Meeting Date 07/11/00 03/13/01 06/12/01 08/14/01 10/09/01 12/11/01 Check Amt. $ 413.97 Included $ 191.13 $ 30.73 $ 1,374.25 $ 81.11 $ 868.88 26. Township ledgers, invoices and bill lists confirm Bixler's participation in approving payments to Keystone Fleet as follows: Official Action Second, Vote Vote Second, Vote Second, Vote Not Recorded Second, Vote Recorded Vote 2 -1 3 -0 3 -0 3 -0 27. Bixler participated in four (4) separate votes approving payments totaling $2,466.99 to his employer as detailed in the previous finding. 28. Of the checks issued to Keystone Fleet Services, Inc., Bixler signed the front side of check nos. [sic] 2220, dated March 6, 2001, in the amount of $191.13 in his official capacity as township supervisor. 29. Repairs to township vehicles for which labor charges were incurred were performed by Bixler 02- 030 -C2 Page 7 employees of Keystone Fleet Services other than Bixler. a. Bixler arranged for the completion of the work, including pickup and delivery of the township vehicles. 30. Bixler, in his official capacity as a South Newton Township Supervisor, annually completed a Statement of Financial Interests form by May 1 t for the prior calendar year. 31. SFIs on file with the township include the following filings for Bixler. Calendar Year: Filed: Creditors: Direct /Indirect Income: All Other Financial Interests: Calendar Year: Filed: Creditors: Direct /Indirect Income: All Other Financial Interests: Calendar Year: Filed: Creditors: Direct /Indirect Income: Office, Directorship or Emp. in any Business: All Other Financial Interests: Calendar Year: Filed: Creditors: Direct /Indirect Income: All Other Financial Interests: Calendar Year: Filed: Creditors: Direct /Indirect Income: All Other Financial Interests: a. Calendar Year: Filed: Position: Creditors: Direct /Indirect Income: Not Listed 01/09/02 on SEC Form 1/02 None Keystone Fleet None 2001 (2000) 05/17/01 on SEC Form 1/01 None Keystone Fleet, South Newton Township None 1999 02/14/00 on SEC Form 1/00 None Keystone Fleet, South Newton Township Keystone Fleet None 1998 03/08/99 on SEC Form 1/99 None Keystone Fleet, South Newton Township None 1998 03/02/99 on SEC Form 1/99 (Candidate's form) None Keystone Fleet, South Newton Township None 32. Bixler failed to list South Newtown [sic] Township as a source of income in excess of $1,300 on his Statement of Financial Interests form filed for calendar year 2001. a. Bixler's W -2 for calendar year 2001 confirms he received wages in the amount of $7,399.60 from the township. 33. Bixler filed an amended Statement of Financial Interests form for calendar year 2001 on October 29, 2002. Bixler's amended calendar year 2001 on October 29, 2002 [sic]. Bixler's amended SFI form included the following information. 2001 (Amended form) 10/29/02 on SEC Form 1/02 Supervisor None Keystone Fleet, South Newtown [sic] Bixler 02- 030 -C2 Page 8 Township Office, directorship or emp. in any business: Township Supervisor All other financial interests: None 34. Keystone realized a gross private pecuniary benefit of $2,548.10 and a net profit of $561.77 as a result of repairs to South Newton Township vehicles. B. Testimony 35. Thomas Trgovac is a self - employed attorney. a. Trgovac was the solicitor for South Newton township for approximately eight months, ending in March of 2002. 1. Trgovac was not the solicitor in June of 2000. b. While Trgovac was solicitor, Rick Meily, Ron Bouch and Bixler were the three supervisors. 1. When the term of one of the supervisors ended, Donald Gruver became a supervisor on the board. c. Trgovac, as solicitor, never rendered an opinion concerning Keystone providing vehicle repair services to the township. d. Bixler was privately employed by Keystone Fleet Services (Keystone). 36. Anthony Buziuk and his spouse are the co- owners of Keystone. a. Keystone services trucks as to repairs but not bodywork. (1) Keystone does accident repairs on trailers. b. Keystone currently has 14 full -time employees. (1) Bixler has been an employee for over five years, working as a mechanic. c. Keystone did business with South Newton Township. (1) Bixler approached Buziuk about Keystone doing some work on township vehicles. d. For billing, the charged hourly labor rate is about three times the hourly rate paid to the employee. (1) Keystone's current labor rate is $44.00 per hour. (2) In 2000, the labor rate was $39.50 per hour. e. Keystone makes a profit of 25 -30% on parts. (1) South Newton Township was billed using the same labor charges and profit margins. f. Bixler is paid an hourly rate by Keystone with overtime after 40 hours. Bixler 02- 030 -C2 Page 9 g. Keystone does not now do work for the township since Bixler no longer brings any more township work. h. Bixler did not receive any bonuses or commissions for work he brought to Keystone. The profit rate to Keystone on labor charges to Keystone was $6.50 per hour based upon either a charge of $42.50 or $39.50 per hour. J. Servicing township vehicles benefited Keystone financially. 37. Dan Bender is a special investigator for the Commission. a. Bender did interviews and obtained documents concerning the business Keystone performed on township vehicles. b. Profit to Keystone for servicing township vehicles was determined by applying the parts and labor profit margins to the invoices from Keystone to the township. (1) Buziuk's figures were used to make the calculation. c. Through tax returns and W -2 forms, it was determined that Bixler had income in excess of $1,300 which he did not list on his 2001 calendar year SFI. (1) Bixler subsequently amended his SFI on or about October 29, 2002, correcting the filing deficiency. (2) Bixler included South Newton Township as a source of income on other SFI's that he filed. 38. Ronald Bouch is the chairman of the board of supervisors in Newton Township. a. Bouch's current term began on January 4, 2000. b. Coon's Garage had been servicing township vehicles but did not want to continue to do so. c. The township took vehicles from 2000 through 2001 to Keystone. d. Township bills are approved from one list of invoices. e. In the minutes of the June 13, 2000 meeting, a motion carried unanimously to take the township vehicles to Keystone for service. (1) Bixler participated in the vote. f. When interviewed by Bender, Bouch referenced a solicitor's opinion at a June 13, 2000 meeting given by Trgovac. (1) Trgovac was not the solicitor at that time. 39. Bixler is a South Newton Township Supervisor. a. Bixler is presently employed by Keystone as a mechanic. b. Bixler is employed as a township roadmaster. Bixler 02- 030 -C2 Page 10 c. The township switched from having its vehicles serviced at Sonny Coon's Garage to Keystone in June of 2000. d. Bixler suggested to the other two supervisors that the township vehicles be serviced at Keystone. (1) A decision was made at a June 13, 2000, board meeting to service township vehicles at Keystone. e. Bixler did not list Newton Township as a source of income on his 2001 calendar year SFI but he did include Newton Township on his SFI's for other years. f. Bixler signed one of the township checks that was issued in payment to Keystone. Bixler did not query the solicitor before he voted on bills lists which included payments to Keystone. g. C. Documents 40. ID1 consists in part of photocopies of two invoices from Keystone to South Newton Township for services performed on township trucks. a. Invoice dated June 15, 2000, for services on a 1995 GMC township truck totaled $310.45. b. Invoice dated June 16, 2000, for services on a 1998 GMC township truck totaled $103.52. c. The township issued a check dated July 11, 2000, in the amount of $413.97 to Keystone in payment for the above services. 41. ID2 consists in part of an invoice of Keystone dated January 13, 2001, to South Newton Township in the amount of $191.13 for services on a 1995 GMC township truck. a. The township paid the invoice by check dated March 6, 2001, in the amount of $191.13 payable to Keystone. 42. 1D3 consists in part of an invoice of Keystone dated June 12, 2001, to South Newton Township in the amount of $30.73 for services to a 1998 GMC township truck. a. The township paid the invoice by check dated June 12, 2001, in the amount of $30.73. 43. ID4 consists in part of an invoice of Keystone dated July 5, 2001, to South Newton Township in the amount of $1,374.25 for services to a 1995 GMC township truck. a. The township paid the invoice by check dated July 18, 2001, in the amount of $1,374.25. 44. ID5 consists in part of an invoice of Keystone dated September 18, 2001, to South Newton Township in the amount of $81.11 for services to an unidentified vehicle. a. The township paid the invoice by check dated September 19, 2001, in the amount of $81.11. Invoice Date Parts Profit Parts Labor Profit Labor Total Profit 06/16/00 $103.91 $25.98 5 hours $32.50 $58.48 06/16/00 21.20 5.39 2 hours 13.00 18.38 [sic] 01/31/01 27.56 6.89 4 hours 26.00 32.89 06/12/01 30.73 7.68 None 0 7.68 07/05/01 1,236.00 247.20 2.5 hours 16.25 263.45 09/18/01 81.11 20.28 None 0 20.28 12/11/01 255.02 63.76 14.9 hours 96.85 160.61 Total $1 [sic] $377.17 [sic] 28.40 hours $184.60 $561.77 [sic] Bixler 02- 030 -C2 Page 11 45. ID6 consists in part of an invoice of Keystone dated December 11, 2001, to South Newton Township in the amount of $868.88 for services to a 1995 GMC township truck. a. The township paid the invoice by check dated December 13, 2001, in the amount of $868.88. 46. ID7 is in part a photocopy of a chart showing the profit that Keystone received as to providing services to the township. a. 47. R1 is a photocopy of the minutes of the meeting of the Board of Supervisors of South Newton Township on June 13, 2000. a. On page 7, item 8 states: Motion Bouch, 2 " Rick to take trucks #1 and #2 to Keystone Fleet for inspection and minor work, not to exceed $100.00 per truck. Coon's Garage informed them that they would no longer being [sic] interested in working on township trucks. Vote unanimous. 48. R3 is a photocopy of the minutes of the meeting of the Board of Supervisors of South Newton Township on July 11, 2000. a. On page 4, item 12 states: Inspection of Trucks at Keystone Fleet - Bixler explained that problems were encountered, causing the price to be higher than anticipated. Previous meeting it was agreed to spend no more than $100.00 per vehicle. The cost to the 1995 GMC was $103.52, and to the 1998 GMC was $310.45. Motion Bouch, 2 " Bixler to approve the overage. Vote unanimous. III. DISCUSSION: At all times relevant to this matter, the Respondent, Thomas Bixler, hereinafter Bixler, has been a public official subject to the provisions of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Act is referred to herein as the "Ethics Act." The allegations are that Bixler, in his capacity as a supervisor for South Newton Township, violated Sections 1103(a), 1103(f), 1105(a) and 1105(b)(5) when he participated in actions of the board of supervisors resulting in services being provided for the maintenance of Bixler 02- 030 -C2 Page 12 township vehicles by his employer, Keystone Fleet Services; when Keystone Fleet Services received service contracts in excess of $500 without an open and public process; and when he failed to disclose Newton Township as a source of income in excess of $1,300 on his Statement of Financial Interests (SFI) for the 2001 calendar year. 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. The term "conflict of interest" is defined under Act 93 of 1998 as set forth above. 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. Section 1103 of the Ethics Act imposes certain restrictions as to contracting. Section 1103(f) of Act 9 of 1989 specifically provides in part that no public official /public employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. Section 1105(b)(5) of the Ethics Act requires 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 $1,000 or more. Having noted the issues and applicable law, we shall now summarize the relevant facts. Bixler is a supervisor for South Newton Township. In a private capacity he is employed as a mechanic for Keystone Fleet Services (Keystone). At Keystone, Bixler works for an hourly rate of pay but does not receive any bonuses or commissions for any work that he might bring to Keystone. The township had trucks and other vehicles which were serviced at Sonny Coon's Garage. At some point in time, Coon's Garage indicated that it would no longer service township vehicles. Bixler then approached Anthony Buziuk, who was a co -owner of Keystone, regarding the possibility of having the township trucks serviced there. Subsequently, the issue was presented to the township board for consideration at a June 13, 2000, meeting. After it was noted that Coon's Garage would no longer work on township vehicles, a motion was made to take the township trucks to Keystone which motion passed unanimously. From mid -2000 until the end of 2001, the township took its trucks to Keystone for services. The details of such services are delineated in Fact Finding 46. Keystone made a profit of approximately $561.78 for performing the services on the township vehicles during that year and a half period. After Keystone serviced a township vehicle, it invoiced the township. That invoice would be included in a single list of bills that was presented to the township supervisors for approval. Bixler participated in the bill approval process which included invoices from Keystone. In one instance, Bixler also signed the township check which was issued to Keystone in payment of an invoice for services on a township truck. Separate and apart from the above, Bixler as a township supervisor files SFI's on a yearly basis. A review of Bixler's SFI's indicate that he routinely listed both South Newton Township and Keystone as sources of income on his SFI's. However, for the calendar year Bixler 02- 030 -C2 Page 13 2001, Bixler failed to include South Newton Township as a source of income. In this regard, Bixler testified that his failure to do so in that particular calendar year was due to an oversight on his part. The Investigative Division has filed a brief wherein it makes the following arguments: Bixler approached Buziuk of Keystone about performing services on South Newton Township vehicles; two specific repairs exceeded $500; Keystone made a profit of 25% to 30% on parts and $6.50 per hour on labor or repairs including South Newton Township vehicles; Bixler failed to report South Newton Township as a source of income on 2001 calendar year SFI but then filed an amended SFI correcting the non - disclosure; Bixler participated in the unanimous vote to transfer vehicle services to Keystone on June 13, 2000; Bixler voted at a July 11, 2000, meeting to approve bills to Keystone even though the repairs exceeded the maximum amount approved by the board; the township did not advertise for repairs on South Newton Township vehicles from June 2000; Bixler participated in votes to approve bill lists including those of Keystone; Bixler signed one of the checks payable to Keystone; Bixler participated in the transfer of South Newton Township vehicles to Keystone; Bixler did not refute the $561.78 profit made by Keystone in servicing South Newton Township vehicles; Keystone employed Bixler so that Keystone is a business with which Bixler is associated; Bixler violated §1103(a) of the Ethics Act as to the servicing of South Newton Township vehicles by Keystone; this Commission should impose restitution of $561.78 and possibly an additional treble penalty; Bixler violated §1103(f) in two instances where contracts between Keystone and South Newton Township were in excess of $500.00 but not awarded through an open and public process; and Bixler violated Section 1105(b)(5) of the Ethics Act when he failed to list South Newton Township as a source of income on his 2001 calendar year SFI. Bixler has filed a brief raising the following arguments: this Commission must find a violation by clear and convincing proof; the repairs of township vehicles did not financially benefit Bixler; Bixler inadvertently omitted the township as a source of income on his SFI for calendar year 2001; the township suffered no financial harm; the repairs of township trucks affected a group of Keystone mechanics to the same degree so that the exclusion to the definition of conflict applies; Keystone only received a profit of $567 from the township so that the de minimis exclusion to conflict applies; Kraines v. Pa SEC, 805 A.2d 677 (Pa Commonwealth 2002) applies to this case; the decision of the township board to utilize Keystone to repair its trucks constituted an open and public process; Bixler did not enter into a contract with the township so that Section 1103(f) of the Ethics Act does not apply; and Bixler corrected his financial disclosure omission by filing an amended SFI for calendar year 2001. Having summarized the above relevant facts, we must now determine whether the actions of Bixler violated Sections 1103(a), 1103(f) and 1105(b)(5) of Act 9 of 1989. In applying the provisions of Section 1103(a) of the Ethics Act to the issue of Keystone servicing township vehicles, we note that there were various uses of authority of office on the part of Bixler. But for the fact that Bixler was a supervisor, he could not have been in a position to go to the board about the servicing of township vehicles by Keystone after Coon's Garage indicated that it no longer wanted to do so. Bixler participated in the unanimous approval of the motion to take the township vehicles to Keystone for servicing. At a July 11, 2000, board meeting Bixler participated and voted on the issue of approving the overage on township vehicles that were serviced by Keystone. In addition, Bixler participated in actions of the board to approve bills lists which included invoices from Keystone. Finally, in one instance Bixler signed a township check in payment to Keystone for servicing a township truck. All such actions were uses of authority of office. See, Juliante, Order 809. Such uses of authority of office resulted in private pecuniary benefits consisting of the profits that Keystone made in servicing the township vehicles. Finally, since Bixler is an employee of Keystone, Keystone is a business with which Bixler is associated as that term is defined under the Ethics Act. See, 65 Pa.C.S. §1102. Hence, the private pecuniary benefits consisting of the profits made on servicing the township vehicles went to a business with which Bixler was associated. Accordingly, Bixler violated Section 1103(a) of the Ethics Act when he participated in actions Bixler 02- 030 -C2 Page 14 of the board of supervisors of South Newton Township as to awarding service contracts and making payments to Keystone Fleet Services, a business where Bixler is employed. Bixler however argues that there can be no violation of §1103(a) of the Ethics Act based upon the de minimis and class /subclass exclusion. Neither exception applies in this case. First, given the profits made by Keystone in servicing township vehicles, that amount ($561.78) is by no means de minimis. As to the class /subclass exclusion, Bixler misperceives the application of that provision. In Kablack, Opinion 02 -003, we held that the class /subclass exclusion applies if the affected public official /immediate family member /associated business is a class/ subclass with more than one member and if the members of that class /subclass are affected to the same degree. The class /subclass must be similarly situated with shared relevant characteristics and be reasonably affected to the same degree. In this case, the subclass is the group of businesses that services the township vehicles. Since Keystone was the one and only such business, the subclass exception has no application. Parenthetically, the employees of Keystone are not a subclass vis -a -vis action by the township board. Furthermore, since the class /subclass is not the governmental body, it is irrelevant that the governmental body suffers no financial loss. As to Section 1103(f) of the Ethics Act, this provision allows a public official, his spouse or child or business with which associated to contract with his governmental body. However, if the contract is $500 or more, it must be awarded through an open and public process. In this case, the various services that Keystone provided to the township amounted to over $2,500. Furthermore, two services that were done totaled $1,374.25 and $868.88. See, Fact Findings 43, 46. Thus, the record establishes that there was contracting between the township and Keystone in excess of $500. Such contracting was not done through an open and public process as required by the Ethics Act. Accordingly, Bixler violated Section 1103(f) of the Ethics Act when Keystone Fleet Services, a business where Bixler is employed, received contracts with South Newton Township in excess of $500 when such contracts were not awarded through an open and public process. As to the above violations of Section 1103(a) and 1103(f) of the Ethics Act, it is clear that there was no intent on the part of Bixler to violate the Ethics Act. Although intent is not a prerequisite for a violation of the Ethics Act, it appears that Bixler was merely trying to arrange to have a continuation of the servicing of township vehicles after Coon's Garage indicated that it would no longer do so. Further, even though Keystone is a business with which Bixler is associated, we note that he did not receive any bonuses or commissions for any additional business that he brought to Keystone. In short, we believe that Bixler was motivated to help the township rather than to obtain personal financial gain. See, Cours, Order 1150. Turning to the SFI allegation, Bixler has readily admitted that he failed to list South Newton Township as a source of income on his 2001 calendar year SFI. Accordingly, Bixler technically violated Section 1105(b)(5) of the Ethics Act when he failed to list South Newton Township as a source of income in excess of $1,300 on his SFI for the 2001 calendar year. A technical violation is appropriate as to this allegation, given that Bixler did list South Newton Township on other SFI's that he filed. We believe the omission on this particular SFI was due to an oversight rather than an attempt to conceal financial information. Having established violations by Bixler of Section 1103(a), 1103(f) and 1105(b)(5) of the Ethics Act, we shall now address the issue of restitution /treble penalty. The Investigative Division requests that we impose at least restitution in the amount of $561.78 and possibly a treble penalty. 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. Based upon the totality of the facts and circumstances in this case, restitution is not warranted. Bixler 02- 030 -C2 Page 15 IV. CONCLUSIONS OF LAW: 1. Thomas Bixler, as a South Newton Township Supervisor in Cumberland County, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Bixler violated Section 1103(a) of the Ethics Act when he participated in actions of the board of supervisors of South Newton Township as to awarding service contracts and making payments to Keystone Fleet Services, a business where Bixler is employed. 3. Bixler violated Section 1103(f) of the Ethics Act when Keystone Fleet Services, a business where Bixler is employed, received contracts with South Newton Township in excess of $500 when such contracts were not awarded through an open and public process. 4. Bixler technically violated Section 1105(b)(5) of the Ethics Act when he failed to list South Newton Township as a source of income in excess of $1,300 on his Statement of Financial Interests for the 2001 calendar year. In Re: Thomas Bixler ORDER NO. 1290 File Docket: 02- 030 -C2 Date Decided: 9/15/03 Date Mailed: 9/29/03 1. Thomas Bixler, as a South Newton Township Supervisor in Cumberland County, violated Section 1103(a) of the Ethics Act when he participated in actions of the board of supervisors of South Newton Township as to awarding service contracts and making payments to Keystone Fleet Services, a business where Bixler is employed. 2. Bixler violated Section 1103(f) of the Ethics Act when Keystone Fleet Services, a business where Bixler is employed, received contracts with South Newton Township in excess of $500 when such contracts were not awarded through an open and public process. 3. Bixler technically violated Section 1105(b)(5) of the Ethics Act when he failed to list South Newton Township as a source of income in excess of $1,300 on his Statement of Financial Interests for the 2001 calendar year. BY THE COMMISSION, Louis W. Fryman, Chair