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HomeMy WebLinkAbout1320 HutchinsIn Re: Donald Hutchins File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Raquel K. Bergen 03 -007 Order No. 1320 5/14/04 5/17/04 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 not timely filed and a hearing was deemed waived. The record is complete. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Hutchins 03 -007 Page 2 I. ALLEGATION: That Don Hutchins, a (public official /public employee) in his capacity as a supervisor for Muddy Creek Township, Butler 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 gain of himself and /or a business with which he is associated, including but not limited to selecting S &P Construction Company for renovation work to a township facility at a time when he was being compensated by S &P for duties performed in relation to the township municipal building; when the contract with S &P, in excess of $500.00 was awarded without an open and public process; when he approved payments and signed checks issued to S &P Construction; and when he utilized township equipment, manpower and materials for his personal use. 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 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. §1102. Hutchins 03 -007 Page 3 II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Donald Hutchins 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 January 29, 2003. 3. The preliminary inquiry was completed within sixty days. 4. On March 27, 2003, a letter was forwarded to Donald Hutchins 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 4639. b. The domestic return receipt bore the signature of Donald Hutchins, with a delivery date of March 29, 2003. 5. On August 26, 2003, the Investigative Division of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 6. The Commission issued an order on September 15, 2003, granting the ninety day extension. 7. On November 12, 2003, the Investigative Division of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 8. The Commission issued an order on December 1, 2003, granting the ninety day extension. 9. On March 12, 2004, the Investigative Division forwarded a letter to Hutchins advising him that the allegations contained in the March 27, 2003, Notice of Investigation were being amended. a. Said letter was forwarded by certified mail no. 7002 3150 0000 6075 3214. 10. Periodic notice letters were forwarded to Donald Hutchins in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 11. The Investigative Complaint was mailed to the Respondent on March 18, 2004. 12. Donald Hutchins has served as a supervisor for Muddy Creek Township, Butler County, since November 10, 1999. a. Hutchins was appointed to a vacancy on the board of supervisors prior to the end of his elected term. b. Hutchins served as vice chairman from 2000 through 2003. 13. Hutchins was annually appointed roadmaster during township reorganization meetings from 2000 through 2003. a. Hutchins was a part -time employee, working on an as- needed basis. Hutchins 03 -007 Page 4 b. Hutchins was the only one of the three supervisors appointed roadmaster. 14. Hutchins is employed full time at Lutz & Myer, a commercial construction company. 15. Muddy Creek Township currently employs a full time road foreman and a full time road worker. a. Part time workers are hired as needed. b. Larry Flinner has served as the township road foreman. c. Hutchins, as roadmaster, provides work directions to the road crew. 16. Muddy Creek Township maintains records of the road department activities through the following documents: a. PennDot Municipal Weekly, Bi- Weekly and Semi - Monthly Payroll Reports are completed by the road foreman and submitted to the secretary /treasurer. 1. Payroll Reports reflect dates worked, number of hours, and general duties performed by the road department. 2. The Payroll Reports are signed by the road foreman and one supervisor. b. Time Sheets are completed by the individual employees. 1. The Time Sheets are signed by the employee and one supervisor. 2. Time Sheets reflect: day and date; time in and out; and total hours. 17. Muddy Creek Township Auditors established compensation for supervisors working for the township in any capacity (including roadmaster, foreman, or laborer) as follows: 2001 - $12.00 /hour 2002 - $12.00 /hour 2003 - $12.50 /hour 18. At the Reorganization Meeting each year the board of supervisors set a rate for the rental of township equipment to neighboring municipalities, including the grader, high lift and truck, with an operator. 2000 $40.00 /hour - All equipment 2001 $50.00 /hour - All Equipment 2002 $50.00 /hour - All Equipment 2003 $50.00 /hour - Truck $60.00 /hour - Backhoe $70.00 /hour - Grader a. Equipment was not authorized by the board of supervisors to be rented to residents or individuals. The following findings relate to the allegation that Donald Hutchins used township equipment, materials and employees for personal purposes) 19. Donald Hutchins was married on July 14, 2001. a. The ceremony and reception took place at Hutchins' residence. Hutchins 03 -007 Page 5 b. Butler County Register of Wills Office document the marriage of Hutchins and Paula Zarilla on Saturday July 14, 2001 (Record #0202 - 00111). 20. The reception was held in a barn on Hutchins' property. a. Hutchins wanted stone spread at the entrance of the barn to make the barn more accessible. 21. On or around July 11 or 12, 2001, two days prior to the wedding ceremony, Hutchins directed road foreman Larry Flinner to have stone delivered to his residence at 259 Bauder Mill Road. a. Hutchins telephoned Flinner with the directive. b. Hutchins directed that the stone be dumped in front of his barn. 22. Based on Hutchins' directive, Road Foreman Larry Flinner assigned summer employee Gary Setzenfand to utilize township equipment and material to accommodate Hutchins' directive. a. Setzenfand, a nephew of Hutchins, used townshi p front -end loader, loaded stone onto a township one -tone truck and delivered it to Hutchins' residence. b. The stone was taken from the stockpile at the township maintenance garage. c. Setzenfand delivered the stone to Hutchins' residence while on township time. d. The stone was dumped in the general area of the barn on Hutchins' property. 1. Setzenfand did not spread the stone. e. Estimated time to load and deliver the stone was approximately one hour. 23. The Payroll Report for the period shows that Gary Setzenfand worked 10 hours on both July 11, 2001 (Wednesday) and July 12, 2001 (Thursday). a. The Payroll Report does not list the delivery of stone to Hutchins' residence. 1. General duties performed by the road crew are recorded on this report. b. Setzenfand's wage was $8.00 /hour in July 2001. 24. Muddy Creek Township Payroll check #4346, in the amount of $380.11, was issued to Gary Setzenfand on 7/17/01, which included payment for the time he spent delivering stone to Hutchins' residence. a. The check was authorized by Supervisor White and then Secretary/ Treasurer Shirt Richard. b. The check was approved at the August 9, 2001 board meeting by a 3/0 vote. 1. Hutchins made the motion to approve payment of the bills. 2. The approval of check #4346 was retroactive. Hutchins 03 -007 Page 6 25. Hutchins realized a private pecuniary gain of at least $59.15 when he directed the township road crew to deliver township material to his residence. a. The cost is determined by the cost to rent a truck and costs of one ton of limestone. 1 b limestone — 1 bucket approximately 1 ton @ $9.15 /ton Truck rental — 1 hour @ $50.00 /hour (includes operator) = $ 9.15 = $ 50.00 $ 59.15 26. Hutchins plowed his driveway with township vehicles, while on township time, on at least ten occasions between November 10, 1999 and February 2003. a. Specific dates were not documented. b. Hutchins' family members confirmed in a sworn statements provided to Ethics Commission investigators that Hutchins used township equipment to plow his driveway. 27. Between 2000 and 2003, Hutchins utilized the township truck/plow to plow the private lane to his father's house. a. Hutchins plowed his driveway and the lane to his father's residence while assisting the road employees with removal of snow from township roads. b. Hutchins was paid as a roadmaster while assisting with snow removal for the township. 28. Hutchins father, Preston Hutchins lives at the top of Hutchins Lane, a private lane not maintained by the township. a. Hutchins Lane is off Hutchins Drive, a township maintained road. b. Three other homes are accessed from Hutchins Lane. c. Hutchins Lane is between two and three tenths of a mile from Hutchins Drive to the top. 29. On January 20 and 21, 2000, Hutchins provided relief for township employee Gary Hempfling from snow plowing. a. Hutchins used the truck normally assigned to Hempfling. b. Hutchins plowed his father's driveway on either January 20, 2000, or January 21, 2000. 30. The Payroll Report for the period 1/17/00 — 1/30/00 reflected that Hutchins was paid for four (4) hours on both 1/20/00 and on 1/21/00 for performing snow removal. a. A Muddy Creek Township Payroll check was issued to Hutchins which included payment for the time he spent plowing his father's lane with the township truck. 31. Hutchins damaged the township truck while plowing Hutchins Lane on January 20 and January 21, 2000, when he backed into a mailbox at the end of the Hutchins Lane. a. Damage included a broken rear reflector and scratched paint. Hutchins 03 -007 Page 7 b. Hempfling purchased a reflector and paint on the township account at Kern Auto Parts, Inc., Portersville, PA, for a total cost to the township of $6.73. c. Hempfling's time repairing the damage was not documented. d. Hempfling purchased other items for use by the road department at the same time he purchased the paint (to repair the scratches) and the replacement reflector. 32. On February 17, 2003, Hutchins assisted the road crew with snow plowing. a. Hutchins was asked to assist with the snow removal by Road Foreman Larry Flinner. b. Hutchins was asked to plow Sunset, Wallace, Oak Grove and Williams roads and the turn around lanes at the township borders. c. Neither Hutchins nor his father live in the area he was assigned. d. Hutchins utilized the township one -ton township truck for the snow removal. 33. On February 17, 2003, Hutchins plowed his driveway and the lane to his father's house. a. Hutchins was on the township payroll when he plowed his driveway and the lane to his father's house. b. Township Payroll Reports confirm that Hutchins was paid for eleven (11) hours on 2/17/03. c. Hutchins was paid at the rate of $12.50 per hour. d. Hutchins' timesheet reflects that he worked 12:00 a.m. — 11:00 a.m. 34. The cost to plow a driveway the size of Hutchins' is approximately $25.00. a. The cost to plow a lane the size of Hutchins' father's is $75.00. b. Estimated cost for snow plowing Hutchins driveway and the lane to his father's were determined from local businesses. 35. Hutchins and /or members of his immediate family received a private pecuniary gain when he used township trucks to plow his driveway and that of his father. a. Hutchins' driveway: $250.00 (10 x $25) b. Hutchins' father's driveway: $150.00 (2 x $75) Total: $400.00 The following Findings relate to the allegation that a contract in excess of $500.00 was awarded to S &P Construction, a business with which Hutchins is associated without an open and public process and when Hutchins approved payment to S &P 36. In or around the spring of 2002, MCT Board Chairman Ralph Currie discussed with Bob Sechan, the owner of Lake Arthur Estates, a mobile home park located in the Hutchins 03 -007 Page 8 township the possibility of the township leasing a building in the trailer park for use as the township office. a. At that time, the Muddy Creek Township office was located on the first level of township secretary /treasurer June Wimer's residence at 125 Ridgeview Lane, Portersville, PA. b. The township paid Wimer rent for the space which was limited. 37. Sometime prior to November 21, 2002, Hutchins and Currie toured the building and identified the work required to adapt the facility to the township needs. 38. During the November 21, 2002 Muddy Creek Township Board meeting the leasing of the building and necessary repairs were discussed by Supervisors Currie and Hutchins. a. Meeting minutes confirm the following discussion: "Mr. Currie stated that before Public Comment would be held that the board would like to address the public concerning the possible base of another office building located in Lake Arthur Estate Trailer Park. Mr. Hutchins followed with what repairs would need to be completed and the estimated cost. Public opinion was favorable." 39. Township Solicitor, Michael Gallagher negotiated the lease on behalf of the township which required the township to pay for the repair and renovation to the building, yearly property taxes, utilities including gas, electric and the light poles around the building. a. The lease was finalized and approved by unanimous vote of the board of supervisor at the March 12, 2003 meeting. 40. The township moved into the building at the end of January 2003, with the consent of the solicitor and building owner Bob Sechan. 41. The township initiated repairs /renovations to the building as early as November 29, 2002, under Hutchins' direction. a. Hutchins coordinated the renovation and repairs to the building. b. No vote of the board of supervisors was taken authorizing Hutchins to assume this role. c. Township Supervisors Ralph Currie and James White had no involvement in the renovation and repairs during December 2002. 42. Hutchins, as a member of the board of supervisors contracted with companies, and hired individuals to perform the renovations on the building. 43. None of the contracts awarded by Hutchins were bid or publicly advertised. a. No vote of the board of supervisors was taken to appoint contractors/ individuals selected by Hutchins. 44. Companies contracted by Hutchins to perform work on the building included: S &P Construction Morris Heating and Air Conditioning David Beggs (Flooring) Hutchins 03 -007 Page 9 45. Materials utilized for the project were either supplied by the company /individual were purchased at township expense from: Home Depot, Moore & Moore Hardware, and Nampum Improvement Center. 46. Hutchins created S &P Construction which he then utilized for the renovations of the new municipal building. a. Hutchins devised the name S &P. b. S &P is not incorporated in the Commonwealth nor is it registered with the Department of State as a fictitious name. c. S &P Construction's address is listed as 102 Factory Avenue, Ellwood City, PA 16117. 1. S &P is not physically located at that address. 2. 102 Factory Avenue, Ellwood City, PA, is not a legal address. 47. Employees of S &P Construction consisted of individuals that Hutchins worked with, relatives, and friends working under a business name devised by Hutchins. a. Individuals Hutchins worked with at Lutz & Myer included Frank Pope and Aaron Stabryla. b. Individuals related to Hutchins included Gary Setzenfand, his nephew. c. Individuals acquainted with Hutchins and /or Gary Setzenfand included Donald Jones and Robert Brunswick. 48. Flyers for S &P Construction displayed in Muddy Creek Township identify Donald Hutchins as the owner. a. A flyer displayed at Cal's General Store, Portersville, PA, contained the following information: S &P Construction Family owned & operated Residential & Business We do it all Just call! (724) -368 -3933 *Fully Insured *Free Estimates Owner - Donald Hutchins Mention where you got this ad and get 15% off any work we do for you We feel special you picked us! we are proud to work for you! 49. Hutchins had the sole responsibility, as a Muddy Creek Township Supervisor, for all the repairs and renovations of the building and made the decision to utilize S &P Construction. Hutchins 03 -007 Page 10 a. No one working under the name S &P Construction participated in determining the work to be done or supervised the work as it was performed. b. S &P Construction did not exist prior to the renovartions [sic] of the township building. 50. Hutchins was required to submit to the township proof of liability insurance for S &P Construction. a. Hutchins provided a Certificate of Insurance under the name of Kevin S. Moser, 1410 Glenwood Avenue, Ellwood City, PA 16117. b. Moser provided the Certificate of Insurance to Hutchins as a favor. c. Moser's policy would not have covered any liability claims resulting from the work performed under the name S &P Construction. d. Moser had no business relationship with S &P Construction. 51. Between December 12, 2002, and December 30, 2002, Hutchins submitted invoices on behalf of S &P Construction to the township secretary /treasurer for payment. a. The invoices contained the company name and address; a listing of the work performed and the price. b. The invoices were not dated. c. A total of three invoices were submitted under the name S &P Construction. 52. The S &P invoices submitted to the township were prepared by Hutchins or at his direction. 53. Invoices submitted to the township by Hutchins on behalf of S &P detail the following: a. Invoice #1 (Submitted on or about December 12, 2002): Cut brick and block wall then framed for a window; check plumbing to turn water off to other side of building; had to cut pipes; replace and repair pipes; clean out secretary office then removed panel from walls; replaced bad ceiling tile in offices, restrooms and hallway; removed wall from desk so it could be moved; started to work on lights and restroom doors; worked on counter top for office; work on office and window - $550.00. Invoice #1 contained the signature of Gary Setzefand, Hutchins' nephew. b. Invoice #2 (Submitted on or about December 20 2002): Work on removing toilets from rest rooms; worked on scraping old paint off floors; worked on cutting plywood for windows and doors in old store and pizza shop; cut trim for around windows; moved counter from pizza shop to secretary office - $200.00. c. Invoice #3 (Submitted on or about December 30 2002): Finished cutting plywood for windows and doors; primer and painted plywood and trim for door and windows; worked on fastening counter to floor and wall; put paneling on back of counter and trimmed out shelving; painted shelving; Hutchins 03 -007 Page 11 replaced drywall wall that was bad; put two coats of drywall mud on; then sanded primed and painted office wall; put plywood over windows and doors; also trimmed; removed front door and replaced with door from pizza shop; put door back on pizza shop; changed two doors inside building planning room - $840.00. 54. Hutchins directed the secretary /treasurer to issue checks to S &P Construction on the same day that he submitted the invoices. a. Hutchins insisted that checks be issued as he provided the invoices for payment. 55. The standard procedure for the payment of bills by the township would be to submit the invoices for approval to the board at the next public meeting and then issue checks once approved. a. The next scheduled public meeting after the submission of S &P Invoices by Hutchins was January 6, 2003. b. Invoice #1 was submitted by Hutchins on December 12, 2002, one day after the December 11, 2002, meeting of the board of supervisors. 56. Two of the three checks were issued from the Muddy Creek Township General Fund to S &P Construction in December 2002. Check Number Check Date Amount Authorizing Signatures 5834 12/12/02 $550.00 Hutchins, Currie, Christy 5840 12/20/02 $200.00 Hutchins, White, Christy 5845 12/30/02 $840.00 Currie, White, Christy 57. All three checks were given directly to Hutchins by the township secretary /treasurer. a. Hutchins signed two of the three checks in his capacity as township supervisor. 58. Check #5834 was endorsed "S &P Construction ", "Aaron Stabryla" and cashed at the Foodland grocery store in Ellwood City. a. Hutchins met Stabryla in the Foodland parking lot and directed Stabrylatocash [t]he check payable to S &P Construction. b. Stabryla gave Hutchins $230.00 of the $550.00. 1. The remaining $320.00 was split between Stabryla and Frank Pope. c. Both Pope and Stabryla worked approximately eight (8) hours each on the project. 1. Hutchins had promised to pay each of them $20.00 /hour. 2. Stabryla and Pope were owed $160.00 each, $320.00 total. 59. Check #5840 was endorsed "S &P Construction ", "Robert Brunswick" and "Donald E. Hutchins ", and cashed by Donald Hutchins. a. Brunswick was directed by Hutchins to endorse the check but did not cash it. Date/Day No. Hours/ Rate Description Total Hours Check Number Gross Pay Net Pay 11/29/02 8 hrs (Friday) $12.O0/hr N/A 30.0 4634 $360.00 $308.78 11/30/02 6 hrs (Saturday) $12.0 /hr N/A 12/06/02 * 8 hrs a@ (Friday) $12.06 /hr N/A 12/07/02 * 8 hrs @ N/A Hutchins 03 -007 Page 12 b. Brunswick received payment from Hutchins, but did not recall the exact amount he received from Hutchins. 60. Check #5845 in the amount of $840.00 was endorsed "S &P Construction', Donald Hutchins ", and "Paula Hutchins ". a. Paula Hutchins is the wife of Donald Hutchins. b. The check was not deposited to any account. c. No record of any disbursement of these funds is available. 61. Sometime after receiving the Notice of Investigation from the Investigative Division, Hutchins created a document outlining disbursements he claims to have made from the payments received from the township for S &P. 62. The accounting of the disbursement of funds paid to S &P Construction alleged by Hutchins, is as follows: Frank Pope 13.0 hours $160.00 Aaron Stabryla 13.0 hours $160.00 Gary Setzenfand 8.5 hours $105.00 Donald Jones 12.5 hours $125.00 Total: $ 550.00 Bob Brunswick 16.0 hours $200.00 Total: $ 200.00 Gary Setzenfand 15.0 hours $180.00 Donald Jones 30.0 hours $300.00 Bob Brunswick 30.0 hours $360.00 Total: $ 840.00 S &P Construction TOTAL: $1,590.00 63. The accounting provided by Hutchins exactly totaled the amount received by S &P. a. Hutchins could not provide receipts detailing the individuals who received the cash payments. b. Gary Setzenfand could only recall the $105.00 payment. c. Strahyla [sic] and Pope confirmed receiving $160.00 each. d. Brunswick recalled receiving approximately $500.00. e. Jones estimated he was paid $300.00. 64. Hutchins was paid by the township as a roadmaster for working with and supervising the work performed by S &P Construction. 65. Hutchins was paid as a roadmaster by the township for supervising the work performed by S &P Construction on the building between 11/29/02 and 12/28/02. Date/Day No. _ $12.00 Hours/ Rate /hr Description Total Hours Check Number Gross Pay Net Pay (Saturday) 12/20/02 (Friday) 7 hrs $12.0 /hr N/A 32.5 4638 $390.00 $335.34 12/21/02 (Saturday) 7 hrs $12.0 /hr N/A 12/26/02 (Thursday) 3 hrs $12.0 /hr N/A 12/27/02 (Friday) 8 hrs $12.0 /hr N/A 12/28/02 (Saturday) 7.5 hrs $12.00 /hr N/A TOTALS 62.5 $750.00 $634.12 Hutchins 03 -007 Page 13 *Hours worked on 12/06/02 and 12/07/02 were incorrectly recorded on the timesheet as Saturday and Sunday. a. No accounting of the duties Hutchins performed was provided to the secretary /treasurer. b. Hutchins did not perform any work with the road crew during this time period. c. Hutchins was paid $12.00 per hour for the 62.5 hours he worked during the time period in question, for a total of $750.00. 66. The total amount the township paid for the renovation and repairs to the building was $6,976.19, as detailed below: Check Number 4634 4638 4728 5800 5806 12/04/02 Hutchins 5834 5840 5845 5846 Check Date 12/16/02 12/30/02 05/18/03 12/04/02 12/12/02 12/20/02 12/30/02 12/30/02 5867 01/08/03 Wampum Date of Payee Purchase Hutchins - Hutchins Ronald Minteer Moore & Moore S &P Construction S &P Construction S &P Construction Hutchins 5866 01/06/03 Moore & Moore Hardware $ 360.00 Wages - $ 390.00 Wages $ 640.00 Wages $ 246.44 Heating & plumbing supplies 11/29/02 $ 33.17 Items from Home Depot for office window (ck includes $60 for mileage reimbursement) - $ 550.00 Labor - $ 200.00 Labor - $ 840.00 Labor 12/21/02 $ 90.43 Items from Home Depot for outside windows, paint, panels, nails. Various $ 218.23 Items for building renovation signed for by Hutchins, Minteer, Jones and Brunswick 12/13 28/02. 12/19/02 $ 296.60 Drywall, boards, etc. Various Amount Description Hutchins 03 -007 Page 14 Improvement Center 5869 01/08/03 David Beggs 01/07/03 $ 1,190.00 Flooring materials & installation. Check Check Number Date Payee 5870 01/08/03 Hutchins 5947 03/24/03 Morris Heating & Air Conditioning 5948 03/24/03 City Glass Co., Inc. Check Check Number Date Payee 4634 12/16/02 Hutchins (wages) 4638 12/30/02 Hutchins (wages) 4728 05/18/03 Ronald Minteer (wages) 5800 12/04/02 Moore & Moore Hardware 5806 5834 5840 5845 5846 5866 5867 5869 5870 12/04/02 Hutchins 12/12/02 S &P Construction 12/20/02 S &P Construction 12/30/02 S &P Construction 12/30/02 Hutchins 01/06/03 01/08/03 01/08/03 01/08/03 Moore & Moore Hardware David Beggs Flooring Hutchins 5947 03/24/03 Morris Heating & Date of Purchase Amount 01/07/03 $ 87.83 Wampum White, Currie Improvement Center Christy $ 1,049.27 $ 784.22 67. Hutchins participated as a township supervisor in voting to approve the payment of the bills, which included S &P Construction and payroll covering the hours he was paid for in relation to the renovation and repair of the building. Authorizing Date of Signatures Meeting Vote Currie, Christy 01/06/03 3/0 Seconded Currie, Christy 01/06/03 3/0 Seconded Currie, Christy 05/14/03 2/1 Motioned Hutchins, Currie Christy Hutchins, Currie Christy Hutchins, Currie Christy Hutchins, White Christy Currie, White Christy Hutchins, Currie Christy Hutchins, Currie Christy White, Currie Christy Hutchins, Currie Christy White Currie 12/04/02 12/04/02 01/06/03 01/06/03 01/06/03 01/06/03 01/06/03 02/12/03 02/12/03 02/12/03 04/08/03 Description Items from Home Depot; ceiling tile, door sweeps. Labor, motors, parts Material, labor 2/0 Motioned Motioned 2/0 Motioned 3ro Seconded 3ro Seconded 3ro Seconded 3ro Seconded 3ro Seconded Absent Absent Absent 3ro Seconded Hutchins 03 -007 Page 15 Air Conditioning Christy 5948 03/24/03 City Glass Co., Inc. White, Currie 04/08/03 3O Seconded Christy 68. In or about January 2003 concerns were raised regarding Hutchins' involvement in the building renovations and the lack of bidding for the project. a. Hutchins made statements that S &P Construction consisted of employees he works with at Lutz & Myer. b. Hutchins claimed he was only volunteering his time during the renovations. 69. Supervisors White and Currie were concerned of possible surcharges because the renovation costs, which exceeded $4,000, were not put out for bid. a. Subsequently, the board sought the opinion of the township solicitor. 70. The supervisors were advised by the solicitor that they could be surcharged and /or prosecuted for failing to abide by the provision of the Second Class Township Code requiring quotes be obtained for any work performed over the amount of $4,000.00. 71. At the March 12, 2003 board meeting, action was taken for the three supervisors to donate $446.00 to the township. The meeting minutes reflect the following: "Mr. White made motion to enter into the minutes that each board member would like to donate $446.00 each to cover the amount that was over the initial $4,000.00 for the repairs to the new township building, seconded by Currie; All in favor. Motion carried." 72. All three supervisors, including Hutchins, submitted personal checks to the township in the amount of $446.00. 73. Hutchins received a private pecuniary gain of $2,240.00 as the result of the use of the authority of his public position to hire S &P Construction and utilizing them to be paid by the township for supervising the work performed by S &P Construction. S &P Construction - $ 1,590.00 Hutchins' Wages 11/29- 12/28/02 - $ 750.00 $ 2,240.00 74. Hutchins' use of the authority of his public position resulted in a private pecuniary gain for himself, members of his immediate family and a business with which he is associated as follows: Stone delivery: $ 59.15 Snow plowing: $ 400.00 S &P Construction: $ 1,590.00 Hutchins' wages: $ 750.00 Total: $ 2,799.15 III. DISCUSSION: At all times relevant to this matter, the Respondent, Donald Hutchins, hereinafter Hutchins, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et se as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." Hutchins 03 -007 Page 16 The allegations are that Hutchins, as a Muddy Creek Township Supervisor, violated Sections 1103(a) or 1103(f) of the Ethics Act when he selected his business, S &P Construction Company (S&P), for renovation work to a township facility; when S &P received a contract in excess of 0 without an open and public process; when he approved payments and signed checks issued to S &P; and when he utilized township equipment, manpower and materials for his personal use. Pursuant to Section 1103(a) of the Ethics Act quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103(f) of Act 9 of 1989 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. Hutchins has served as a Muddy Creek Township Supervisor since November of 1999. In addition, Hutchins was vice chairman of the board and the appointed roadmaster from 2000 through 2003. In a private capacity, Hutchins is employed by Lutz and Myer which is a commercial construction company. The Muddy Creek Township Auditors set the hourly rate for working supervisors. The board of supervisors set the rate for the rental of township equipment to neighboring municipalities. Such equipment was not authorized by the board to be rented to residents or individuals. In July of 2001, Hutchins arranged for his marriage ceremony at his residence. Hutchins contacted the road foreman to have stone delivered to his residence at the entrance of his barn where he planned his wedding reception. The road foreman directed a summer employee to use the township front -end loader to load stone from the township stockpile into a township one -ton truck, and deliver the gravel to Hutchins' residence. This occurred during township working hours. The approximate time to load and deliver the stone was one hour. Hutchins received a financial gain of $59.15 as to the township gravel, equipment and township employee working time. See, Fact Finding 25. During the winters of 1999 -2003, Hutchins on at least 10 occasions used township equipment on township time to plow his driveway. Between 2000 and 2003, Hutchins also used the township truck to plow the private lane to his father's house which lane is not maintained by the township. While plowing Hutchins Lane in January of 2000, Hutchins damaged the township truck. In February of 2003, Hutchins was asked by the road foreman to assist with snow removal in an area of the township that was located away from the residences of Hutchins and his father. However, Hutchins plowed his driveway and the lane to his father's house. The Hutchins 03 -007 Page 17 financial gain that Hutchins received using township equipment on township time to plow out his fathers and his driveways was $400.00. See, Fact Finding 35. Turning to another matter, the Muddy Creek Township Office was located on the first level of the residence of the township /treasurer. At that time, the board chairman had discussions with the owner of a mobile home park about the possibility of the township leasing a building in the trailer park for use as a township office. At the November board meeting, there were discussions among the supervisors about locating the township office in the trailer park following the completion of certain work and repairs. After the township solicitor negotiated a lease for the township, the contract was finalized and approved by an unanimous vote of the board at a March 2003 meeting, even though the township actually moved into the building earlier in 2003. The township also had initiated repairs and renovations to the building beginning in November 2002 under Hutchins' direction. Hutchins took such action without authorization from the board. Thus, Hutchins as a board member contacted companies and hired individuals to perform the renovations on the buildings. None of the contracts awarded by Hutchins was bid or publicly advertised. No vote was taken by the board of supervisors as to the appointment of contractors or individuals selected by Hutchins. Hutchins used three contractors and three supply companies for the project. One of the contractors for the project was S &P, which Hutchins created for the purpose of doing the renovations on the municipal office. S &P is neither a corporation nor is it registered as a fictitious name with the Department of State. Further, S &P is not physically located at its purported address which is neither a legal address. The employees of S &P consist of Hutchins' relatives and friends. However, S &P flyers displayed in Muddy Creek Township identified Hutchins as the owner. As to the township renovation project, S &P was required to submit a proof of liability insurance to the township. A friend of Hutchins provided a certificate of insurance as a favor. In actuality, there was no coverage for liability claims resulting from work performed by S &P. Hutchins submitted three invoices which he prepared on behalf of S &P to the township secretary /treasurer. The details as to each invoice are delineated in Fact Finding 53. Although the standard township practice is to pay bills after invoices are submitted to the board for approval, Hutchins submitted the first S &P invoice one day after the December 11` board meeting. Two of three checks were issued from the general fund to S &P in December 2002. All three township checks were given directly to Hutchins who signed two of the three checks in his capacity as a supervisor. As to check #5834, there was an endorsement by S &P with Erin Strabryla cashing the check at Hutchins' direction. After the check was cashed, the $550.00 was split among Hutchins, Strabryla and a third person who worked on the township project. As to check #5840, Hutchins directed Robert Brunswick to endorse and cash the check but Brunswick did not do so. Lastly, check #5845 was endorsed to S &P, Hutchins and his spouse. There is no record of any disbursement of the funds as to that check. Subsequent to receiving the notice of investigation from the Investigative Division, Hutchins created an after - the -fact document to outline purported disbursements made from payments received by S &P. See, Fact Finding 62, 63. Although there appear to be stated disbursements of funds to eight individuals, some of those individuals have recollections that they received less than what Huchins claims to have paid them. In that Hutchins was a working roadmaster who supervised the S &P repair/ renovation project, he was paid as a roadmaster for such work, the details of which appear in Fact Finding 65. However, no accounting was made by Hutchins of the purported work that he performed. Hutchins 03 -007 Page 18 The township paid a total of $6,976.19 as to the renovation and repairs for the township office. See, Fact Finding 66. Hutchins, as a township supervisor, participated in the process to approve bills including those of S &P and payroll covering hours that he was paid to supervise the renovation and repairs for the township office. See, Fact Finding 67. In January 2003, when concerns were raised about Hutchins' involvement in the township renovation /repair project, he claimed that he volunteered his time to do the renovations. The other two supervisors contacted the solicitor concerning Hutchins' actions. The solicitor advised that the supervisors could be surcharged for failing to comply with the Second Class Township Code for the work that exceeded the $4,000.00 threshold. At a March 2003 board meeting, all three supervisors donated $446.00 to the township which was the amount paid over the $4,000.00 contracting threshold of the Second Class Township Code. As to the township renovation /repair project, Hutchins received a financial gain of $2,240.00 comprised of wages he received plus funds paid to S &P. Adding these financial gains to the township gravel delivery on Hutchins' property and the personal snow plowing activities, the total pecuniary benefit that Hutchins received was $2,799.15. Having highlighted the facts and issues, we preliminarily must address a procedural issuethat has arisen regarding the receipt of an Answer to the Investigative Complaint. The pleading stage in this case began with the issuance of the Investigative Complaint on March 18, 2004. On its face, the Investigative Complaint stated that an Answer had to be received at this Commission within thirty (30) days of issuance and that the Respondent should take that document immediately to an attorney. In this case, an Answer was not filed as of the due date of April 19, 2004, and Respondent's counsel was so apprised by letter dated April 21, 2004, from the Legal Division. On April 26, 2004, a "Nunc Pro Tunc" and Answer to the Investigative Complaint were received from Respondent's counsel. In the "Nunc Pro Tunc" with Answer attached, the Respondent's counsel makes the following arguments: the Investigative Complaint was issued on March 18, 2004, and not received until March 22, 2004; the Respondent was out of town until April 12, 2004, when he scheduled a meeting with counsel as to the filing of an Answer; the Answer was prepared and mailed on April 21, 2004; this (procedural posture) is highly prejudicial to the Respondent; and there was not a 30 -day period for Respondent's counsel to respond. In light of the above, Respondent's counsel requests that the Answer be deemed timely filed. The Investigative Division has filed a Response in opposition to Respondent's request to file his Answer Nunc Pro Tunc. The Investigative Division references Section 21.5 of the Regulations of this Commission which provide that a response must be filed within thirty (30) days of the issuance of the Findings Report unless the time period is extended by the Commission for good cause shown, and that matters not specifically denied in the response are deemed admitted. The Investigative Division notes that Respondent's counsel has admitted mailing the Answer on April 21, 2004, the envelope of which contains a postmark of April 23, 2004; such occurred after the Answer was due at this Commission. The Investigative Division argues that a statutory response period is jurisdictional whereby an administrative agency may not ignore its regulations and grant extensions after the response period expires. The Investigative Division notes that Respondent could have, but failed to request an extension to file an Answer. The Investigative Division cites numerous Commonwealth Court cases to support its position that this Commission should not grant Respondent's request absent the meeting of the extraordinary high standard which requires the establishment of fraud, duress, coercion, a breakdown in the administrative or postal process, or other circumstances that are non - negligent in nature. The Investigative Division asserts that Respondent has neither averred nor established any of the criteria for granting an extension nunc pro tunc. Hutchins 03 -007 Page 19 It is clear under the Ethics Act and Regulations that a response to the Investigative Complaint must be received within 30 days. 65 Pa.C.S. §1108(e); 51 Pa.Code §21.5(k). Cf., Criss v. Wise, Pa. , 781 A.2d 1156 (2001). As noted above, even the face sheet of the Investigative Complaint states that an Answer must be received within 30 days. In order for a late answer to be deemed timely filed, we apply the same standard as is applied by the courts to untimely a peals (see, Getz v. Pennsylvania Game Commission, 475 A.2d 1369 (Pa. Commw. Ct. 1984 applying that standard in administrative proceedings to an untimely request for a hearing). T e standard is that to accept the untimely filing as if it were timely, there must either have been fraud or a breakdown in the administrative process, see, West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. Ct. 1989), which includes the postal process (Getz v. Pennsylvania Game Commission, 475 A.2d 1 369 (1984)), or there must have been unique and compelling factual circumstances establishing non - negligent failure to file timely, Grimaud v. Dep't of Env. Resources, 638 A.2d 299 (Pa. Commw. Ct. 1994). See also, Criss v. Wise, Pa. , 781 A.2d 1156 (2001). Mere delays in the U.S. mail, even during a holiday season, are considered foreseeable and avoidable and are insufficient grounds to support an Application Nunc Pro Tunc. Criss v. Wise, supra. None of the conditions for allowing the filing of a late Answer is present in this case. In fact, there has not even been any allegation of fraud, any breakdown in the administrative process or the mail delivery system, or any unique and compelling factual circumstances that would establish a non - negligent failure to timely file. The only argument proffered is that an Answer was not filed by Respondent because the Investigative Complaint was received on March 22, 2004, and Respondent was out of town until April 12, 2004. That argument presents no basis for allowing the filing of a late Answer. Baxter, Order No. 985. Parenthetically, we note that our Regulations allow for the filing of an application for an extension to file an Answer. 51 Pa.Code §21.5(k). No such request was made in this case prior to the filing deadline. The Application to File Nunc Pro Tunc is denied. Having disposed of the procedural matter, we must now determine whether the actions of Hutchins violated Sections 1103(a) or 1103(f) of the Ethics Act. In applying Section 1103(a) of the Ethics Act to the deemed agreed to facts of record, there were uses of authority of office on the part of Hutchins. But for the fact that Hutchins was a supervisor, he would not have been in a position to take actions on behalf of S &P as to the repairs and renovations for the township office. It was Hutchins individually that started the work on the township office in terms of repairs and renovations. It was Hutchins who solely decided what would be done and who would do the work. It was Hutchins who submitted the S &P invoices and directed the secretary /treasurer to issue checks. It was Hutchins who, on occasion, endorsed the checks of the township in payment to S &P. It was Hutchins who also participated in approving payments and signing checks issued to S &P. All such actions were uses of authority of office. See, Juliante, Order 809. Such uses of authority of office on the part of Hutchins resulted in pecuniary benefits to himself. Although S &P ostensibly did the project, S &P did not exist and was in reality Hutchins himself. The pecuniary benefits in this case consisted of the money that Hutchins received in performing the repairs and renovations as to the township office through the guise of S &P. The pecuniary benefits were private because there is nothing in the Second Class Township Code which authorizes such actions on the part of Hutchins. Accordingly, Hutchins violated Section 1103(a) of the Ethic Act when he used the authority of office to obtain a private pecuniary benefit through S &P as to a township repair /renovation project and participated in the bill approval /payment process. As to Section 1103(f) of the Ethics Act, this provision allows contracting between a public official and his governmental body but, if the contract is $500 or more, it must be Hutchins 03 -007 Page 20 through an open and public process. Factually in this case there was no open and public process. Hutchins awarded this contract through sole action on his part to himself through S &P. In this case, the township board wanted to relocate its office which necessitated certain repairs and renovations. Hutchins on his own made the decision to use his business, S &P, to perform the work which exceeded $500. Hutchins awarded the contract to S &P without an open and public process. Hence, Hutchins violated Section 1103(f) of the Ethics Act when he or his business, S &P, entered into a contract with the township for repairs and renovations for a township office where the contract was in excess of $500 and was not awarded through an open and public process. The last part of the allegation concerns Hutchins' use of township equipment, supplies and personnel. Hutchins, as a Supervisor, directed township employees to use township equipment to load township gravel and then transport the gravel in a township vehicle to his own private property. There are several other instances where Hutchins used township equipment to do plowing in his and his father's driveway during normal business hours. We have consistently held that public officials and public employees may not use government offices, equipment, facilities, or personnel for campaign, election, private business, or non - governmental purposes. See, Reis, Order 1283. Accordingly, Hutchins violated Section 1103(a) of the Ethics Act when he utilized township equipment, personnel and materials for personal use. 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. Restitution is warranted in this case. Accordingly, Hutchins is directed within 30 days of the date of mailing of this Order to make payment of $2,799.15 through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of mailing of this order. Non - compliance will result in the institution of an order enforcement action. From this record we do not know whether Hutchins continues in public office. If that is the case, we admonish Hutchins as to his future conduct as a public official. When a public official or public employee has a conflict between his public and private interests, the Ethics Act mandates that the public interest is paramount. See, Crisci, Opinion 89 -013. Hutchins has used public office for personal financial gain. Particularly as to the township office repair /renovation project, Hutchins directed the project so that there would be a financial opportunity for himself through S &P at the expense of the public trust. The actions by Hutchins in arranging to personally deal with the repair /renovation contract, the creation of the fiction of S &P as a third -party business doing the work, the submission of invoices after the board meeting to the secretary /treasurer for payment, and the after - the -fact creation of records are particularly telling. Hutchins must comport his future conduct to comply with both the letter and spirit of the Ethics Act. IV. CONCLUSIONS OF LAW: 1. Hutchins, as a Muddy Creek Township Supervisor, was during the relevant time period a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Hutchins violated Section 1103(a) of the Ethic Act when he used the authority of office to obtain a private pecuniary benefit for his business S &P as to a township repair /renovation project and participated in the bill approval /payment process. 3. Hutchins violated Section 1103(f) of the Ethics Act when he and his business, S &P, entered into a contract with the township for repairs and renovations for a township office where the contract was in excess of $500 and was not awarded through an open and public process. Hutchins 03 -007 Page 21 4. Hutchins violated Section 1103(a) of the Ethics Act when he utilized township equipment, personnel and materials for personal use. In Re: Donald Hutchins File Docket: 03 -007 Date Decided: 5/14/04 Date Mailed: 5/17/04 ORDER NO. 1320 1. Hutchins, as a Muddy Creek Township Supervisor, violated Section 1103(a) of the Ethics Act when he used the authority of office to obtain a private pecuniary benefit for his business S &P as to a township repair /renovation project and participated in the bill approval /payment process. 2. Hutchins violated Section 1103(f) of the Ethics Act when he and his business, S &P, entered into a contract with the township for repairs and renovations for a township office where the contract was in excess of $500 and was not awarded through an open and public process. 3. Hutchins violated Section 1103(a) of the Ethics Act when he utilized township equipment, personnel and materials for personal use. 4. Hutchins is directed within 30 days of the date of mailing of this Order to make payment of $2,799.15 through this Commission to the Commonwealth of Pennsylvania . Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair