Loading...
HomeMy WebLinkAbout1325 ColeIn Re: C. Bryan Cole 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 Paul M. Henry Raquel K. Bergen 03 -024 Order No. 1325 6/8/04 6/16/04 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 filed and a hearing was waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Cole 03 -024 Page 2 I. ALLEGATION: That C. Bryan Cole, a (public official /public employee) in his capacity as a supervisor of Wayne Township, Greene County, violated Sections 1103(a), and 11 5(b ) (3)(5) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), and 1105(b)(3)(5) when he used the authority of his office for the private pecuniary gain of himself and / /or members of his immediate family, including but not limited to using township equipment and materials to clear and maintain roadways on property owned by him and /or a member of his immediate family; when he failed to disclose on Statements of Financial Interests filed for calendar years 1998, 2000, 2001 and 2002 his direct and /or indirect interests in real estate which was leased to the Commonwealth; and when he failed to disclose on Statements of Financial Interests for the 1998 and 1999 calendar years all sources of income in excess of $1,300. II. FINDINGS: 1. C. Bryan Cole has served as a Supervisor for Wayne Township, Greene County since January 1992. a. Cole has served as the vice - chairman of the board of supervisors since at least January 1998. 2. Since January 2004, Cole has been compensated at the rate of $150.00 per month as a member of the board and an additional $75.00 for his attendance at the annual reorganization meeting. a. From at least January 1998 through December 2003, Cole received $100.00 per month for his service on the board, with an additional $50.00 for his attendance at the annual reorganization meeting. 3. All three supervisors are annually appointed as fulltime roadmasters for the township. a. The supervisor /roadmasters typically work four -10 hour days per week usually Monday through Thursday. b. Cole has been appointed at annual board reorganization meetings as the supervisor /roadmaster responsible for the western section of the township since at least 1998. c. The township is segregated into three areas, with each supervisor/ roadmaster overseeing one section, for road maintenance purposes. 4. The Wayne Township board of auditors set the rate of compensation for the supervisor /roadmasters as follows since 1998: a. 1998: $11.00 per hour. b. 1999: $11.50 per hour. c. 2000: $12.25 per hour. d. 2001: $12.25 e. 2002: $12.25 f. 2003: $13.25 5. The township employs three fulltime non - supervisor road employees. Cole 03 -024 Page 3 a. The road employees also typically work four -10 hour days per week usually Monday through Thursday. 6. The township currently has trucks that are used for snow removal. 7. The township also uses heavy equipment, including a Daewoo Mega 200 -111 hi -lift, for snow removal. a. The township has been leasing the Daewoo with the option to purchase from Uniontown Industrial Equipment, Uniontown, PA since 2000. 8. Cole primarily uses a township owned 2001 Ford F -550 to plow snow. 9. The township does not permit personal use of township equipment, material, supplies, etc. by township officials and employees or by private citizens. 10. Since in or around the mid- 1990s, Cole has leased property owned by his mother, Betty Cole, to various entities for use as an air monitoring station. a. The property that Cole leases is located in Center Township, Greene County, at latitude of 39.816 degrees north, longitude 80.285 degrees west and approximately 3.1 miles southeast of Holbrook, PA. b. The leased property consists of an area of approximately 200' X 200'. c. Betty Cole authorized Cole to lease the property. d. All of the fees received from leasing the property for the air monitoring station are retained by C. Bryan Cole. 11. The property where the air monitoring station is located is off of Silo Road, just outside of the Wayne Township border. a. There is an access road, approximately 791 feet in length, from Silo Road to the air monitoring station and 10 feet wide. 12. Cole initially leased the property to Environmental Science and Engineering Inc. (ESE) and Radian Electronics Division (RED) from approximately 1995 through the end of 1999. a. ESE changed its name to QST Environmental in or about 1997. 13. In or around the beginning of 2000, the funding for the project from the federal government ended and the program was turned over to the Pennsylvania Department of Environmental Protection (DEP). 14. In or around December 1999, DEP contacted Cole to determine if Cole was willing to lease the property to DEP to continue the work started by ESE and funded by the federal government. 15. In or about December 20, 1999, Rummel discussed with Cole a monthly rental agreement of $150 to $200 per month. a. Cole insisted on $500 per month based on his old agreement with ESE. b. Cole informed Rummel that he would take care of the grounds mowing. Cole 03 -024 Page 4 16. DEP agreed to Cole's terms due to their need for the site and that additional radar profiler would be installed at the site. 17. In or around March 8, 2000, Cole and DEP entered into a lease agreement, which in part provided: a. Owner agrees to allow road access to and parking for one vehicle on the Premises. 18. The term of the lease is from January 1, 2000, through December 31, 2004. 19. Between January 2000 and January 2003 Cole maintained the access road. 20. On several occasions between December 2002 and January 2003 Cole has been observed utilizing township equipment and materials to snow plow and /or cinder the access road to the air monitoring station. 21. Cole's use of township equipment to plow /cinder the access road was discussed during a board of supervisors meeting in February 2003. a. An audiotape of the February 27, 2003, meeting confirms that Cole admitted to using the township plow on the access road on February 24, 2003, and on at least one other occasion in December 2002 or January 2003. 22. In or around March /April 2003, Cole and township supervisors Allen Wells and Tim Chapman had a meeting with township resident Carolyn Hillberry during which meeting one of the issues discussed was Cole's use of township equipment in plowing the access road. a. Hillberry recorded the meeting, via audiotape, with the consent of all those present at the meeting. b. The meeting occurred at the Wayne Township Municipal Building. c. Cole specifically admitted to plowing the access road on February 24, 2003 with township equipment. d. Cole generally admitted to using township equipment to plow the access road on at least one other occasion. 23. On January 23, 2004, Cole admitted to using township equipment and materials on the access road to the air monitoring station in a Sworn Statement to Commission Investigators. a. Cole did admit to using the township truck to plow the access road in January, 2003 only. b. Cole admitted to plowing the access road with the township hi -lift and township truck on February 24, 2003. c. He further admitted to spreading cinders on the access road at this time. d. Cole also admitted to plowing the access road with the township truck, a 2001 Ford F -550. Cole 03 -024 Page 5 e. Cole asserts that it was necessary to plow and cinder the access road for various reasons including that the road is used as a turn around for township trucks and for emergency vehicles. 24. On January 12, 2004, a rental rate for a Daewoo Mega 200 was obtained from Uniontown Industrial Equipment, Uniontown, PA. a. The rental rate for a Mega 200 -11I was $3,250.00 per month or $325.00 per day. 1. The company does not currently rent a Mega 200 -111. b. The current rate for the newest model of the Mega 200 (model V) is $3,600.00 per month or $400.00 per day. c. The township purchased its Mega 200 from this company. 25. Johnson Snow Services and JL Miller and Sons are snow removal contractors located in Washington, PA. a. Washington, PA is approximately 30 miles from Wayne Township. 26. Johnson Snow Services estimated the cost to plow a road similar to the access road at the air monitoring station at least $50.00 per plow. a. Johnson charges an hourly rate and only plows when there is at least 3 inches of snow. b. An additional $15.00 would be added to the cost if the snow were in excess of 8 inches. c. Johnson based this estimate on plowing a single lane gravel road approximately one - quarter mile in length. 27. JL Miller and Sons estimated the cost to plow a road similar to the access road at the air monitoring station at least $75.00 per plow. a. Miller charges by the amount of snow with the base price of $75.00 for 2 -5 inches. b. An additional $25.00 would be added to the cost for each amount as follows: 5- 8 inches; 8 -12 inches, etc. c. Miller based this estimate on plowing a single lane gravel road approximately one - quarter mile in length. 28. Currently the township buys cinders used on the township roads for $9.80 per ton. a. The township currently purchases the cinders from M & Y Supply. 29. Cole used between 200 and 300 pounds of cinders purchased by the township to maintain the access road. 30. Cole's total payments from DEP since January 2000 are as follows: 2000 $6,000.00 2001 $6,000.00 2002 $6,000.00 Cole 03 -024 Page 6 2003: $6,000.00 31. Payments received by Cole from DEP were deposited into a personal bank account he controls. 32. An estimated value of $425.00 has been determined for the use of township equipment and materials in plowing and cindering a private access road to the air monitoring station. a. Use of Daewoo: $325.00 b. Use of Township Truck: $100.00 ($50.00 /plow) 33. Cole, in his capacity as a supervisor and roadmaster for Wayne Township, is required to annually file Statements of Financial Interests (SFI) by May 1 of each year for the proceeding calendar year. a. A SFI compliance review was conducted by an investigator for the State Ethics Commission at Wayne Township on April 28, 2003. 34. SFIs on file for Cole at the township verified that he filed SFIs as follows for calendar years 1998 through 2002: Calendar Year Date Filed 1998 01/13/99 on SEC Form 1/97 1999 01/24/00 on SEC Form 1/98 2000 01/25/01 on SEC Form 1/00 2001 02/07/02 on SEC Form 01/02 2002 02/06/03 on SEC Form 01/03 35. Cole failed to fully disclose information on his SFIs for calendar years 1998 and 2002 as follows: a. Cole failed to complete block 09 (Real Estate Interests) and to disclose any direct or indirect sources of income for calendar year 1998. 1. Cole received income in excess of $1,300 in calendar year 1998 from Wayne Township, Radian International, QST Environmental, and Patrick McKay. b. Cole failed to disclose direct or indirect sources of income for calendar year 1999. 1. Cole failed to disclose income from Radian International, QST Environmental Inc, and Patrick McKay for calendar year 1999. 36. Cole was not required to disclose the property address of property leased to DEP in block 08 for calendar years 2000 -2002 as he was not the owner of such properties which was owned by his mother. 37. Cole filed amended SFIs for calendar years 1998 -2002 on January 29, 2004, disclosing all sources of income and the property leased to DEP. III. DISCUSSION: At all times relevant to this matter, the Respondent, C. Bryan Cole, hereinafter Cole, has been a public official subject to the provisions of the Public Official and Employee Ethics Cole 03 -024 Page 7 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 Cole, as a Wayne Township Supervisor, violated Sections 1103(a), and 1105(b)(3) and (5) of the Ethics Act when he used township equipment and materials to clear and maintain roadways on property owned by him or a member of his immediate family; failed to disclose on Statements of Financial Interests (SFI's) filed for calendar years 1998, 1999, 2000, 2001 and 2002 his direct or indirect interests in real estate which was leased to the Commonwealth; and failed to disclose on SFI's for the 1998 and 1999 calendar years all sources of income in excess of $1,300. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public f of ce or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. 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 1105(b)(3) requires in part the listing of real estate interests sold, purchased, leased or condemned by the Commonwealth or an agency or potential subdivision thereof. Section 1105(b)(5) of the Ethics Act requires that every public official /public employee and candidate list the name and address of any direct or indirect source of income totaling in the aggregate of $1,300 or more. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Cole has served as a Wayne Township Supervisor on a three - member board since January of 1992. All three supervisors are annually appointed as full -time township roadmasters with their rate of compensation set by the township board of auditors. The township has trucks and heavy equipment for snow removal. Cole typically uses a township Cole 03 -024 Page 8 Ford F -550 to snowplow. The township does not allow for the personal use of such equipment by either township officials, employees, or private citizens. Since the mid- 1990's, Cole has leased property owned by his mother to various entities for use as an air monitoring station. Initially, the property was leased to Environmental Science and Engineering, Inc. (ESE) and Radian Electronics Division (RED). ESE changed its name to QST Environmental in 1997. After the federal funding for the project ran out in 2000, the Pennsylvania Department of Environmental Protection (DEP) contacted Cole for the purpose of leasing the property in an effort to continue the work started by ESE. A lease was agreed to and effectuated in March 2000. One of the lease's provisions required the property owner to provide road access and parking on the premises. Cole maintained access to that road between January 2000 to January 2003. On several occasions, Cole was observed utilizing township equipment and materials to plow snow and cinder the access road to the monitoring station. In two separate meetings in early 2003, one among the supervisors and a resident and a second among State Ethics Commission investigators and Cole, audiotapes reflect a discussion about Cole using township equipment to low the access road to the air monitoring station. Cole admitted at both meetings that he used the township equipment for that purpose. Comparables for rentals and expenses as to snowplowing services and cinders are delineated in Fact Findings 24 -29. The estimated equivalency for such snowplowing /cindering at the private access road is $425.00. See, Fact Finding 32. Turning to the SFI allegations, Cole as a supervisor was required to annually file SFI's on or before May 1 for each preceding calendar year. Although Cole filed SFI's with the township for the calendar years 1998 through 2002, a review of the SFI's reflects that he failed to disclose certain information. See, Fact Finding 35. Cole did not disclose the lease of property to DEP on Block 8 for calendar years 2000 to 2002. However, the property was not owned by Cole but his mother. Further, for the calendar years 1998 and 1999, Cole failed to disclose sources of income as delineated in Fact Finding 35. Finally, Cole filed amended SFI's for calendar years 1998 -2002 in January 2004 disclosing all sources of income and property leased to DEP. See, Fact Finding 37. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find: "a. That a violation of Section 1103(a), of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) in relation to Cole's use of township equipment and materials to plow and cinder a private road owned by his mother, a member of his immediate family. b. No violation of Section 1105(b)(3) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1105(b)(3 ) occurred when Cole failed to disclose on Statements of Financial Interests filed for calendar years 1998, 1999, 2000, 2001 and 2002 his direct and /or indirect interests in real estate which was leased to the Commonwealth, as the property leased to the Department of Environmental Protection was owned by his mother and not by Cole. c. That a violation of Section 1105(b)(5) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1105(b)(5) occurred in relation to Cole's failure to report income, from the lease of the property owned by his mother which funds he personally retained, on Statements of Financial Interests for the 1998 and 1999 calendar years." In addition, Cole agrees to pay $600 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the mailing of this Order. Cole 03 -024 Page 9 In applying Section 1103(a) of the Ethics Act to the stipulated facts, there were uses of authority of office on the part of Cole. But for the fact that Cole was a supervisor, he would not have been in a position to utilize township equipment and materials as to plowing the access road to the roperty that was leased for air monitoring purposes. Such actions were uses of authority of office. See, Juliante, Order 809. We have consistently held that government offices, equipment, facilities, personnel and materials may not be used for political, campaign, business, or personal purposes but only for governmental purposes. See, Freind, Order800. The uses of authority of office on the part of Cole resulted in private pecuniary benefits to him consisting of the out of pocket expenses that he did not have to pay by using the township equipment and materials. Accordingly, Cole violated Section 1103(a) of the Ethics Act when he used township equipment and materials to plow a private road on property owned by his mother. See, Reis, Order 1283. Turning to the SFI allegations, one allegation concerns Cole's failure to disclose real estate interests leased to DEP for the calendar years 1998 through 2002. Since the stipulated findings reflect that the property was not owned by Cole but by his mother, there is no requirement for him to list such real estate interests. Accordingly, Cole did not violate Section 1105(b)(3) of the Ethics Act regarding the failure to disclose real estate interests in that the realty was not owned by Cole but by his mother. As to the allegation of failing to disclose sources of income in excess of $1,300.00 on his 1998/1999 calendar years SFI's, the stipulated findings reflect that there was a failure to fully disclose information as to direct and indirect sources of income for calendar years 1998 and 1999. See, Fact Finding 35. Accordingly, Cole violated Section 1105(b)(5) of the Ethics Act when he failed to disclose lease income he retained as to property owned by his mother on his SFI's for calendar years 1998 and 1999. Parenthetically, we note that Cole has filed amended SFI's for the calendar years 1998 -2000 disclosing all sources of income and property leased to DEP. See, Fact Finding 37. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Cole is directed to make payment of $600.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Cole, as a Wayne Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Cole violated Section 1103(a) of the Ethics Act when he used township equipment and materials to plow a private road on property owned by his mother. 3. Cole did not violate Section 1105(b)(3) of the Ethics Act regarding the failure to disclose real estate interests leased to the Commonwealth in that the realty was not owned by Cole but by his mother. 4. Cole violated Section 1105(b)(5) of the Ethics Act when he failed to disclose lease income he retained as to property owned by his mother on his SFI's for calendar years 1998 and 1999. In Re: C. Bryan Cole ORDER NO. 1325 File Docket: 03 -024 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. Cole, as a Wayne Township Supervisor, violated Section 1103(a) of the Ethics Act when he used township equipment and materials to plow a private road on property owned by his mother. 2. Cole did not violate Section 1105(b)(3) of the Ethics Act regarding the failure to disclose on Statements of Financial Interests for calendar years 1998 -2002 real estate interests leased to the Commonwealth in that the realty was not owned by Cole but by his mother. 3. Cole violated Section 1105(b)(5) of the Ethics Act when he failed to disclose lease income he retained as to property owned by his mother on his Statements of Financial Interests for calendar years 1998 and 1999. 4. Per the Consent Agreement of the parties, Cole is directed to make payment of $600.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of the Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair