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