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HomeMy WebLinkAbout1336 ChiniIn Re: Leo Chini 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 -064 Order No. 1336 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Chini, 03 -064 Page 2 I. ALLEGATION: That you, Leo Chini, a (public official /public employee) in your capacity as a Supervisor for Harmar Township, Allegheny County, violated the Section 1103(a) and 1103(f) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1101 et seq., (Act 93 of 1998) when you used the authority of your office for the private pecuniary gain of a member of your immediate family and /or a business with which your or a member of your immediate family is associated, by participating in discussions and official actions of the board of supervisors resulting in a contract being awarded for the renovations of the township maintenance garage to a business with which your son is affiliated; and when the contract in excess of $500 was awarded without an open and public process. II. FINDINGS: 1. Leo Chini has served as a Supervisor for Harmar Township, Allegheny Township since January 4, 2000. a. Chini has served on the Public Works Committee since at least February 2001. 2. Harmar Township is a second -class township governed by a five - member board of supervisors. a. Harmar Township holds one regularly scheduled meeting per month. 3. Harmar Township employs a public works department to address various maintenance and safety issues throughout the township. a. The daily activities of the public works department are directed and supervised by James DeVore, Public Works Foreman. b. The public works department works out of the Harmar Township municipal garage located at 841 Russellton Rd, Cheswick, Pa 15024. 4. In mid -2000, Harmar Township pursued a grant through the Community Revitalization Program of the Department of Community and Economic Development (DCED) to assist in funding several projects as follows: a. Renovations to the township maintenance garage. b. Paving the maintenance garage parking lot. c. Landscaping around the boundary area of the maintenance garage. 5. In or about July 2000, Supervisor and Township Secretary /Treasurer Michael Liberati completed a DCED Single Application for Assistance regarding the proposed project. a. Accompanying the application was narration detailing the project description and budget. 1. The project description detailed the overview of the project which included, among other items, replacing the deteriorated wood siding on the maintenance garage with vinyl siding which would lower maintenance and heating costs. 2. The total project budget was $40,600.00 with funds requested from DCED totaling $25,000.00 Chini, 03 -064 Page 3 a. The township obtained estimates in order to determine the amount of funds to request. 6. On or about October 30, 2000, Harmar Township received correspondence from Samuel A. McCullough, Secretary, DCED, indicating the application for grant funding had been approved in the amount of $10,000.00. 7 At the November 15, 2000 regular meeting the board of supervisors adopted Resolution 40 -2000 authorizing Harmar Township to enter into an agreement with the DCED to accept the Community Revitalization Assistance Program Grant in the amount of $10,000.00 to be used towards the cost of renovations to the township garage. a. The motion to adopt the resolution passed 4 -0. b. Chini was present at the meeting and voted to enter into the agreement. c. Due to the amount of funds granted by the DCED, the township decided to pursue only the renovations to the maintenance garage. d. The contract was signed by Muse and Liberati on November 27, 2000 as township representatives. e. The payment requisition was signed by Muse and documented Liberati as the contact individual. 8. On January 22, 2001, Harmar Township was issued Commonwealth of Pennsylvania check number 00059780 in the amount of $10,000.00. a. Liberati deposited the check into a new account opened at National City Bank under the title, " Harmar Township Supervisors, DCED Garage Renovation Grant Fund." 9. In or about late January /early February 2002, the township solicited bids for the renovations of the township garage. a. The township solicited the bids at this time due to the approach of the end of the effective date of the contract (June 30, 2002). b. Bids addressing main renovations to the township garage were to include, among other minor issues, the following: 1. Removal of deteriorated T -111 (wooden siding), 2. Installation of furring strips on the block sidewalls, 3. Installation of vinyl siding, 4. Painting of the exterior of three garage doors and two man doors, 5. Repair of broken glass block windows. 10. James Devore, Public Works Foreman, and Supervisor Robert Seibert solicited bids for the project by contacting local contractors. a. The project was not publicly advertised in any circular. b. Contractors were contacted via telephone to gauge interest. Contractor Bid Date Bid Amount Corrigan Construction 02/04/2002 $9,250.00 F.M. Siding - General Contractors 02/05/2002 $9,685.00 AC -Cel Windows and Siding 02/18/2002 $14,355.00 Chini, 03 -064 Page 4 11. A total of three contractors were contacted regarding interest in completing renovations to the township garage. a. Devore contacted F.M. Siding - General Contractors and AC -Cel Windows and Siding. b. Seibert contacted Corrigan Construction. 12. Written bids for the renovations to the township maintenance garage were submitted as shown below: a. Corrigan initially submitted a handwritten, undated bid and later submitted a typed, dated bid. 13. Terry Corrigan is the owner /operator of Corrigan Construction. a. Corrigan does not operate Corrigan Construction on a full -time basis. b. Corrigan primarily performs side -jobs through Corrigan Construction. c. Corrigan is employed on a full -time basis by Scaretti Construction. 14. Corrigan does not formally employ individuals through Corrigan Construction. a. Corrigan utilizes a core group of personal friends and acquaintances as employees. b. Corrigan normally pays individuals in cash for services performed. 15. Jason Chini is the son of Leo Chini. a. Jason Chini is self - employed in the carpentry /construction field. 16. Corrigan and Jason Chini have been personal acquaintances for over twenty years. a. Corrigan and Jason Chini grew —up in the same neighborhood. b. Corrigan and Leo Chini developed a personal acquaintance as a result of Corrigan's relationship with Jason Chini. 1. Leo Chini is aware of Corrigan's employment field. 17. Corrigan and Jason Chini have utilized one another as employees for various jobs each have secured throughout the past twenty years. a. b. Leo Chini is aware that Corrigan and Jason Chini often work together on side jobs. Corrigan and Jason Chini often working together is common knowledge in the community. 18. Bids obtained for the renovations to the township garage were presented for Chini, 03 -064 Page 5 awarding at the February 18, 2002 supervisors meeting. a. Corrigan's initial bid totaled $9,200.00 with $4,000.00 down payment for materials and the balance due when the job was completed. 1. Corrigan's initial bid documented no specific work that would be performed. b. Corrigan's subsequent bid totaled $9,250.00 and documented the following work to be performed: 1. Repair bad wood and replace with 5/8 ply. furring wood on block side, 2. Apply'/ celetex over all three sides and new vinyl siding, 3. Wrap all windows, three garage doors, and two main doors with coil stock, 4. Fix two glass block windows, 5. Paint exterior of all five doors, 6. Remove old pipes and cover and box electrical pipes with metal, 7. Job site cleaned and debris hauled away. c. Corrigan was the lowest bidder for the project. 19. At the February 18, 2002 meeting, Muse made a motion, seconded by Seibert, to accept the proposal submitted by Corrigan Construction in the amount of $9,250.00 to install vinyl siding and related renovation work on the township garage. a. Chini was present at the meeting. b. The motion passed 4 -1 with Chini voting affirmatively. c. Chini did not publicly disclose his son's relationship with Corrigan Construction prior to voting on the motion to award the contract. 20. After initiating the renovations on the township garage, the township decided to replace instead of repair the glass block windows. a. The decision was made because funds would still be available from the grant after Corrigan had been paid. b. The decision to replace the glass block windows increased the cost of the project and payment to Corrigan by approximately $400.00. 21. Harmar Township issued Corrigan two checks totaling $9,650.00 from the DCED Garage Renovation Grant Fund in association with the renovation project as shown below: Check Date Check Number Payee Check Amount 03/04/2002 1001 Terry Corrigan $4,000.00 04/16/2002 1005 Terry Corrigan 5,650.00 Total $9,650.00 Chini, 03 -064 Page 6 a. Corrigan utilized approximately $6,000.00 for materials for the project. b. Corrigan realized a personal profit of approximately $2,250.00 on the project. c. Corrigan distributed the remaining $1,400.00 as payment for laborers. 22. Corrigan was assisted by Jason Chini and Damon Bottles with the township garage renovation project. a. Both Jason Chini and Bottles were personal acquaintances of Corrigan and had worked with Corrigan in the past. 23. The renovations to the township garage were completed both during the week and on the weekends. a. Work on the maintenance garage did not occur consistently on each day of the week. 24. Corrigan paid Jason Chini and Bottles in cash for services performed based on an hourly wage that had been pre- determined between Corrigan and each individual. a. Corrigan kept no records on the specific hourly wage associated with either individual. 1. Corrigan estimated Jason Chini's wage at approximately $12.00 per hour. 2. Corrigan estimated Bottles wage at approximately $8.00 per hour. b. Corrigan kept no records on the specific number of hours worked by either individual. c. Corrigan paid Jason Chini and Bottles several times throughout the course of the renovations. d. Corrigan kept no records on the specific wages earned by either individual in association with services performed during the renovations. 25. In a sworn statement provided to Commission investigators on February 26, 2004, Corrigan estimated payment to Jason Chini at approximately $800.00 for services performed during the renovations. a. Corrigan had no records, documents, notes, etc. to support his estimation. 26. As a member of the Public Works Committee, Chini often travels to job sites, asks questions, and presents requests or concerns from the public works foreman to the board of supervisors. a. Chini normally checks on job sites two or three times per week. b. Chini routinely checked on the progress of the renovations at the maintenance garage in his position as a supervisor /Public Works Committee member. 1. Chini also requested that Devore keep watch over the renovations. 2. Chini instructed Devore to bring any concerns over the work performed to Chini. Chini, 03 -064 Page 7 27. Chini stopped at the maintenance garage and checked on the progress of the renovations approximately two or three times per week. a. Devore was present at various times that Chini stopped to check on the progress. 28. Chini had knowledge that Jason Chini was performing work on the maintenance garage with Corrigan as a result of Chini's visits to the maintenance garage while renovations were occurring. a. Chini acknowledged and /or spoke with Jason Chini various times at the maintenance garage when reviewing the progress of the renovations. 29. Leo Chini participated in actions of the board of supervisors to approve the payment of bills from the DCED Garage Renovation Grant Fund, including payments to Corrigan Construction at a time when his son, Jason Chini, was performing services for Corrigan in relation to the township project. Meeting Chini Check Check Chini's Vote Date Present No. Amount Payee Vote Split 02/18/02 Yes 1001 $4,000.00 Corrigan Const. Yes 4 -1 04/15/02 No 1002 99.90 Busy Beaver N/A 4 -0 04/15/02 No 1004 202.78 Service Electric N/A 4 -0 04/18/02 Yes 1005 5,650.00 Corrigan Const. Yes 3 -0 Total $9,952.68 a. Although a $400.00 expense for new glass block windows was approved for payment at the April 15, 2002 meeting, the $400.00 expense was included in the $5,650.00 payment approved at the April 18, 2002 meeting. b. Chini cast the deciding vote at the April 18, 2002 meeting regarding payment for work completed on the "Highway Garage Renovation Project." 1. Only 3 of 5 board members were present at this meeting. 30. Chini did not publicly disclose his son's association with Corrigan Construction prior to voting at the February 18, 2002 and April 18, 2002 supervisors meetings. 31. Jason Chini and Corrigan cashed check numbers 1001 and 1005 at National City Bank on March 8, 2002; and April 22, 2002 respectively. a. Both Jason Chini's and Corrigan's signatures are present endorsing check number 1001. b. Jason Chini's signature is the sole endorsing signature on check number 1005. 32. In a sworn statement provided to Commission investigators on February 26, 2004, Jason Chini provided the following information regarding payments received from Corrigan and his cashing of checks received from the township: a. He estimated receiving payment of approximately $450.00 to $475.00 for services performed during the renovations b. He often signed and cashed checks issued to Corrigan in relation to projects performed by Jason Chini and Corrigan because Corrigan's financial Chini, 03 -064 Page 8 institution would not consistently cash checks for Corrigan due to Corrigan's account balance at various times. III. DISCUSSION: At all times relevant to this matter, the Respondent, Leo Chini, hereinafter Chini, 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 Chini, as a Supervisor for Harmar Township, violated Sections 1103(a) and 1103(f) of the Ethics Act when he participated in discussions and official actions of the board of supervisors resulting in a contract being awarded for the renovations of the township maintenance garage to a business with which his son is affiliated; and when the contract was in excess of $500 and awarded without an open and public process. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public 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(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 Chini, 03 -064 Page 9 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 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. Chini has served as a Supervisor on the five - member board in Harmar Township, Allegheny County, since January of 2000. Harmar Township in mid -2000 pursued a grant from the Community Revitalization Program of the Department of Community and Economic Development (DCED) to assist with renovating the township maintenance garage, paving the maintenance garage parking lot, and landscaping around the boundary of the garage. Township Supervisor /Secretary/ Treasurer, Michael Liberati, completed the DCED application for the proposed project in July of 2000. In October of 2000, the township received notice from the DCED Secretary that the application had been approved in the amount of $10,000. At a November 2000 board meeting, a resolution was adopted entering into an agreement with DCED to accept the grant in the amount of $10,000 for the township garage renovations. The resolution, which limited the renovations to the maintenance garage due to the amount of the grant, passed on a 4 -0 vote with Chini voting for the agreement. After the $10,000 grant was received in January 2001, the township solicited bids for the renovation of the township garage. Although the project was not publicly advertised for bids in any periodical, the Public Works Foreman, James Devore, and Supervisor Robert Seibert solicited bids for the project by contacting local contractors. Written bids were received from the three contractors who were contacted. See, Fact Finding 12. Corrigan Construction, the low bidder, does not formally employ individuals but utilizes a group of individuals who are paid in cash for services performed on behalf of Corrigan. Jason Chini, the son of Chini, is self - employed in the carpentry /construction field. Since Corrigan and Jason Chini have been personal friends for over 20 years, they have utilized each other as employees for various jobs they have secured. Chini, 03 -064 Page 10 At a February 18, 2002, board meeting, a motion was made to accept the Corrigan Construction bid in the amount of $9,250 for the renovation work on the township garage. Chini voted in favor of awarding the proposal to Corrigan, which passed on a 4 -1 vote. Chini did not publicly disclose his son's relationship with Corrigan Construction although the relationship between Corrigan and Jason Chini is common knowledge in the community. After the renovation project was initiated, the township decided to replace rather than repair the glass block windows which added $400 to the cost of the project. The township issued two checks in March and April of 2002 to Corrigan in the total amount of $9,650 for the renovation project. Corrigan was assisted by both Jason Chini and Damon Bottles on the garage renovation project. Corrigan paid both of his assistants in cash for services performed based upon a predetermined hourly wage. Corrigan estimated that he probably paid Jason Chini approximately $800 for the services as to the township renovation project. However, Jason Chini estimated that he received approximately $450 to $475 for services on the township renovation project. Chini was aware that his son, Jason, was performing work on the maintenance garage since Chini routinely stopped at the garage two to three times a week while the renovations were occurring. Chini participated in the process of the board of supervisors to approve the payment of bills to Corrigan Construction as to the garage maintenance renovation project. See, Fact Finding 29. Lastly, Chini did not publicly disclose his son's association with Corrigan prior to voting at the February and April 2002 meetings of the township board of supervisors. 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 an unintentional violation of Section 1103(a) of the Ethics Act occurred when Leo Chini participated in votes of the board of supervisors to approve a contract with Corrigan Construction and payments to Corrigan Construction at a time when his son was performing services for Corrigan. b. That no violation of Section 1103(f) of the Ethics Act occurred as quotes for the project were obtained prior to a vote of the board of supervisors to approve the contract with Corrigan." In addition, Chini agrees to make payment of $150.00 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the issuance of the final adjudication in this matter. In applying Section 1103(a) of the Ethics Act to the instant matter, the stipulated facts reflect several instances when Chini, as a supervisor, participated in the process as to the renovation project for the township maintenance garage. But for the fact that Chini was a supervisor, he could not have been in a position to participate and vote on such matters. Such participation constituted uses of authority of office. See, Juliante, Order 809. Such uses of authority of office resulted in pecuniary benefits to Corrigan Construction as to the township renovation project. One of the individuals hired by Corrigan to do the project was Jason Chini, who, as Chini's son, is a member of his immediate family as that term is defined under the Ethics Act. Accordingly, Chini unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of the board of supervisors to approve a contract to Corrigan Construction and payments thereto at a time when his son was performing services for that business. Chini, 03 -064 Page 11 As to Section 1103(f) of the Ethics Act, the stipulated findings reflect that one of the other supervisors and road foreman made personal contacts with three contractors who submitted quotes. The contract was awarded to Corrigan Construction which submitted the low bid. Although Corrigan Construction did not have any employees, it did utilize the services of Chini's son, Jason, and another individual to do the work on the township renovation project. Although it is stipulated that Jason Chini is not an employee of Corrigan Construction, he does appear to have been an independent contractor, hence a subcontractor, for Corrigan relative to the township maintenance garage renovation project. The parties in the Consent Agreement proffer a non - violation on the basis that quotes for the project were obtained prior to a vote to approve the contract with Corrigan. 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 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 Consent Agreement of the parties, Chini did not violate Section 1103(f) of the Ethics Act regarding the township maintenance garage renovation project where a supervisor sought quotes from different contractors, including Corrigan, for the project. 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, Chini is directed to pay $150.00 to the Commonwealth of Pennsylvania through this Commission within 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. Chini, as a Supervisor in Harmar Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Chini unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of the board of supervisors to approve a contract to Corrigan Construction and payments thereto at a time when his son was performing services for that business. 3. Chini did not violate Section 1103(f) of the Ethics Act regarding the township maintenance garage renovation project where a supervisor sought quotes from different contractors, including Corrigan, for the project. In Re: Leo Chini ORDER NO. 1336 File Docket: 03 -064 Date Decided: 9/20/04 Date Mailed: 10/1/04 1 Chini, as a Supervisor in Harmar Township, unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of the board of supervisors to approve a contract to Corrigan Construction and payments thereto at a time when his son was performing services for that business. 2. Chini did not violate Section 1103(f) of the Ethics Act regarding the township maintenance garage renovation project where a supervisor sought quotes from different contractors, including Corrigan, for the project. 3. Per the Consent Agreement of the parties, Chini is directed to pay $150.00 to the Commonwealth of Pennsylvania through this Commission within 30 days of the mailing of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair