HomeMy WebLinkAbout1338 JohnsonIn Re: Anders M. Johnson
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
02- 063 -C2
Order No. 1338
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 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Johnson, 02- 063 -C2
Page 2
I. ALLEGATION:
That you, Anders M. Johnson, a (public official /public employee) in your capacity as
a Supervisor for Salem Township, Westmoreland County violated Sections 1103(a),
1103(c), and 1103(f) 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 yourself
and /or a business with which you are associated, including but not limited to participating
in township actions to award a contract for shale and then subcontracted with the company
who was awarded the contract; when the contract, in excess of $500.00 was entered into
without an open and public process; and when your participation to award the contract was
based on your understanding that the individual would lease equipment from you; when
you participated in actions of the board of supervisors, including but not limited to
recommending and voting to hire the township solicitor and township engineer, firms with
which you have ongoing representation in matters affecting the township; when you
participated in actions approving payments to an attorney for legal matters prior to that
attorney being retained as solicitor; when you utilized the services of the township
secretary /treasurer in relation to his personal excavation business.
II. FINDINGS:
1. Anders Johnson has served as a Supervisor of Salem Township, Westmoreland
County, since January 2000.
a. Johnson has served as Chairman of the Board of Supervisors since January
2002.
2. Johnson owns and operates Johnson's Excavating, Pleasant View Lumber & Mill,
and Andy Johnson & Associates.
a. Johnson operates the businesses from his residence, R.D. 4, Box 306,
Greensburg, PA 15601.
3. Salem Township is a Second Class Township governed by the three member board
of supervisors.
4. At the January 7, 2002, and January 6, 2003, reorganization meetings of the Salem
Township Board of Supervisors, Johnson was appointed as a part -time roadmaster.
a. Johnson works on an as- needed basis.
b. Supervisor Ronald Martz is the full -time roadmaster.
c. Johnson was also appointed supervisor in charge of the office during these
reorganization meetings.
5. Toni Ritchey has served as the Salem Township Secretary/Treasurer since January
7, 2002.
a. Ritchey was appointed to the position by a vote of the board of supervisors
during the reorganization meeting of January 7, 2002.
1. Johnson participated in the vote.
b. Ritchey's work hours as township secretary are 7:30 a.m. to 3:30 p.m. with
no lunch.
6. Prior to her employment as township secretary /treasurer, Ritchey was employed by
Johnson, 02- 063 -C2
Page 3
Johnson, in his private business, as an office manager /secretary.
7 Ritchey continued to work for Johnson in 2002 on a limited basis after she was
hired as the township secretary /treasurer.
a. Ritchey would receive and place telephone calls in relation to Johnson's
private business interests.
b. Ritchie utilized a Nextel cellular telephone /radio she was provided with by
Johnson to receive and make private business calls and also to facilitate the
conduct of township business.
c. Ritchey contacted Johnson by phone or radio to relay messages from the
calls she had received.
8. In a sworn statement to investigators for the State Ethics Commission on July 23,
2003, Ritchey admitted to receiving and placing calls relating to Johnson's
businesses while on township time.
a. Ritchey admitted using the Nextel phone /radio for the first month she was
employed by the township.
1 Around the end of January 2002, Ritchey returned the Nextel phone
to Johnson.
9. Calls received and /or made by Ritchey were on an infrequent basis.
10. In or about February 2002 Johnson and Supervisor Ronald Martz discussed
seeking bids for shale for use on township roads.
a. Shale has been used by the township for repair and maintenance of
township roads.
b. Prior to 2002 the township had obtained shale from township residents at
reduced costs because the township would bear the expense of excavating
the shale and transportation costs.
11. At the February 21, 2002, board meeting, the supervisors discussed soliciting bids
for sandstone and /or shale rock from sites in or adjacent to Salem Township.
a. The intent was to use "native" stone that was inexpensive to buy and haul,
and readily available.
b. Solicitor Gary Falatovich recommended that the township make a
determination on a project by project basis whether the material costs
exceed the bidding limit, and advertise, if needed, at that time.
c. Johnson's motion to solicit bids for the sandstone /shale was not approved by
the board.
1. The vote was unanimous.
12. In or about March 2002, Johnson and Roadmaster Martz made the decision to
solicit quotes for sandstone /shale from specific township residents.
a. The decision was not made at a public meeting of the board of supervisors.
Johnson, 02- 063 -C2
Page 4
b. Shale or sandstone quote forms were provided to the residents by way of
facsimile, U.S. mail, or were hand delivered by Johnson and /or Martz.
13. Quotes were solicited from Joseph Rose, Jim Daniels, Frederick Palmer, Jr., and
John Eidemiller.
a. Johnson also provided a quote form to Ralph Smith by way of facsimile on
03/13/02.
1. Johnson included the following message on the facsimile cover page,
"Ralph, we're interested in Sandstone near Slickville (Chicha Strip) if
your interested in supplying some please quote various prices."
14. Quotes were received on the following dates:
Joseph Rose:
James Daniels:
John Eidemiller:
March 14, 2002
March 12, 2002
April 11, 2002
15. The quotes contained the following bids:
Material only per cubic yard:
Material loaded with supplier's
equipment by township personnel
onto township trucks per cubic yard:
Material loaded by supplier onto
township trucks per cubic yard (with
300 cubic yd. per day minimum):
Joseph
Rose
$1.00
$2.20
Delivery per cubic yard for first mile: $2.00
Delivery per cubic yard each
additional mile:
Jim John
Daniels Eidemiller
$ - $3.00
$1.70
$5.00 $ -
$50.00 per $ -
cubic yd. for
first 3 miles
$0.20 $1.00 $ -
Note that Daniels' quote was intended to reflect a $50.00 delivery fee for up to 3
miles, and $1.00 for each mile beyond the 3 miles.
16. Johnson verbally solicited a quote from Frederick Palmer, Jr., on or about the same
time quotes were solicited from other township residents.
17. Johnson went to Palmer's residence, Johnson handed Palmer the quote form,
which had been completed by Johnson and asked him to sign it if he wanted to sell
the shale on his property to the township.
Palmer was interested in getting rid of the shale.
Palmer had previously sold shale to the township for $10.00 per load in
2000 -2001.
1. Township equipment was used to excavate and load the shale.
18. The quote, prepared by Johnson and signed by Palmer, contained the following bid
a.
b.
Johnson, 02- 063 -C2
Page 5
prices:
1. Material only $1.00 per cubic yard
2. Material loaded with supplier's equipment
by township personnel onto township truck(s) $1.55 per cubic yard
3. Material loaded by supplier onto township truck(s)
(with 300 cubic yards per day minimum) $2.05 per cubic yard
4. Delivery $ N/A per cubic yard for first mile
$N /A per cubic yard each additional mile
19. The quotes received by Johnson from Palmer and the other bidders were not
reviewed or discussed during a township meeting.
20. A decision was made to purchase the shale from Palmer.
a. There was no vote of the board of supervisors.
21. Johnson advised Martz that his excavator being leased /sold to Palmer would be
used on Palmer's property to access the shale the township was purchasing.
a. Johnson owns excavating equipment as part of his private business interests.
b. Palmer did not own excavating equipment prior to March 2002.
22. During the same period in March 2002 when Johnson prepared the shale bid specs
signed by Palmer, Johnson and Palmer entered into an agreement for the
lease /purchase of Johnson's excavator.
a. Palmer believed he needed an excavator in order to sell shale to the
township.
1. In previous years when shale was purchased from Palmer, township
equipment was used to excavate the shale.
b. Johnson Excavating equipment was at the Palmer site as Johnson was
performing work for Palmer.
1. Johnson had been using the excavator to grade Palmer's property in
relation to the installation of their house in January 2002, and septic
system in early February 2002.
23. Johnson entered into a Rental /Purchase Agreement with Frederick Palmer, Jr. for a
hydraulic excavator with a 72" bucket on or about March 22, 2002.
a. The undated agreement was signed by Johnson and Palmer.
b. The rental rate was $1,000.00 per month.
c. The term of the agreement was for 15 months, from 3/01/02 to 6/01/03.
d. A purchase price of $15,000.00 was indicated on the agreement.
24. The agreement was printed under Johnson's company letterhead, Anders M.
Johnson, DBA Pleasant View Lumber, Johnson Excavating. The conditions of the
Johnson, 02- 063 -C2
Page 6
agreement were as follows:
The above -named Lessor hereby leases to above -named Lessee the
Equipment listed herein for the term and with the rental payments set
out above. Rental payments shall be made to Lessor at his address
shown above. Lessee will pay the cost of transporting the Equipment
and returning it to Lessor's place of business. It is contemplated that
the equipment will be operated for not more than 160 hours in any
one month. If Lessee fails to return the Equipment promptly at the
end of the term, additional rental shall be payable for each day
prorated at one and one -half times the normal rental.
Except to the extent covered by insurance purchased by Lessor or its
assignee, Lessee shall indemnify Lessor against all loss or damage
to the Equipment while it is out of Lessor's possession. Damage to
the Equipment, other than a total loss, shall not abate or excuse the
making of prescribed rental payments.
Lessee assumes all risk and liability for and shall hold Lessor or its
assigns harmless from all damages for injuries or death to persons
and property arising out of the use, possession, or transportation of
the Equipment. Lessee, at his own expense, will carry public liability
insurance with minimum liability limits in the amounts of $100,000 per
person and $300,000 per occurrence for bodily injury, including
death, and in the minimum amount of $50,000 per occurrence for
property damage.
Lessee agrees to use and care for the Equipment in a careful and
prudent manner, to pay all operating and maintenance expenses
while the Equipment is out of the possession of Lessor, and to make,
at his expense, any and all repairs other than those which Lessor
agrees to make under the additional provisions on the reverse side
hereof.
Upon expiration of the term of this Rental Agreement or at any time
during such term, Lessee may elect to purchase the equipment for the
"Total Present Value" shown above and may apply to such purchase
price 80% of all rentals theretofore paid.
THIS RENTAL AGREEMENT IS SUBJECT TO ALL OF THE TERMS
AND CONDITIONS STATED ABOVE.
25. Palmer's entering into the lease agreement with Johnson enabled him to
contract to sell shale to the township.
a. Palmer had no other business use for the excavator.
26. The road crew used the equipment already on Palmer's property to excavate and
load the shale into the township trucks.
a. This was the equipment referred to in the agreement between Palmer and
Johnson that had been transported to Palmer's property by Johnson.
b. Johnson instructed Martz to use this excavator.
27. Between April 3, 2002, and July 11, 2002, the excavator was used on the Palmer
property by the township road employees to excavate shale needed for the County
Johnson, 02- 063 -C2
Page 7
Hill Road project.
28. A log sheet used to record the cubic yards of shale taken from the Palmer's
property was maintained in each of the township trucks used to haul the shale.
a. On the log sheets, the drivers recorded the following information:
Source of the shale;
Date, time, truck number, and driver;
Number of cubic yards;
Job location;
Individual /entity furnishing the equipment;
Individual using the equipment.
b. The log sheets were turned over to secretary /treasurer Ritchey and used as
the basis to issue payments to Palmer.
29. Between April 3, 2002, and July 11, 2002; 4,160 cubic yards of shale was
excavated and loaded onto township trucks utilizing the excavator leased /sold to
Palmer by Johnson.
a. The township paid Palmer at the rate of $1.55 per cubic yard for the shale
excavated and loaded with Johnson's excavator.
30. The excavator was removed from the Palmer property sometime after July 11, 2002,
when Palmer terminated his lease on the excavator with Johnson.
31. Between July 16 and October 17, 2002, the township removed an additional 1,378
cubic yards of shale from Palmer's property utilizing township equipment.
a. Palmer was paid at the rate of $1.00 per cubic yard for the shale obtained
during this time period.
32. Township records confirm that Palmer was paid $6,448.00 for shale for the period
between April 3, 2002, and July 11, 2002.
a. An additional $1,378.00 was paid for shale removed during the period
July 15, 2002, through October 2002.
33. Between April and July 2002, Johnson participated in the votes to approve payment
of the bills, which included payments to the Palmers for shale excavated with the
equipment he was leasing to the Palmers.
a. As Board Chairman, Johnson did not participate in making the motion or
seconding motions unless one of the other two supervisors was absent.
34. At the April 18, 2002, Board Meeting, during the vote on the motion to approve
payment of the bills, Johnson voted yes. The minutes reflect the following in regard
to Johnson's vote.
"Mr. Johnson voted yes with a notation that there could be a conflict of interest with
Allegheny Power, Beckwith, Machinery, Better Materials, Commercial Aggregates,
Delmont Agway, Export Fuel, Five Points Gas & Co., Greensburg Tool Service,
Multi - Metals, Murray Auto Electric, Northern Tool, OC Cluss, Frederick Palmer,
Victor P. Regola, and Watts Mack Sales. But I will vote yes to break the tie which is
legal under the Ethics Commission because I have so noted that I am aware that it
could be a conflict of interest. I have done business with all these people and am
doing business with some of them at the present time in my personal business."
Meeting
Date
Vote on
the Bills
Johnson's
Participation
Disclosure
04/18/02
2/1
Yes
Yes (as noted in Finding 51) [sic]
05/16/02
2/0/1
Yes
Yes, with the stipulation that there are
several of these businesses that he does
business with
06/20/02
2/0/1
Yes
Yes, with the stipulation that he was voting
to break the tie noting there could be a
conflict of interest with himself and his
personal business in the fact that he does
business with several of the people being
paid (listed those he does business with)
07/25/02
2/0/1
Yes
Yes, to break the tie noting that in his
business he does business with some of the
same vendors
08/15/02
2/0/1
Yes
Yes, noting the exception of those he does
business with to break the tie
09/19/02
2/0/1
Yes
Yes, to break the tie and pay the bills noting
that he does business with some of these
same vendors
10/17/02
2/0/1
Yes
Yes, to break the tie stipulating that he does
business with some of these businesses/
individuals
11/21/02
2/0
Yes,
Seconded
Yes, stating that he could be in conflict with
certain vendors he does business with
01/16/03
2/0
Seconded
Yes, voting to break the tie, noting he does
business with a few of the vendors on the
list
04/23/02
7172
',683.55
441 cubic yards (a, ',1.55
05/20/02
7230
$578.15
373 cubic yards (a, $1.55
06/21/02
7297
$1,852.25
1,195 cubic yards (a, $1.55
07/26/02
7361
$2,977.55
1,921 cubic yards (a, $1.55
08/16/02
7407
$105.00
105 cubic yards (a, $1.00
09/20/02
7463
$160.00
160 cubic yards (a, $1.00
10/16/02
7510
$510.00
390 cubic yards (a, $1.00 **
11/22/02
7537
$699.00
699 cubic yards (a, $1.00
01/15/03*
8030
$380.50
24 cubic yards (a, $1.00
Johnson, 02- 063 -C2
Page 8
a. Johnson's reference to voting to break a tie was due to the abstention, no
vote or absence of Supervisor Gieselman.
35. Minutes of township meetings reflect Johnson made a general disclosure when
voting to approve payment of the bills after April 2002, to a lesser degree than the
statement he made at the April meeting.
a. The minutes did not always reflect the list when Johnson read the names,
but noted that he had read the list of names.
36. Johnson's actions in relation to the votes to approve the payment of the bills are
noted in the following chart:
37. In 2002, payments to Palmer for the shale purchased by the township, issued from
the Salem Township General Fund, totaled $7,946.00.
Johnson, 02- 063 -C2
Page 9
* Payment on 01/15/03 was from log sheets for shale hauled 6/12- 6/20/02 and
7/16/02, that had been misplaced.
** $120.00 was additional shale excavating cost by a water line contractor
38. During the time period when Johnson approved the contract with Palmer and issued
checks to Palmer, Palmer made three payments totaling $3,000.00 to Johnson for
the lease of his excavator to excavate and load shale Palmer sold to the township.
a. The checks were issued from the Palmer's personal checking account to
Andy Johnson, as follows:
Check No. Check Date Amount
4805 05/20/02 $1,000.00
4834 06/21/02 $1,000.00
4879 08/08/02 $1,000.00
b. The checks were deposited into an account at Farmer's National Bank in the
name of Anders M. Johnson dba Pleasant View Lumber.
39. The payments made by Palmer to Johnson were made with funds received by
Palmer from the township.
a. Palmer would have been unable to make payments without the payments
from the township.
40. Salem Township did not incur a financial loss as a result of Johnson's actions.
41. At the January 7, 2002, Organization Meeting of the Board of Supervisors, Johnson
was appointed chairman of the board.
42. On January 7, 2002, Johnson participated in the vote to appoint Gary Falatovich as
Solicitor at the rate of $200.00 per month for the two regular monthly meetings of
the board, and a $100.00 per hour service rate.
a. The motion was made by Martz and seconded by Gieselman.
b. The motion passed on a 2/0/1 vote, with Gieselman abstaining.
43. Prior the January 7, 2002, Organization Meeting of the Board of Supervisors,
Johnson had consulted with Attorney Falatovich on issues relating to township
matters.
a. Johnson consulted with Falatovich in December 2001 regarding township
matters which included actions to be taken at the 2002 reorganization
meeting, appointments to future township vacancies.
b. Johnson has utilized the professional services of Fisher, Long & Rigone Law
Firm for personal and business legal matters.
1. Attorney Long continues to provide legal representation for Johnson.
44. Falatovich submitted a bill to the township dated January 31, 2002, which contained
entries related to consultations with Johnson prior to Falatovich's appointment as
230 cubic yards (a, $1.55
TOTAL
$7,946.00
5,538 cubic yards
Johnson, 02- 063 -C2
Page 9
* Payment on 01/15/03 was from log sheets for shale hauled 6/12- 6/20/02 and
7/16/02, that had been misplaced.
** $120.00 was additional shale excavating cost by a water line contractor
38. During the time period when Johnson approved the contract with Palmer and issued
checks to Palmer, Palmer made three payments totaling $3,000.00 to Johnson for
the lease of his excavator to excavate and load shale Palmer sold to the township.
a. The checks were issued from the Palmer's personal checking account to
Andy Johnson, as follows:
Check No. Check Date Amount
4805 05/20/02 $1,000.00
4834 06/21/02 $1,000.00
4879 08/08/02 $1,000.00
b. The checks were deposited into an account at Farmer's National Bank in the
name of Anders M. Johnson dba Pleasant View Lumber.
39. The payments made by Palmer to Johnson were made with funds received by
Palmer from the township.
a. Palmer would have been unable to make payments without the payments
from the township.
40. Salem Township did not incur a financial loss as a result of Johnson's actions.
41. At the January 7, 2002, Organization Meeting of the Board of Supervisors, Johnson
was appointed chairman of the board.
42. On January 7, 2002, Johnson participated in the vote to appoint Gary Falatovich as
Solicitor at the rate of $200.00 per month for the two regular monthly meetings of
the board, and a $100.00 per hour service rate.
a. The motion was made by Martz and seconded by Gieselman.
b. The motion passed on a 2/0/1 vote, with Gieselman abstaining.
43. Prior the January 7, 2002, Organization Meeting of the Board of Supervisors,
Johnson had consulted with Attorney Falatovich on issues relating to township
matters.
a. Johnson consulted with Falatovich in December 2001 regarding township
matters which included actions to be taken at the 2002 reorganization
meeting, appointments to future township vacancies.
b. Johnson has utilized the professional services of Fisher, Long & Rigone Law
Firm for personal and business legal matters.
1. Attorney Long continues to provide legal representation for Johnson.
44. Falatovich submitted a bill to the township dated January 31, 2002, which contained
entries related to consultations with Johnson prior to Falatovich's appointment as
Johnson, 02- 063 -C2
Page 10
solicitor.
a. The bill submitted by Falatovich contained two separate invoices, No. 268
and No. 327.
b. Invoice No. 268 dated 12/31/01 included charges for meetings /research on
12/28/01 and 12/29/01.
c. Invoice No. 327 dated 01/31/02 included charges for services rendered
during the period 01/02/02 through 01/06/02.
45. Falatovich's January 31, 2002, invoice to Salem Township included the following
charges:
12/28/01 Meeting with A. Johnson & R. Martz re: various municipal $100.00
matters — 1.0 hours
12/29/01 Research re: ability of a municipality to contract away its $60.00
statutory rights - .60 hours
01/02/02 Conference with R. Martz and A. Johnson re: various $100.00
matters — 1.0
01/03/02 TC with Andy Johnson re: various matters - .5 hours $50.00
01/04/02 Research re: advertisement of meetings and action to be $120.00
taken at reorganization meeting — 1.2 hours
01/05/02 Research various municipal matters associated with $250.00
appointments made to vacancies that will exist in the future
— 2.5 hours
01/05/02 Conference with Andy Johnson re: format for
reorganization meeting — 1.0 hours
01/06/02 Continued research re: creation and filling of vacancies — $150.00
1.5 hours
Total $880.00
46. At the February 21, 2002, board meeting, Falatovich's bill, in the amount of
$5,388.00 was included on the bill list for approval.
a. Johnson participated in the vote to approve payment of the bills when he
seconded the motion and cast the deciding vote.
b. The vote was 2/1, with Gieselman voting no.
47. Salem Township General Account check #7022, dated 03/01 /02, in the amount of
$5,388.00 was issued to Gary A. Falatovich.
a. Johnson signed check no. 7022, along with Martz and secretary /treasurer
Toni Ritchey.
1. Supervisor Gieselman was not an authorized signer on township
accounts after January 2002.
48. The services provided by Falatovich, prior to his appointment as township solicitor,
were related to municipal matters affecting the township.
a. None of the legal services personally benefited Johnson.
49. Salem Township utilizes a standard Road Bonding Agreement when approving use
of the township roads by vehicles which, by themselves or in conjunction with loads,
exceeded the posted gross weight restriction on portions of the specified roads.
a. A security bond was required based on an amount stipulated by the
Johnson, 02- 063 -C2
Page 11
township.
b. Section 4, Responsibility of the User, stipulates that the user shall be
responsible for damages or conditions created as a result of the user's use
of the road.
50. The Road Bonding Agreement Section 4 mandates requirements on the user, as
follows (in- part):
a. User shall be responsible for damages or conditions created as a result of
the user's use of the roads /right -of -way.
b. In order to determine the condition of the road(s), an on -site field inspection
shall be made jointly by the Township and User, including photographs, and
written memorandum describing the road conditions so that the User would
not be held liable for damage the User did not create.
1. Inspection costs were to be paid by the User.
c. The User shall be liable for all costs of excess maintenance and restoration
and all other expenses incurred pursuant to the Agreement, and liability shall
not be limited to the amount of the security.
d. Written notice of intent to terminate, by either party, is required. Inspection
of the road(s) will be conducted by the Township and User, and restoration
performed by a party agreed upon by the Township and User.
e. The Township may revoke the User's permit and may pursue legal remedies
it deems proper if in its discretion it determines that the User is not in
compliance with any portion of the Agreement.
51. Johnson submitted a Road Bond Agreement for Wolfs Lake Road to the township
on or about 04/25/00.
a. Johnson and an associate, Dave Shaffer, were logging in the area and
intended to use Wolfs Lake Road.
b. Johnson submitted Certificates of Liability Insurance and Workers
Compensation Insurance as required.
c. Johnson submitted a License and /or Permit Bond (Surety) provided through
Travelers Casualty and Surety Company of America in the amount of
$22,500.00.
1. Johnson signed the Bond, dated 04/25/00, along with Richard Collins,
attorney -in -fact, with Travelers.
52. At the May 2, 2000, board meeting, Road Bond Agreements between the township
and Johnson were approved for various portions of Skyview Road, Slightown Road,
Oak Hill Road, Old William Perry Highway, and Wolfs Lake Road.
a. Johnson abstained on the vote to approve each of the road bonds.
b. Johnson advised that both his truck and those of Dave Shaffer's would be
hauling over Wolf's Lake Road and that the bond would cover all trucks.
1. Johnson offered the information after he was questioned about it.
Johnson, 02- 063 -C2
Page 12
53. Johnson's Bond Agreement was signed by Supervisors Carmella Salvator and
Edward Gieselman on 05/02/00.
a. Johnson signed the agreement as the user.
b. Corinne Strittmatter witnessed the signing on behalf of the Township; Toni
Ritchey witnessed on Johnson's behalf.
54. On April 26, 2000, one day after Johnson completed the Road Bonding
Agreements, an inspection of the roads being proposed as haul routes for logging
operations was conducted by Joseph Dietrick, representative from Gibson - Thomas
Engineering Company, Inc., the appointed township engineer. Dietrick
memorialized his findings in a letter to Supervisor Gieselman dated 04/27/00.
Dietrick conducted the inspection, per township requirements, to determine
the existing condition of the roads and document same.
Dietrick generally recommended bonds in the amount of $12,500 per mile all
the roads except Old William Penn Highway, which he recommended to be
bonded at the highest amount possible because it was in excellent condition.
55. On July 19, 2000, in association with the inspection of several township roads,
Dietrick inspected Wolfs Lake Road believing that the logging operation conducted
by Johnson and Shaffer had been completed.
a.
b.
56. Dietrick memorialized the results of his inspection in a 07/24/00 letter to Supervisor
Gieselman.
a. He noted that the road had experienced several areas of pavement failure
attributable to the truck traffic hauling logs.
b. Photographs were taken of the damage areas.
c. The estimated cost of repairs was $4,000.00, 200 square yards of repairs @
$20.00 per square yard, consisting of 5 inches of ID -2 binder and 1 1/2 inches
of ID -2 wearing course.
57. At the September 21, 2000, board meeting during discussion related to the payment
of the bills, Johnson questioned the Gibson - Thomas Bill in relation to the inspection
of the section of Wolfs Lake Road he had bonded.
a. Johnson stated the inspection was premature because he had not requested
the release of his bond for the road.
b. The bills were approved for payment with Johnson voting yes with the
exception of the Gibson- Thomas bill.
58. By way of letter dated 10/06/00, from the township, Johnson was directed to
perform maintenance on Wolf's Lake Road by October 30, 2000.
a. The letter was signed by Supervisors Salvatore and Gieselman.
59. Johnson disputed the township engineer's assessment of damages to Wolfs Run
Road and retained the services of Douglas Regola, P.E., of the engineering firm of
Victor P. Regola & Associates to represent him in his dispute with the township over
the damage of Wolfs Lake Road under his Road Bond.
60. In a letter to Board Chairperson Salvatore, dated 11/16/00, Johnson requested the
Johnson, 02- 063 -C2
Page 13
release of his road bonds on Skyview Road, Slightown Road, Short Cut Road, Oak
Hill Road, Old William Penn Highway, and Wolfs Lake Road.
61. On December 11, 2000, Johnson, Douglas, Regola, Supervisor Gieselman and
Joseph Dietrick conducted an inspection of all of the roads Johnson had bonded.
62. Dietrick advised Gieselman on January 8, 2001, that Johnson and Regola
disagreed with his assessment of the repairs needed to Oak Hill Road and Wolfs
Lake Road.
63. At the March 5, 2001, board meeting, action was taken to release the road bonds
with Johnson.
a. Motions to release the bonds on Skyview Road, Slightown Road, Oak Hill
Road and Old William Penn Highway were approved by 2/0/1 votes, with
Johnson abstaining.
b. The motion to release the bond on Wolfs Lake Road was tabled on the
recommendation of the solicitor, with Johnson abstaining.
1. Johnson stated that, The bond is good until April 27 and the
Gibson - Thomas has found some problems with the road. So we do
need to resolve it. Everybody vote no."
c. Johnson's bond releases had been tabled at the previous meeting held
02/15/01, due to the absence of Supervisor Salvatore.
64. During a Special Meeting of the board of supervisors held 04/12/01, discussion
relating to Johnson's road bonds for Wolfs Lake Road took place.
a. Johnson had not asked for and did not want his bond released until a
settlement was reached as to the damage to the road.
b. After extensive discussion, a motion to release Johnson's road bond on
Wolfs Lake Road was defeated on a 0/2/1 vote, with Johnson abstaining.
c. Johnson also abstained on the vote to call his bond on Wolfs Lake Road
unless the bond was renewed prior to the expiration date. The motion
passed 2/0/1.
65. Salem Township was notified by letter dated 04/20/01, that Johnson's bond for
Wolfs Lake Road had been renewed as of 04/15/01.
a. Bond #3S103286087BCM, was placed through Bilik, Senella and Associates
Insurance and Financial Services.
66. At the May 22, 2001, board meeting, Johnson stated that he had offered to rebuild a
portion of Wolfs Lake Road to specifications, and agreed that some damage had
been done as a result of the hauling on the road by him and his subcontractors;
however, the engineers could not agree on the extent and type of repairs needed to
bring the road back into a like condition.
a. No action was taken by the board.
67. At the June 21, 2001, board meeting, Johnson was given 30 days to meet with
Gibson - Thomas engineers to resolve the Wolfs Lake Road bond issue.
Johnson, 02- 063 -C2
Page 14
68. On July 11, 2001, Johnson requested assistance from Gibson - Thomas
representative Joseph Dietrick in identifying the areas on Wolfs Lake Road that
Dietrick found to be in need of repair as a result of the hauling that had occurred
under Johnson's road bond.
69. Johnson was given a second 30 -day extension to resolve the issue of repairing
damage to Wolfs Lake Road, in a vote taken at the July 19, 2001, board meeting.
a. The extension was granted at the recommendation of the solicitor.
b. The motion was approved by a 2/0/1 vote with Johnson abstaining.
70. Dietrick, responding to Johnson in a letter dated 8/1/01, referenced the township
road construction requirements (8 inches of stone, 2 inches of ID -2 binder and 1
inch of ID -2 wearing course) against those he had originally recommended (5
inches of ID -2 binder, 1 1/2 inches of ID -2 wearing course), and advised that either
repair was acceptable and of similar cost.
a. He further noted that the township appeared to have filled some minor
potholes included in his initial report.
b. The letter was copied to Salem Township.
71. The Board of Supervisors voted to pull Johnson's bond on Wolfs Lake Road in the
amount of $4,000.00, at the August 21, 2001, board meeting.
a. Johnson abstained on the vote.
72. Travelers Casualty and Surety Company of America was notified by way of letter
dated 9/7/01 from Salem Township Solicitor Bruce Dice, that the township was
demanding that the cost of the repairs to Wolfs Lake Road in the amount of
$4,000.00 be covered under his bond.
a. Travelers acknowledged receipt of the claim by letter dated 9/18/01, and
requested additional documentation.
1. Travelers would review the claim with Johnson.
b. Travelers informed Johnson of the claim by letter of 9/18/01, and requested
that he provide specifics of his dispute with the claim.
73. Johnson advised Travelers Casualty and Surety Company of America in a letter
dated 9/26/01, that he intended to take care of the matter himself and that he did
not wish to involve the bonding company.
a. Johnson advised that he was working with the parties involved to resolve the
situation.
74. Johnson attempted to include Dave Shaffer in resolving the damage to Wolfs Lake
Road in response to pressure from the board of supervisors.
75. As per the Road Bond Agreement, the township invoiced Johnson for the cost of the
inspections conducted by Gibson - Thomas in relation to Johnson's road bonds.
a. Township invoice #8, dated 6/15/00, in the amount of $332.00, covered
costs incurred by the township in relation to Johnson's road bonds.
Johnson, 02- 063 -C2
Page 15
Advertising for special meeting on May 2, 2000 $ 6.50
Gibson - Thomas Engineering fees for road bond agreements
approved at special meeting on May 2, 2000. 240.00
Bruce Dice, Solicitor, attendance at special meeting
regarding road bonds on May 2, 2000. 85.50
$ 332.00
1. Johnson issued check #1768, dated 7/27/00, in the amount of
$332.00, to Salem Township in payment of the invoice.
b. Township invoice #21, dated 12/20/00, in the amount of $180.00, covered
the final inspection on 12/11 and 12/12/00 for release of Road Bond
Agreements.
1. A handwritten notation on the invoice states, "12/29 per A.J. hold till
he sees GT's report ".
76. On November 5, 2001, on behalf of Salem Township, Solicitor Bruce Dice filed a
Complaint in Arbitration in the Court of Common Pleas of Westmoreland County,
Pennsylvania, against Anders M. Johnson, and Travelers Casualty and Surety
Company of America, in regard to the damage to Wolfs Lake Road which occurred
under Johnson's road bond.
a. The case, filed in the Arbitration Division, was assigned No. 6821 of 2001.
b. The complaint alleged Breach of Contract on Johnson's part due to his
failure to take any action to repair the damages to the roadway or tender any
monies to redress the damages to said roadway as a result of his activities
and using the roadway.
c. The complaint further alleged that as a redirect, proximate and legal result of
its breaching of its contractual legal obligation, Salem has sustained the
following damages:
1. Damage to Wolf Lake Road totaling in an amount not in excess of
$30,000.00;
2. The costs incurred in pursuit of litigation;
3. Attorney's fees incurred at the Solicitor's rate for Salem Township
4. Expert witness and engineering expenses incurred in the litigation
including the time and costs related to Township Engineer, Gibson -
Thomas, at the township engineering rate;
5. Other related expenses as litigation continues.
d. The complaint also alleged that Traveler's, through its action, has breached
its contractual obligations under the agreement and has failed to comply, as
was the purpose of the bond, being provided pursuant to Salem's
requirement and per the terms of the Road Bonding Agreement; and bad
faith towards Salem by its failure to act as it was contractually required upon
notice given pursuant to the Road Bonding Agreement wherein Salem is
named protectorate /insured of the Bond.
1. Travelers claimed that it would not pay the bond because Mr.
Johnson, 02- 063 -C2
Page 16
Johnson would be fixing the roadway himself.
77. On January 7, 2002, by vote of the board of supervisors, Solicitor Dice and Gibson -
Thomas, the township engineer were not reappointed.
a. Gary Falatovich was appointed solicitor.
b. Victor Regola was appointed township engineer.
c. Johnson voted for the appointments.
78. No action was taken to enforce the township lawsuit against Johnson until May 14,
2002.
a. On 5/14/02, new Solicitor Falatovich had a conference with Johnson's
attorney Wes Long regarding a settlement proposal to settle the Johnson
litigation.
b. On 5/17/02, Falatovich met with the supervisors regarding the Wolfs Lake
Road litigation. Johnson participated in the meeting.
c. On 5/22/02, a letter was initiated to Johnson's attorney Wes Long, the
subject of which was the Wolfs Lake Road Bond.
79. The Board of Appeals of Westmoreland County found in Johnson's favor in the
Wolfs Lake Road case.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Anders M. Johnson, hereinafter
Johnson, 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 Johnson, as a Supervisor for Salem Township, violated
Sections 1103(a), 1103(c), and 1103(f) of the Ethics Act when he participated in township
actions to award a contract for shale and then subcontracted with the company who was
awarded the contract; entered into a contract in excess of $500.00 without an open and
public process; participated in awarding a contract to an individual based on the
understanding that the individual would lease equipment from him; participated in actions
of the board of supervisors to hire the township solicitor and township engineer, firms with
which he has ongoing representation in matters affecting the township; participated in
actions approving payments to an attorney for legal matters prior to that attorney being
retained as solicitor; and utilized the services of the township secretary /treasurer in
relation to his personal excavation business.
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
Johnson, 02- 063 -C2
Page 17
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 1103. Restricted Activities
(c) No public official, public employee or nominee or
candidate for public office shall solicit or accept, anything of
monetary value, including a gift, loan, political contribution,
reward, or promise of future employment based on any
understanding of that public official, public employee or
nominee that the vote, official action, or judgment of the public
official or public employee or nominee or candidate for public
office would be influenced thereby.
65 Pa.C.S. § 1103(c).
Section 1103(c) of the Ethics Act quoted above provides in part that a public
official /public employee shall not solicit or accept anything of monetary value based upon
any understanding that his vote, official action or judgment would be influenced thereby.
Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting.
Section 1103(f) of the Ethics Act provides:
Section 1103. Restricted activities
(f) No public official or public employee or his
spouse or child or any business in which the person or his
spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with which
the public official or public employee is associated or any
subcontract valued at $500 or more with any person who has
been awarded a contract with the governmental body with
which the public official or public employee is associated,
unless the contract has been awarded through an open and
public process, including prior public notice and subsequent
public disclosure of all proposals considered and contracts
awarded. In such a case, the public official or public employee
shall not have any supervisory or overall responsibility for the
implementation or administration of the contract. Any contract
Johnson, 02- 063 -C2
Page 18
or subcontract made in violation of this subsection shall be
voidable by a court of competent jurisdiction if the suit is
commenced within 90 days of the making of the contract or
subcontract.
65 Pa. C. S. § 1103(f).
Section 1103(f) of the Ethics Act provides in part that no public official /public
employee or spouse or child or business with which he or the spouse or child is associated
may enter into a contract with his governmental body valued at five hundred dollars or
more or any subcontract valued at five hundred dollars or more with any person who has
been awarded a contract with the governmental body with which the public official /public
employee is associated unless the contract is awarded through an open and public
process including prior public notice and subsequent public disclosure.
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.
Johnson has served as a supervisor on the three - member board in Salem
Township, Westmoreland County, since January of 2000 and as a part -time roadmasterfor
2002 and 2003. In a private capacity, Johnson owns and operates three businesses:
Johnson's Excavating, Pleasant View Lumber and Mill, and Andy Johnson and Associates.
Toni Ritchey has served as the Salem Township Secretary/Treasurer since January
7, 2002. Prior to her township employment, Ritchey was employed by Johnson as an
office manager /secretary in his private business. Ritchey continued to work for Johnson in
2002 on a limited basis after she was hired as the township secretary /treasurer. Ritchey
received or placed telephone calls in relation to Johnson's private business interests.
Ritchie utilized a cell phone provided by Johnson to receive and make private business
calls and also to facilitate the conduct of township business. Ritchey also contacted
Johnson by phone to relay messages she had received for him. Ritchey admitted to
receiving and placing calls relating to Johnson's businesses while on township time, and
using the cell phone for the first month she was employed by the township. Around the
end of January 2002, Ritchey returned the cell phone to Johnson. The calls received
and /or made by Ritchey for Johnson were infrequent.
At the beginning of 2002, Johnson and another supervisor discussed seeking bids
for shale for use by the township for the repair and maintenance of its roads. At the next
board meeting the supervisors discussed soliciting bids for sandstone or shale from sites
in or near the township on the theory that local stone would be inexpensive to buy and haul
and be readily available. At the following meeting of the board, Johnson made a motion to
solicit bids for sandstone or shale which was not approved by an unanimous vote of the
board. Johnson and another supervisor made the decision to solicit quotes from specific
town residents for sandstone /shale, even though no decision was made at the board
meeting. Quotes were solicited from four individuals, three of whom submitted quotes.
The details of the quotes appear in Fact Finding 15.
Johnson verbally submitted a quote from Frederick Palmer, Jr. at about the same
time that the other three quotes were solicited. Johnson went to Palmer's residence and
handed Palmer a quote form. Palmer had previously sold shale to the township for $10.00
a load in 2000/2001. Palmer then submitted a quote as prepared by Johnson which is
detailed in Fact Finding 18. The four quotes received were not reviewed or discussed at a
township meeting. The decision was made to purchase shale from Palmer without any
vote of the board of supervisors.
Johnson, 02- 063 -C2
Page 19
Johnson advised another supervisor that he would be leasing his excavator to
Palmer for use on his property to access the shale that the township would purchase.
During the time period when Johnson prepared the shale bid specs signed by Palmer, the
two of them entered into an agreement for the lease /purchase of Johnson's excavator.
The terms for the lease /purchase agreement was a rental rate of $1,000 per month for 15
months with a purchase price of $15,000. By Palmer entering into the lease purchase
agreement with Johnson, Palmer was able to enter into a contract to sell shale to the
township. In turn, the road crew was able to use the equipment on Palmer's property to
excavate and load the shale into the township trucks.
The excavator was used for approximately three months on Palmer's property by
township employees to excavate shale for a road project. During the time period, 4,160
cubic yards of shale were excavated and loaded into two township trucks for which the
township paid Palmer $1.55 per cubic yard. The excavator was removed from Palmer's
property in July of 2002 when Palmer terminated his lease with Johnson. Subsequently,
the township removed an additional 1,378 cubic yards of shale from Palmer's property at
the rate of payment of $1.00 per cubic yard. Palmer was paid initially $6,448 for the shale
that was excavated up to July 11 and then was paid an additional $1,378 for the shale
that was removed between July and October of 2002.
Johnson participated in votes to approve payments of bills which included those of
Palmer for shale excavated with the equipment that Palmer leased from Johnson. Johnson
generally avoided making or seconding motions unless one of the other two supervisors
was absent. At some meetings, Johnson also made disclosures of possible conflicts of
interest. The details of Johnson's participation and votes to approve bills involving those
of township vendors are delineated in Fact Finding 36.
During the timeframe when Johnson approved the contract with Palmer and issued
checks to Palmer for shale, Palmer made three payments totaling $3,000 to Johnson on
the lease. See, Fact Finding 38. Palmer was able to make the payments to Johnson due
to the funds Palmer received from the township for the shale.
Unrelated to the above, in January of 2000, Johnson participated in a 2 -0 -1 vote to
appoint Attorney Falatovich as the municipal solicitor. Prior to that reorganizational
meeting, Johnson had consulted with Falatovich regarding certain township matters.
Falatovich submitted a bill to the township for such matters prior to his appointment as
solicitor. Parenthetically, Johnson utilized the professional services of a different law firm
for his personal and business matters. At a February 2002 board meeting, Falatovich's bill
in the amount of $5,388 was included in a bill list for approval. Johnson participated in the
vote to approve the payment of bills which passed on a 2 -1 vote with Johnson voting in the
majority.
Thereafter, at the January 2000 reorganizational meeting, both the solicitor and
township engineer were not reappointed.
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(c) occurred when Johnson entered into a contract
for the lease /sale of an excavator to Fred Palmer.
b. That no violation of Section 3(a) [sic] occurred when Johnson participated in actions
of the board of supervisors regarding the hiring of a township engineer and solicitor,
firms with which he had ongoing relationships.
Johnson, 02- 063 -C2
Page 20
c. That a de minimis violation of Section 1103(a) of the Ethics Act occurred when the
township secretary, a former employee at Johnson's private business, received and
made phone calls while on township time related to Johnson's private business
interests.
d. That no violation of Section 1103(f) occurred when the contract with Palmer was
awarded, as bids were solicited from at least three other parties.
e. That no violation of Section 1103(a) occurred as a result of Johnson approving
payments to an attorney for legal matters prior to the attorney being retained as
solicitor in that no private pecuniary gain can be attributed to Johnson.
f. That an unintentional violation of Section 1103(a) occurred when Johnson
participated in discussions and actions of the board of supervisors resulting in the
award of a contra[c]t to Frederick Palmer for the purchase of shale at a time when
Johnson had entered into a lease /purchase agreement with Johnson for the use of
an excavator which was utilized in the contract with the township, and when
Johnson participated in board actions to approve payments to Palmer."
In addition, Johnson agrees to pay $500.00 to the Commonwealth of Pennsylvania through
this Commission within thirty (30) days of the issuance of this order.
In applying the stipulated facts to the allegations of record, we first shall consider
Section 1103(c) of the Ethics Act. This allegation relates to Johnson's participation in the
award of a shale contract to an individual as to whom Johnson had entered into a contract
for the lease /sale of excavation equipment to that individual. The lynchpin for a Section
1103(c) violation concerns the element of an understanding between the public official and
another individual. In the context of this case the understanding would have to be based
upon a quid pro quo of Johnson's participation to award the shale contract to Palmer in
return for Palmer entering into the lease /purchase agreement of the excavation equipment
owned by Johnson. However, the facts of record do not establish that the requisite
understanding existed between Johnson and Palmer. Accordingly, without such an
understanding, we find that Johnson did not violate Section 1103(c) of the Ethics Act as to
the entry into a lease /purchase contract for his excavator to Fred Palmer who received a
contract to supply shale to the township. See, Kasaback, Order 993.
As to Section 1103(a) of the Ethics Act, there are four separate charges: the hiring
of the township engineer and solicitor; using the township secretary in furtherance of his
private business interests; approving payments to an attorney prior to retaining him as
solicitor; and participating in actions to award a contract to Fred Palmer for the purchase of
shale at a time when Johnson entered a lease /purchase agreement with Palmer as to an
excavator that would be used during the contract performance. We shall address each of
these four allegations seriatim.
Regarding the charge concerning the hiring of the township engineer and solicitor
as to whom Johnson had ongoing relationships, the record does not establish that the
engineer, the solicitor or the firms are either immediate family members or businesses with
which Johnson or an immediate family member are associated. We have held that there
cannot be a violation of Section 1103(a) of the Ethics Act unless all of the component
elements are established: public official, use of authority of office, private pecuniary
benefit, and benefit inuring to the public official, immediate family member, or a business
with which associated. See, Bruno - Nelson, Order 1016. Under the facts of record, there
was no private pecuniary benefit inuring either to Johnson, an immediate family member or
a business with which he or an immediate family member is associated. Consequently,
Johnson did not violate Section 1103(a) of the Ethics Act as to the hiring of the township
Johnson, 02- 063 -C2
Page 21
engineer and solicitor in that neither of the individuals nor firms are immediate family
members or businesses with which Johnson or immediate family members are associated.
As to the charge of the use of the township secretary during township business
hours to make calls for Johnson's private business, the facts reflect that the township
secretary /treasurer did make such calls. However, Johnson's cell phone rather than the
township phone was utilized and such calls were made or received on an infrequent basis.
Hence, Johnson committed a "de minimis violation" of Section 1103(a) of the Ethics Act as
to the use of the township secretary on township time to make private business calls for
Johnson. See, Cannon, Order 1068; Maggi, Order 1315.
As to the allegation of approving payments to an attorney before he was retained as
solicitor, there was a use of authority of office on the part of Johnson. He took action as a
supervisor to utilize the services of the attorney for matters related to township business.
However, the pecuniary benefit which the attorney received did not inure to either
Johnson, an immediate family member, or a business with which associated. As noted
above, without the foregoing elements, there can be no violation of the Ethics Act. Hence,
Johnson did not violate Section 1103(a) of the Ethics Act in approving payments to an
attorney for legal matters relating to the township before the attorney was retained as
township solicitor in that there was no private pecuniary benefit to Johnson, an immediate
family member or a business with which associated.
The last Section 1103(a) allegation concerns Johnson's participation in the award of
a contract to Fredrick Palmer to supply the township with shale at a time when Johnson
entered into a lease /purchase agreement to sell his excavator to Johnson which would be
used in the performance of the township contract. The facts of record reflect that Johnson
took it upon himself to seek out Palmer and verbally solicit a quote for him as to the
township contract for the supply of shale. Palmer received the contract without a vote by
the board of supervisors. At that time Johnson engaged and entered into a lease
agreement with Palmer for his excavator, Palmer used the equipment in fulfilling his
contract with the township. This Commission has held that it is a conflict under Section
1103(a) of the Ethics Act for a public official to use the authority of office for a private
pecuniary benefit as to an individual which he has an ongoing business relationship. See,
Miller, Opinion 89 -024; Kannebecker, Opinion 92 -010.
In this case, Johnson used the authority of office in soliciting Palmer, working up the
verbal quote and awarding the township contract to Palmer. With the contemporaneous
execution of the lease /sale agreement of the excavator from Johnson to Palmer, Johnson
received lease payments that were generated from the funds that Palmer received from the
township under the shale supply contract. Hence, through Johnson's use of authority of
office, a private pecuniary benefit inured to him individually through the ancillary lease /sale
agreement that he had with Palmer who obtained the township contract to supply shale.
Accordingly, Johnson unintentionally violated Section 1103(a) of the Ethics Act when he
participated in actions as a township supervisor as to the award of a contract to Frederick
Palmer for the purchase of shale at a time when Johnson entered into a lease /purchase
agreement with Palmer for his excavator which was utilized in the contract with the
township.
The last allegation before us concerns Section 1103(f) of the Ethics Act involving
contracting. The stipulated findings reflect that Johnson and another supervisor made
personal contacts with three individuals who submitted quotes. The contract was awarded
to Palmer who was a fourth individual solicited by Johnson. The parties in the Consent
Agreement proffer a non - violation on the basis that quotes for the project were obtained
from at least three other parties. We are not so sure that such action in and of itself
constitutes an open and public process as required under Section 1103(f) of the Ethics
Act. See, Pennsylvania Training School vs. Independent Mutual Fire Insurance Company,
127 Pa. 559 (1889). In that we recognize that there is give and take by both sides as part
Johnson, 02- 063 -C2
Page 22
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. As per the
Consent Agreement of the parties, Johnson did not violate Section 1103(f) of the Ethics Act
regarding the award of a township contract with Frederick Palmer who had an ancillary or
subcontract with Johnson as to the sale /purchase of an excavator on the basis of a "non -
pros" by the Investigative Division.
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, Johnson is directed to pay
$500.00 to the Commonwealth of Pennsylvania through this Commission within thirty (30)
days of the issuance 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. Johnson, as a Salem Township Supervisor, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Johnson did not violate Section 1103(c) of the Ethics Act as to the entry into a
lease/ purchase contract for his excavator to Fred Palmer who received a contract
to supply shale to the township in that there was no understanding for a quid pro
quo between them.
3. Johnson did not violate Section 1103(a) of the Ethics Act as to the hiring of the
township engineer and solicitor in that neither of the individuals nor firms are
immediate family members or businesses with which Johnson or immediate family
members are associated.
4. Johnson committed a "de minimis violation" of Section 1103(a) of the Ethics Act as
to the use of the township secretary on township time to make infrequent private
business calls for Johnson.
5. Johnson did not violate Section 1103(a) of the Ethics Act in approving payments to
an attorney for legal matters relating to the township before the attorney was
retained as township solicitor in that there was no private pecuniary benefit to
Johnson, an immediate family member or a business with which associated.
6. Johnson unintentionally violated Section 1103(a) of the Ethics Act when he
participated in actions as a township supervisor as to the award of a contract to
Frederick Palmer for the purchase of shale at a time when Johnson entered into a
lease /purchase agreement with Palmer for his excavator which was utilized in the
contract with the township.
7 Johnson did not violate Section 1103(f) of the Ethics Act regarding the award of a
township contract with Frederick Palmer who had an ancillary or subcontract with
Johnson as to the sale /purchase of an excavator on the basis of a "non- pros" by the
Investigative Division.
In Re: Anders M. Johnson
ORDER NO. 1338
File Docket: 02- 065 -C2
Date Decided: 9/20/04
Date Mailed: 10/1/04
1 Johnson, as a Salem Township Supervisor, did not violate Section 1103(c) of the
Ethics Act as to the entry into a lease /purchase contract for his excavator to Fred
Palmer who received a contract to supply shale to the township in that there was no
understanding for a quid pro quo between them.
2. Johnson did not violate Section 1103(a) of the Ethics Act as to the hiring of the
township engineer and solicitor in that neither of the individuals nor firms are
immediate family members or businesses with which Johnson or immediate family
members are associated.
3. Johnson committed a "de minimis violation" of Section 1103(a) of the Ethics Act as
to the use of the township secretary on township time to make infrequent private
business calls for Johnson.
4. Johnson did not violate Section 1103(a) of the Ethics Act in approving payments to
an attorney for legal matters relating to the township before the attorney was
retained as township solicitor in that there was no private pecuniary benefit to
Johnson, an immediate family member or a business with which associated.
5. Johnson unintentionally violated Section 1103(a) of the Ethics Act when he
participated in actions as a township supervisor as to the award of a contract to
Frederick Palmer for the purchase of shale at a time when Johnson entered into a
lease /purchase agreement with Palmer for his excavator which was utilized in the
contract with the township.
6. Johnson did not violate Section 1103(f) of the Ethics Act regarding the award of a
township contract with Frederick Palmer who had an ancillary or subcontract with
Johnson as to the sale /purchase of an excavator on the basis of a "non- pros" by the
Investigative Division.
7 Per the Consent Agreement of the parties, Johnson is directed to pay $500.00 to
the Commonwealth of Pennsylvania through this Commission within thirty (30) days
of the issuance 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,
Johnson, 02- 063 -C2
Page 24
Louis W. Fryman, Chair