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HomeMy WebLinkAbout1295 Van WhyIn Re: Norman VanWhy File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael Healey Paul M. Henry 02- 056 -C2 Order No. 1295 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 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 investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. VanWhy 02- 056 -C2 Page 2 I. ALLEGATION: That Norman VanWhy, a public official in his capacity as a member of the Bedford Township Municipal Authority violated Sections 1103(a) and 1103(f) of the State Ethics Act (Act 93 of 1998, 65 Pa.C.S. §1101 et seq.) when a business with which he is associated entered into a contract in excess of $500.00 with the authority without an open and public process by contracting to perform surveying services related to the installation of a water line; and that VanWhy, (a public official /public employee) in his capacity as a supervisor for Bedford Township, Bedford County, violated the following provisions of the State Ethics Act (Act 93 of 1998, 65 Pa.C.S. §1101et seq.) when he used the authority of his office for a private pecuniary benefit when he submitted hours for compensation as township Coordinator of Planning Development for performing administrative duties relating to his position as township supervisor and when he subsequently approved payments to himself for these administrative duties; and when he failed to file a Statement of Financial Interests for the 2000 calendar year by May 1, 2001, for the position of township supervisor and member of the municipal authority. II. FINDINGS: 1. Norman VanWhy has served as a member of the Bedford Township Municipal Authority (BTMA), Bedford County, since May 4, 1993. a. VanWhy was re- appointed to the BTMA by the Bedford Township Supervisors on January 3, 1995, and March 21, 2000, respectively. b. VanWhy has served as the Treasurer for the BTMA since his appointment. 2. VanWhy has also served as a Bedford Township Supervisor since January 1996. a. He is the current vice - chairman of the board of supervisors. 3. The BTMA is composed of a five - member board whose members are appointed by the Bedford Township Supervisors. a. BTMA appointees serve five -year terms. b. BTMA board members are not compensated for their service. 4. The BTMA generally holds one legislative meeting per month. a. Voting occurs by way of group consensus. b. Minutes do not note actual vote splits regarding motions made and seconded. 5. The BTMA was originally organized regarding the conveyance of sewage for Bedford Township. a. The BTMA eventually grew into the role of conveying water for the township. 6. The BTMA initially purchased water from Bedford Borough for delivery through the township's infrastructure. a. Bedford Borough provided the township with a specific allotment of water on a monthly basis. b. The quantity of borough - supplied water was registered and totaled by various meter pits located throughout the township. VanWhy 02- 056 -C2 Page 3 c. The borough billed the township for the quantity used and the township subsequently billed the township residents /businesses. 7. Bedford Borough also supplied water to a 500,000 - gallon holding tank located in the northern section of the township. a. The tank is utilized for a variety of reasons, including supplying water to the township in the event of a water line break between Bedford Borough and the distribution system, creation of pressure, system stabilization, and fire protection. b. The elevation of the tank is approximately 1464 feet above sea level. 8. In or about 1997, the BTMA opted to pursue and secure its own independent water source for the township. a. The decision was influenced by ongoing development that would utilize a major portion of the water allotment provided to the township by the borough. b. The decision was also influenced by various restrictions imposed by the borough regarding water usage (especially in drought conditions). 9. In January 1998, the BTMA retained the services of Casselberry and Associates, Hydro Geologists, to locate a water source and drill a well to supply the BTMA with an independent water source. a. Casselberry and Associates located a water source on a piece of land known as the Bowman Tract. b. The wells discovered provided water flow sufficient to supply the township's needs. 10. After the wells were dug and found to be usable, the BTMA addressed the issue of delivering the water to the township's existing infrastructure. a. Hegemann and Wray Consulting Engineers was [sic] utilized to develop the plans for the delivery system from the new wells to the existing infrastructure. 1. Hegemann and Wray was the BTMA Engineer at that time. 11. The BTMA's plans included the utilization of the existing infrastructure located on the Bowman Tract for the two new wells and the installation of new lines to complete the connection with existing township infrastructure. a. The township's existing infrastructure included a water meter it on the Bowman Tract in close proximity to the site of the wells dug by the BTMA. 1. Water lines ran from the meter pit to the new Bedford County jail and Midway Service Plaza on the Pennsylvania Turnpike. b. The BTMA initially planned to install new lines to the existing holding tank to connect with the existing infrastructure. 12. Although the initial plan called for the use of the existing holding tank, several BTMA members believed it would be more beneficial to construct and utilize a second holding tank. VanWhy 02- 056 -C2 Page 4 a. Construction of a second tank for delivery into the existing infrastructure would allow the BTMA to loop the systems so the two tanks could supplement each other. 1. By looping the systems the entire township could be fed by either tank should a problem occur with the system. 13. In order for the water to flow properly, the second tank needed to match the elevation of the existing tank as close as possible. a. Matching the elevations of the tanks limited the number of locations where the new tank could be constructed. 14. It was eventually decided by the authority that the second tank be constructed on VanWhy's property located at 298 Briar Valley Road, Bedford, Pa, after considering the necessary elevation for the second tank and possible locations for tapping into the existing infrastructure. a. The proposed site for the tank to be constructed on VanWhy's property was 1465.66 feet above sea level 1. The elevations of the two tanks matched within 1.66 feet. 2. VanWhy's property most closely matched the elevation of the first tank location. b. By utilizing VanWhy's property for the new tank site a water line could be directed straight down the hill into an existing water meter pit located near Bedford Elementary school. 15. On June 12, 1998, a special meeting of the BTMA was held regarding the development of the holding tank on VanWhy's property and the Bowman well mainline extension across VanWhy's property. a. VanWhy was not present at the meeting. b. Minutes of the June 12, 1998, meeting reflect the board discussing giving VanWhy a waiver for three water taps in exchange for his property. 16. VanWhy ultimately received credit for three water taps and a water pump (booster) from the BTMA for the utilization of his property. a. VanWhy played no role as a BTMA member in approving the exchange. 17. The BTMA approved the running of the extension lines and the construction of the second tank on VanWhy's property by a vote at the June 12, 1998, special meeting. a. VanWhy did not participate in the vote. b. BTMA Solicitor Dean Crabtree and Hegemann and Wray were to work on the agreement between the BTMA and VanWhy. 18. As a result of the decision to operate the new wells, install new lines, construct a second holding tank, and utilize VanWhy's property, a survey for the Bowman well project was required. VanWhy 02- 056 -C2 Page 5 a. Hegemann and Wray employs Ron Crawford as a professional land surveyor. b. Crawford was not utilized for the survey. 19. VanWhy is the owner /operator of Norman S. VanWhy Professional Land Surveyor, located at 131 East Penn Street, Bedford, Pa 15522. a. VanWhy is a professional land surveyor. b. VanWhy has owned and operated his business in Bedford since 1976. c. VanWhy's profession/business is common knowledge among BTMA members. 20. Hegemann and Wray suggested to the BTMA that VanWhy be utilized to complete the land survey for the Bowman well project. a. The majority of the water lines were to run over VanWhy's property. b. VanWhy could easily complete the survey due to his familiarity with the property. c. VanWhy had the majority of the information required for the project readily available on file at his office. 1. Having information already on file reduced the potential cost to the BTMA. 21. The BTMA did not advertise or publicly bid for the hiring of a land surveyor in association with the project. a. The BTMA informally decided to utilize VanWhy's services for the required survey at a regular meeting. b. No evidence exists that VanWhy participated in the action to utilize his company for surveying. 22. VanWhy did not provide the BTMA with a bid regarding the estimated cost of his services. a. VanWhy advised the BTMA that he would complete the work but would not participate in any voting regarding the work. 23. VanWhy performed the necessary surveying during or about the month of August 1998. a. VanWhy surveyed the entire plan for the project including elevation, property lines, telephone poles, etc. 24. VanWhy submitted an invoice to Hegemann and Wray dated August 28, 1998, in the amount of $5,000.00 for surveying work performed in relation to the Bowman well project. a. The invoice number is noted as "BTMA- 800." b. The description documented on the invoice is, "RE: BTMA Water -line Survey, Bedford Twp." VanWhy 02- 056 -C2 Page 6 25. Upon receipt of the invoice, Hegemann and Wray submitted the invoice to the BTMA for payment. a. The BTMA subsequently issued payment directly to VanWhy. 26. The BTMA issued check number 4076 from the BTMA administrative account, dated September 1, 1998, in the amount of $5,000.00 to VanWhy for services rendered. a. The check was noted as being issued for "surveying." b. Signing as authorized signatories on the account were BTMA members Melvin Miller and Richard Bugle. c. The check was endorsed, "Deposit Only, Mid -State Bank, Norman S. VanWhy." 27. Payment issued to VanWhy is documented on the September 1998, BTMA bill list. a. The BTMA bill list documents payment to VanWhy in the amount of $5,000.00 for "water line develop. Hegemann and Wray." 28. The September 1998 bill list for the BTMA was approved for payment at the September 1, 1998 BTMA meeting. a. VanWhy was present at the meeting. b. The motion to approve the paying of the monthly bills is documented as passing with no specified vote split. c. VanWhy is documented as abstaining from the vote to approve the paying of the monthly bills. 29. VanWhy filed a federal income tax return for calendar year 1998. a. Included in VanWhy's income tax return was a Schedule C (Form 1040), Profit or Loss From Business report regarding VanWhy's business. b. VanWhy's business realized a profit percentage of 30.5% from gross income reported for calendar year 1998 as shown below: 30. VanWhy's business profit as a result of receiving payment from the BTMAforservices performed is as shown below: Gross Payment Profit Profit By Borough Percentage Realized 1998 $5,000.00 30.5% $1,525.00 The following relate to allegations associated with VanWhy receiving compensation for the performance of supervisory related duties 31. Bedford Township is a Second -Class Township governed by a three - member board of supervisors. a. Bedford Township holds legislative meetings on the 1 st and 3 rd Tuesdays of each month. Year 32. The supervisors receive a yearly salary, paid in quarterly installments, based on VanWhy 02- 056 -C2 Page 7 township ordinances for their service as supervisors. a. VanWhy received $1,500.00 gross annually for his service as a supervisor from 1996 through 2001. b. VanWhy has received $2,500.00 gross annually for his service as a supervisor since 2002 33. Bedford Township currently employs all three township supervisors. a. Supervisor Rick Fetter is employed as the full -time roadmaster. b. Supervisor Kermit Frazier is employed as the full -time assistant roadmaster. c. Supervisor VanWhy is employed as the Coordinator of Planning Development. 34. Duties associated with the position of Coordinator of Planning Development were to include grant research, meeting attendance, and various other duties (addressing citizen complaints, answering questions, etc.). 35. The Coordinator of Planning Development position did not officially exist in Bedford Township prior January 1998. a. Although not officially created until January 1998, consideration forVanWhyto hold the position occurred as early as September 1997. b. The idea for compensating VanWhy for his time originated with Frazier. 36. Consideration of VanWhy for the position, among other issues, was discussed at a special meeting of the Township Auditors held on September 17, 1997. a. VanWhy was present at the meeting and addressed the auditors that he was performing duties for the township during and after normal business hours for which he felt he should be compensated. b. The auditors instructed VanWhy to keep a log of all his hours worked for consideration of a pay rate. c. The auditors noted that they would check with the Pennsylvania State Association of Township Supervisors (PSATS) to determine the feasibility of the situation and to determine if a salary cap could be imposed on the position. 37. The position was considered in order to compensate VanWhy for time spent on township issues during normal business hours which took VanWhy away from his professional surveying business. a. As the owner of his own business, VanWhy was more accessible to township residents, municipal representatives, etc., during daytime /normal business hours than were Frazier and Fetter. b. VanWhy had been performing these types of services since taking office as a supervisor. 38. The position of Coordinator of Planning Development was officially created at the January 5, 1998, supervisors reorganization meeting. a. Frazier made the motion, seconded by Fetter, to appoint VanWhy as the VanWhy 02- 056 -C2 Page 8 Coordinator of Planning Development. b. No specific vote is noted in the minutes. 1. The minutes note the position as being approved. c. There is no record of VanWhy voting on the motion. 39. Minutes of the January 6, 1998, auditors' reorganization meeting note the establishment of an hourly wage for the Coordinator of Planning Development position along with restrictions. The auditors set a wage of $11.55 per hour for the position. 1. The wage for the position was based on the wage for the assistant roadmaster position. b. The auditors imposed an annual salary limit of $8,000.00 on the position. 1. The salary limit was imposed because there was no specific limit to the number of hours VanWhy could work in the position. a. 40. Subsequent Bedford Township reorganization meeting minutes confirm that motions were approved appointing VanWhy as a township employee between 1999 and 2002. a. b. c. d. Reorganization meeting minutes of January 4, 1999, document VanWhy's appointment to the position of Coordinator of Planning Development in 1999. Reorganization meeting minutes of January 4, 2000; January 2, 2001; and January 7, 2002, document VanWhy being re -hired as a township employee. 1. The minutes do not specifically note that VanWhy was being re- appointed as Coordinator of Planning Development. 2. VanWhy performed duties consistent with those of the Coordinator of Planning Development. Votes to approve these motions were individually recorded in the minutes. Minutes confirm approval with no abstentions or no votes. 41. Bedford Township Board of Auditors reorganization meeting minutes confirm that the following pay rates were approved for the Coordinator of Planning Development position from 1999 through 2002: a. b. c. d. 1999: $12.05 /hour 2000: $12.42 /hour 2001: $12.92 /hour 2002: $13.37 /hour 42. VanWhy maintains personal logs documenting dates worked, hours worked, and a brief description of work completed, in his position as Coordinator of Planning Development. VanWhy 02- 056 -C2 Page 9 a. VanWhy does not provide his logs to the secre b. VanWhy maintains the physical custody of his for review upon request. 43. The secretary /treasurer provides VanWhy a time card applicable pay period typed onto the card. a. VanWhy transfers hours claimed by day from his personal log onto the time card provided. b. The secretary /treasurer utilizes the time card to generate payroll payment to VanWhy. Meetings with the solicitor — 13 hours. Attendance at BTMA meetings — 138 hours. Signing documents and /or checks — 22 hours. School board meetings, Act 537 meetings. 44. Bedford Township generates payroll for township employees on a bi- weekly basis. a. Payroll is normally approved at the first supervisors' meeting of the month for the previous month. 45. The log book maintained by VanWhy documents hours worked for which he was compensated as Coordinator of Planning Development. 46. The various duties for which VanWhy was compensated as Coordinator of Planning Development included the following: a. Attendance at Bedford Township Municipal Authority Meetings where VanWhy served as a member and business related to the BTMA's water line project. b. Attending township conventions and PA State Association of Township Supervisors Conventions. 1. VanWhy claimed the hourly rate as Coordinator of Planning Development for attendance at annual PSAT conventions and county conventions while attending as member of the board of supervisors. c. Signing documents and /or checks at township building. d. Meetings, including planning commission, union, school board, airport, BOCA Act 537, land use planning, BDC. e. Meetings with solicitor. f. Sewage Enforcement Officer issues. a. b. c. d. tary /treasurer for review. logs but makes them available with the individual dates of the g. Building permits, planning issues, ordinances. 47. Some of the duties for which VanWhy was compensated as Coordinator of Planning Development or as a BTMA member were related to his duties as a township supervisor. VanWhy 02- 056 -C2 Page 10 48. VanWhy was unaware that he could not be compensated for attendance at certain meetings, signing documents /checks or meetings with the solicitor. a. No specific duties were ever provided to VanWhy. 49. In an interview with Commission investigators on March 21, 2003, VanWhy verified that he was compensated at the rate established by the township auditors for the position of Coordinator of Planning Development for performing duties associated with the position of elected supervisor. a. VanWhy was not aware of the specific duties that he could be compensated for as a working supervisor. 50. The supervisors present and pass one motion at the first monthly meeting which addresses the approval of the previous month's meeting minutes, the current month's invoices and statements, the treasurer's report, and the previous month's payrolls. a. The motion is titled "The Consent Record of Business." b. The vote is carried out in group fashion after the motion has been made and properly seconded. 51. Signature authority over Bedford Township accounts lies with the secretary/ treasurer and all three supervisors. a. Two live signatures are required on all checks, one of which must be the secretary /treasurer's. b. VanWhy did not sign as an authorized signatory on any checks issued to him as a working supervisor. 52. From 1998 through 2002 VanWhy participated in board of supervisor actions approving bill lists which included payments to him. The following findings relate to the allegation that VanWhy failed to file a Statement of Financial Interests for the 2000 calendar year. 53. VanWhy is required to file a Statement of Financial Interests by May 1 annually in his position as a BTMA member and his position as a Bedford Township Supervisor. 54. VanWhy failed to file a Statement of Financial Interests in his position as a BTMA member and in his position as a Bedford Township Supervisor for calendar year 2000 by May 1,2001. a. VanWhy had no Statement of Financial Interests on file with the BTMA secretary or the township secretary for calendar year 2000. b. Upon receipt of notice of this delinquency, VanWhy promptly filed his SFI form for calendar year 2000. III. DISCUSSION: At all times relevant to this matter, the Respondent, Norman VanWhy, hereinafter VanWhy, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by VanWhy 02- 056 -C2 Page 11 the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that VanWhy, as a member of the Bedford Township Municipal Authority (BTMA), violated Sections 3(a)/1103(a) / 3 (f)/1103(f) of the Ethics Act when he entered into a contract in excess of $500.00 with BTMA without an open and public process to perform surveying services; and, as a supervisor for Bedford Township, Bedford County, submitted hours for compensation as the Coordinator of Planning Development for performing administrative duties relating to his position as township supervisor and when he subsequently approved payments to himself; and when he failed to file a Statement of Financial Interests B SFTMI)) f or the 2000 calendar year by May 1, 2001, for the position of township supervisor and member. Pursuant to Section 3(a)/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 2/1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public f of ce or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. § 402/65 Pa.C.S. § 1102. Section 3(a)/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 3(f)/1103(f) of the Ethics Act provides: Section 3/1103. Restricted activities (f) 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 VanWhy 02- 056 -C2 Page 12 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 P.S. § 403(f)/65 Pa.C.S. § 1103(f). Section 3(f)/1103(f) of the Ethics Act 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 4/1104(a) of the Ethics Act provides: § 4/1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 P.S. § 404(a)/65 Pa.C.S. § 1104(a). Section 4(a)/1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. 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 May of 1993, VanWhy has served on the Bedford Township Municipal Authority (BTMA) Board comprised of five members appointed by the Bedford Township Board of Supervisors, and since January of 1996, has also served on the Bedford Township Board of Supervisors. In a private capacity, VanWhy is the owner /operator of Norman S. VanWhy Professional Land Surveyor. Although BTMA was initially organized as a sewer authority, it began purchasing water from Bedford Borough for delivery in the township. In 1997, the BTMA Board decided to VanWhy 02- 056 -C2 Page 13 secure its own independent water source for the township due to the fact that ongoing development would take a major portion of its water allotment and due to various restrictions imposed by the borough regarding water usage. In 1998, the BTMA Board retained the services of hydro geologists to locate a water source and drill a well so that BTMA would have an independent water source. A site known as Bowman Tract was selected for the drilling of two new wells and the installation of new water lines to connect into the existing township infrastructure. Although the initial plan called for the utilization of the existing holding tank in the township, a second tank was contemplated to allow BTMA to loop the system so that the two tanks would supplement each other. Since the physics of a two tank system required that the tanks' elevation be the same, it was decided that the second tank should be constructed on VanWhy's property. This was done after considering the necessary tank elevation and possible locations for tapping into the existing infrastructure. At a June 1998 BTMA meeting, at which VanWhy was not present, the Board decided to utilize VanWhy's property and give him a waiver of three tap -ins. VanWhy received the three tap -ins but played no role as a BTMA member in approving the exchange as to the use of his property for the tap -ins. The BTMA Board also approved running extension lines to the second tank on VanWhy's property at the June meeting. VanWhy did not participate in the vote. After the approval by the BTMA Board, it was necessary to do a survey for the project. Although the firm of Hegemann and Wray was consulted, the firm suggested that VanWhy be utilized to complete the land survey for the Bowman well project, given that the majority of the water lines would run over VanWhy's property, the survey would be easy in that VanWhy was familiar with his own property and the majority of information was available in VanWhy's office. BTMA did not advertise or seek public bids for the hiring of the land surveyor in relation to the project. The BTMA Board simply decided to utilize VanWhy's services. There is no evidence that VanWhy participated in such action. VanWhy did not provide the BTMA Board with the bid for his estimated costs, but merely stated that he would not participate in any vote regarding his work. Thereafter, VanWhy completed the survey work and submitted an invoice in the amount of $5,000 to Hegemann and Wray for such work. Hegemann and Wray in turn submitted the invoice to BTMA which subsequently issued payment directly to VanWhy. When the invoice was submitted to the BTMA Board for payment, VanWhy abstained from the vote to approve the monthly bills. Of the $5,000 payment received by VanWhy, he made a profit of $1,525. In another capacity, VanWhy is a Supervisor for Bedford Township, a three - member board with VanWhy separately compensated as an employee of the township as Coordinator of Planning Development. VanWhy was considered for the position due to the time he spent on township issues during normal business hours which took him away from his professional surveying business. The duties associated with the position of Coordinator of Planning Development include grant research, meeting attendance, and other duties. At a September 17, 1997, meeting with the Board of Auditors, VanWhy was told to keep a log of his hours and check with the Pennsylvania State Association of Township Supervisors (PSATS) to determine the feasibility of the situation. Thereafter, in January of 1998 the position of Coordinator of Planning Development was officially created with VanWhy appointed to the position. There is no record of VanWhy voting on the motion for his own appointment. At a January 6, 1998, meeting of the Township Board of Auditors, the hourly wage for the position was set at $11.55 with an annual cap of $8,000. VanWhy held the position of township employee between 1999 and 2002 with rates of pay approved by the auditors at $12.05, $12.42, $12.92, and $13.37 per hour respectively for those years. VanWhy performed services in the employment position and maintained a log book to document his hours. However, VanWhy received some compensation as Coordinator of Planning Development for duties which related to his position as township supervisor: meetings with the solicitor, attendance at BTMA meetings, signing documents or checks, and VanWhy 02- 056 -C2 Page 14 school board meetings. VanWhy did not know that he could not be compensated for such activities. VanWhy participated in actions of the board to approve bill lists which included payments to himself as the Coordinator of Planning Development. Turning to the matter of SFI's, VanWhy is required to file such forms both as a BTMA Member and a Bedford Township Supervisor. For the calendar year 2000, VanWhy failed to file the SFI in both positions. Following receipt of a delinquency notice, VanWhy promptly filed his SFI form for the 2000 calendar year. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find: a. That an unintentional violation of Section 1103(f) occurred when a business with which VanWhy is associated contracted with the Bedford Township Municipal Authority, in excess of $500, for professional surveying services in connection with the installation of a new water line in Bedford Township. b. That an unintentional violation of Section 1103(a) occurred when VanWhy submitted certain hours for compensation as Township Coordinator of Planning Development when the duties performed were related to his position as township supervisor. c. That Respondent did not violate Section 1104(a) since he promptly filed his Statement of Financial Interests for the 2000 calendar year after receiving a late notice from the Commission. d. Although not part of the allegations, the Investigative Division recommends that no violation of Section 1103 of the Ethics Act occurred when the township placed water and /or sewer lines through VanWhy's property and placed awater holding tank on VanWhy's property in exchange for water taps as no evidence has been developed which suggest that VanWhy participated in any discussions and /or actions regarding the exchange. 4. VanWhy, while continuing to dispute liability for violations of the State Ethics Act in order to resolve the matter amicably agrees to make payment in the amount of $5,000.00 in settlement of this matter. Said amount to be payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter." In applying Section 3(f)/1103(f) of the Ethics Act as to the allegation concerning the contracting with BTMA for the survey services, the stipulated fact findings reflect that there was no advertisement for public bids for the hiring of the land surveyor in association with the project. See, Fact Finding 21. The firm of Hegemann and Wray suggested to the BTMA Board that it utilize VanWhy for the Bowman well project given his familiarity with the property, the water lines running through his property and the information available on file at his office. Although Section 3(f)/1103(f) does not prohibit contracting between a public official and his governmental body, an open and public process is required when the contract is $500 or more. That did not occur in this case. Accordingly, VanWhy unintentionally violated Section 3(f)/1103(f) of the Ethics Act when his business, Norman S. VanWhy Professional Land Survey, contracted with BTMA in excess of $500 for professional surveying services which contract was not awarded through an open and public process. See, Cardamone, Order 1138. VanWhy 02- 056 -C2 Page 15 Regarding VanWhy's service as a Bedford Township Supervisor and his employment as the Township Coordinator of Planning Development, it is fundamental that a second class township supervisor employed by the township is limited to receiving compensation as the elected supervisor as provided by the Second Class Township Code and is limited to receiving compensation for work duties related to his position of employment. However, a working township supervisor may not receive compensation as a township employee for performing various administrative duties associated with the elected position of township supervisor. See, Cours, Order 1150. In this case, VanWhy received compensation as a township employee for performing certain services related to the elected position of township supervisor. See, Fact Finding 47. The receipt of such compensation as a township employee, even if approved by the board of auditors, is compensation not authorized in law and hence is a prohibited private pecuniary benefit. See, Hessinger, Order 931, R.H and T.W. v. SEC, affirmed in p art, 673 A.2d 1004(Pa. Commw. 1996). Accordingly, VanWhy unintentionally violated 3(a)/1103(a) of the Ethics Act when he submitted certain hours for compensation as Coordinator of Planning Development when such duties related to his elected position of township supervisor. The last allegation concerns the issue of VanWhy's filing of his 2000 SFI with BMTA and Bedford Township. Although VanWhy failed to timely file his SFI for the 2000 calendar year, he promptly did so after receiving a delinquency notice. Accordingly, VanWhy did not violate Section 4(a)/1104(a) of the Ethics Act regarding the filing of his 2000 calendar year SFI which he promptly filed after receiving a late notice from the Commission. We parenthetically note that the parties in entering into a Consent Agreement also stipulated as to a recommendation of no violation of Section 3/1103 of the Ethics Act regarding VanWhy's receipt of water taps on his property in exchange for the township placing water lines, sewer lines and the water holding tank on his property on the basis that there is no evidence to indicate that VanWhy participated in actions regarding the exchange. Since that issue is not part of the allegation in this case, we need not and will not address it. 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. Accordingly, VanWhy is directed to make payment of $5,000 to the Commonwealth of Pennsylvania and forwarded to this Commission within 30- days of the mailing of this Order. 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. Norman VanWhy, as a member of the Bedford Township Municipal Authority and Bedford Township Board of Supervisors, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. VanWhy unintentionally violated Section 3(f)/1103(f) of the Ethics Act when his business, Norman S. VanWhy Professional Land Survey, contracted with the BTMAin excess of $500 for professional surveying services when such contract was not awarded through an open and public process. 3. VanWhy unintentionally violated Section 3(a)/1103(a ) of the Ethics Act when he submitted certain hours for compensation as township Coordinator of Planning Development when such duties related to his elected position of township supervisor. 4. VanWhy did not violate Section 4(a)/1104(a) of the Ethics Act regarding the filing of his 2000 calendar year SFI which he promptly filed after receiving a late notice from the Commission. VanWhy 02- 056 -C2 Page 16 In Re: Norman VanWhy ORDER NO. 1295 File Docket: 02- 056 -C2 Date Decided: 9/15/03 Date Mailed: 9/29/03 1. Norman VanWhy, as a member of the Bedford Township Municipal Authority and Bedford Township Board of Supervisors, unintentionally violated Section 3(f)/1103(f) of the Ethics Act when his business, Norman S. VanWhy Professional Land Survey, contracted with the BTMA in excess of $500 for professional surveying services when such contract was not awarded through an open and public process. 2. VanWhy unintentionally violated Section 3(a)/1103(a ) of the Ethics Act when he submitted certain hours for compensation as township Coordinator of Planning Development when such duties related to his elected position of township supervisor. 3. VanWhy did not violate Section 4(a)/1104(a) of the Ethics Act regarding the filing of his 2000 calendar year SFI which he promptly filed after receiving a late notice from the Commission. 4. Per the Consent Agreement of the parties, VanWhy is directed to make payment of $5,000 to the Commonwealth of Pennsylvania and forwarded to this Commission within 30 -days of the issuance of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair Commissioners Daneen E. Reese and Michael Healy abstained from participation in this case.