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HomeMy WebLinkAbout1300 LuzierIn Re: Donald B. Luzier 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- 054 -C2 Order No. 1300 12/1/03 12/15/03 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 held. The record is complete. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Luzier 02- 054 -C2 Page 2 I. ALLEGATION: That Donald Luzier, a (public official /public employee) in his capacity as a supervisor for Lawrence Township, Clearfield County, violated the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for a private pecuniary benefit of himself and /or a business with which he is associated, including but not limited to participating in actions resulting in township vehicles being referred to D & T Truck & Auto Repair for maintenance; when he subsequently participated in the approval process resulting in payments being issued to D & T Truck & Auto Repair, including voting to pay bills and signing checks issued to D & T Truck & Auto Repair, a business with which he is associated; when repairs in excess of $500.00 were awarded to D & T without an open and public process; and when he failed to file a Statement of Financial Interests for the 2001 calendar year by May 1, 2002; and when he failed to disclose on Statements of Financial Interests filed for calendar years 1996 through 2000 sources of income in excess of $1,300 and office, directorship or employment in D & T Trucking. Section 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). Section 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). Section 2. 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 Luzier 02- 054 -C2 Page 3 an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. §1102. Section 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 Pa.C.S. §1104(a). Section 1105. Statement of financial interests. (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. (8) Any office, directorship or employment of any nature whatsoever in any business entity. 65 Pa.C.S. §1105(b). II. FINDINGS: A. Pleadings 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Donald Luzier 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 May 30, 2002. Luzier 02- 054 -C2 Page 4 3. On July 24, 2002, a letter was forwarded to Donald Luzier, 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 5315. b. The domestic return receipt bore the signature of Donald B. Luzier, with a delivery date of July 29, 2002. 4. On November 14, 2002, the Investigative Division of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 5. On November 18, 2002, a letter was forwarded to Donald Luzier by the Investigative Division of the State Ethics Commission that the letter of July 24, 2002, was being amended to include additional allegations. a. Said letter was sent by certified mail no. 7001 1940 0001 2179 5612. b. The domestic return receipt bore the signature of Donald Luzier with a delivery date of November 20, 2002. 6. The Commission issued an order on December 4, 2002, granting the ninety day extension. 7. On February 11, 2003, the Investigative Division of the State Ethics Commission filed an application for a 90 day extension of time to complete the investigation. 8. On February 27, 2003, the Commission issued an order granting the 90 day extension. 9. Periodic notice letters were forwarded to Donald Luzier in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 10. The Investigative Complaint was mailed to the Respondent on July 18, 2003. 11. Donald B. Luzier, Sr. (Luzier) served as a member of the Lawrence Township, Clearfield County, Board of Supervisors from January 1996 through December 2001. a. b. c. Luzier served as chairman of the board of supervisors from January 1998 through December 1999. Luzier served as vice - chairman of the board of supervisors from January 1997 through December 1997 and January 2000 through December 2001. Luzier also served a six -year term as supervisor in the 1980s. 12. Lawrence Township is a second -class township governed by a three - member board of supervisors. 13. All three supervisors are employed as full -time roadmasters. a. Roadmasters work forty -hours (40) per week typically 6:00 a.m. to 2:30 p.m. 14. Luzier served as a full -time roadmaster for the township during his service on the board of supervisors. 15. In the early 1990's Luzier operated and was part owner in D & T Trucking. Luzier 02- 054 -C2 Page 5 a. Tomey Luzier was the other owner of the business. 1. Tomey Luzier is Luzier's son -in -law and cousin. b. D & T Trucking was named for Donald and Tomey. c. D & T Trucking was not incorporated. d. D & T Trucking primarily focused on trucking and large truck repair. 16. D & T Trucking was physically located at R.D. #1, Box 298, Clearfield, PA 16830, in Lawrence Township on property owned by Luzier and in close proximity to his residence. a. Luzier and Tomey Luzier had a garage erected on the property to be used in association with the trucking business. b. Luzier and Tomey Luzier co- financed the garage. 17. Cheryl Luzier, Tomey's wife and Luzier's daughter, worked for the garage doing bookkeeping, vehicle inspections, and vehicle detailing. b. The main focus of the business (D & T Trucking and Auto Repair (D & T)) was truck repair and maintenance. c. Donald Luzier did not physically do work for D & T. 18. On or around May 12, 1997, Lawrence Township began utilizing D & T for servicing township vehicles. 19. D & T charged a lower hourly rate for labor than other service stations. 20. D & T would give the township preferential treatment in completing work. 21. On May 21, 1997, an account was opened for D & T at Clearfield Bank and Trust Company, Clearfield, PA. a. b. c. Account records confirm that Donald B. Luzier and Tomey Luzier /Cheryl Luzier are authorized signers on the account. Luzier was serving as a Lawrence Township supervisor at this time. Township vehicles were being serviced by D & T at this time. 22. The Fictitious Name Registration is ... signed [by Luzier]. 23. From May 1997, when D & T began operating, through December 2001, when Luzier's service as a Lawrence Township supervisor ended, D & T regularly and routinely serviced township vehicles including trucks, maintenance vehicles, and police cars. 24. [E]ight (8) invoices ... [submitted by D & T to Lawrence Township for work done on township vehicles] are signed by Luzier as the individual who signed off on repairs and picked up the vehicles from D & T. 25. As a result of the invoices submitted by D & T, the township approved payments, prepared checks, and issued payments to D & T for the work completed. Luzier 02- 054 -C2 Page 6 26. Lawrence Township generally holds two public voting meetings per month typically on the first and third Tuesdays of each month. a. The township holds other meetings on an as- needed basis. b. The chairman of the board of supervisors presides over meetings. 1. The vice - chairman presides over the meetings in the absence of the chairman. 27. The board of supervisors vote to approve the payment of all bills during their regular meetings. a. All bills require pre - approval before payment. b. The vote is done by a motion /second /all in favor format. 1. The chairman calls for motions and participates in all votes. 28. Prior to June 2001, the administrative secretary would present a dollar amount of the bills to be paid to the supervisor for their approval. a. No bill list was presented to the supervisors for their review. b. The administrative secretary prepared and obtained the required signatures on the checks following the meeting at which the bills were approved for payment. 1. The supervisors reviewed the bills /invoices at this time. c. Township checks require three live signatures: two supervisors and the secretary /treasurer or administrative secretary. d. Beginning in June 2001, upon the hiring of a new secretary /treasurer, bill lists were presented to the supervisors prior to their vote to approve the payment of the bills. 29. Invoices 95584 and 95585, totaling $549.97 were for the repair of a township truck, identified by the township as Truck 3, in October 2001. a. The invoices outlined the following parts and labor: Invoice 95584: Parts: Cost: Manifold Gasket $ 9.41 Exhaust Gasket 9.91 Exhaust Studs 5.64 Oil Filter 3.29 Oil 7.74 Anti - freeze 11.98 Exhaust Nuts 2.00 Total: $ 49.97 Invoice 95585: Labor: $ 500.00 Luzier 02- 054 -C2 Page 7 b. Invoices 95584 and 95585 were related to the same job. 1. Two invoices were utilized for this work because all of the information would not fit on one invoice. 30. The work completed by D & T that resulted in the issuance of invoices 95584 and 95585 was in excess of $500.00. a. The work completed that resulted in the issuance of invoices 95584 and 95585 by D & T to the township was not publicly advertised and not awarded through an open and public process. b. Luzier participated in the administration of this work by signing check no. 12141 in the amount of $549.97, as a township supervisor, issued by the township to D & T. 31. Luzier has received payments from D &T from 1997 through 2001 as follows: Check Date Check No. Amount 10/20/97 232 $150.00 11/30/97 275 24.00 a. The purpose of these payments was the purchase of parts from Luzier by D & T. 32. From 1997 through 2001, Luzier did not sign any checks written from the D & T account as an authorized signer or endorse any checks issued to D & T that were deposited into the D & T account at Clearfield Bank and Trust Company. 33. In a sworn statement to Ethics Commission investigators on July 16, 2003, Luzier confirmed the following: a. Luzier was listed as an interested party in D & T Trucking and Auto Repair on the business Fictitious Name Registration, authorized to access the business financial account, and co- financed the D & T Garage. b. Luzier, as a supervisor, participated in the decision to utilize D & T, approved payments to D & T, and signed checks to D & T. c. Luzier claimed that his actions as a supervisor regarding D & T were in accordance with advice received from the township solicitor in the presence of the other township supervisors. 1. Luzier informed the solicitor that the "D" in D & T was for Donald, that he did not work at or for D & T, and that he did not receive payments from D & T. 2. Luzier did not inform the solicitor that he was listed as an interested party in D & T Trucking and Auto Repair on the business Fictitious Name Registration, authorized to access the business financial account, co- financed the D & T garage, or that his daughter was an employee of D & T. 3. Luzier did not seek nor was he provided a written advice from that solicitor. Luzier 02- 054 -C2 Page 8 4. Luzier claimed that [t]he solicitor advised him that if he did not work for /at D & T and did not receive payment from D & T that he did not have to remove himself from discussion /decisions /official actions relative to D & T. The following Findings relate to the allegation that Donald Luzier failed to file Statements of Financial Interests and disclose his affiliation with D & T Trucking. 34. Luzier, in his capacity as a supervisor and roadmaster for Lawrence Township, was required to annually file Statements of Financial Interests (SFI) by May 1 of each year for the proceeding calendar year. 35. SFIs on file for Luzier at the township verified that he filed SFIs as follows: Calendar Year Date Filed 1997 01/06/97(98) on SEC Form 1/97 1998 01/16/98 [sic] on SEC Form 1/99 1999 01/12/00 on SEC Form 1/00 [sic] (Roadmaster) 01/26/00 on SEC Form 1/99 sic ( (Supervisor) 2000 02/28/00 [sic] on SEC Form /0 Candidate) [sic] 03/09/01 on SEC Form 1/00 Candidate) [sic] 36. Luzier failed to file an SFI for calendar year 2001 by May 1 2002, the year after he left office as a Lawrence Township Supervisor. 37. W -2 Wage and Tax Statements verified that Luzier received the following compensation from Lawrence Township in 1999, 2000, and 2001, years in which he failed to disclose information relative to his affiliation with D & T or file an SFI: 1999 $37,679.25 2000 $37,310.27 2001 $38,410.50 B. Stipulations 38. The parties stipulated that Luzier never signed any checks drawn on the D & T Truck and Auto Repair (D & T) account at Clearfield Bank and Trust Company. C. Testimony 39. Carl A. Belin, Esquire (Belin) is an attorney with a law office at 15 North Front Street, Clearfield, PA 16830. a. Belin served as Solicitor for Lawrence Township from 1980 until the late summer of 2000. b. Luzier was a Supervisor /Roadmaster when Belin was the Township Solicitor. c Belin did not recall having been asked by Luzier to render a verbal or written legal opinion as to whether D & T could service Township vehicles, or whether Luzier could sign Township checks written out to D & T. d. Belin did not recall having been approached by the other supervisors with a complaint that Luzier was associated with D & T. e. Supervisors did not always know when a legal opinion from the Solicitor was Luzier 02- 054 -C2 Page 9 necessary. f. When Belin was Solicitor, Township bills were approved as a group. g. Belin testified that he was under the impression that invoices were gathered and then put into a list for approval. h. During Belin's last four years as Township Solicitor, he did not review the Statements of Financial Interests submitted by each Supervisor. 40. Rose Okerlund (Okerlund) was the Assistant Secretary for Lawrence Township from 1994 to 2002. a. Luzier was a Supervisor when Okerlund was the Assistant Secretary for the Township. b. Okerlund was the assistant to the Administrative Secretary. c. One of Okerlund's job responsibilities was paying the Township's bills. 12 Okerlund would gather the Township bills from one meeting to the next. At the meeting, the supervisors would ask Okerlund how much the bills were. ) Okerlund would report a lump sum. 4 A motion would be made and seconded to pay said lump sum. 5 After the meeting the following day, Okerlund would write out checks to all of the accounts. (6) Okerlund would attach the checks to the corresponding invoices so the Supervisors could see what the checks were for and to give the Supervisors the opportunity to ask any questions they might have about a particular bill. (8) Okerlund would put all of the checks in a folder to be signed by two Supervisors and either the Administrative Secretary or herself. (9) After all of the checks were signed, Okerlund would put the checks in the mail. d. Luzier brought invoices from D & T to Okerlund for payment by the Township. e. All of D & T's invoices were paid by the Township. f. Okerlund could not recall a time when Luzier refused to sign a Township check made out to D & T. g. When Okerlund first started serving as Assistant Secretary, Township vehicles were being repaired by the Township garage, Dott's Motor Company, and Bud's Electric. h. When Luzier was a Supervisor, Township vehicles started going to D & T for repairs. It was not unique in Township history that vehicles were sent to D & T, an outside business, for repairs. 41. George Anderson (Anderson) was previously employed by the Township as Secretary /Administrator/Treasurer until his retirement in October 2001. a. Anderson's job duties included budget preparation, oversight of bidding Luzier 02- 054 -C2 Page 10 procedures, healthcare, pension plans, state and federal grants, administration, payment of Township bills, and recordation of the minutes at Township meetings. b. Typically, invoices would be mailed in or dropped off and placed in a file; bills would be approved at the last meeting of the month; and checks would be written out, attached to the corresponding invoice, signed by two of the three supervisors and Anderson or Okerlund, and mailed. c. During the last year and a half to two years of Anderson's service with the Township, Okerlund started to record the minutes and pay the Township bills. d. The Township utilized various garages to repair and maintain the Township vehicles including D & T, which repaired most of the Township police vehicles. e. Anderson could not recall attending any Township meetings at which a motion was passed to have Township vehicles go to D & T for repairs. f. Anderson could not recall any public bidding occurring with respect to D & T or any other outside garage repairing Township vehicles. (1) Anderson testified that it was his understanding of the Second Class Township Code that anything over $10,000 had to be bid. Anderson never heard any complaints about D & T overcharging the Township or rendering poor or untimely service. g. h. Anderson or Okerlund distributed the Statements of Financial Interests to the Township officials /employees who were responsible for filling them out. Anderson was responsible for getting the Statement of Financial Interests forms back. Luzier filed Statements of Financial Interests with the Township while he was a Supervisor. (1) Anderson testified that he believed that he or Okerlund reminded Luzier to file his Statement of Financial Interests. k. Luzier, as a working Supervisor, received a W -2 form from the Township. 42. Barbara Shaffner (Shaffner) has been employed by the Township as Secretary/ Treasurer since April 1, 2001. a. Luzier was a Supervisor when Shaffner became Secretary/Treasurer. b. Shaffner's responsibilities include, but are not limited to, taking care of payroll, taking care of bidding, paying Township bills, and taking the Township meeting minutes. c. When Shaffner first started working for the Township, the meeting agenda only reflected a lump sum total of the bills to be paid. d. The Supervisors did not actually see the bills until they signed the checks. e. After Shaffner attended a seminar for secretaries, she began to make a list of the outstanding bills and attach that list to the meeting agenda. Luzier 02- 054 -C2 Page 11 (1) The purpose of attaching a list of bills to the meeting agenda was to allow the Supervisors to review the bills before approving them. f. After the bills were approved for payment, Shaffner would write out checks, attach them to the corresponding bills, put them in a folder, and give the folder of bills with attached checks to the Supervisors for signatures. g. Shaffner has attended every meeting since she has taken office. (1) Shaffner could not recall any meeting at which Luzier abstained from approving D & T bills. h. Shaffner could not recall any bidding procedures that occurred with respect to any repair work performed by D & T. 43. William Lawhead (Lawhead) has been a Supervisor since January 2000. a. Luzier was a Supervisor during Lawhead's term. b. When Lawhead first came into office, the Supervisors would approve the payment of bills in a lump sum. c. The following day, the Secretary would present the Supervisors with a folder containing the checks that she had written out, which were attached to the corresponding invoices, and at least two Supervisors and the Secretary would sign the checks. d. Now, the Supervisors see each individual bill prior to voting to approve payment. e. Lawhead could not recall any occasion when Luzier declined to sign a check for D & T. f. Lawhead could not recall any discussions with the Township Solicitor regarding D & T doing business with the Township. g. Lawhead did not seek an opinion from the Solicitor regarding D & T doing business with the Township. h. Lawhead could not recall a meeting at which Luzier indicated that he or his daughter was associated with D & T and therefore was abstaining from voting to approve the payment of any bills from D & T. Lawhead testified that he personally asked Luzier about his association with D & T, and Luzier assured Lawhead that he had gotten out of the business, that he had no association with D & T, and that the business was in his son -in -law and his daughter's name only. 44. Melvin L. Smith (Smith) has been a Supervisor /Roadmaster since May 1996. a. Generally, the Township tried to get the best deal when sending Township vehicles out for repair. b. Luzier provided the Supervisors with the rates that D & T was charging. c. When the Township started to utilize D & T, Luzier assured Smith that he was not associated with D & T. Luzier 02- 054 -C2 Page 12 d. Approximately six months after the Township began to utilize D & T, Luzier reassured Smith that he was not associated with D & T. e. When Okerlund was Secretary, she always apprised the Supervisors of what bills were outstanding even though the bills were approved in a lump sum. f. The Supervisors all knew where every check was going prior to signing them. g. Smith could not recall attending a meeting at which D & T provided any bids to the Township. h. Smith could not recall a meeting at which Luzier abstained from voting to approve any of D & T invoices. 45. Erin L. Wriglesworth (Wriglesworth) has been employed by Clearfield Bank and Trust Company since 1977. a. For the past 11 years, Wriglesworth has been employed as an internal auditor for Clearfield Bank and Trust. b. Wriglesworth's job responsibilities include, but are not limited to, verifying controls, making sure procedures are in place and followed, and responding to subpoenas. c. Per standard bank policy, when a checking or savings account is opened at Clearfield Bank and Trust Company, the customer is asked to fill out a signature card. (1) The signature card reflects who the signers are, the title, address, type of account, tax identification number, and other information pertaining to the account. (2) Per standard policy at Clearfield Bank and Trust Company, if an authorized signer fails to sign the signature card, that individual is still authorized to use the account. d. An account was opened at Clearfield Bank and Trust Company in the name of D & T on May 21, 1997. (1) Luzier is listed as an authorized signer. (2) The signature card does not contain Luzier's signature. (3) Even though Luzier did not sign the signature card, he could access and transact business on the account because he is listed as an authorized signer. e. Per standard bank policy, a business that opens an account at Clearfield Bank and Trust Company is asked to complete a partnership resolution. (1) A partnership resolution lets the bank know who has authority for the business to open up an account, to secure loans, and to write checks, and to transact business on the account. (2) Wriglesworth testified that the partnership resolution does not contain language requiring signature(s); however, it is customary for the Luzier 02- 054 -C2 Page 13 customer to sign next to his name. f. A partnership resolution was completed for D & T. (1) The partnership resolution reflects that the partnership consists of Tomey Luzier, Cheryl Luzier, and Donald Luzier. (2) The typewritten names of Tomey Luzier, Cheryl Luzier, and Donald Luzier are listed as the individuals who are authorized to open any deposit or checking account or endorse checks of payment orders. (3) The partnership resolution does not contain Luzier's signature. (4) Even though Luzier did not sign the partnership resolution, he could still access and transact business on the account. 46. Tomey Luzier is Luzier's son -in -law. a. Tomey Luzier and Luzier were initially involved in a trucking business known as D & T Trucking. b. Luzier was the "D" and Tomey Luzier was the "T" in D & T Trucking. c. Tomey Luzier's wife, Cheryl Luzier, worked at D & T Trucking as a parts runner and secretary, but did not get paid. d. Tomey testified that after he and Luzier sold the trucks, he (Tomey Luzier) started repairing trucks and automobiles, and the name of the business changed from D & T Trucking to D & T Truck & Auto Repair (D & T). e. Around the time the name of the business changed, Luzier ran for and won the election for Township Supervisor. f. Tomey Luzier stated that his role in D & T ranged from mechanic to owner. g. Cheryl Luzier worked at D & T as a parts runner and secretary. h. When asked what role Luzier played in D & T, Tomey Luzier stated, "None." D & T operates out of a garage located on Luzier's property. (1) The garage was originally constructed for D & T Trucking with Luzier and Tomey Luzier making payments on the loan. (2) Tomey Luzier confirmed that because he had problems with his credit, the bank was not willing to remove Luzier's name from the loan when Tomey Luzier took over the business. Tomey Luzier confirmed that Luzier would be liable for the loan if Tomey Luzier and Cheryl Luzier would cease making payments. (4) Tomey Luzier acknowledged that he was not paying Luzier any rent to use the garage located on Luzier's property. Tomey Luzier acknowledged that a checking account was opened for D & T at Clearfield Bank and Trust Company. (3) Luzier 02- 054 -C2 Page 14 (1) Tomey Luzier stated that his wife opened the checking account. (2) Tomey Luzier admitted that he and Cheryl Luzier signed a signature card for the checking account on May 21, 1997. Tomey Luzier testified that he had no idea how Luzier's name came to be listed on the signature card. (4) Tomey Luzier confirmed that he signed the bank forms, but neither read the forms nor understood the significance of the forms before signing them. (3) k. Tomey Luzier testified that he participated in completing an Application for Registration of Fictitious Name for D & T. (1) Luzier and Tomey Luzier signed the Application for Registration of Fictitious Name. (2) The Application for Registration of Fictitious Name was filed in 1997. (3) Tomey Luzier testified that he and Luzier filed a Fictitious Name Registration in order to collect on a debt that was owing to them. (4) Tomey Luzier stated that he went to a lawyer who prepared the Fictitious Name Registration. Tomey Luzier acknowledged that he signed the Application for Registration of Fictitious Name without reading it because he assumed it was right. (6) Tomey Luzier testified that he was not aware that an amendment to the Fictitious Name Registration should be filed to remove Luzier from the business. (5) (7) Tomey Luzier testified that nothing was done to disassociate Luzier from D & Ty 47. Cheryl Luzier is Luzier's daughter and Tomey Luzier's wife. a. Cheryl Luzier and Tomey Luzier ran D & T. b. Cheryl Luzier took care of all the bookkeeping and billing, answered the telephone, and occasionally did state inspections. c. On May 21, 1997, Cheryl Luzier went to Clearfield Bank and Trust Company and opened up an account for D & T. (1) At the time the account was opened, Luzier was serving as a Township Supervisor. (2) Cheryl Luzier testified that she put Luzier's name on the account because D & T operated out of a garage that was partly owned by Luzier; the name of the business bore Luzier's first initial; and she did not want to hurt Luzier's feelings by removing Luzier's name from all of the documents and making him feel as though she and Tomey Luzier were taking over the garage. Luzier 02- 054 -C2 Page 15 (3) (4) It was Cheryl Luzier's idea alone to add Luzier's name to the account. Cheryl Luzier testified that Luzier never made any withdrawals from the account, never was in possession of the checkbook or account statements, and never received any check from the account in payment of services. d. D & T serviced Township vehicles. e. After Cheryl Luzier prepared the monthly invoices, Luzier sometimes took them to the Township. f. After the bills were approved at the Board of Supervisors' monthly meetings, Luzier sometimes brought the Township checks for D & T back to Cheryl Luzier. 48. Robert Caruso (Caruso) is the Deputy Executive Director /Director of Investigations for the State Ethics Commission. b. c. d. a. Caruso's job responsibilities include, but are not limited to, supervising the investigative staff and some clerical support; assigning investigations based upon region, workload, and investigators; providing direction on investigations; and monitoring the progress of investigations. On May 30, 2002, a preliminary inquiry was begun. A Notice of Investigation was issued on July 24, 2002. On November 14, 2002, the Investigative Division of the SEC applied for a 90- day extension of time in which to complete the investigation. (1) On December 4, 2002, the SEC issued an Order granting the Investigative Division's request for a 90 -day extension. On February 11, 2003, the Investigative Division applied for a second 90 -day extension. e. (1) On February 27, 2003, the SEC issued an Order granting the Investigative Division's second request for a 90 -day extension. f. The Investigative Complaint was issued on July 18, 2003. 49. The Investigative Division complied with all the timing deadlines and notice requirements under the Ethics Act in this case. (Cf. Fact Findings 1 - 10; 48). 50. Dennis Wayne Davis (Davis) was formerly employed by Lawrence Township as the corporal in the police department. a. Davis was serving as corporal during Luzier's two terms as a Township Supervisor. b. The Police Chief was Chief Cutler. c. During the late 90's, the Township took its police cruisers to various repair shops including D & T. d. Davis testified that he spoke to Luzier's brother, Randy Luzier, a Township Luzier 02- 054 -C2 Page 16 employee, who indicated that Tom Luzier had opened up a garage. e. Davis stated that after conferring with Chief Cutler, he and Chief Cutler approached the three supervisors, Luzier, Don Kelly, and Melvin Smith about taking the police cars to D & T. f. Davis testified that Luzier removed himself from the decision to use D & T. 51. Donald Luzier (Luzier) was formerly a Township Supervisor from 1996 through 2001. a. Luzier previously served as Township Supervisor from 1982 through 1988. b. Luzier testified that he was associated in the trucking part of D & T Trucking; that he quit driving trucks and ran for and won the election for Township Supervisor; that Tomey Luzier did not want to drive trucks and decided to sell the trucks; and that he got out of the business when he and Tomey Luzier sold the last truck. c. Luzier testified that when the last truck was sold and he got out of the business, Tomey Luzier did not change the name of the business at that point; that the name of the business changed from D & T Trucking to D & T Truck and Auto Repair (D & T) when he and Tomey filed the Application for Registration of Fictitious Name in September 1997. d. Luzier testified that he did not exercise any control over D & T once he became Township Supervisor in January 1996. e. Luzier testified that he was surprised and confused when he found out that his name was on the checking account for D & T. f. Luzier testified that the Application for Registration of Fictitious Name was prepared by his attorney in order to collect on a debt arising out of a repair job performed by Tomey Luzier. g. Luzier stated that he did not understand the legal significance of filing an Application for Registration of Fictitious Name. h. Luzier testified that he told the other supervisors that he would not take part in a vote to utilize D & T because Tomey Luzier was his son -in -law. Luzier testified that the other supervisors did not see a problem and told the police to utilize D & T. j. Luzier testified that he asked the then Township Solicitor, Carl Belin, Esquire, whether there was anything wrong with him voting to pay checks to pay D & T. k. Luzier testified that Belin told him that as long as Luzier was not receiving payments from D & T, he could vote. I. Luzier testified that he did sign checks for D & T, but had no reservations about doing so based upon Solicitor Belin's advice. m. Luzier testified that after his brother suggested that the Township contact Tomey Luzier to fix a Township computerized truck, Luzier conferred with Don Kelly, who directed Luzier to call Tomey Luzier to take a look at the truck. n. Luzier testified that at the direction of the other two supervisors, he asked Luzier 02- 054 -C2 Page 17 Tomey Luzier whether Tomey Luzier could handle work from the Township, and Tomey Luzier stated that he could. o. Luzier testified that D & T started repairing Township police cars in June 1998. p. Luzier acknowledged that one year after D & T started repairing Township vehicles, it started repairing the police vehicles. q. Luzier filed his Statement of Financial Interests for the 2001 calendar year two weeks late. r. Luzier testified that he listed D & T on his Statements of Financial Interests filed for calendar years 1996 and 1997 because during those years, he and Tomey still owned trucks and he was still an interested party. s. Luzier testified that he listed D & T on his Statement of Financial Interests filed for calendar year 1998 because he did not know he did not have to. t. Luzier testified that when he took office as a Township Supervisor in January 1996, he never received any more money from D & T. D. Documents 52. Exhibit ID -1, pp 1 — 157 consists of photocopies of invoices of D & T and corresponding Township checks from May 1997 to November 2001. a. There are 57 Township checks written out to D & T. b. Luzier, as a Township Supervisor, signed 43 of the 57 Township checks. 53. Exhibit ID -2, pp 1 - 10 consists of a photocopy of the Lawrence Township Board of Supervisors Regular Monthly Meeting Agenda for June 5, 2001 with attached bills list; and photocopies of bills lists for the September 10, 2001, November 6, 2001, and November 20, 2001, Board of Supervisors Meetings. a. Item 10 on the June 5, 2001, meeting agenda is a motion to pay bills in the amount of $35,302.40. (1) The attached bills list totaling $35,302.40 itemizes all of the bills to be paid out of the Township's general and state accounts. (2) The bills list includes payments to D & T Truck and Auto Repair. b. The bills lists for the meetings of September 18, 2001; November 6, 2001; and November 20, 2001 include payments to D & T Truck and Auto Repair. (1) The bills list for the meeting of November 6, 2001 lists a payment to D & T Truck and Auto Repair for #1 Ford in the amount of $549.47 [sic]. 54. Exhibit ID -3, pp 1 — 7 consists of photocopies of Luzier's Statements of Financial Interests filed for the 1996 through 2000 calendar years. a. Exhibit ID -3, pp 1 — 2 are Luzier's Statements of Financial Interests for the 2000 calendar year. (1) Luzier checked "None" in the block for disclosing office, directorship or employment in any business. Luzier 02- 054 -C2 Page 18 (2) Luzier checked "None" in the block for disclosing direct or indirect sources of income. b. Exhibit ID -3, pp 3 — 4 are Luzier's Statements of Financial Interests for the 1999 calendar year. (1) Luzier checked "None" in the block for disclosing office, directorship or employment in any business. (2) Luzier checked "None" in the block for disclosing direct or indirect sources of income. c. Exhibit ID -3, p 5 is Luzier's Statement of Financial Interests for the 1998 calendar year. (1) Luzier checked "None" in the block for disclosing direct or indirect sources of income. (2) Luzier disclosed that he had a financial interest as a partner in D & T Truck and Auto Repair. (3) Luzier checked "None" in the block for disclosing office, directorship or employment in any business. d. Exhibit ID -3, p 6 is Luzier's Statement of Financial Interests for the 1997 calendar year. (1) The form is erroneously dated January 6, 1997; it should be dated January 6, 1998. (2) Luzier checked "None" in the block for disclosing direct or indirect sources of income. (3) Luzier disclosed that he had a financial interest as a partner in D & T Truck and Auto Repair. (4) Luzier checked "None" in the block for disclosing office, directorship or employment in any business. e. Exhibit ID -3, p 7 is Luzier's Statement of Financial Interests for the 1996 calendar year. (1) The form is erroneously dated January 10, 1996; it should be dated January 10, 1997. (2) Luzier checked "None" in the block for disclosing direct or indirect sources of income. (3) Luzier disclosed that he was a partner in D & T Trucking and Repair. 55. Exhibit ID -4, pp 1 - 5 consists of photocopies of Luzier's Form W -2 Wage and Tax Statements for filing years 1997 through 2001. a. Luzier's Form W -2 Wage and Tax Statements for filing years 1997 through 2001 reflect that he received compensation from his employer, Lawrence Township in excess of $1,300 per year. Luzier 02- 054 -C2 Page 19 56. Exhibit ID -5, pp 1 - 2 consists of a photocopy of Application for Registration of Fictitious Name for D & T. a. Donald Luzier and Tomey Luzier are listed as interested parties in the business. b. The Application for Registration of Fictitious Name was filed with the Pennsylvania Department of State on September 8, 1997. 57. Exhibit ID -7 consists of a photocopies of D & T invoice numbers 095584 and 095585 pertaining to work on Truck #1. a. Invoice number 095585 is a continuation of invoice number 095584. b. The total amount of the invoices is $549.97. 58. Exhibit ID -8, pp 1 - 60 consists of photocopies of Clearfield Bank and Trust Company documents. a. Exhibit 1 D -8, p 2 is a photocopy of a signature card for a new business checking account for D & T. (1) The signature card indicates that the account was opened on May 21, 1997. (2) Luzier's typewritten name is appears on the signature card. (3) Only the signatures of Tomey Luzier and Cheryl Luzier appear on the signature card. b. Exhibit ID -8, p 3 is a photocopy of Partnership Resolution of Authority. (1) The Partnership Resolution of Authority is dated May 21, 1997. (2) The Partnership Resolution of Authority indicates that D & T is a partnership consisting of the following partners: Tomey Luzier, Cheryl Luzier and Donald Luzier. (3) The Partnership Resolution of Authority contains the signatures of Tomey Luzier and Cheryl Luzier. 59. D & T is a business with which Luzier is associated. III. DISCUSSION: At all times relevant to this matter, the Respondent, Donald Luzier, hereinafter Luzier, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Luzier, in his capacity as a Lawrence Township Su ervisor, violated Sections 3(a)/1103(a), 3(f)/1103(f), 4(a)/1104(a), and 5(b)(5) and (8)/1105(b)(5) and (8) of Ethics Act when he participated in actions which resulted in township vehicles being referred to D & T Truck & Auto Repair for maintenance; when he participated in the approval process, by taking actions including voting to pay bills and signing checks issued to D & T Truck & Auto Repair, a business with which he is associated, which resulted in payments Luzier 02- 054 -C2 Page 20 being issued to D & T Truck and Auto Repair; when D & T contracted with the Township for repairs in excess of $500.00 without an open and public process; when he failed to file a Statement of Financial Interests for the 2001 calendar year by May 1, 2002; and when he failed to disclose on Statements of Financial Interests filed for calendar years 1996 through 2000 sources of income in excess of $1,300, and office, directorship or employment in D & T Trucking. Pursuant to Section 3(a)/1103a) of the Ethics Act quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. 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 quoted above 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(a)/1104(a) of the Ethics Act quoted above 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. Section 5(b)(5) and (8)/1105(b)(5) and (8) 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 excess of $1,300, and any office, directorship or employment in any business entity. Having noted the issues and applicable law, we shall now summarize the relevant facts. From January 1996 through December 2001, Luzier served as Supervisor/ Roadmaster for Lawrence Township (Township). The Township is a second -class township governed by a three - member board. In the early 1990's Luzier co -owned and operated D & T Trucking with his son -in -law, Tomey Luzier. D & T Trucking, named after Donald and Tomey, was an unincorporated business primarily engaged in trucking and large truck repair. D & T Trucking operated out of a garage located on Luzier's property. The garage was financed by both Luzier and his Bon- in -law. Several years later, Tomey Luzier started repairing trucks and automobiles and the name of the business changed from D & T Trucking to D & T Truck and Auto Repair (D & T). Although the name of the business changed, the location did not; D & T continued to operate out of the same garage on Luzier's property. While Tomey Luzier acted as mechanic, his wife, Cheryl Luzier, (Luzier's daughter), took charge of the bookkeeping, billing, secretarial work, and occasionally did vehicle state inspections. Luzier did not perform any physical work for D & T. On or about May 12, 1997, D & T started repairing Township vehicles beginning with the Township's dog catcher truck (Fact Finding 18; ID-1, p 1). The dog catcher truck, a 1987 Dodge, was a computerized truck that was having mechanical problems. The Township first Luzier 02- 054 -C2 Page 21 called the local Dodge dealer, but the Dodge dealer could not look at the truck for another two weeks. Luzier's brother suggested that the Township contact Tomey Luzier who had a computer analyzer. Luzier then conferred with Don Kelly, a fellow Supervisor, who then directed Luzier to call Tomey Luzier to a take a look at the truck (Fact Finding 51.m.). D & T fixed the dog catcher truck and submitted an invoice to the Township which was paid. Approximately one year after D & T started repairing Township vehicles, Luzier, at the direction of the other two Supervisors, asked Tomey Luzier whether he (Tomey) could handle work servicing the Township's police vehicles. Tomey Luzier stated that he could (Fact Finding 51.n.). In June of 1998, D & T started servicing Township police cars (Fact Finding 51.0.; ID -1, p 9). D & T continued to service Township vehicles on a routine basis from May 1997 through December 2001. During the time period of May 1997 through December 2001 while Luzier was serving as a Township Supervisor, he often signed off on the repairs performed by D & T and picked up the Township trucks from D & T's garage (Fact Finding 24). In addition, Luzier would frequently hand deliver D & T's invoices to the Township for payment (Fact Findings 40.d., 47.e.). Luzier also participated in approving payments to D & T and in signing Township checks payable to D & T (Fact Findings 40.f., 42.g.(1), 43.e., 43.h., 44.h.). Luzier admitted at the hearing that he did sign checks for D & T, but had no reservations in doing so based upon the Township Solicitor's advice that as long as Luzier was not receiving payments from the business, he could vote to approve payments to D & T and sign checks (Fact Findings 51.j., k., I.). Carl Belin, Esquire, who was the Township Solicitor during Luzier's tenure testified, however, that he could not recall having been asked by Luzier to render a verbal or written legal opinion as to whether D & T could service Township vehicles or whether Luzier could sign Township checks written out to D & T (Fact Finding 39.c). Luzier, as a Township Supervisor, signed 43 out of 57 Township checks written out to D & T (ID-1, pp 1 —157). One of the checks written out to D & T which Luzier signed was for ajob that totaled $549.97 (ID -7, p 1), which job was not awarded through an open and public process (Fact Finding 30). After the Township checks were signed, Luzier sometimes brought the checks back to D & T's garage. (47.f.). When D & T started doing work for the Township, Luzier assured the other two Supervisors that he was not associated with D & T (Fact Findings 43.i., 44.c., 44.d.). Shortly thereafter, on May 21, 1997, a checking account was opened for D & T at Clearfield Bank and Trust Company with Luzier, Tomey Luzier, and Cheryl Luzier named as authorized signers on the account (ID -8, p 2). Concurrently, a Partnership Resolution of Authority was submitted to the bank identifying D & T as a partnership consisting of Tomey L. Luzier, Cheryl L. Luzier, and Donald B. Luzier as partners (ID-8, p 3). At the hearing, Cheryl Luzier testified that she went to Clearfield Bank and Trust Company and opened up an account for D & T, and that she put Luzier's name on the account for the following reasons: D & T was operating out of a garage that was partly owned by Luzier, the business was named after her father, and she did not want to hurt Luzier's feelings by removing his name from all of the business documents and making him feel as though she and Tomey Luzier were taking over the garage (Fact Finding 47.c.). Although the signature card and the Partnership Resolution of Authority contain Luzier's typewritten name, neither document contains Luzier's signature(s) (ID -8, pp 2, 3). Erin Wriglesworth, an internal auditor for Clearfield Bank and Trust Company testified that per standard bank policy in effect at that time, even though Luzier did not sign the signature card, he would still have been authorized to make transactions on the account because his name was listed as an authorized signer (Fact Finding, 45.c.). Several months after the account was opened at the bank, Luzier and Tomey Luzier, filed an Application for Registration of Fictitious Name with the Department of State Corporation Bureau. The Fictitious Name Registration lists Donald Luzier and Tomey Luzier as interested parties in D & T and bears a filing date of September 8, 1997 (ID -5, pp 1 — 2). Testimony was presented by both Luzier and Tomey Luzier that they filed the Fictitious Name Luzier 02- 054 -C2 Page 22 Registration in order to collect on a debt arising out of a repair job performed by Tomey Luzier (Fact Findings 46.k., 51.f.). On Statements of Financial Interests filed by Luzier for the 1996 through 2000 calendar years, Luzier indicated that he had no direct or indirect sources of income (ID 3, pp 1 — 7). During those calendar years, Luzier made in excess of $1,300 from the Township (ID -4, pp 1 — 5). Luzier disclosed that he was a partner in D & T on his Statements of Financial Interests filed for the 1996 through 1998 calendar years. On Statements of Financial Interests filed for the 1997 and 2000 calendar years, Luzier checked off "None" in the block for disclosing office, directorship or employment in any business (ID -3 pp 1 — 4). Finally, Luzier failed to file a Statement of Financial Interests for calendar year 2001 by May 1, 2002 (Fact Finding 36). As to the above facts, both parties have filed briefs in support of their respective positions. The Investigative Division argues that Luzier violated Section 3(a)/1103 (a) of the Ethics Act when, as a Township Supervisor, he: actively participated in the transfer of the Township vehicle repairs to D & T; participated in official discussions outside public meetings regarding the transfer of business to D & T; voted to approve bill lists which included payments to D & T; signed 43 out of 57 checks payable to D & T; hand - delivered invoices from D & T to the Township, and brought Township checks back to D & T; and drove Township vehicles to D & T for repair, and picked Township vehicles up from D & T when the repairs were completed, all of which uses of authority of office resulted in a private pecuniary gain of $3,679 to D & T, a business with which Luzier and his daughter are associated. With respect to the Section 3(a)/1103(a) allegation, the Investigative Division notes that the Commission has the discretion to decide whether a treble penalty is warranted, but argues that at a minimum, the Commission should order restitution in the amount of $3,679. In addition, the Investigative Division argues that Luzier violated Section 3(f)/1103(f) of the Ethics Act when a contract for a vehicle repair job in excess of $500 was awarded to D & T without an open and public process. Finally, with respect to Luzier's Statements of Financial Interests, the Investigative Division argues that Luzier violated Section 4 (a)/1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 2001 calendar year by May 1, 2002; and violated Section 5(b)(5) and (8)/1105(b)(5) and (8) of the Ethics Act when he failed to list the Township as a direct source of income, and failed to disclose his office, directorship or employment in D & T on his Statements of Financial Interests filed for the 1999 and 2000 calendar years. Respondent's brief argues that there is a lack of clear and convincing evidence to establish that Luzier used his authority of office for a personal financial gain for himself or an immediate family member. Respondent contends that D & T is not a business with which he is associated and maintains that he disassociated himself from ownership and management of D & T. Respondent points to Tomey and Cheryl Luzier's federal income tax returns wherein Tomey Luzier reported all income for D & T as a sole proprietor. Respondent also argues that Tomey and Cheryl Luzier operated D & T alone and that he never derived any monetary gain from the business. With respect to Respondent dropping off township vehicles at D & T and picking them up after the repairs were completed, and hand - delivering D & T invoices to the Township and bringing the signed Township checks back to the garage, Respondent claims that such activities were performed as mere favors to the Township and to his son -in -law and daughter. Respondent argues that Cheryl Luzier did not understand what she was doing when she opened up a checking account and put Luzier's name on it as an authorized signer, and that Respondent and Tomey Luzier did not understand the legal impact of filing a Fictitious Name Registration for D & T, and that such acts are merely passive, unknowing and inadvertent, and taken alone fail to prove that Luzier had any financial interest in D & T. Respondent contends that any financial gain was de minimis. As to Respondent's Luzier 02- 054 -C2 Page 23 participation in approving payments to D & T and signing checks, it is argued that Respondent was acting in accordance with advice given to him by the township solicitor. Respondent further argues that since D & T is not a business with which he is associated, the contracting provision in the Ethics Act does not apply. Finally, Respondent maintains that he failed to timely file his Statement of Financial Interests for the 2001 calendar year and noted his interest in D & T on his 1997 and 1998 calendar year Statements of Financial Interests due to a lack of sophistication and failure to attend to details. Having highlighted the facts and issues, we preliminarily must address a procedural issue raised by Luzier, namely that the Investigative Division failed to comply with the deadlines of the Ethics Act as to its investigation. Specifically, Respondent argues that the 90 days expired on June 16, 2003, and therefore, the complaint was not timely filed and should be dismissed. Robert Caruso, the Deputy Executive Director and Director of Investigations for the State Ethics Commission testified that he reviewed the initial docket date when the case was opened as a preliminary inquiry and determined that the preliminary inquiry was authorized on May 30, 2002. Caruso testified that on July 24, 2002, a Notice of Investigation was issued to Respondent. Caruso calculated that 56 days had lapsed between the preliminary inquiry docket date and the Notice of Investigation, which was within the 60 day time limitation established by statute for completing a preliminary inquiry. Caruso testified that absent an extension of time, the investigation would have had to have been completed within 180 days from July 24, 2002, or on January 20, 2003. Caruso stated that Investigative Division did apply for an extension on November 14, 2002, which was approved by Order of the State Ethics Commission on December 4, 2002. Caruso testified that the 90 -day extension would have begun tolling after the initial 180 days would have lapsed, or after January 20, 2003. Therefore, the Investigative Division would have had 90 days from January 20, 2003, or until April 20, 2003, to complete the investigation. Caruso stated that the Investigative Division applied for a second 90 -day extension on February 11, 2003, which request was granted by the State Ethics Commission on February 27, 2003. Caruso calculated 90 days from April 20, 2003 to determine that the investigation would have had to have been completed by July 19, 2003. Caruso testified that the Investigative Complaint was issued on July 18, 2003, which was one day before the deadline. Respondent misperceives the time limitations under the Ethics Act. A 60 -day period is allowed for conducting a preliminary inquiry. That occurred from May 30, 2002, until July 24, 2002, when an investigation was commenced. It is from that latter date that the 180 day period, or 360 days in this case, given the two 90 -day extensions, runs. The investigation was completed within 360 days which was followed by the issuance of an Investigative Complaint on July 18, 2003. Based upon the above, we find that all of the time deadlines were met by the Investigative Division. Since the procedural issue raised by Luzier has no merit, we reject the argument. We must now determine whether the actions of Luzier violated Sections 3(a)/ 1103(a); 3(f)/1103(f); 4(a)/1104(a); 5(b)(5)/1105(b)(5); and 5(b)(8)/1105(b)(8) of the Ethics Act. As to the Section 3(a)/1103(a) allegation, we must initially determine whether D & T is a business with which Luzier is associated. Luzier maintains that he was, for some period of time, in partnership with his son -in -law, Tomey Luzier, in D & T Trucking, and that the extent of his involvement in the business was in trucking, not repairs. At the hearing, Luzier testified that when the last truck was sold, he got out of D & T Trucking, but the name of the business, at that point, did not change until D & T Truck and Auto Repair was registered as a fictitious name in September 1997. Luzier 02- 054 -C2 Page 24 If we would accept this portion of Luzier's testimony, we would necessarily conclude that Luzier indeed had nothing at all to do with the new entity, D & T, since he left the business when the last truck was sold, which was prior to the name change. However, on Statements of Financial Interests filed for the 1996, 1997, and 1998 calendar years, Luzier disclosed that he was a partner in D & T. When pressed for an explanation on cross - examination, Luzier indicated that they still had trucks in 1996 and1997 and possibly 1998. Based upon Luzier's testimony in this regard, we reject his claim that he was no longer associated with D & T as of January 1996, when he took office as a Township Supervisor. We also note that the sale of the trucks, regardless of when that occurred, is not dispositive of Luzier's disassociation with D & T. Further, in September 1997, Luzier participated in filing the Application for Registration of Fictitious Name for D & T, wherein he identified himself as an interested party. We can think of no plausible reason for Luzier's participation in the fictitious name registration other than that fact that he has a vested interest in D & T. We note that registration of a fictitious name furthers the purpose behind the Fictitious Names Act, which is to provide an opportunity for parties to determine with whom they are dealing. See, Hygienics Direct Company v. Medline Industries, 2000 U.S. Dist. LEXIS 14528 (E.D. Pa. 2000). By registering D & T as a fictitious name, Luzier made public his association with D & T; absent some subsequent affirmative act on his part to disassociate himself from D & T, as for example, filing an application for withdrawal from fictitious name registration under the Fictitious Names Act, the Fictitious Name Registration for D & T speaks for itself. The checking account which was opened on May 21, 1997 for D & T at Clearfield Bank and Trust Company bolsters the evidence that D & T is a business with which Luzier is associated. Both the signature card and the Partnership Resolution of Authority contain Luzier's typewritten name and identify him as an authorized signer and as a partner in D & T. Although Luzier did not sign the forms, Erin Wriglesworth, an internal auditor with Clearfield Bank and Trust Company testified that, per standard bank policy, Luzier was authorized to access the account and transact business on the account. In addition, the record reflects that Luzier was still liable on the loan which was taken out to construct the garage out of which D & T operates. Thus, Luzier had a vested interest in making sure D & T would be profitable. Based upon the above, we conclude that D & T is a business with which Luzier is associated. We find that Luzier's testimony with respect to when he purportedly disassociated himself from D & T is inconsistent. Contrary to Luzier's main assertion that as of January 1996, he was no longer involved with D & T, Luzier testified that he got out of the business when the last truck was sold. Luzier then testified that they still owned trucks in 1996 and 1997, and that they sold the last truck in 1997 or 1998. Luzier further testified that at the point in time when the last truck was sold, Tomey Luzier took no action to change the name of the business. However, Luzier admitted that he listed the new entity, D & T, on Statements of Financial Interests filed for the 1996 through 1998 calendar years, and participated in the filing of a fictitious name registration for D & T in 1997, after the point in time when he purportedly was no longer involved in the business. Having established that D & T is a business with which Luzier is associated, we now turn to whether Luzier used the authority of his office for a private pecuniary benefit of D & T in violation of Section 3(a)/1103(a) of the Ethics Act. We find several instances where Luzier used the authority of his office as a Township Supervisor. But for the fact that Luzier was a Township Supervisor, he could not have been in the position to ask Tomey Luzier whether he could fix the Township's dog catcher truck and handle servicing the Township's police vehicles; sign off on repairs to Township vehicles; approve payments to D & T; and sign 43 of 57 Township checks payable to D & T. See, Luzier 02- 054 -C2 Page 25 Juliante, Order 809. The uses of authority of office by Luzier resulted in a private pecuniary benefit to D & T, which private pecuniary benefit consisted of payments from the Township to D & T. Accordingly, we find that Luzier violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office for the private pecuniary benefit of D & T, a business with which he is associated. As to Section 3(f)/1103(f) of the Ethics Act, on October 23, 2001, D & T contracted with the Township for a repair job in excess of $500, which contract totaling $549.97 was not awarded through an open and public process as required by the Ethics Act. Accordingly, Luzier violated Section 3(f)/1103(f) of the Ethics Act when D & T, a business with which he is associated, entered into a contract in excess of $500 with the Township when such contract was not awarded through an open and public process. As to Section 4(a)/1104(a), Luzier did not file a Statement of Financial Interests for calendar year 2001, the year after he left service as required by the Ethics Act. Luzier states that the Statement of Financial Interests was filed in late May or in early June of 2002. Accordingly, Luzier technically violated Section 4(a)/1104(a) of the Ethics Act when he failed to timely file his Statement of Financial Interests for the 2001 calendar year, the year after leaving public office as a Township Supervisor. Finally, with respect to Section 5(b)(5) and (8)11105(b)(5) and (8) of the Ethics Act, we find that Luzier filed Statements of Financial Interests for the 1996 through 2000 calendar years, but failed to disclose any direct or indirect sources of income for those years. Luzier's W -2 Wage and Tax Statements indicate that during those years, he received income from the Township in excess of the $1,300 threshold. In addition, while we note that Luzier did disclose that he held a financial interest in D & T as a partner on Statements of Financial Interests filed for calendar years 1997 and 1998, he failed to disclose on his Statements of Financial Interests filed for the 1997 through 2000 calendar years, his office, directorship or employment in D & T. Accordingly, we find that Luzier violated Section 5(b)(5) and F 8)/1105(b)(5) and (8) of the Ethics Act when he failed to disclose on his Statements of inancial Interests filed for the 1996 through 2000 calendar years, direct or indirect sources of income, and when he failed to disclose on his Statements of Financial Interests filed for the 1997 through 2000 calendar years, his office, directorship or employment in D & T. Section 407(13)/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, we believe restitution is not warranted. If Respondent has not already done so, he is directed to file, within 30 days of the date of mailing of this Order, a Statement of Financial Interests for the 2001 calendar year, and amended Statements of Financial Interests for calendar years 1996, 1997, 1998, 1999, and 2000, to reflect all reportable sources of income as well as any business in which he had a financial interest or for which he was an officer, director, employee, or partner. The originals of such amended forms are to be filed with Lawrence Township, with copies sent to the Administrative Division of this Commission for compliance verification purposes. Compliance with the foregoing with 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. Donald B. Luzier (Luzier), as a Supervisor for Lawrence Township (Township), was at all times relevant to these proceedings, a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. Luzier 02- 054 -C2 Page 26 2. Luzier violated Section 3(a)/1103(a) of the Ethics Act when in his capacity as a Township Supervisor, he participated in referring Township business to D & T Truck and Auto Repair D & T), a business with which he is associated; voted to approve payments to D & T; and signed Township checks payable to D & T. 3. Luzier violated Section 3(f)/1103(f) of the Ethics Act when D & T, a business with which he is associated, entered into a contract in excess of $500 with the Township when such contract was not awarded through an open and public process. 4. Luzier technically violated Section 4(a)/1104(a) of the Ethics Act when he failed to timely file his Statement of Financial Interests for the 2001 calendar year, the year after leaving public office as a Township Supervisor. 5. Luzier violated Section 5(b)(5) and (8)/1105(b)(5) and (8) of the Ethics Act when he failed to disclose on his Statements of Financial Interests filed for the 1996 through 2000 calendar years, direct or indirect sources of income, and when he failed to disclose on his Statements of Financial Interests filed for the 1997 through 2000 calendar years, his office, directorship or employment in D & T. 6. Restitution is not warranted in this case. In Re: Donald B. Luzier ORDER NO. 1300 File Docket: 02- 054 -C2 Date Decided: 12/1/03 Date Mailed: 12/15/03 1. Donald B. Luzier (Luzier), as a Supervisor for Lawrence Township (Township), violated Section 3(a)/1103(a) of the Ethics Act when in his capacity as a Township Supervisor, he participated in referring Township business to D & T Truck and Auto Repair (D & T), a business with which he is associated; voted to approve payments to D & T; and signed Township checks payable to D & T. 2. Luzier violated Section 3(f)/1103(f) of the Ethics Act when D & T, a business with which he is associated, entered into a contract in excess of $500 with the Township when such contract was not awarded through an open and public process. 3. Luzier technically violated Section 4(a)/1104(a) of the Ethics Act when he failed to timely file his Statement of Financial Interests for the 2001 calendar year, the year after leaving public office as a Township Supervisor. 4. Luzier violated Section 5(b)(5) and (8)/1105(b)(5) and (8) of the Ethics Act when he failed to disclose on his Statements of Financial Interests filed for the 1996 through 2000 calendar years, direct or indirect sources of income, and when he failed to disclose on his Statements of Financial Interests filed for the 1997 through 2000 calendar years, his office, directorship or employment in D & T. 5. If Respondent has not already done so, he is directed to file, within 30 days of the date of mailing of this Order, a Statement of Financial Interests for the 2001 calendar year, and amended Statements of Financial Interests for calendar years 1996, 1997, 1998, 1999, and 2000, to reflect all reportable sources of income as well as any business in which he had a financial interest or for which he was an officer, director, employee, or partner. The originals of such amended forms are to be filed with Lawrence Township, with one copy sent to the Administrative Division of this Commission for compliance verification purposes. 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