HomeMy WebLinkAbout1327 ZornIn Re: Edward Zorn
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 -013
Order No. 1327
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 deemed held. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11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.
Zorn 03 -013
Page 2
I. ALLEGATION:
That Edward Zorn, a (public official /public employee) in your capacity as a Supervisor
of Brothers Valley Township, Somerset County, violated 65 Pa.C.S. §1103(a) and 65 Pa.C.S.
§1104(a) of the Public Official and Employee Ethics Law (65 Pa.C.S §1101 et seq.) when
you used the authority of your office for the private pecuniary gain of members of your
immediate family, including but not limited to utilizing township employees and equipment to
assist with a construction project on your son's property; when you participated in actions of
the board of supervisors to award contracts and authorize payments to PBS Coals, Inc., a
business which employs your son; and when you failed to file Statements of Financial
Interests for the 1999, 2000 and 2001 calendar years.
II. FINDINGS:
1. Edward Zorn has served as a Supervisor for Brothers Valley Township, Somerset
County, since January 6, 1992.
a. Zorn has held no specific board office during his tenure.
b. Zorn's term as supervisor expires December 31, 2003.
2. Brothers Valley Township is a Second -Class Township governed by a three - member
board of supervisors.
a. Brothers Valley Township holds one regular supervisors meeting per month on
the second Monday of each month.
b. Voting at Brothers Valley Township meetings occurs in group "aye" or "nay"
fashion.
3. Zorn has been employed as a roadmaster for Brothers Valley Township since taking
office in January 1992.
a. Remaining supervisors were employed in the positions of either roadmaster or
assistant roadmaster.
b. Since at least 1993 Zorn has been the "head" roadmaster with the other two
supervisors serving as assistants.
4. Brothers Valley Township employs six full time individuals on its road crew.
a. Three of the positions are occupied by members of the board of supervisors.
b. Each remaining employee is assigned to work with one of the working
supervisors.
5. Generally the normal working hours for the township road crew are 6:00 am -2: 30 pm,
Monday through Friday.
a. Working hours are modified at times due to inclement weather, emergencies,
etc.
6. The township road crew meets at the township maintenance garage every morning to
receive the day's assignments.
a. Zorn, as the head roadmaster, directs the road crew on work to be performed.
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Page 3
b. Zorn occasionally instructs the road crew in advance of work to be performed
during the week.
c. Zorn maintains a personal calendar to document work performed by the road
crew.
7. Brothers Valley Township owns several pieces of heavy equipment, including four
International dump trucks (single - axle), two Ford F -350 1 -ton dump trucks, one Case
580E backhoe, and one Huber steel - wheeled 6 -ton roller among other equipment.
a. Operation of the International trucks requires a Commercial Drivers License
(CDL).
8. Brothers Valley Township does not maintain any logs or records to document when,
where, or for what purpose township equipment is used.
a. Logs have recently been maintained for the township trucks but are limited to
the day of use and any repairs or maintenance necessary.
9. Brothers Valley Township has no official policy permitting the use and /or rental of
township equipment by township residents and /or businesses.
a. As roadmaster, Zorn occasionally has entered into agreements with businesses
for use of township equipment in exchange for road supplies /materials.
1. Zorn provided the township equipment at a rate established by township
secretary, Ed Suder, of $30.00 per hour and operators at the rate of
$10.00 per hour.
2. The amount of road supplies /materials obtained was generally equal to
or greater than the approximate dollar value associated with the use of
the equipment and operator Of applicable).
b. Zorn has, on occasion, made such arrangements without the knowledge or
approval of the other supervisors.
10. Richard Zorn is the son of Zorn.
a. Richard Zorn resides at 605 Old Mill Road, Berlin, Pennsylvania.
b. Richard Zorn's residence is located in Brothers Valley Township.
11. In or about July 2001, Richard Zorn decided to construct a pole building on his property
in Brothers Valley Township.
a. The dimensions of the building are approximately 40' x 56'.
12. Richard Zorn is an employee of PBS Coals, Inc.
a. Richard Zorn has been employed by PBS Coals, Inc. for approximately 31
years.
1. Richard Zorn holds a supervisor position with PBS Coals.
b. Richard Zorn worked out of the PBS Coals stone quarry located in Brothers
Valley Township while the quarry was operational.
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1. The quarry became non - operational in early 2002.
c. Richard Zorn's immediate supervisor at the Brothers Valley plant location was
Dan Mock.
13. After deciding to construct the pole building, Richard Zorn approached Mock and
inquired as to the possibility of purchasing base material (quarry refuse) from PBS
Coals for the building.
a. Mock informed Richard Zorn that he could have the needed material free of
charge.
b. Zorn would be responsible for the pick -up and delivery of the material.
14. PBS Coals does not own any trucks for the hauling and delivery of stone supplies to its
clients.
a. PBS Coals contracted with outside companies for the hauling and delivery of
stone supplies.
15. Richard Zorn discussed with his father, Edward Zorn whether the township trucks
could be utilized to deliver the base material from the PBS stone quarry to his
residence.
a. Zorn initially informed his son that the township might not have the time
available to haul the fill.
b. Richard Zorn told his father that PBS could provide a large amount of 2A
modified stone from PBS supplies to the township free of charge in exchange
for the hauling.
16. PBS Coals actively practiced a "good- neighbor" policy with Brothers Valley Township
and other municipalities in the immediate area.
a. The "good. neighbor" policy included supplying aggregate from the stone plant to
the municipalities at favorable rates and the bartering of stone or other goods
towards services such as the temporary use of township equipment to
undertake various tasks.
b. Richard Zorn had the limited authority to barter aggregate up to a certain
tonnage in exchange for the use of township equipment.
17. Mock was aware of Richard Zorn's proposal to supply 2A modified to Brothers Valley
Township free of charge in exchange for the township hauling fill material to Richard
Zorn's property.
a. Mock approved the arrangement due to Richard Zorn's long- standing service
and dedication to PBS Coals.
18. Richard Zorn also requested of his father whether he could utilize the township roller to
compact the fill material and the township backhoe to excavate a trench for electrical
wires to be run.
a. Edward Zorn approved the request and arranged for his son to use the
township backhoe and roller.
19. The construction of the pole building on Richard Zorn's property began in
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approximately July /August 2001.
20. Zorn used township equipment and employees to facilitate the construction of the pole
building occurred over a two -day period in or about July /August 2001.
a. Edward Zorn did not document the dates in which township equipment and
personnel were utilized for the construction of the building on his son's property.
21. Edward Zorn omitted documenting the hauling of fill and delivery of equipment to his
son's property from his personal calendar.
22. On the morning of the first day of work on his son's property, Zorn instructed the road
crew that they would be hauling material from the PBS stone quarry to his son's
residence.
a. Zorn directed that the four International trucks belonging to the township be
utilized.
1. Road crew employees Daniel Logue, William Zinn, and Bryan Coleman
along with supervisor /assistant roadmaster James Flamm drove the
International trucks.
b. Zorn personally drove one of the township's one -ton trucks.
c. Supervisor /assistant roadmaster John Coleman did not participate in the two
days events.
1. Coleman was cutting grass along various township roads during the
days in question.
23. Zorn also instructed supervisor /assistant roadmaster Flamm to deliver the township
roller to Richard Zorn's property.
a. Flamm delivered the roller utilizing the township's second one -ton truck prior to
going to the PBS stone quarry.
b. Flamm returned to the township garage after the delivery and drove his
International truck to PBS to haul the fill.
24. The township backhoe was delivered to Rick Zorn's property several days prior to the
delivery of the fill or roller.
a. The township road crew had used the backhoe for the installation of a culvert
under Rick Zorn's driveway in the days proceeding the hauling of fill.
b. Edward Zorn instructed the road crew to leave the backhoe on Rick Zorn's
property when the work was completed.
25. Edward Zorn utilized five members of the Brothers Valley Township road crew
(including himself) for a minimum of nine hours each over a two -day period to haul and
deliver fill from PBS Coal to his son's property.
a. Road crew employees and township trucks were utilized for four hours the first
day and five hours the second day.
26. Richard Zorn personally operated the township roller to compact the fill material used
as the base for his pole building.
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a. Richard Zorn maintained possession of the township roller on his property for
approximately three days.
27. Richard Zorn personally operated the township backhoe to excavate a trench in which
electrical lines to the building could be installed.
a. Richard Zorn excavated a portion of the trench but did not complete the
excavation.
28. Days after the hauling of the fill was completed, township employee Zinn was
transported to Richard Zorn's property by another township employee to retrieve the
backhoe for the township.
a. The township road crew needed the backhoe to install a culvert in the township
the following day.
b. The backhoe had been at Rick Zorn's property for approximately three days
prior to the retrieval.
29. After arriving at Richard Zorn's property, Zinn observed that approximately 15 feet of
the trench had not been excavated.
a. Zinn made the determination to excavate the remaining section before returning
the backhoe to the township garage.
b. Zinn utilized at least 30 minutes in excavating the trench.
30. In return for hauling fill material to Richard Zorn's residence, Brothers Valley Township
received 1,180.70 tons of 2A modified stone from PBS Coals as shown below:
a.
Date
08 -06 -01
08-13-01/08-14-01
08 -23 -01
09 -05 -01
Total
Number of Total Tons
Trips to PBS Received
2 119.60
5 496.55
5 285.55
5 279.00
17 $1,180.70
Brothers Valley Township was charged $2.50 /ton by PBS for 2A modified
stone.
b. The estimated value of the aggregate received by the township was
approximately $2,950 (1180 x $2.50 /ton).
c. The stone received by the township was used to repair /maintain a township
road.
31. During the April 8, 2002 monthly meeting of the board of supervisors Zorn was
questioned by residents regarding the use of township equipment and employees on
his son's property.
a. Zorn admitted the delivery of the roller to his son's property but denied the use
of any township employees.
b. Zorn did admit that township trucks and the township backhoe had also been
Zorn 03 -013
Page 7
utilized at his son's property.
c. Zorn stated that he would obtain money for the fuel used with the roller and
compensate the township for its use.
32. Zorn issued personal check number 7366 dated May 13, 2002, from his personal
account at First National Bank to Brothers Valley Township in the amount of $100.00
approximately one month after being questioned on the use of township equipment.
a. The "Memo" section of the check noted, "Roller."
33. In a sworn statement provided by Zorn to Ethics Commission investigators on
November 18, 2003, Zorn admitted he would not have provided the check to the
township if he had not been questioned on the situation.
a. Zorn paid the township approximately nine months after the roller had been
used and after being questioned by township residents.
b. Zorn and /or Richard Zorn provided no other reimbursement to the township
regarding the use of township equipment and employees.
34. Cambria Tractor and Equipment Company, located at 4355 Admiral Pearl Highway,
Ebensburg, Pa, provides heavy equipment for daily, weekly, or monthly rental.
a. The daily rental rate for a 6 -ton, smooth drum roller is $180.00 per day.
b. The daily rental rate for a Case 580 Extend -a -hoe is $200.00 per day.
35. New Enterprise Stone and Lime Company, located in Somerset, Pa, has available a
variety of trucks for the hauling of aggregate, black top, etc.
a. New Enterprise has a list of hired haulers the company utilizes to haul materials
to desired locations.
b. Trucks provided by New Enterprise can be rented on an hourly basis.
c. New Enterprise can provide single -axle trucks and 1 -ton trucks with operators
to haul various aggregate and fill as follows:
1. The rental rate for a single -axle truck is $40.00 per hour.
2. The rental rate for a 1 -ton truck is $35.00 per hour.
36. The working supervisors and road crew employees receive hourly wages in association
with their respective positions.
a. In 2001, the three working supervisors earned $10.50 per hour.
b. In 2001, the three road crew employees earned $10.25 per hour.
37. Richard Zorn received a private pecuniary gain of $3,260.75 [sic] as a result of his
father, Edward Zorn, using the authority of his public office by Zorn directing township
employees to haul fill and deliver township equipment to his son's property as shown
below:
Equipment Used
Single axle Internationals
Equipment Value
Length of Time Used Rate Total Value
9 hours $40.00 /hour $1,440.00
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Page 8
E uipment Used
1 4
- on Ford F -350
6 -Ton Roller
Case 580 Extend -a -hoe
Total
Employee
Bryan Coleman
Daniel Logue
William Zinn
Jim Flamm
Ed Zorn
Total
Equipment Value
Length of Time Used Rate
9 hours
3 days
3 days
Employee Wages Lost
Township Time Lost Rate
9 hours
9 hours
9 hours
9 hours
9 hours
Description Value
Equipment $ 2895.00
Employees $ 465.75
Total $ 3,360.75
Less Payment by Zorn 100.00
Less Stone Received by Township $2,950.00
Private Pecuniary Gain: $ 319.75
$35.00 /hour
$180.00 /day
$200.00 /day
$10.25 /hour
$10.25 /hour
$10.25 /hour
$10.50 /hour
$10.50 /hour
Total Value
$315.00
$540.00
$600.00
$2,895.00
Total Value
$92.25
$92.25
$92.25
$94.50
$94.50
$465.75
THE FOLLOWING FINDINGS RELATE TO ZORN'S PARTICIPATION IN ACTIONS OF
THE BOARD OF SUPERVISORS TO AWARD CONTRACT'S AND AUTHORIZE
PAYMENTS TO A COMPANY EMPLOYING HIS SON.
38. Brothers Valley Township publicly advertises for bids regarding road materials and
supplies on an annual basis.
a. Advertisements for bids are normally published in The Daily American and the
Meyersdale Republican.
b. Bid advertisements are normally published in or around May of each year.
39. Road materials and supplies normally put out for bid include 2A Modified, #57 stone,
#8 stone, #4 stone, ID -2 wearing course for patching, ID -2 wearing course in place, #8
stone in place, and E -3 oil spread
a. Slight variations occur each year regarding which of the above listed items are
actually bid.
40. PBS Coals, Inc. operated a stone quarry and consistently provided bids to Brothers
Valley Township for road materials and supplies from at least 1998 through 2001.
a. PBS Coals submitted bids for stone only.
1. PBS Coals did not submit bids for wearing course or oil spread.
b. The PBS stone quarry became non - operational in early 2002.
Meeting Date
Zorn Motion /Second
Zorn's Vote
Final Vote
June 8, 1998
Motion
Yes
3 -0
June 7, 1999
Motion
Yes
3 -0
June 12, 2000
Motion
Yes
3 -0
June 11, 2001
Motion
Zorn 03 -013
Page 9
41. Richard Zorn, Edward Zorn's son, is employed by PBS Coals, Inc.
a. Richard Zorn is not an owner or shareholder of PBS Coals, Inc.
42. Edward Zorn was present and participated in discussions and votes of the board of
supervisors to award PBS Coals Brothers Valle y Township contracts for various road
materials and supplies from 1998 through 2001 as shown be ow:
No second to the motion, actual vote, or passing of the motion is documented in the
minutes.
a. Zorn participated in the meetings at which bids were opened and discussed.
b. Zorn participated in the votes to award various contracts to PBS Coals.
c. Zorn did not publicly disclose his son's association with PBS Coals, Inc., prior
to the opening, discussion, or awarding of bids to PBS Coals, Inc.
1. Richard Zorn's employment with PBS Coals was common knowledge
among the board of supervisors.
43. PBS Coals, Inc. was consistently the lowest bidder regarding aggregate needed by the
township.
a. PBS Coals had a "good neighbor" policy with several local municipalities which
resulted in low bid prices for various aggregate (see finding no. 16)
b. Brothers Valley Township picked up all required aggregate at the PBS plant,
negating the need for delivery, which assisted in setting low bid prices for
various aggregate.
c. Bid prices were generated by various personnel at PBS Coals main office
located in Freidens, Pa.
1. Richard Zorn played no role in the submitting of bids to Brother's Valley
Township.
44. Edward Zorn, as the head roadmaster, determined the types and amounts of road
supplies and materials needed to maintain Brothers Valley Township roads.
a. The township road crew obtained aggregate from PBS Coal on an as- needed
basis due to the plant's close proximity to the township garage.
45. Brothers Valley Township placed orders for various aggregate from PBS Coals totaling
approximately $86,824.56 from June 1998 through March 2003 as shown by year
below:
1998
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*= Credit issued
Invoice Invoice Invoice Check Check Check
Date Number Amount Date Number Amount
06 -15 -98 5064 $4,807.35 07 -13 -98 1614 $7,021.35
06 -30 -98 5227 2,214.00 07 -13 -98 1614 7,021.35
07 -15 -98 5527 116.25 08 -10 -98 1648 667.80
07 -31 -98 5684 551.55 08 -10 -98 1648 667.80
08 -15 -98 5774 4,245.62 09 -14 -98 1682 4,245.62
08 -31 -98 5896 1,798.13 10 -12 -98 1721 4,858.01
09 -15 -98 5995 3,677.38 10 -12 -98 1721 4,858.01
09 -15 -98 6057 - 617.50* NA NA NA
10 -15 -98 6313 56.63 11 -09 -98 1756 56.63
11 -15 -98 6643 841.88 12 -14 -98 1791 1,066.58
11 -30 -98 6722 224.70 12 -14 -98 1791 1,066.58
Total $17,915.99
1999
2000
Invoice Invoice Invoice Check Check Check
Date Number Amount Date Number Amount
12 -31 -98 6895 $132.63 01 -11 -99 1833 $132.63
02 -15 -99 7097 39.73 03 -08 -99 1911 39.73
04 -15 -99 7461 816.30 05 -10 -99 1994 816.30
04 -30 -99 7489 2,072.40 06 -14 -99 2023 3,263.48
05 -15 -99 7679 587.78 06 -14 -99 2023 3,263.48
05 -30 -99 7818 603.30 06 -14 -99 2023 3,263.48
06 -15 -99 7947 2,394.63 07 -12 -99 132 2,394.63
06 -30 -99 7995 3,746.64 08 -09 -99 1025 8,959.19
07 -15 -99 8126 2,276.88 08 -09 -99 1025 8,959.19
07 -31 -99 8271 2,935.67 08 -09 -99 1025 8,959.19
08 -15 -99 8355 3,749.78 10 -11 -99 1100 8,669.56
08 -31 -99 8500 1,820.14 09 -13 -99 1063 1,820.14
09 -15 -99 8597 3,022.14 10 -11 -99 1100 8,669.56
09 -30 -99 8776 1,897.64 10 -11 -99 1100 8,669.56
10 -15 -99 8891 678.63 11 -08 -99 1135 678.63
Total $26,774.29
Invoice Invoice Invoice Check Check Check
Date Number Amount Date Number Amount
02 -29 -00 10675 R $110.43 04 -13 -00 1339 $3,956.54
03 -15 -00 10877 R 3,253.73 04 -13 -00 1339 3,956.54
03 -31 -00 11068 R 592.38 04 -13 -00 1339 3,956.54
04 -15 -00 11239 R 1,887.38 05 -08 -00 1384 1,887.38
04 -30 -00 11401 R 202.26 06 -12 -00 1419 3,163.56
05 -15 -00 11567 R 2,454.39 06 -12 -00 1419 3,163.56
05 -30 -00 11804 R 506.91 06 -12 -00 1419 3,163.56
06 -15 -00 11975 R 537.15 07 -10 -00 1456 537.15
06 -30 -00 12164 R 1,201.77 08 -14 -00 1497 2,509.28
07 -15 -00 12347 R 176.25 08 -14 -00 1497 2,509.28
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07 -30 -00 12647 R 1,131.26 08 -14 -00 1497 2,509.28
08 -15 -00 12973 R 344.51 09 -11 -00 1532 1,571.02
08 -31 -00 13224 R 1,226.51 09 -11 -00 1532 1,571.02
09 -15 -00 13475 R 2,364.26 10 -09 -00 1569 4,071.41
09 -30 -00 13707 R 1,707.15 10 -09 -00 1569 4,071.41
10 -31 -00 14233 R 194.38 11 -13 -00 1618 194.38
11 -15 -00 14475 R 2,090.13 12 -11 -00 1654 2,172.76
11 -30 -00 14654 R 82.63 12 -11 -00 1654 2,172.76
Total $20,063.48
2001
2002
* =State Fund check
Invoice Invoice Invoice Check Check Check
Date Number Amount Date Number Amount
02 -15 -01 15346 R $439.20 03 -12 -01 1772 $1,064.28
02 -28 -01 15441 R 625.08 03 -12 -01 1772 1,064.28
03 -15 -01 15573 R 138.50 04 -09 -01 1810 138.50
03 -31 -01 15674 R 1,155.13 05 -14 -01 1858 2,607.02
04 -15 -01 15781 R 383.38 05 -14 -01 1858 2,607.02
04 -30 -01 15959 R 1,068.51 05 -14 -01 1858 2,607.02
05 -15 -01 16112 R 2,237.06 06 -11 -01 1886 2,237.06
05 -30 -01 16339 R 665.63 07 -09 -01 1925 880.60
06 -15 -01 16470 R 214.97 07 -09 -01 1925 880.60
07 -15 -01 16759 R 2,427.18 08 -13 -01 1967 2,427.18
07 -31 -01 16906 R 242.73 09 -10 -01 2009 242.73
09 -15 -01 17294 R 293.22 10 -08 -01 2051 293.22
09 -30 -01 17421 R 2,016.76 11 -12 -01 2096 4,093.63
10 -15 -01 17550 R 1,566.96 11 -12 -01 2096 4,093.63
10 -31 -01 17693 R 509.91 11 -12 -01 2096 4,093.63
11 -15 -01 17789 R 208.98 01 -14 -02 2196 208.98
11 -30 -01 17927 R 83.70 12 -10 -01 2136 83.70
Total $14,276.90
Invoice Invoice Invoice Check Check Check
Date Number Amount Date Number Amount
01 -31 -02 18305 R $609.13 02 -11 -02 2230 $609.13
02 -15 -02 18395 R 294.57 04 -08 -02 2318 294.57
03 -31 -02 18690 R 283.91 05 -13 -02 2393 283.91
04 -30 -02 18886 R 3,117.78 06 -10 -02 2440 3,117.78
05 -31 -02 18971 R 1,608.75 06 -14 -02 2458 1,608.75
09 -30 -02 19383 R 1,272.26 11 -14 -02 1176 1,272.26
Total $7,186.40
2003
Invoice Invoice Invoice Check Check Check
Date Number Amount Date Number Amount
03 -31 -03 19900 RI $607.50 04 -14 -03 3253* $607.50
Total $607.50
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46. Although PBS Coals did not submit a bid for road supplies and materials in 2002 or
2003, Brothers Valley Township continued to purchase aggregate from PBS Coals
during those years due to its consistently low price for aggregate.
a. Aggregate purchased in 2002 and 2003 was obtained at the PBS plant located
in Brothers Valley Township.
1. Although no longer operational, the quarry was selling its existing
inventory /stock of stone.
47. From June 1998 through January 2002, bill lists were not generated and presented to
the township supervisors by the secretary /treasurer or other township personnel.
a. The township secretary /treasurer at that time would read the monthly bills and
total expenditures as part of the treasurer's report.
b. Bills paid were not individually noted in the meeting minutes.
c. Payment of monthly bills was approved by way of approving the monthly
treasurer's report.
48. Since February 2003, the current secretary /treasurer has generated bill lists noting
monthly expenses and has incorporated the bill lists into the monthly minutes.
a. Although bill lists have been provided since February 2002, motions to approve
the monthly bill lists have only occurred since approximately May 2002.
b. From February 2002 through April 2002 monthly bills were approved by way of
approving the treasurer's report.
49. Signature authority over Brothers Valley Township accounts lies with all three
supervisors and the secretary /treasurer.
a. General fund and State Fund checks require the live signatures of at least one
supervisor and the secretary /treasurer.
b. Although only two signatures are required on General Fund checks, all three
supervisors sign the checks when available to do so.
50. Zorn was present at every Brothers Valley Township meeting encompassing the time
frame of June 1998 through March 2003.
a. Minutes note that Zorn voted affirmatively to approve all treasurer's reports
and /or bill lists approving monthly bills during this time frame.
b. Zorn signed as an authorized signatory on all of the forty -four checks issued to
PBS Coals by Brothers Valley Township as payment for road materials.
1. All of the checks signed by Zorn were signed by at least one other
supervisor and the Secretary /treasurer.
c. Zorn did not publicly disclose his son's association with PBS Coals prior to the
votes to approve any monthly treasurer's reports or bill lists.
51. Zorn, as an elected township supervisor, is required to file Statements of Financial
Interests in accordance with Section 1104 of the State Ethics Act.
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Page 13
52. A Statement of Financial Interests Compliance Review was conducted at the Brothers
Valley Township municipal building on March 27, 2003.
a. Zorn filed a Statement of Financial Interests for calendar year 2002 with the
township on February 21, 2003.
b. Zorn did not file Statements of Financial Interests for the 1999, 2000 and 2001
calendar years as of March 27, 2003.
53. Zorn filed SFI's with Brothers Valley Township on June 17, 2003 for calendar years
1999, 2000 and 2001.
a. Zorn filed said SFI's after receiving notification of his failing to file by the State
Ethics Commission.
54. Zorn is compensated at the rate of $35 per meeting for attending meetings of the
Brothers Valley Township Board of Supervisors.
55. Zorn was compensated as follows for meeting attendance in 1999, 2000 and 2001:
1999 14 meetings $ 490.00
2000 14 meetings $ 490.00
2001 15 meetings $ 525.00
Total $ 1,505.00
56. During the years 1999, 2000 and 2001 when he failed to file Statements of Financial
Interests, Zorn received compensation in the form of meeting pay totaling $1,505.00.
57. Zorn's use of his public position for the benefit of his son and failure to file Statements
of Financial Interests resulted in a private pecuniary gain of $1,815.75.
a. Zorn also used his public office to benefit his son's employer PBS Coals when
he participated in the award of bids to PBS and subsequently voted to approve
payments totaling $86,824.56.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Edward Zorn, hereinafter Zorn, has
been a public official subject to the provisions of the Public Official and Employee Ethics Law,
Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and
Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are
referred to herein as the "Ethics Act."
The allegations are that Zorn, as a Brothers Valley Township Supervisor, violated
Sections 1103(a) and 1104(a) of the Ethics Act when he utilized township employees and
equipment to assist with a construction project on his son's property; participated in actions of
the board of supervisors to award contracts and authorize payments to a business which
employs his son; and failed to file Statements of Financial Interests (SFI's) for the 1999, 2000
and 2001 calendar years.
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
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"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 1104(a) of the Ethics Act requires that each public official /public employee
must file a Statement of Financial Interests for the preceding calendar year, each year that he
holds the position and the year after he leaves it.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
Zorn served as a Brothers Valley Township Supervisor in Somerset County from
January of 1992 through December of 2003. Zorn was also employed as a township
roadmaster while serving as a supervisor.
The township has six full -time employees on its road crew with three of the positions
held by the supervisors and three held by employees, each of whom are assigned to work with
one of the supervisors. The normal working hours for the road crew is 6:00 a.m. to 2:30 p.m.,
Monday through Friday. Zorn, as the head roadmaster, directed the road crew on work to be
performed which occurred every morning when he gave the daily assignments.
Although the township owns several pieces of heavy equipment, it does not maintain a
log or records to document the usage of such equipment. The township has no official policy
to permit the use or rental of the township equipment by township residents or businesses. On
occasion, Zorn entered into agreements with businesses for use of township equipment in
exchange for road supplies or materials. Such arrangements by Zorn were done without the
knowledge or approval of the other two supervisors.
When Zorn's son, Richard, decided to construct a pole building on his property, he
asked his superior at his place of employment, the PBS Coals stone quarry, whether he could
purchase base material for his building. Richard was given the material free of charge but was
required to arrange for the pick -up and delivery of the material. Richard then discussed the
matter with Zorn and inquired as to whether township trucks could be utilized to deliver the
material to Richard's residence. Zorn informed his son that the township might not have the
time to haul the fill.
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Richard advised Zorn that he (Richard) could provide a large amount of 2A modified
stone from the quarry to the township free of charge in exchange for the hauling. This was
consistent with a "good neighbor" policy between the township and the quarry in bartering free
gravel in exchange for the use of township equipment. Richard's superior approved the
arrangement for giving the township gravel in exchange for the use of township equipment.
Richard also asked Zorn whether he could utilize the township roller and backhoe for work on
the property. Zorn approved the request and arranged for Richard to use the township
backhoe and roller.
The construction of the pole barn occurred in the summer of 2001. Zorn used
township equipment and employees to facilitate the construction of the pole building overatwo
day period. There is no documentation as to the dates and usage of the township equipment.
On the first day of work, Zorn instructed the road crew to haul material from the quarry to
Richard's residence. Zorn directed the use of four International trucks for the project. Zorn
personally drove one of the trucks. Zorn also instructed Supervisor /Assistant Roadmaster
Flamm to deliver the township roller to Richard's property. After Flamm delivered the roller
using a township truck, he returned to the garage and drove the township truck to the quarry to
haul gravel to Richard's property. The township backhoe was delivered to Richard's property
several days prior to the delivery of the gravel and roller. The backhoe was used by the road
crew to perform township work in the area. Zorn instructed the road crew to leave the backhoe
on Richard's property after the work had been completed.
Zorn used five members of the road crew (including himself) for a minimum of nine
hours each over a two day period to haul and deliver fill from the quarry to Richard's property.
Road crew employees and the trucks were utilized for four hours the first day and five hours
the second day for the project on Richard's property. Zorn personally operated the township
roller to compact the fill and also operated the township backhoe to excavate a trench for
electric lines to the building. Several days after the hauling was completed, a township
employee was trans ported to Richard's property to retrieve the backhoe which was needed on
a township project. Nhen the employee arrived to pick -up the backhoe, he observed that 15
feet of trench had not been excavated and made the determination to do that excavation
before returning the backhoe to the township. The amount of fill that the township received as
a result of having its equipment and employees used for the pole building on Richard's
property was 1,180.7 tons which had an approximate value of $2,950.00.
During an April 2002 meeting of the board of supervisors, Zorn was questioned by
residents regarding the use of township equipment and employees on his son's property.
Although Zorn admitted that township trucks, the backhoe, and roller were delivered to his
son's property, he denied the usage of township employees for the project. Zorn stated that
he would compensate the township for the fuel used in the roller. Subsequently, Zorn wrote a
check in the amount of $100.00 from his personal account which had a notation in the memo
section of "Roller." Zorn subsequently admitted that he would not have provided the check but
for the fact that he had been questioned about the matter.
Comparable rental rates for such equipment are $180.00 per day for a roller, $200.00
per day for a backhoe, $40.00 per hour for a single axle truck, and $35.00 per hour for a one
ton truck. In terms of comparable wages for employees and supervisors, the three working
supervisors earned $10.50 per hour in 2001 and the road crews earned $10.25 per hour. A
private pecuniary gain of $3,360.75 was received by Richard as to the use of township
equipment and personnel. By crediting the $100.00 payment by Zorn and the $2,950.00 as to
the value of the gravel received by the township, the net private pecuniary gain reduced to
$319.75.
Turning to the facts regarding Zorn's action to award contracts and make payments to a
company employing his son, the township publicly advertises for bids for road materials and
supplies. The PBS Coals stone quarry has consistently provided bids to the township for road
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Page 16
materials and supplies from 1998 through 2001. The quarry became non - operational in early
2002. Zorn's son, Richard, is an employee of the quarry but not an owner or shareholder.
Zorn participated in discussions and votes of the board to award the quarry contracts to
PBS Coals for various road materials and supplies as delineated in Fact Finding 42. The
quarry was consistently the lowest bidder regarding aggregate needed by the township. Zorn,
as the head roadmaster, determined the types and amounts of road supplies and materials
needed for the township roads. The various aggregate orders placed by the township with the
quarry from June of 1998 through March of 2003 are delineated in Fact Finding 45. All of
those orders totaled approximately $86,824.56. Even though the quarry did not submit bids
for road supplies or materials in 2002 and 2003, the township continued to purchase
aggregate from the quarry in that timeframe due to its consistently low pricing.
As to the bill paying process in the township, from June 1998 through January 2002,
bills lists were not generated or presented to the board. The township secretary /treasurer
merely read the monthly bills and total expenditures. Bills were approved by the board's
approval of the monthly treasurer's report. From February 2003 forward, the secretary/
treasurer generated bills lists noting monthly expenses and incorporated such into the meeting
minutes. Checks and the payment of invoices consist of a signature of one of the three
supervisors and secretary /treasurer or in the case of general fund checks, usually all three
supervisors.
For the period June 1998 through March 2003, the minutes reflect that Zorn affirmably
voted to approve all treasurer's reports and bills lists. In addition, Zorn signed all 44 checks
issued to the quarry in payment of road materials. Zorn never publicly disclosed his son's
association with the quarry prior to votes to approve the monthly treasurers reports or bills lists.
As to SFI's, a compliance review at the township reflected that Zorn filed SFI's for the
calendar year 2002 but failed to file SFI's for the calendar 1999 -2001. Zorn has since filed
SFI's with the township on June 17, 2003, for the calendar years 1999 -2001. This occurred
after Zorn received notification from the Commission as to his failure to file SFI's. During the
time period of non - filing, Zorn received compensation in the form of meeting pay totaling
$1,505.00. Finally, Zorn's use of his position for the benefit of his son and the failure to file
SFI's resulted in a private pecuniary gain of $1,815.75.
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 65 Pa.C.S. §1103(a) occurred when Zorn participated in the
awarding of contracts and subsequent payments to a business which employs his son.
b. That no violation of 65 Pa.C.S. §1103(a) occurred when Zorn utilized township
employees and equipment to assist with a construction project on his son's property.
c. That no violation of 65 Pa.C.S. §1104(a) occurred in that Respondent had in fact filed
Statements of Financial Interests forte 1999, 2000 and 2001 calendar years."
In addition, Zorn agrees to pay $1,000.00 to the Commonwealth of Pennsylvania through this
Commission within thirty (30) days of the mailing of this Order.
In applying Section 1103(a) of the Ethics Act to the allegations, there were uses of
authority of office on the part of Zorn. But for the fact that Zorn was a township supervisor, he
would not be in a position to participate as to the award of contracts and the payments to the
PBS Coals quarry. Zorn, as the head roadmaster, made the determination as to the types and
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Page 17
amounts of road supplies and materials needed for the township's road. Zorn also participated
in the discussions and votes of the board to award contracts to PBS Coals. Lastly, Zorn
participated in the invoice approval process and co- signed checks payable to PBS Coals. All
such actions were uses of authority of office. See, Juliante, Order 809. As a result of such
actions, PBS Coals obtained private pecuniary benefits consisting of the profits made on the
award of the township contracts. Lastly, those pecuniary benefits to PBS Coals which is a
business with which a member of Zorn's immediate family is associated, as that term is
defined under the Ethics Act. In this regard, since Zorn's son is an employee of PBS Coals, it
is a business with which he is associated. See, 65 Pa.C.S. Section 1102. Accordingly, Zorn
violated Section 1103(a) of the Ethics Act when he participated in the actions to award
contracts and subsequent payments to PBS Coals, a business with which his son is
associated.
Turning to the matter of Zorn's utilization of township employees and equipment as to
the construction on his son's property, there were also uses of authority of office on the part of
Zorn. It was Zorn who gave the directions to the township employees to use township trucks
during normal working hours to transport the quarry material to his son's, Richard's, property.
It was also Zorn who gave the direction to have the township backhoe and roller transported to
his son's property. All such actions were uses of authority of office. Such uses of authority of
office resulted in a private pecuniary benefit totaling $3,360.75 to Richard Zorn, who, as
Zorn's son, is a member of his immediate family as that term is defined under the Ethics Act.
However, after offsets are made in terms of the $100.00 payback by Zorn as well as the
$2,950.00 of quarry aggregate that the township received, the net private pecuniary gain totals
$319.75.
Based upon recent decisions of Commonwealth Court which has construed gains in
the amount of several hundred to be de minimis, we are constrained to find that the private
pecuniary gain in this case must be considered de minimis. See, Bouch v. State Ethics
Commission, No. 2372 (Pa. Commw. Ct. March 29, 2004); Bixler v. State Ethics Commission,
No. 2371 (Pa. Commw. Ct. March 29, 2004). Accordingly, Zorn did not violate Section
1103(a) of the Ethics Act when he utilized township employees and equipment in furtherance
of a construction project on his son's property in that the private pecuniary benefit received
was de minimis.
The last allegation concerns Zorn's failure to file SFI's for calendar years 1999 -2001.
Zorn did not file the SFI's for those years on or before May 1 of the following years. Zorn
filed on June 17, 2003, for the calendar years 1999 -2001 after receiving notice of the
investigation. An untimely filing of SFI's after the due date is violative of the Ethics Act.
However, in this case the parties propose to find no violation for the belated filings of the SFI's
by Zorn. In that we recognize that there is give and take by both sides as part of the
negotiation process, we will merely treat this allegation as a "non- pros" by the Investigative
Division whereby that allegation has in effect been withdrawn.
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, Zorn is directed to pay $1,000.00 to
the Commonwealth of Pennsylvania through this Commission within thirty (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. Zorn, as a Brothers Valley Township Supervisor, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
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Page 18
2. Zorn violated Section 1103(a) of the Ethics Act when he participated in official actions
to award contracts and subsequent payments to PBS Coals, a business with which his
son is associated.
3. Zorn did not violate Section 1103(a) of the Ethics Act when he utilized township
employees and equipment in furtherance of a construction project on his son's property
in that the private pecuniary benefit received was de minimis.
In Re: Edward Zorn
ORDER NO. 1327
File Docket: 03 -013
Date Decided: 6/8/04
Date Mailed: 6/16/04
1. Zorn, as a Brothers Valley Township Supervisor violated Section 1103(a) of the Ethics
Act when he participated in official actions to award contracts and subsequent
payments to PBS Coals, a business with which his son is associated.
2. Zorn did not violate Section 1103(a) of the Ethics Act when he utilized township
employees and equipment in furtherance of a construction project on his son's property
in that the private pecuniary benefit received was de minimis.
3. Per the Consent Agreement of the parties, Zorn is directed to pay $1,000.00 to the
Commonwealth of Pennsylvania through this Commission within thirty (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