Loading...
HomeMy WebLinkAbout1341 BrownIn Re: Larry Brown File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen 03 -067 Order No. 1341 9/20/04 10/1/04 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Brown, 03 -067 Page 2 I. ALLEGATION: That Larry Brown, a public official /public employee, in his capacity as a Supervisor of Windham Township, Bradford County, violated Sections 1103(a), 1104(a) and 1104(d) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a) and 1104(d), when he used the authority of his office for a private pecuniary gain of himself and /or a business with which he is associated, including but not limited to participating in actions of the board of supervisors authorizing the hiring of Cole Construction for excavating work at a stone quarry he owns, and when he approved payments to Cole Construction for these services through Windham Township; and when he failed to file Statements of Financial Interests for the 2001 and 2002 calendar years. II. FINDINGS: 1. Larry Brown has served as a member of the Windham Township, Bradford County, Pennsylvania Board of Supervisors since January 7, 2002. a. Brown is currently the chairman of the Board of Supervisors, a position he has held since January 1, 2004. 2. Larry Brown has served as the roadmaster for Windham Township since 2002. a. Brown has been appointed roadmaster annually by the Board of Supervisors at their yearly re- organization meeting each January. b. The position of roadmaster within Windham Township is considered a management position. 3. The Windham Township roadmaster is responsible for the overall maintenance of township roads, supervisor of road department personnel, and maintenance and operation of township equipment. 4. Brown and his brother operate a 1,200 plus acre dairy farm known as Peck Hill Farms. a. Larry Brown and his brother own six hundred and eighty (680) acres, while an additional five hundred and sixty (560) acres is leased land. 5. Located on land owned by Peck Hill Farms is an area in excess of 20 acres that contains one active and two inactive quarries. a. The industrial mineral (of value) that has been surface mined in these quarries is known as Bluestone. b. In a surface mining (quarry) operation, the Bluestone aka PA Bluestone, is the most valuable mineral commodity. 6. All surface mining operations within Pennsylvania, including quarries located on Peck Hill Farms, are regulated by the Department of Environmental Protection (DEP), Bureau of Mining and Reclamation. a. DEP regulates such surface mining operations under the governing section of the Pennsylvania Code, Title 25, Environmental Protection, Chapter 77, Non -Coal Mining. b. DEP issues permits and conducts inspections of such surface mining operations. Brown, 03 -067 Page 3 7 On October 6, 1998, DEP issued a Surface Mining Permit, No. 402086 - 08980809, to Jesse Finch, Sr., t/a Finch's Quarry, to surface mine bluestone on property owned by Larry and Robert Brown, brothers (Peck Hill Farm). a. The permit was for surface mining activities on only three (3) acres of the Brown property. b. The permit limited total annual production to 2000 tons of Bluestone. c. On March 20, 2002, Robert and Larry Brown advised DEP, in writing, that Jesse Finch was no longer working in their stone quarry. 1. The Browns advised DEP that they were the landowners. 2. The Browns stated that they were going to keep the quarry open for shale and stone. 3. The Browns stated that the mined shale and stone would be for their own use. 4. The Browns stated that the mined shale and stone would not be for sale. 8. The Bradford County Conservation District, Towanda, PA, provides funds to townships in the form of grants for the maintenance of gravel roads. a. The funds are part of what is known as the Dirt and Gravel Road Maintenance Project. b. The funds for this project are provided to local government entities through the PA Department of Environmental Protection (DEP) State Conservation Commission. 9. In part, the State Conservation Commission administers the Dirt and Gravel Road Maintenance Program to provide local governments and other eligible entities with funds to: 1. Fund safe, efficient and environmentally sound maintenance of sections of dirt and gravel roads, which have been identified as sources of dust and sediment pollution. 2. Provide training to road crews on techniques of dirt and gravel road maintenance which minimize negative environmental impact. 3. Conduct demonstrations of new and innovative techniques of dirt and gravel road maintenance to assist in training of road crews and educate the general public on this matter. 10. Eligible expenses for project participants in part include all materials, services and labor required to design and implement a project, including, but not limited to, all construction and maintenance supplies and materials, equipment rental and transportation charges, demurrage, reimbursement for use of participant owned equipment, salaries and benefits, automotive and hauling travel including room and board expenses, contracted specialized services, miscellaneous expenses, certain engineering and technical fees as determined by the Commission, and other expenses necessary for the satisfactory completion of a project as determined by Brown, 03 -067 Page 4 the Commission. 11. On April 24, 2002, Windham Township filed a Dirt and Gravel Roads Grant Application with the Bradford County Conservation District. a. The amount of the grant requested was $34,192.00. b. The contact person for Windham Township is identified as Larry Brown. c. Larry Brown's signature appears on the applicant signature line. 12. An Agreement entered into by the Bradford County Conservation District (BCCD) and Windham Township dated May 5, 2003, identified the Contract No. as 08248 - TWPA241 C0403, and a grant in the amount of $34,192.00. a. The grant relates to costs of a road maintenance project on specified portions of Peck Hill Road, T -877. b. The township received notification from the BCCD on May 14, 2003, of the grant approval and that the township was eligible for up to a 50% advance. 13. On or about February 19, 2003, Brown prepared cost estimates for the project on Peck Hill Road (T -877). a. Brown estimated that approximately 570 tons of shale at a cost of $4,275 would be needed to complete the project or $7.50 per ton. 14. Larry Brown, in his capacity as roadmaster, oversaw the road maintenance project for Peck Hill Road. a. This included locating shale and other materials to be used for the project. 15. Marcus Cole, owner of Cole Construction, Nichols, NY, was contacted by Larry Brown in August 2003, to dig approximately 500 ton of shale from a quarry located on Brown's farm, and stockpile it at that location. a. Cole was advised by Brown that the shale was for use on the Peck Hill Road project. 16. Cole began work at that location on August 22, 2003, and ended on September 10, 2003. a. Cole was personally shown by Larry Brown where to dig the shale and stockpile it. 17. The shale excavated by Cole Construction was used for the repair /maintenance project on Peck Hill Road. 18. The shale removal from the Brown property by Cole Construction was done without the prior approval and knowledge of the Windham Township board of supervisors. a. Brown did not advise either Supervisor Edward Kaminsky or Chairman Charles Davis of the contract with Cole Construction. 19. The shale excavation on Brown's property by Cole Construction was effected without any bidding process by the Windham Township Board of Supervisors. Brown, 03 -067 Page 5 20. The rate charged to Brown by Cole Construction for equipment and operator is $85.00 per hour. 21. Cole Construction invoiced Wyndham Township $5,232.50 for the shale removal on or about September 9, 2003. a. Invoice No. 1540 was billable to Windham Township c/o Larry Brown, R.D. 3, Box 2189, Rome, PA 18837. b. This address is the home address of Larry Brown. 22. Cole's invoice No. 1540 detailed the following charges for equipment use at Brown's property. 08/22/03 D6 Dozer 1 hour $85 /hour $ 85.00 08/22/03 Backhoe 3 hours a $85 /hour $ 255.00 08/25/03 D6 Dozer 9 hours $85 /hour $ 765.00 08/26/03 D6 Dozer 8 hours $85 /hour $ 680.00 08/27/03 D6 Dozer 3 hours $85 /hour $ 255.00 08/28/03 D6 Dozer 8 hours $85 /hour $ 680.00 08/28/03 Hauling 2 hours @ 45 /hour $ 90.00 08/29/03 D6 Dozer 8 hours @ $85 /hour $ 680.00 09/05/03 Backhoe 1.5 hours @ 85 /hour $ 127.50 09/05/03 Backhoe 1.5 hours digging cap rock @ $85 /hour $ 127.50 09/06/03 Backhoe 7 hours $85 /hour $ 595.00 09/06/03 D6 Dozer 1 hour $85 /hour $ 85.00 09/08/03 Backhoe 8 hours $85 /hour $ 680.00 09/10/03 Backhoe 1.5 hours @ $85 /hour $ 127.50 23. On or about September 5, 2003, Windham Township received 50% ($17,096) of the BCCD grant. a. The funds were deposited in the township's PLIGIT (Pennsylvania Local Government Investment Trusts) general fund account. 24. The Cole invoice was included on the bill list for approval by the board of supervisors at the board's October 10, 2003, meeting. 25. Standard procedure in Windham Township when approving bill lists is for each supervisor to review the individual invoices and sign each invoice indicating approval. 26. Cole invoice no. 1540 was signed by Brown and supervisors Kaminsky and Davis. 27. The township issued PLIGIT check no. 6676 payable to Cole Construction in the amount of $5,232.50 on October 14, 2003. a. The check is signed by all three township supervisors, including Larry Brown. 28. In or about November 2003 Windham Township was advised by the BCCD that $5,232.50 costs for Cole Construction would not be a reimbursable expense. a. The grant did not permit reimbursement for the equipment costs but did permit payment for material costs. 29. Brown subsequently contacted Marcus Cole of Cole Construction and advised that Brown, 03 -067 Page 6 the Cole invoice had to be for shale only and could not include charges for the digging or removal. 30. Cole submitted an additional invoice also dated September 9, 2003. a. Invoice no. 1543 contained a description of "digging approximately 500 ton of shale - $5,232.50." b. Cole submitted this invoice based on direction from Brown. 31. Cole did not maintain an exact measurement of the amount of shale excavated from the Brown property. 32. Invoice no. 1543 contains only the signature of L. Brown. a. The invoice was not signed by other members of the board of supervisors. b. Brown did provide the other members with the invoice. 33. Brown's use of the authority of his position resulted in Cole being selected to remove shale from his property. a. Cole was selected without an open and public process. 1. No other contractors were considered to provide shale for the project. 34. The removal of 500 ton of shale (overburden) from the Peck Hill Farm quarry site brought the bluestone in that specific area closer to the surface, resulting in it being easier and cheaper to remove. a. The closer the bluestone is to the surface results in less labor involved in removing the bluestone, less time is required to remove the bluestone, and less cost involved in removing the bluestone. 35. The cost to excavate the shale from Brown's property totaled $5,232.50 (See Finding Nos. 21 and 22). 36. [T]he per ton value of the shale as estimated by Brown was $7.50 /ton (See Finding No. 13(a)) for a total value of $4,275 (570 ton x 7.50). 37. The difference between the value of the shale that was donated to the township and the cost to excavate such is approximately $957.50 ($5,232.50 - $4,275.00). 38. The exact total of the difference between the value of the shale and the cost to excavate that shale is not known as no exact measurement of the tonnage was maintained. 39. The value of the shale donated by Brown approximately equaled the cost to excavate said shale. 40. Brown did not receive any payment for the shale that was removed from his property. a. The shale was donated by Brown to the township. The following findings relate to the allegation that Brown failed to file Statements of Financial Interests Brown, 03 -067 Page 7 41. Larry Brown, as an elected Windham Township Supervisor, is required to file a Statement of Financial Interests (SFI) form (SEC -1) each year he holds office and the year following completion of public service. 42. Larry Brown filed a Statement of Financial Interests for the 2000 calendar year on February 26, 2001. 43. A Statement of Financial Interests compliance review conducted by an investigator for the State Ethics Commission confirmed that Brown did not file Statements of Financial Interests with Windham Township for the calendar years 2001 and 2002, by May 1, 2002, and May 1, 2003. 44. As an elected supervisor in Windham Township, Brown is paid $50.00 per meeting of the board of supervisors. a. The board of supervisors meet once a month. b. On occasion, the Board of Supervisors have a special meeting in addition to the regularly scheduled monthly meeting. 45. During the period from 2001 through 2002 when he failed to file Statements of Financial Interests, Brown was compensated for meeting pay as follows: 2002: $600.00 2003: $550.00 46. Brown received a private pecuniary benefit of at least $1,150 when he received meeting pay during 2002 and 2003 at times when he was not in compliance with the Statement of Financial Interests filing requirements of the State Ethics Act. III. DISCUSSION: At all times relevant to this matter, the Respondent, Larry Brown, hereinafter Brown, 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 Brown, as a Supervisor of Windham Township, Bradford County, violated Sections 1103(a), 1104(a) and 1104(d) of the Ethics Act when he: participated in actions of the board of supervisors, authorized the hiring of and approved payments to Cole Construction for excavating work at a stone quarry he co -owns; and failed to file Statements of Financial Interests (SFI's) for the 2001 and 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 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 Brown, 03 -067 Page 8 his holding public 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. 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. Section 1104(d) of the Ethics Act precludes a public official from taking office, continuing with duties and receiving compensation without the filing of the SFI. 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. Brown has served since 2002 on the Windham Township Board of Supervisors and as the roadmaster, a township management position. In a private capacity Brown and his brother co -own a 1,200 acre dairy farm which also contains one active and two inactive quarries. The industrial mineral which is the most valuable mineral commodity in those quarries is bluestone. Although Jesse Finch, Sr. applied for and received a surface mining permit on the Brown farm from the Pennsylvania Department of Environmental Protection (DEP) in October of 1998, operations by Finch subsequently ceased. Brown and his brother then advised DEP in March of 2002 that they were co- owners of the property, that the quarry was no longer in operation, and that they would keep the quarry open for shale and stone which they stated would be mined but not sold. The Bradford County Conservation District (BCCD) provides funds to municipalities for the maintenance of gravel roads. The funds are provided by the DEP State Conservation Commission which administers the dirt and gravel road maintenance program. In April 2002, the township filed a Dirt and Gravel Roads Grant Application with BCCD seeking $34,192.00 in funds. In May of 2003, an agreement between BCCD and the township identified a grant in the amount of $34,192.00 for a road maintenance project on Peck Hill Road. Brown prepared cost estimates for the Peck Hill Road project as roadmaster, oversaw the road maintenance project, including locating shale and other materials to be used for the project. Brown determined that the township should obtain 570 tons of shale at $7.50 per ton for a total cost of $4,275.00. Brown contacted Marcus Cole, owner of Cole Construction, to dig 500 tons of shale from the quarry located on Brown's farm. Brown, 03 -067 Page 9 Brown personally showed Cole where to dig and stockpile the shale. The excavated shale was used for the repair/ maintenance project on Peck Hill Road. The shale removal from the Brown property occurred without the prior approval and knowledge of the township board of supervisors and without any bidding process. In September of 2003, after the completion of the project, Cole Construction invoiced the township in the amount of $5,232.50 for the shale removal. The details of the charges are detailed in Fact Finding 22. The Cole invoice was included in the bills list for approval by the board of supervisors at an October 2003 meeting. All three supervisors signed the invoice indicating approval and all three co- signed the check payable to Cole Construction in the amount of $5,232.50. However, in November 2003, BCCD advised the township that the cost would not be reimbursable since the grant did not permit reimbursement for equipment costs. Brown subsequently contacted Marcus Cole of Cole Construction and advised him that the invoice had to list shale only without referencing charges for digging or removal. Cole then submitted another invoice dated September 9, 2003, containing a description of "digging approximately 500 ton of shale - $5,232.50." Fact Finding 30.a. Cole submitted the invoice at Brown's direction and only Brown signed the invoice. It was only Brown who selected Cole to remove the shale from his property which was done without an open and public process and without consideration of any other contractors. By removing the approximate 500 tons of shale from the quarry site on the farm that Brown co- owned, the bluestone in that area was then closer to the surface so as to be easier and cheaper to remove. However, Brown did not receive any payment for the shale which he donated to the township. The approximate value of the delivered shale was $4,275.00. The total difference between the value of the shale and the cost to excavate is unknown because there was no precise measurement as to the shale tonnage. Turning to the matter of SFI's, Brown, as a supervisor, was required to file SFI's but failed to do so for the 2000 and 2001 calendar years. As an elected supervisor, Brown received $50.00 per meeting per month, thereby receiving compensation of $600.00 in 2002 and $550.00 in 2003. Hence, Brown received a financial gain of $1,150.00 for receiving meeting pay during 2002 and 2003 when he failed to comply with the SFI filing requirements of the Ethics Act. 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 no violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred in relation to Brown's participation in actions of the board of supervisors authorizing the hiring of Cole Construction for excavating work at a stone quarry he owns; and when he approved payments to Cole Construction for these services through Windham Township as any pecuniary benefit to Brown was approximately equal to the value of the excavated shale that he donated to the township. b. That a violation of Sections 1104(a), (d) of the Public Official and Employee Ethics Law, 65 Pa.C.S. § §1104(a), (d) occurred when he failed to file a Statements of Financial Interests for the calendar years 2001 and 2002 and received compensation from public funds as a township supervisor during said years." In addition, Brown agrees to pay $1,150.00 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the mailing of this order. Brown, 03 -067 Page 10 In applying the provisions of Section 1103(a) of the Ethics Act to the stipulated facts, we find that there were uses of authority of office on the part of Brown. But for the fact that Brown was a supervisor, he could not have been in a position to do the following: select Cole Construction as to the Peck Hill Road project, approve the invoice to Cole and co -sign the check in payment for the services, direct Cole to resubmit a rephrased invoice after the initial invoice was not accepted by BCCD, and provide the only supervisor's signature on the revised invoice. Such actions were uses of authority of office on the part of Brown. See, Juliante, Order 809. The uses of authority of office on the part of Brown did not result in a private pecuniary benefit. It is stipulated that any pecuniary benefit to Brown approximately equaled the value of the excavated shale that he donated to the township. Without a private pecuniary benefit, there can be no violation of Section 1103(a) of the Ethics Act. See, Lomire, Order 1323. Accordingly, Brown did not violate Section 1103(a) of the Ethics Act when he took action as a supervisor and participated in actions of the board of supervisors to utilize Cole Construction to excavate shale at the quarry he co -owned in that there was no private pecuniary benefit because any benefit received equaled the value of the shale that was donated to the township. As to the SFI allegations, the admitted averments reflect that Brown failed to file SFI's for the 2000 and 2001 calendar years. During the time period when Brown was in non - compliance with the SFI requirements of the Ethics Act, he received compensation as an elected township supervisor in the amount of $1,150.00 for that two year period. Accordingly, Brown violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the 2001 and 2002 calendar years. If Brown has not already done so, he is directed to file SFI's for the calendar years 2000 and 2001 with the township and copies with this Commission for compliance verification purposes within 30 days of the date of mailing of this order. Failure to comply with the foregoing will result in the institution of an order enforcement action. 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, Brown is directed to pay $1,150.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the date of 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. Larry Brown, as a Windham Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Brown violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the 2001 and 2002 calendar years and received compensation from public funds as a township supervisor during said years. 3. Brown did not violate Section 1103(a) of the Ethics Act when he took action as a supervisor and participated in actions of the board of supervisors to utilize Cole Construction to excavate shale at the quarry he co -owned in that there was no private pecuniary benefit because any benefit received equaled the value of the shale that he donated to the township. In Re: Larry Brown ORDER NO. 1341 File Docket: 03 -067 Date Decided: 9/20/04 Date Mailed: 10/1/04 1 Larry Brown, as a Windham Township Supervisor, violated Section 1104(a) of the Ethics Act when he failed to file SFI's for the 2001 and 2002 calendar years and received compensation from public funds as a township supervisor during said years. 2. Brown did not violate Section 1103(a) of the Ethics Act when he took action as a supervisor and participated in actions of the board of supervisors to utilize Cole Construction to excavate shale at the quarry he co -owned in that there was no private pecuniary benefit because any benefit received equaled the value of the shale that he donated to the township. 3. Per the Consent Agreement of the parties, Brown is directed to pay $1,150.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the date of mailing of this order. 4. Brown is directed to file SFI's for the calendar years 2000 and 2001 with the township and copies with this Commission for compliance verification purposes within 30 days of the date of mailing of this order. 5. Compliance with paragraphs 3 and 4 will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair