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HomeMy WebLinkAbout1326 IacovelliIn Re: Barbara lacovelli 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 02- 089 -C2 Order No. 1326 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. lacovelli 02- 089 -C2 Page 2 I. ALLEGATION: That Barbara lacovelli, a (public official /public employee), in her capacity as a supervisor for Thornbury Township, Chester County, violated Section 1103(a) provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §1103(a) when she used the authority of her office for a private pecuniary gain, including but not limited to, directing the township engineer to include an area around her personal property to be provided with curbing at township expense; and when she participated in discussions and actions of the board of supervisors approving the paving project which included curbing around her property. II. FINDINGS: 1. Barbara lacovelli has served as a supervisor of Thornbury Township, Chester County, since January 2000. a. lacovelli served as chairperson of the board in 2001. 2. lacovelli resides with her husband at 580 Deer Pointe Road in Thornbury Township. a. This is a corner lot located at the intersection of Deer Pointe Road and South Concord Road. 3. Since the fall of 1993 the lacovelli's have been concerned with drainage problems at the intersection and along the frontage of their property which caused large amounts of runoff to enter onto their property from Deer Pointe Road. a. The lacovelli's wanted the township to correct the runoff as well as install curbing at the intersection. 4. During 1994, the lacovelli's and other residents met with several township officials and attended some township supervisors meetings regarding the water run -off problems. 5. On November 10, 1995, Barbara lacovelli met with Albert Giannantonio, Senior Vice President of Yerkes Associates, who serves as Thornbury Township Engineer. a. The meeting occurred at the lacovelli property. b. The purpose of the meeting was to evaluate lacovelli's concerns, physically examine the intersection drainage situation and determine if any improvements or changes were needed to be made to the drainage patterns on either road. c. lacovelli explained the runoff /drainage problems and further noted that vehicles leave the cartway by cutting turns short and damage the lawn. d. lacovelli expressed a desire to have either curbing or a road side swale along Deer Pointe Road to keep road runoff from entering her property. e. lacovelli was not a member of the board of supervisors at that time. 6. On or about November 20, 1995, Giannantonio authored a report to the Thornbury Township Supervisors outlining his observations and conclusions and providing recommendations. a. Giannantonio made seven recommendations to the board which did not include lacovelli's request to install curbing at the intersection. 1. Giannantonio concluded that curbing would not be in the best interests of either the township or the lot owners and did not recommend that it be done. lacovelli 02- 089 -C2 Page 3 7. No actions were taken by the board regarding the lacovelli and other Deer Pointe properties until August 1996. 8. Township Engineer Giannantonio met with the lacovelli's on August 27, 1996, at their property. a. The lacovelli's proposed the township install curbing from South Concord Road to the uphill side of their driveway with a California inlet at the end of the curbing or install rolled curbing from South Concord Road to the bottom of the hill where an inlet could be installed with a culvert connection. 9. Giannantonio reported to the board on December 3, 1996, of the proposals sought by the lacovelli's, which included curbing and rolled curbing. a. Giannantonio's recommendation, which did not include curbing, remained the same as stated in his November 20, 1995, report to the board. 10. In September 1996, the township authorized improvements to the Deer Pointe Road and South Concord Road intersections which included drainage swales. a. Curbing was not authorized by the board. b. New swales were not installed by the township in the right -of -way. c. Homeowners subsequently constructed swales, berms and a retention basin on their properties themselves. Stormwater was not an issue thereafter on their properties. 11. In or about January 2000, Barbara lacovelli began serving as a Thornbury Township Supervisor. 12. In or about March 27, 2001, Yerkes Associates, township engineers provided the board of supervisors with road work proposals for year 2001. a. The proposals were for Fox Meadow and Echo Hill Roads. b. The proposal did include curbing work for Fox Meadow and Echo Hill Roads, but not Deer Pointe Road. 13. Between March 27, 2001, and May 22, 2001, Yerkes Associates was directed by the township to prepare cost estimates for the repair of South Concord Road from the intersection with Old Bailey Road. a. Barbara lacovelli participated in board directions to Yerkes. 14. Michael Conrad of Yerkes Engineering presented a preliminary cost estimate to the board of supervisors during the board's May 22, 2001, meeting. a. The cost estimate did not include curbing. b. lacovelli was in attendance and chaired the meeting. c. Following Conrad's presentation lacovelli asked to have curbs included in the package. d. A motion was made by Supervisor Miller and seconded by Supervisor Sweeney lacovelli 02- 089 -C2 Page 4 to accept Yerkes Associates' recommendation for the paving of South Concord Road. The bid package will go to a minimum of three bidders and be advertised for the additional rolled curbs at each corner. 1. The motion was unanimously approved. 15. The bid proposal was amended by Conrad after this meeting and included 160 linear feet of Standard rolled concrete curb installation at intersections with Old Bailey Lane and Deer Pointe Road. Includes subgrade preparation, excavation, and compaction; 4" layer of 2B stone; and expansion joints. 16. Forty (40) feet of this curbing was for the intersection bordering the lacovelli's property. 17. Minutes of the board of supervisors meeting for July 24, 2001, confirm action taken by the board to approve contracts for road work including curbing on S. Concord Road. a. lacovelli reported during the July 24, 2001, meeting that per the motion made at the July 10, 2001, work session, bids were reviewed by Township Manager Mulligan and Engineer Conrad. b. lacovelli read Engineer Conrad's letter of July 19, 2001, letter which recommended that contracts be awarded to Chester County Seal Coat and Paving as follows: - Contract #1 — Echo Hill Road - $27,595.00 - Contract #2 — Fox Meadow Lane - $89,253.75 - Contract #3 — South Concord Road - $49,725.00 18. Workshop session of August 28, 2001, confirms the board discussed road repairs and determined to change the scope of work for S. Concord Road and Echo Hill Road. a. Work changes were outlined in a letter dated August 30, 2001, from the township manager to Yerkes Associates, Inc. which included reference to the installation of curbing at Echo Hill and West Deer Point Roads. b. lacovelli chaired the meeting and participated in the discussion. 19. On or about July 31, 2001, lacovelli, in her capacity as Chairperson of the Board, signed the contracts with Chester County Seal Coat and Paving, for the road or which included South Concord Road and the curbing at the intersection of the lacovelli's property at Deer Point Road. 20. On August 30, 2001, township manager Milligan notified Yerkes Associates to notify Chester County Seal Coat & Paving that the scope of work will still contain the rolled curbs at Old Bailey and Deer Pointe Road. 21. Yerkes was directed to obtain an addendum for flush curbing at all four corners of North Deer Pointe Road/West Deer Pointe Road intersection, a cost estimate for leveling the hump on South Concord Road, and for the extension on Echo Hill Road. a. These intersections were additional areas where the supervisors were interested in installing curbing. 22. Yerkes Associates requested unit price proposals from Chester County Seal Coat for curbing and sight distance for the South Concord Road project on or about August 31, 2001, for review by the board on September 4, 2001. lacovelli 02- 089 -C2 Page 5 a. This request included 240 linear feet of tapered 8" wide by 12" deep flush vertical curb installation at the intersections with Day Spring Lane, Lower Deer Pointe Road, and West Deer Pointe Road. 23. On September 4, 2001, a motion to expand the scope of work on South Concord Road to include curbing for the other intersections was approved by a vote of 4 to 1. lacovelli voted to approve the motion. a. During the discussion questioning the expansion of the scope of work to include curbing on South Concord Road and Deer Pointe Road lacovelli participated in the discussion. b. lacovelli participated in the vote to expand the scope of work. 24. lacovelli had been advised by township solicitor Ronald Algunick that she could participate in the September 4, 2001, vote of the township board of supervisors. 25. On September 10, 2001, township manager Milligan informed Chester County Seal Coat and Paving of the board of supervisors' decision on September 4, 2001, to change the scope of work for South Concord Road. a. Milligan advised that the scope would be expanded only as long as the price for the additional work remained the same. b. Milligan noted that Line Item No. 9, standard issue rolled curb will remain at $20.00 per lineal foot and Line Item No. 13, tapered 8' wide, and 12' deep flush vertical curb will remain at $23.00 per lineal foot. 26. On September 5, 2001, a site meeting was held at South Concord Road for the purpose of discussing the curbing installation, at the corners of South Concord which do not abut the lacovelli property. a. In attendance were Township Supervisor Robert Eichman, Township Manager Karen Mulligan, Yerkes Associates Engineers Russ Yerkes and Albert Giannantonio and Anthony lacovelli, Barbara lacovelli's husband. 1. Barbara lacovelli did not attend the meeting. b. The engineers were directed by Eichman provided sketches for the board's approval for radius widening and curbing. 1. The sketch details were to be sent to the contractor for pricing and to the board for its approval. c. At the meeting, Giannantonio indicated that it was not the recommendation of his firm that curbing be installed at the intersections along South Concord Road and that he would reconfirm Yerkes Associates position on the matter in a letter that would accompany the sketches to be forwarded to the township. 27. On September 7, 2001, Giannantonio received a call from Karen Mulligan informing him that the board of supervisors did not want him to write a letter confirming Giannantonio position that curbing was not necessary. a. Mulligan was directed by Barbara lacovelli to tell Giannantonio not to submit the letter. 28. During the supervisors' meeting of September 18, 2001, lacovelli, as chairperson, lacovelli 02- 089 -C2 Page 6 announced a change order for roadwork on South Concord Road. a. lacovelli advised Supervisor Miller that specifications included only the curbing at Day Spring and the north end of Deer Pointe Road. b. lacovelli asked for a vote on the motion which was approved by a 4 to 1 vote to accept the specifications prepared by the township engineer. 1. lacovelli voted in favor of the motion. c. Supervisor Giacianto opposed the motion because engineering reports on the file with the township state curbs were not needed or necessary. 29. Chester County Seal Coating and Paving invoiced the township on October 25, 2001, for road work in relation to South Concord Road (Contract No. 3). a. Invoice No. 2978 in an amount of $58,617.00 included 224 feet of rolled curb along South Concord Road intersections at a cost of $4,480.00. b. The invoice was reviewed by Yerkes Associates who recommend to the board of supervisors on October 29, 2001, that invoice total of $58,617 be approved for payment. 30. On November 27, 2001, payment to Chester County Seal Coat and Paving was approved by the board of supervisors. a. Barbara lacovelli participated in the vote to approve the payment. 31. The costs for curbing incurred by the township totaled $4,480.00. a. The costs of curbing for the corner of the intersection bordering lacovelli's property was $784.00. III. DISCUSSION: At all times relevant to this matter, the Respondent, Barbara lacovelli, hereinafter lacovelli, 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." The allegations are that lacovelli, as a supervisor for Thornbury Township, violated Section 1103(a) of the Ethics Act when she directed the township engineer to include an area around her personal property to be provided with curbing at township expense; and participated in discussions and actions of the board of supervisors approving the paving project which included curbing around her property. 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 lacovelli 02- 089 -C2 Page 7 office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "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. 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. lacovelli has been a Thornbury Township Supervisor in Chester County since January 2000. lacovelli resides with her spouse at 580 Deer Pointe Road at the intersection of Deer Pointe and South Concord Roads. For approximately the last 10 years the lacovelli's and other residents have raised concerns about drainage issues along the frontage of their properties which result in a large amount of runoff onto their properties. The lacovelli's proposed to the township that it correct the runoff and install curbing at the intersection. In the mid- 1990's after lacovelli and some other residents met with township officials, the township engineer filed a report which contained his observations, conclusions and recommendations. The township engineer did not include lacovelli's request for curbing based upon his view that the curbing would not be in the best interest of either the township or the property owners. Another meeting between lacovelli and the township engineer occurred in the latter part of 1996 but the engineer did not change his recommendations. Subsequently, the township authorized improvements at the intersection of Deer Pointe and South Concord Roads which included drainage swales but no curbing. Individual homeowners constructed swales, berms and retention bases on their own properties with the result that stormwaterwas no longer an issue. In March of 2001 after lacovelli began serving on the board of supervisors, the township engineers provided the supervisors with road work proposals for that year which did not include curbing for Deer Pointe Road. Following the presentation by the township engineers of a preliminary cost estimate, lacovelli proposed to have curbs included in the package. A motion was made which was unanimously approved to accept the recom- mendation of the township engineers. However, the bid proposal was amended after the meeting to include 160 linear foot of curbing, 40 feet of which would be at the intersection bordering the lacovelli's property. In a workshop session in August of 2001, the board discussed and determined changes as to the scope of the work for South Concord and Echo Hill Roads which included curbing at Echo Hill and West Deer Pointe Roads. Thereafter, in July of 2001, lacovelli, as chair of the board, signed contracts with a company for roadwork which including curbing at the intersection of lacovelli's property at Deer Pointe Road. The engineer was then directed to lacovelli 02- 089 -C2 Page 8 obtain an addendum for curbing at all four corners at North Deer Pointe and West Deer Pointe Roads intersection, the leveling of a hump on South Concord Road, and an extension on Echo Hill Road. In September 2001, a motion to expand the scope of the work on South Concord Road to include the curbing at the other intersections was approved by a 4 -1 vote with lacovelli voting for the motion. lacovelli had been advised by the township solicitor that she could participate in that particular vote. After the township manager informed the paving company of the decision of the board of supervisors to change the scope of the work, the contractor advised that the rates would be the same at $20.00 per linear foot of curbing and $23.00 per linear foot for deep flush vertical curb. There was a site meeting on September 5, 2001, regarding the curbing installation but lacovelli did not attend. At a September 18, 2001, board meeting, lacovelli advised as to a change order that the only included curbing would be at Day Spring and the north end of Deer Pointe Road. lacovelli asked for a motion which was proffered and approved by a 4 -1 vote with lacovelli voting with the majority. One supervisor opposed the motion because the engineering reports on file with the township indicated that curbing was neither needed nor necessary. The paving contractor performed the work and invoiced the township in October 2001 which invoice was approved by the board of supervisors at a November 27, 2001, meeting. The cost for curbing incurred by the township was $4,480.00 with $784.00 attributable to the corner of the intersection bordering lacovelli's property. 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. The Investigative Division asserts that a violation of Section 1103(a), 65 Pa.C.S. §1103(a) of the Public Official and Employee loyyee Ethics Law occurred when lacovelli participated in various discussions and other actions of the board of supervisors approving the paving project which included 40 feet of curbing within the right -of -way at the corner of her property. b. Respondent lacovelli denies any violation of the Ethics Law and denies that she received any personal or pecuniary gain. c. In an effort to resolve this instant matter Respondent lacovelli agrees to accept a finding by the Commission that there has been an unintentional technical transgression of the Ethics Law which was primarily based upon the receipt of advice from the township solicitor." In addition, lacovelli agrees to pay $500 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the issuance of the mailing of this Order. In applying the provision of Section 1103(a ) of the Ethics Act to the stipulated findings, there were uses of authority of office on the part of lacovelli. But for the fact that lacovelli was a supervisor, she would not have been in a position to participate in actions of the board as to expanding the road projects contract to include curbing on certain roads which included part of the border on her property. lacovelli also participated by voting to approve motions as to the road construction project extension as well as voting to approve the payment to the contractor for such curbing extensions. All such actions were uses of authority of office by lacovelli. See, Juliante, Order 809. A private pecuniary benefit inured to lacovelli in that she and her spouse did not have out -of- pocket expenses as to the curbing that was installed on part of the border of their property. The rivate pecuniary benefit was $784.00. See, Fact Finding 31. That private pecuniary benefit inured to lacovelli and her spouse who is a member of her lacovelli 02- 089 -C2 Page 9 immediate family as the term is defined under the Ethics Act. See, 65 Pa.C.S. § 1102. Accordingly, lacovelli unintentionally technically transgressed Section 1103(a) of the Ethics Act when she participated in various actions of the board of supervisors as to a paving project which included 40 feet of curbing within the right -of -way at the corner of property owned by herself and her spouse. See, Heineman, Order 1258. 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, lacovelli is directed to make payment of $500.00 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. lacovelli, as a Thornbury Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. lacovelli unintentionally technically transgressed Section 1103(a) of the Ethics Act when she participated in various actions of the board of supervisors as to a paving project which included 40 feet of curbing within the right -of -way at the corner of property owned by herself and her spouse. In Re: Barbara lacovelli ORDER NO. 1326 File Docket: 02- 089 -C2 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. lacovelli, as a Thornbury Township Supervisor, unintentionally technically transgressed Section 1103(a) of the Ethics Act when she participated in various actions of the board of supervisors as to a paving project which included 40 feet of curbing within the right -of -way at the corner of property owned by herself and her spouse. 2. Per the Consent Agreement of the parties, lacovelli is directed to make payment of $500.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair