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HomeMy WebLinkAbout1322 KolbIn Re: David Kolb 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- 099 -C2 Order No. 1322 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Kolb 02- 099 -C2 Page 2 I. ALLEGATION: That David Kolb, a public official /public employee, in his capacity as a Supervisor for Forks Township, Northampton County, violated Sections 1103(a) and 1105(b)(5)(8)(9) provisions of the State Ethics Act 65 Pa.C.S. § §1103(a), 1105(5)(b)(5)(8)(9) when he used the authority of his office for a private pecuniary gain, including but not limited to making purchases from federal surplus property which was limited to governmental entities and converting these purchases for his personal use; when he purchased and /or directed purchases for his personal use be made from a township vendor specializing in selling to law enforcement agencies; and when he failed to disclose all sources of income in excess of $1,300.00 as well as his office, directorship or employment in any business for profit on Statements of Financial Interests filed for the 2000, 2001 and 2002 calendar years. II. FINDINGS: 1. David Kolb served as a member of the Board of Supervisors of Forks Township, Lehigh County, since January 5, 1998, until January 2004. a. Kolb's term expired on January 7, 2004. b. David Kolb served as Forks Township Police Commissioner in 2002. 2. Kolb is a licensed Federal Firearms dealer within the Commonwealth of Pennsylvania. a. Kolb operates a gun smithing business out of his residence. 3. Each Forks Township supervisor serves on a board or commission, which has liaison responsibilities for specific departments within the township. a. Kolb, in his capacity as supervisor served as Police Commissioner. 1. Kolb was the liaison for the Forks Township Police Department. b. The Police Commissioner of Forks Township is not a sworn law enforcement officer. 4. Municipal governments in the Commonwealth of Pennsylvania are eligible to participate in the Federal Surplus Property Program (FSPP). a. The Federal Surplus Property Program is a federally sponsored program that is administered by the Pennsylvania Department of General Services. 1. The Federal Surplus Property Program warehouse and executive offices are located at the Pennsylvania Department of General Services Headquarters. b. Forks Township is authorized and has participated in the FSPP since 1999. 5. The Federal Surplus Property Program authorizes representatives of municipalities, school districts, medical institutions, and certain non - profit organizations the privilege of purchasing surplus items, vehicles, equipment and supplies at a 70% to 90% reduction of actual costs. a. All interested eligible participants for the Federal Surplus Property Program must make application to the Federal Property Division to determine eligibility. 6. Municipalities that meet the criteria for participation are permitted to purchase surplus items at any time during normal daily business hours, Monday to Friday, 8:00 a.m. to Kolb 02- 099 -C2 Page 3 4:00 p.m. a. Federal Property Division regulations provide that only individuals authorized by a municipality can make purchases on behalf of a municipality. b. Municipalities and authorized individuals are required to become familiar with the purchase policies, guidelines, and regulations that govern the purchase of federal surplus property. c. Township employees were never specifically instructed by any township official of the specific policies, guidelines and regulations governing the surplus property program. 7. When authorized to purchase federal surplus property, individuals receive notification of Federal Regulations governing purchases through the following means: a. Initial application Attachment of regulations in their entirety affixed to Form "G- SSS -1" (Distribution Document), which invoices items purchased, unit costs, and service charges that must be signed by a purchaser agreeing to terms. Additional notification of purchase regulations via a bold -typed notice paper given to purchasers when removing property from the federal supply warehouse. A placard located directly above the checkout register at the federal property warehouse. 8. Municipalities /public agencies making purchases from the surplus program are required to comply with federal and state regulations outlined on Form G -SSS which, in part, includes the following: a. The property is needed and will be used by the recipient for carrying out or promoting for the residents of a given political area one or more public purposes. b. All items of property shall be placed in use for the purpose(s) for which acquired, within one (1) year of receipt and shall be continued in use for such purpose(s) for one (1) year from the date the property was put in use. 1. If not placed in use property must be returned to the state or made available to transfer to another agency or the state. c. In regards to items with an acquisition cost of $5,000 or more, the following, in part, is required: 1. The property shall be used only for the purpose(s) for which acquired and no other purpose(s). 9. Federal surplus records confirm purchases made by Forks township officials on various Federal Property Garage in occasions between 1999 and 2002. 10. David Kolb accompanied Leon Fisher and other township employees on trips to the Federal Property Garage on twelve (12) occasions between 1999 to 2002. 11. Kolb signed invoices on two (2) occasions from 1999 to 2002. Kolb 02- 099 -C2 Page 4 12. The Federal Property Supply Division assesses an "Acquisition Cost" or "Actual Retail Value" to items for sale at the federal surplus warehouse. a. The Federal General Services Administration (GSA) determines the acquisition cost of all items for sale at federal surplus facilities throughout the United States. b. The actual acquisition cost is the value of the item(s) if purchased retail at the time of sale as determined by GSA. 13. Based on calculations made by GSA, the total acquisition cost of merchandise purchased by Forks Township was $61,683.00. a. Forks Township actually spent $4,280.75. 14. Since 1999 Kolb, Fisher and other township officials have purchased items from Federal Surplus which were used for personal purposes. 15. In addition to Kolb and Fisher, Forks Township employees Peter Gheller, Public Works Supervisor, and George Gemmel, Township Manager, have purchased items from Federal Surplus which were utilized for personal use. a. Purchases made by Gemmell and Gheller for the period 1999 to 2002 totaled $143.00 as follows: Gheller: $ 57.50 Gemmell: $ 85.50 Total $143.00 b. Both Gemmell and Gheller have made full restitution to the township. 16. Kolb was under the belief that he was permitted to purchase items for his own personal use, as long as he reimbursed the township for items converted to personal use. 17. Upon returning from the federal warehouse, Kolb or Fisher would identify employees' personal purchases by initial on the Distribution Document Invoice. a. This procedure would enable Fisher or Kolb to determine items purchased and amount of reimbursement due to the township by each employee /official. 18. Fisher would then submit the Distribution Document Invoice to Township Manager George Gemmel. a. Gemmel would approve every invoice, and included the actual invoice in the monthly bill list presented to the Board of Supervisors. 1. Gemmel would then instruct the accounts payable clerk to generate a check to the Commonwealth of Pennsylvania for the amount due and owing to the Commonwealth of Pennsylvania. 2. A check payable to the Commonwealth of Pennsylvania would be routed to the supervisors during a public meeting. 19. Supervisors would approve the bill lists, which included the invoices from the Federal Property Supply /Surplus Division. a. Two (2) supervisors would sign the check payable to the Commonwealth of Received From Received By Date Amount Receipt Number David Kolb Sharon Fisher 08/09/99 $55.00 166048 David Kolb Sharon Fisher 09/09/99 $49.50 166098 David Kolb Sharon Fisher 11/22/99 $40.50 166098 David Kolb Sharon Fisher 12/13/00 $17.00 442841 David Kolb Sharon Fisher 07/12/00 $46.85 928876 David Kolb Sharon Fisher 09/20/00 $46.00 929023 David Kolb Sharon Fisher 08/06/01 $97.00 64670 David Kolb Sharon Fisher 09/10/01 $22.75 "4760 David Kolb Sharon Fisher 05/10/02 $13.88 553525 David Kolb Sharon Fisher 04/02/02 $60.00 553419 David Kolb Sharon Fisher 04/10/02 $94.50 553457 David Kolb Sharon Fisher 07/12/02 $43.50 31680 David Kolb Sharon Fisher 12/13/02 $175.00 31739 Total Reimbursement Amount $761.48 Invoice # Invoice Date Quantit IDescri •tion Acquisition Cost Actual Chars e 574597 07/13/99 2 M R E ,144.00 , 30.00 579597 07/13/99 1 Hat $7.00 $3.00 574597 07/13/99 1 Boots $100.00 $12.00 574597 07/13/99 2 Rope $28.00 $4.50 Kolb 02- 099 -C2 Page 5 Pennsylvania. 20. Minutes of the Forks Township Board of Supervisors meetings confirm votes when bill lists, including payments to federal surplus, were approved. 21. Kolb voted on 14 occasions to approve bill lists which included payments to federal surplus for personal purchases he made. 22. Checks payable to the Commonwealth of Pennsylvania from Forks Township for surplus items purchased by Forks Township included items of a personal nature made by Kolb. 23. Kolb signed five (5) checks payable to the Commonwealth of Pennsylvania for surplus items, three of which included payment for items he purchased for personal use. Date Check No. Amount Kolb Amount 09/13/99 10966 $151.50 $49.50 07/26/01 14199 $202.25 $97.00 04/25/02 15669 $110.80 $60.00 a. The actions taken by Kolb, as delineated in Finding Nos. 21. -23. above, related to the payment of personal purchases made by various township officials and employees in addition to Kolb. 24. According to receipts maintained by Forks Township Bookkeeper, Sharon Fisher, David Kolb made reimbursement to Forks Township for all items purchased for personal use. 25. The following chart delineates reimbursement from Kolb to Forks Township for surplus items purchased for personal use: 26. Kolb purchased the following items through the township for his personal use: Invoice # Invoice Date Quantit IDescri'tion Acquisition Cost Actual Chars e 575057 08/31/99 2 Hand Tools .10.00 .6.00 575057 08/31/99 1 Hot Weather Boots $70.00 $12.00 575057 08/31/99 2 Trousers $48.00 $10.00 575057 08/31/99 3 Ta' e $111.00 $4.00 575057 08/31/99 2 Tar. ets , 30.00 ,10.00 575057 08/31/99 1 A. ron , 21.00 ,12.00 575057 08/31/99 1 Thread .7.00 .1.50 575057 08/31/99 1 Sweater $26.00 $5.00 575057 08/31/99 2 Fishin. Kits $28.00 $8.00 576985 06/23/00 2 Cass . 20.00 .3.75 576985 06/23/00 6 Force's .130.00 ..60 576985 06/23/00 1 Bas . 202.00 .12.00 576985 067/23/00 1 Sussenders .3.00 .1 .00 576985 06/23/00 1 Line Tent .2.00 .5.00 576985 06/23/00 1 Glove Set $9.00 $2.00 576985 06/23/00 2 A'rons $42.00 $24.00 576985 06/23/00 1 Cram' ons .37.00 .10.00 5771121 08/24/00 1 Chemli.ht .6.00 .5.00 5771121 08/24/00 2 Swords .290.00 .30.00 577121 08/24/00 2 Li. ht Stick $20.00 $2.00 577121 08/24/00 1 Staler .1.00 .2.00 579224 08/23/01 1 Parts Box .6.00 .1.00 579224 08/23/01 1 Outs Pan $6.00 $1.50 582414 03/06/02 1 Case $83.00 $14.95 582414 03/06/02 1 Lam' $26.00 $15.00 582301 03/01/02 2 Ski Re 'air Kits .372.00 .5.00 582301 03/01/02 1 Holster .15.00 .8.00 582301 03/01/02 1 Paint $16.00 $3.00 582573 04/02/02 1 Torch Kit $16.00 $10.00 582573 04/02/02 3 Knife $60.00 $15.00 582573 04/02/02 4 Ba onets $12.00 $28.00 582573 04/02/02 2 Brooms .4.00 .2.00 582573 04/02/02 2 Gas Cans $56.00 $19.00 582573 04/02/02 2 Chains $202.00 $15.00 582573 04/02/02 1 Ammo Can $4.00 $3.00 583257 07/09/02 2 Blankets $50.00 $15.00 583257 07/09/02 1 Sweater $17.00 $3.50 583257 07/09/02 1 Hand Tool $5.00 $3.00 583257 07/09/02 1 Miscellaneous Tool Set $25.00 $22.00 583293 07/16/02 1 Generator $1,000.00 $175.00 Totals $3,367.00 $574.30 Kolb 02- 099 -C2 Page 6 27. Kolb reimbursed Forks Township a total of $761.48 (actual cost) throughout the years of 1999 to 2002 as identified in Finding No. 26. 28. The federal surplus property Kolb purchased was for his personal use and was not used for any township purpose. 29. The acquisition cost of merchandise Kolb purchased for personal use less the amount reimbursed by Kolb ($761.48), totaled $2,605.52. The following findings relate to Federal Law Enforcement Surplus Property Program Kolb 02- 099 -C2 Page 7 30. Accredited law enforcement agencies in the Commonwealth of Pennsylvania, are permitted to apply to participate in the Federal Law Enforcement Surplus Property Program. 31. The Federal Law Enforcement Property Program is a federally sponsored program that is administered by the Pennsylvania Department of General Services. a. The Federal Law Enforcement Property Program warehouse and executive offices are located at the Pennsylvania Department of General Services Headquarters. 32. The Federal Law Enforcement Property Program authorizes sworn law enforcement officers only the privilege of purchasing surplus items, tactical gear, weapons, munitions, vehicles, weapon accessories, police vehicle accessories, and uniform accessories at a 70% to 90% reduction of actual costs. a. All interested police agencies must make application to the Federal Law Enforcement Property Division to determine eligibility. 33. Police officers who meet criteria for participation are permitted to purchase surplus items at any time during normal daily business hours, Monday through Friday, 8:00 a.m. to 4:00 p.m. a. All authorized Pennsylvania purchasers must be duly sworn and commissioned police officers within the Commonwealth of Pennsylvania. 34. A law enforcement agency's head or commander is authorized to make initial application and delegate authorized sworn law enforcement screeners to purchase items at the federal law enforcement warehouse. a. Leon Fisher was the only officer in Forks Township permitted to make application for eligibility. 35. Forks Township has participated in the FLESPP since at least 1999. 36. Fisher authorized himself, and Detective Captain Louis Coxe as a sworn officers and registered screeners for calendar year 2001. a. Fisher identified David Kolb, township supervisor, as Police Commissioner and authorized him as an authorized screener for 2002. 37. David Kolb is not a sworn law enforcement official. 38. Fisher's purpose in identifying Kolb as a sworn law enforcement official was to enable Kolb to make purchases of a personal nature from the program. 39. Regulations governing Federal Law Enforcement Supply programs are the same as the Federal Property Supply regulations and in part prohibit the acquisition of property for personal use. 40. Kolb made one purchase for personal use from the law enforcement program surplus on April 2, 2002, consisting of 4 gas masks and 1 entrencher for a total cost of $17.00. a. Federal Law Enforcement Property Division does not assess an acquisition cost to law enforcement surplus. 41. Invoice No. 0 -1084 from the Federal Law Enforcement warehouse was submitted to Kolb 02- 099 -C2 Page 8 George Gemmel, Township Manager. a. Gemmel would approve the invoice and instruct the accounts payable clerk to produce a check to be approved and signed submitted at a township meeting. b. The invoice from the Federal Law Enforcement Property Division would be attached to bill lists to be approved by the board of supervisors. 42. Invoice No. 0 -1084 was approved as part of bill lists by the board of supervisors on April 17, 2002. a. Kolb participated in the vote to approve the bill list which included the payment for the gas masks. 43. Kolb, as supervisor, signed two checks payable to the PA Law Enforcement Property Program totaling $1,017.00. a. Kolb signed check no. 16480 on April 7, 2002, in the amount of $1,000 and check no. 15697 in the amount of $17.00 on April 30, 2002. 44. Check no. 15697 would have included payment to the PA Law Enforcement Program for the gas masks and an entrenching tool purchased by Kolb. The following findings relate to purchases from the Pennsylvania Police Supply, Chalk Hill, PA 45. Supervisor David Kolb is a firearm collector and buyer. a. David Kolb possesses a Federal Firearms License to sell firearms and munitions. 46. Forks Township Police Department utilizes the services of Pennsylvania Police Supply (PPS), Chalk Hill, PA for firearms, munitions and supplies. a. Pennsylvania Police Supply sells to law enforcement departments and law enforcement officials only. 1. Private citizens, including elected officials, are not permitted to purchase from PPS. b. Pennsylvania Police Supply offers substantial discounts on items to both police departments and police officers. c. Forks Township receives all items from Pennsylvania Police Supply via the US Mail or alternative carriers. 47. Detective Corporal Richard Grifo is the Forks Township firearms and munitions specialist. a. Grifo has been the munitions specialist for approximately seven (7) years. 48. Forks Township Police Department duty weapons and alternate weapons are as follows: a. Glock Model 22 .40 caliber pistols — duty weapon Mossberg Model 500 12 Gauge shotguns — tactical weapons Colt AR 15 Assault Rifles — tactical weapons Ordered For Date/ Invoice Quantit Descri•tion Total Cost Actual Retail Cost Kolb 10/05/99/ 1 case (20 Federal 9mm 115 .115.80 .239.80 47999 boxes /case) Glock Full Metal Jacket ammunition Kolb 02/19/99/ 1 case (20 Federal .357 magnum $183.25 $279.80 45544 boxes /case) 158 grain hydra -shock ammunition Totals $299.05 $519.60 Kolb 02- 099 -C2 Page 9 1. The above caliber weapons have been standard for at least the last six (6) years. 49. Grifo's responsibility is to determine what the police department needs would be on an annual basis pertaining to ammunition, weaponry, simmunition [sic], and accessories. a. Grifo would prepare a written order to be submitted to Pennsylvania Police Supply. b. Grifo would submit the order to Chief Leon Fisher for review and approval. 1. Fisher would sign the order form, authorizing the order. ii. Fisher did not have to seek board approval to make munitions supply purchases prior to October 2002. 50. Upon receipt of supplies from Pennsylvania Police Supply, Grifo would compare the order receipt /invoice with the order form he submitted to Chief Fisher. a. On at least three (3) occasions between 1999 and 2002 Grifo had noticed items purchased on invoices that he had no knowledge of, and did not request to be purchased for police department duty or training usage. 51. After receiving order forms from Grifo, Fisher would add items such as ammunition which were for the personal use of himself and Kolb. a. Kolb would inform Fisher of the items he needed and Fisher would include them on the order. 52. The following chart delineates munitions ordered by Fisher from Pennsylvania Police for supervisor David Kolb's personal use. 53. The items listed in Finding No. 52 were not ordered for police usage because the caliber of the weapon ammunition did not match any firearms utilized by Forks Township. 54. Kolb issued two checks to the township totaling $299.05. a. Kolb reimbursed the Township of Forks $115.80 on November 22, 1999. b. Kolb issued a second reimbursement check to the Township of Forks of $183.25 on March 5, 1999, by personal check. c. Kolb's reimbursements were for munitions ordered by Fisher on 10/05/99 and 02/19/99. Kolb 02- 099 -C2 Page 10 55. The actual retail value of the munitions ordered by Fisher for Kolb totaled $519.60. a. Kolb reimbursed the township a total of $299.05. b. Kolb saved $220.55 by purchasing the ammunition through the township. 56. Fisher submitted the invoices from Pennsylvania Police Supply to George Gemmel, township manager. a. This included invoices for which personal purchases were made for Kolb. b. Gemmel submitted the invoices for the Board of Supervisors for approval as part of monthly bill lists. c. Invoices were approved by township supervisors. 57. Invoices which included personal items for Kolb were approved as follows by the board of supervisors: Total Invoice Invoice No. Meeting Date Amount Kolb Action 45544 11/04/99 $ 629.65 Vote 47999 08/19/99 $ 1,647.68 Second Motion, Vote 58. Forks Township issued checks payable to Pennsylvania Police Supply as follows: Check No. Date Amount Signed by Kolb 8322 03/24/99 $ 629.65 No 11271 10/27/99 $ 1,647.68 No 15769 05/07/02 $ 686.48 Yes The following findings relate to Statement of Financial Interests filings by Kolb 59. David Kolb has filed Statements of Financial Interests for calendar years 2000, 2001 and 2002 with Forks Township which include the following disclosures: a. Calendar Year: 2000 Filed: 1/12/01 on SEC Rev. 1/01 Position: Supervisor Creditors: None Direct /Indirect Income: Mansfield Township Bd. of Education All Other Financial Interests: None b. Calendar Year: 2001 Filed: 04/14/02 on SEC Rev. 1/02 Position: Supervisor /Sewer Authority Member Creditors: None Direct /Indirect Income: Mansfield Township Bd. of Education All Other Financial Interests: None c. Calendar Year: 2002 Filed: 01/16/03 on SEC Rev. 1/03 Position: Supervisor /Sewer Authority Member Creditors: None Direct /Indirect Income: Mansfield Township Bd. of Education All Other Financial Interests: None 60. As a township supervisor, Kolb had earned the following wages as reported on W -2 Kolb 02- 099 -C2 Page 11 Wage and Tax Statements: a. 1998 $2,000.00 1999 $1,999.92 2000 $2,000.00 2001 $2,000.00 2002 $2,000.88 61. Kolb did not disclose income earned as a member of the board of supervisors of Forks Township for calendar years 2000 to 2002. III. DISCUSSION: At all times relevant to this matter, the Respondent, David Kolb, hereinafter Kolb, 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 David Kolb, as a Forks Township Supervisor, violated Sections 1103(a) and 1105(b)(5) of the Ethics Act when he purchased federal surplus property for his personal use; purchased items for his personal use from a township vendor specializing in selling to law enforcement agencies; and failed to disclose sources of income in excess of $1,300.00 on Statements of Financial Interests (SFI's) for the 2000 -2002 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 "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) 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. Kolb 02- 099 -C2 Page 12 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. Kolb served as a Forks Township Supervisor from January 1998 to January 2004. In a private capacity Kolb holds a federal firearms dealer license within the Commonwealth of Pennsylvania and operates a gunsmithing business out of his home. Municipalities in the Commonwealth are eligible to participate in certain government surplus property programs. The Federal Surplus Property Program (FSPP) sponsors a program that is administered by the Pennsylvania Department of General Services (DGS). Forks Township participates in FSPP which allows it to purchase surplus items, vehicles, equipment and supplies at a 70% to 90% reduction from actual costs. The federal government requires that municipal authorized individuals become familiar with the policies, guidelines, and regulations as to the purchase of federal surplus property. Forks Township employees never received such instruction as to federal surplus property. However, such notification appears in the initial application for participation in the program, on the property at the warehouse, and on a placard located at the checkout register. Conditions are imposed upon purchases: the property is limited to municipal use and the property must be in use within one year of its receipt. Forks Township officials made purchases through FSPP between 1999 and 2002. Kolb accompanied Leon Fisher and other township employees to the federal property garage and in two instances signed invoices. In 1999, Kolb, Fisher, and other township officials purchased items from the federal surplus programs for personal use. Kolb believed that he could purchase such items for personal use as long as he made reimbursements to the township. When Kolb and Fisher returned from the federal warehouse, they identified personal purchases and determined the amount of reimbursement due the township. The invoice was given to the township manager who in turn submitted it to the supervisors as part of a bill listfor their approval. Two supervisors co- signed the check payable to the Commonwealth for the surplus items after approval was obtained from the board. Kolb voted on 14 occasions to approve bill lists which included payments to the federal surplus program for personal purchases that he made. Kolb signed five checks payable to the Commonwealth of Pennsylvania for surplus items; in three instances, the payments entailed personal purchases of Kolb. According to the receipts maintained by the Forks Township bookkeeper, Kolb made reimbursement for items that he purchased for personal use. See, Fact Finding 25. A detailed list of these items that Kolb purchased for personal use from the federal program are delineated in Fact Finding 26. Kolb reimbursed the township $761.48 as to the actual price that the township paid for the surplus property which had an acquisition cost of $2,605.52. A similar program is the Federal Law Enforcement Surplus Property Program ( FLESPP) which is also administered by DGS for accredited law enforcement agencies in the Commonwealth of Pennsylvania. FLESPP authorizes law enforcement officers to purchase supplies such as tactical gear, weapons, munitions, vehicles, weapon accessories and police vehicle accessories at reductions of 70% to 90% from the actual costs. A law enforcement agency's head or commander is authorized to make an application and delegate authorized sworn law enforcement personnel to purchase the items at the FLESPP warehouse. Forks Township has participated in FLESPP since 1999. Fisher authorized himself, the detective police captain, and Kolb as the police commissioner to be the authorized township individuals for the program. Kolb 02- 099 -C2 Page 13 Even though Kolb is not a sworn law enforcement official, Fisher designated Kolb so that he could make purchases for personal use from the program, despite the federal regulations which expressly prohibit the acquisition of such property for personal use. Kolb made one purchase for personal use consisting of four gas masks and one entrencher that had a total cost of $17.00. An invoice submitted to the township in the amount of $1,017.00 for a number of surplus items included the personal purchases by Kolb. The invoice was submitted as part of a bills list to the supervisors who, with Kolb's participation, voted for approval. In addition, Kolb, as supervisor, co- signed two checks payable to FLESPP. A third purchase program is the Pennsylvania Police Supply (PPS). The Forks Township Police Department utilizes PPS to urchase firearms, munitions, and supplies. PPS sells to law enforcement departments and officials but not to private citizens. Detective Corporal Grifo of Forks Township is the firearms and munitions specialist who determines what the police department needs in terms of ammunition, weaponry, and accessories. Between 1999 and 2000, Grifo on at least three occasions noticed PPS invoice items as to which he did not order and had no knowledge. After receiving an order form from Grifo, Fisher added ammunition which was to be used for the personal use of Kolb and himself. The details of such ammunition orders for Kolb's personal use, which retailed at $519.60 but were purchased for $299.05, are delineated in Fact Finding 52. Parenthetically, such ammunition could not have been used for the Forks Township because its firearms were of different calibers. Kolb paid $299.05 to the township but saved $220.55 by purchasing through PPS. PPS invoices were sent to the township and in turn submitted as part of a bills list to the supervisors for approval. Such bill lists included the munitions for personal use by Kolb. Kolb voted to approve the bills and in one instance made a second to a motion. Kolb in one instance also signed one of the checks payable to PPS. Finally Kolb, as a public official, failed to disclose on his SFI's for the calendar years 2000 to 2002 the income he received as a member of the board of supervisors which exceeded the reporting threshold of $1,300. 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), 65 Pa.C.S. §1103(a) of the Public Official and Employee Ethics Law, occurred regarding Kolb's use of the authority of his office as a Forks Township Supervisor to purchase various items from the Federal Surplus Property Warehouse for personal use. b. That no violation of Section 1103(a), 65 Pa.C.S. §1103(a) of the Public Official and Employee Ethics Law, occurred regarding Kolb's purchase of several items from the Federal Law Enforcement Surplus Property Program, for personal use, as the value of the items purchased was de minimis. c. That a violation of Section 1103(a), 65 Pa.C.S. §1103(a) of the Public Official and Employee Ethics Law, occurred regarding Kolb's purchase, at the township's expense, of certain supplies from Pennsylvania Police Supply, which items were utilized for personal purposes. d. That a technical violation of Section 1105(b)(5), 65 Pa.C.S. 1105(b)(5) of the Public Official and Employee Ethics Law, occurred in relation to Kolb's failure to list Forks Township as a direct or indirect source of income on Statements of Financial Interests for calendar years 2000 through 2002." Kolb 02- 099 -C2 Page 14 In addition, Kolb agrees to pay $2,825.55 to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the mailing of this order. Kolb also agrees to file amended SFI's with Forks Township and the State Ethics Commission for compliance verification for calendar years 2000 through 2002 within thirty (30) days of the mailing of this order listing Forks Township as a source of income. In applying the Ethics Act to the allegations before us, Kolb used his position as a supervisor as to programs that offered various items for municipal use only. But for the fact that Kolb was a supervisor in Forks Township, he would not have been in a position to obtain items for personal use from the federal surplus programs and PPS. The actions by Kolb in obtaining the various property which is expressly limited to municipal but not personal use were uses of authority of office under the Ethics Act. See, Juliante, Order 809. Such uses of authority of office resulted in pecuniary benefits to Kolb consisting of the items that he obtained for personal purposes. Even though Kolb reimbursed the township for the items that he used for personal purposes, there was a private pecuniary benefit nevertheless. Kolb obtained these items at substantially reduced prices from their cost basis, given that the items were limited solely for municipal use. Hence, the pecuniary benefits that Kolb received were private pecuniary benefits. Finally, those private pecuniary benefits inured to Kolb himself. Accordingly, Kolb violated Section 1103(a) of the Ethics Act when he used the authority of office to purchase various items personally from the FSPP for his personal use. Further, Kolb violated Section 1103(a) of the Ethics Act when he used the authority of office to purchase certain ammunition from PPS for personal purposes. As to the items Kolb purchased from FLESPP, the statutory definition of "conflict" or "conflict of interest" includes two exclusions, the "de minimis" exclusion and the "class/ subclass exclusion." The de minimis exclusion precludes a finding of a conflict of interest or violation as to an action having a de minimis (insignificant) economic impact. Thus, when a matter that would otherwise constitute a conflict of interest under the Ethics Act would have an insignificant economic impact upon the public official, a conflict would not exist and Sections 1103(a) of the Ethics Act would not be implicated. See, Schweinsburq, Order 900. As to the allegation concerning the purchases of the entrencher and gas masks for $17.00, such action would have a de minimis economic impact, and therefore, the exclusion would apply. Accordingly, Kolb did not violate Section 1103(a) of the Ethics Act when he purchased several items from the FLESPP for personal use in that the value of such purchases was de minimis. As to the SFI allegation, Kolb failed to list Forks Township as a source of income on his SFI's for 2000 through 2002 calendar years. As to the position of elected township supervisor, the Second Class Township Code provides in part: §65606. Compensation of Supervisors (a) Supervisor may receive as compensation an amount established by ordinance not in excess of the following: 53 PS § 65606 This compensation, although prescribed by the Second Class Township Code, is not governmentally mandated. The statutory language merely sets forth an authorization to set compensation by ordinance which may or may not occur within ranges of compensation Kolb 02- 099 -C2 Page 15 depending upon the population of the township. Hence, our recent decision in Benninghoff, Opinion 04 -005, has no application to this case. Accordingly, Kolb technically violated Section 1105(b) of the Ethics Act when he failed to disclose Forks Township as a source of income on his SFI's s for the calendar years 2000 -2002. 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, Kolb is directed to make payment of $2,825.55 to the Commonwealth of Pennsylvania through this Commission within 30 days of the issuance of this order. Kolb is directed to file amended SFIs for calendar years 2000, 2001, and 2002 within 30 -days of the issuance of this order at the township with copies filed with the Commission for compliance verification purposes. 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. Kolb, as a Supervisor for Forks Township, during the relevant time period was a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Kolb violated Section 1103(a) of the Ethics Act when he used the authority of office to purchase various items from the federal surplus property program for his personal use. 3. Kolb did not violate Section 1103(a) of the Ethics Act when he purchased several items from the federal law enforcement surplus property program for personal use in that the value of such purchases was de minimis. 4. Kolb violated Section 1103(a) of the Ethics Act when he used the authority of office to purchase certain ammunition from the Pennsylvania Police Supply for personal purposes. 5. Kolb technically violated Section 1105(b) of the Ethics Act when he failed to disclose Forks Township as a source of income on his SFI's for the calendar years 2000 to 2002. In Re: David Kolb ORDER NO. 1322 File Docket: 02- 099 -C2 Date Decided: 6/8/04 Date Mailed: 6/16/04 1. Kolb, as a Supervisor for Forks Township, violated Section 1103(a) of the Ethics Act when he used the authority of office to purchase various items from the federal surplus property program for his personal use. 2. Kolb did not violate Section 1103(a) of the Ethics Act when he purchased several items from the federal law enforcement surplus property program for personal use in that the value of such purchases was de minimis. 3. Kolb violated Section 1103(a) of the Ethics Act when he used the authority of office to purchase certain ammunition from the Pennsylvania Police Supply for personal purposes. 4. Kolb technically violated Section 1105(b) of the Ethics Act when he failed to disclose Forks Township as a source of income on his SFI's for the calendar years 2000 to 2002. 5. Per the Consent Agreement of the parties, Kolb is directed to make payment of $2,825.55 to the Commonwealth of Pennsylvania through this Commission within 30- days of the issuance of this order. Kolb is directed to file amended SFIs for calendar years 2000, 2001, and 2002 within 30 -days of the issuance of this order with the originals filed at the township and copies with this Commission for compliance verification purposes. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair