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HomeMy WebLinkAbout1850, DeckF1 i. ;qq PHONE:717-783-1610 STATE ETHICS COMMISSION TOLL FREE: 1-800-932-0936 FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 In Re: Gary Deck, File Docket: 24-0135-C Respondent Order No. 1850 Date Decided: 10/10/25 Date Mailed: 10/10/25 Before: David L. Reddecliff, Vice Chair Paul E. Parsells Robert P. Caruso Emilia McKee Vassallo This is a final adjudication of the State Ethics Commission.t FACSIMILE: 717-787-0805 WEBSITE: www.ethics,pa.gov Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act (`Ethics Act"), 65 Pa.C.S. § 1101 et sect., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the Commission for consideration. The Findings in this Order are derived from the parties' Stipulation of Findings. The Consent Agreement has been approved. L ALLEGATIONS: That Gary Deck, a public official in his capacity as a Supervisor for Tulpehocken Township, Berks County, Pennsylvania, violated Sections 1103(a) and 1105(b)(3) of the Ethics Act: (1) When he used the authority of his office to award a contract to H&K Group, Inc., a business with which he is associated, resulting in a private pecuniary benefit to H&K Group, Inc.; and (2) Whcn he failed to disclose any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions, on his Statement of Financial Interests for calendar year 2023. E Chair Michael A. Schwartz recused himself from this platter and did not participate in the deliberations involving this case. Deck, 24-0135-C Page 2 II. FINDINGS: 1. Tulpehocken Township ("Township") is a Second Class Township in Berks County, Pemisylvania, and it is governed by a Board of Supervisors ("Board") that consists of three Members. 2. Gary Deck ("Deck") has served as a Township Supervisor since 2012. a. Deck was appointed as the Board's Chairperson in January 2014. 3. Deck is employed as a Regional Superintendent with the H&K Group, Inc. ("H&K Group"). a. H&K Group employs approximately 2,000 employees that provide heavy civil contracting and construction materials and services. 4. Deck is a salaried employee of H&K Group. a. His responsibilities as Regional Superintendent include the oversight of scheduling personnel, assets, and materials for a project and ensuring completion, and addressing any issues that arise during such projects. 5. During a Board meeting held on February 9, 2022, Township Supervisor and Township Roadmaster Lester Feick ("Feick") discussed his intent to resurface Witman Road. a. The Township Roadmaster determines and suggests annual roadway projects to the Board for approval. 6. During that same meeting, Feick made a motion to authorize the packet preparation and advertise the bid for resurfacing Witman Road. a. The motion was seconded by Vice Chairperson Harry Reinhold ("Reinhold") and passed unanimously (2-0). Deck was absent from the meeting. 7. On May 5, 2022, the Township prepared and submitted, through the "MediaNews Group," a Request for Proposal in the Reading Eagle and Reading Eagle Digital to solicit sealed bids for the Witman Road paving project. a, The advertisement ran on May 6, 2022, and May 12, 2022. b. The deadline to submit sealed proposals for the project was listed as May 24, 2022, at 10:00 a.m. 8. The minutes of the May 11, 2022, Board meeting show the following: Deck, 24-0135-C Page 3 a. Feick, during the Township Roadmaster's Report, referenced "meeting with PemiDOT for the road paving project this summer," and cited numerous meetings with the Township Engineer. b. Feick made a motion to advertise a special meeting to be held at the Township Building on Tuesday, May 24, 2022, at 5:00 p.m., for bid opening related to the Witman Road paving project and any other business. This motion was seconded by Reinhold and passed unanimously (3-0), with Deck participating in the vote. aa. The Township typically opens sealed bids and awards contracts for roadway projects during regularly scheduled and advertised Board meetings. bb. Citing contractor scheduling concerns, project completion prior to the school year and potential impact on bus routes, and the fluctuating liquid fuels price, Feick motioned for the special meeting to expedite the process. C. Reinhold submitted a resignation letter effective May 12, 2022. d. Feick made a motion to accept Reinhold's resignation which was seconded by Deck and passed (2-0), with Reinhold abstaining from the vote. e. There was no mention of tabling the special meeting and actions regarding the award of the road paving contract to be held on May 24, 2022. f. There was no mention of asking Reinhold to remain on the Board for the sealed bid opening and defer his resignation effective date until after May 24, 2022. 9. Reinhold resigned on May 12, 2022. 10. Deck advised Commission Investigators that he did not consider tabling or delaying the May 24, 2022, special meeting in light of Reinhold's resignation. 11. Deck advised Commission Investigators that he did not consider asking Reinhold to delay his resignation in light of the upcoming May 24, 2022, special meeting. 12. On May 12, 2022, the Township, through the "MediaNews Group," advertised a notice to hold a special meeting in the Reading Eagle and Reading Eagle Digital for the purpose of opening sealed bids for the Witman Road paving project. a. The meeting date was advertised for Tuesday, May 24, 2022, at 5:00 p.m. at the Township Municipal Building. 13. The special meeting for the purpose of opening the sealed bids for the Witman Road paving project was held on May 24, 2022. Deck, 24-0135-C Page 4 a. The following people were in attendance: Deck, Feick, and Harold Zimmerman ("Zimmerman"), and Deck's wife. 1. The third Township Supervisor seat was vacant. 2. The Township Solicitor was not present. Zimmerman submitted a letter of interest for the vacant Township Supervisor seat at this inneeting. b. Despite being presented with Zimmerman's interest in the Board vacancy, there was no suggestion made to table the vote to award the Witman Road paving project until a full Board was seated. 14. The Township is required to accept the lowest responsible bid (payment and performance bonds and insured), subject to final review by the Township Solicitor. 15. The sealed bids are opened, read aloud, and passed annong the Township Supervisors for review before action. 16. The bids obtained by the Township for the Witman Road paving project and opened for review during the May 24, 2022, special meeting included; • CMS - $119,685.00 • H&K Group - $103,675.65 • New Enterprise Stone & Lime - $104,777.70 17. Deck seconded Feick's motion to award the Witman Road paving project to H&K Group for the amount of $103,675.65. a. After revealing the bid values, Feick advised that there was room in the budget to add an additional 2110" of depth to the paving project. b. Subsequent project changes and price index adjustments for materials increased the final total cost of the Witman Road paving project to $121,795.84. 18. Deck voted to award the Witman Road paving project to H&K Group. a. Previous meeting minutes show that Deck had abstained in the past from votes that would benefit H&K Group. b. Investigation revealed that discussion took place at this meeting regarding Deck's concerns about voting. The minutes of the special meeting on May 24, 2022, do not indicate that any such discussion took place. Deck, 24-0I35-C Page 5 19. Project documentation from H&K Group contained copies of a completed and signed PennDOT Form MS-944, "Proposal and Contract (When Executed)." a. H. Christian Budenz, the Executive Vice President and the Director of Administration for H&K Group, signed the completed PennDOT Form MS-944 on behalf of the contractor for the Witman Road paving project. b. The form was signed and accepted on behalf of the Township by Township Supervisors Deck, Feick, and Zimmerman on June 14, 2022. 20. Deck had no direct involvement in the planning, estimating, or completion of this project as an employee of H&K Group. a. H&K Group did not award any commission or bonus to Deck as the direct result of this project. 21. On September 14, 2022, the Township issued check #228 made payable to "H&K Group, Inc." in the amount of $121,795.84. a. The check possessed the signatures, or representations thereof, of Deck, Feick, and Zimmerman, along with that of the Township Secretary/Treasurer. 22. Deck filed a deficient Statement of Financial Interests For the 2023 calendar year when he failed to report any direct or indirect interest in any real estate which was sold or leased to the Commonwealth or any of its agencies or political subdivisions. III. DISCUSSION: As a Supervisor for Tulpehocken Township ("Township"), Berks County, Pennsylvania, since 2012, Gary Deck ("Deck") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa. C.S. § 1101 et se.�.., The relevant allegations in this matter are that Deck violated Sections 1103(a) and 1105(b)(3) of the Ethics Act: (1) When he used the authority of his office to award a contract to H&K Group, Inc., a business with which he is associated, resulting in a private pecuniary benefit to H&K Group, Inc.; and (2) When he failed to disclose any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions, on his Statement of Financial Interests ("SFI") for calendar year 2023. Sections 1103(a) and 11030) of the Ethics Act provide; Deck, 24-0135-C Page 6 § 1103. Restricted activities (a) Conflict of interest. -- No public official or public employee shall engage in conduct that constitutes a conflict of interest. 0) Voting conflict. -- Where voting conflicts are not otherwise addressed by the Constitution of Pernisylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three -member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), 11030). The following terms related to Section 1103(a) are defined in the Ethics Act as follows: § 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. The term 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. Deck, 24-0135-C Page 7 "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Subject to the statutory exclusions to the Ethics Act's definition of the term "conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is prohibited from using the authority of public office or confidential information received by holding such a public position for the private pecuniary (financial) 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. The use of authority of office is not limited merely to voting but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. 3uliante, Order 809. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 11030) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied in the event of a voting conflict. In Garner, Opinion 93-004, this Commission concluded that Section 11030) of the Ethics Act would allow a member of a three -member board of supervisors with a conflict of interest to second a motion where the remaining two non -conflicted members would have opposing views or where one of the two non -conflicted members would be absent. As long as the member with a conflict would initially abstain from the vote and fully satisfy the disclosure requirements of Section 11030), the member with a conflict would then be permitted to vote to break the tie if the two non -conflicted members would cast opposing votes. Garner, supra. However, even if there is a vacancy on a three -member board of supervisors or one of two non -conflicted members is absent, there is no basis under Section 11030) for voting by a member who has a conflict of interest. See, Urtz, Order 1274, Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. Section 1105(b)(3) of the Ethics Act requires the filer to disclose on the SFI any direct or indirect interest in any real estate which was sold or leased to or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Conunonwealth or any of its agencies or political subdivisions. Deck, 24-0135-C Page 8 As noted above, the parties have submitted a Consent Agreement and a Stipulation of Findings. The Findings of this Commission set forth above are derived from the parties' Stipulation of Findings. We shall now summarize the relevant facts in this matter. The Township is governed by a three -Member Board of Supervisors ("Board"). Deck has served as a Township Supervisor since 2012, and he was appointed as Chairperson of the Board in 2014. In a private capacity, Deck is employed as a Regional Superintendent with H&K Group, Inc. ("H&K Group"), which provides heavy civil contracting and construction materials and services. Deck is a salaried employee of H&K Group, and his responsibilities include the oversight of project -related matters. During a Board meeting held on February 9, 2022, Township Supervisor and Township Roadmaster Lester Feick ("Feick") discussed his intent to resurface Witman Road. A motion that Feick made to authorize the packet preparation and advertise the bid for resurfacing Witman Road passed by a vote of 2-0, with Feick and Vice Chairperson Harry Reinhold ("Reinhold") voting in favor of the motion. Deck was absent from the meeting. On May 6 and May 12, 2022, the Township advertised a Request for Proposal in the Reading Eagle and Reading Eagle Digital to solicit sealed bids for the Witman Road paving project. The deadline to submit sealed bids for the paving project was listed as May 24, 2022, at 10:00 a.m. The Township typically opens sealed bids and awards contracts for roadway projects during regularly scheduled and advertised Board meetings. However, at the May 11, 2022, Board meeting, Feick, citing contractor scheduling concerns and other issues and in order to expedite the process, made a motion to advertise a special meeting to be held on May 24, 2022, for bid opening for the Witman Road paving project and any other business. The motion passed by a vote of 3-0. During the May 11 meeting, Reinhold submitted a letter of resignation effective May 12, 2022. The individuals present at the special meeting on May 24, 2022, included, in pertinent part, Deck, Feick, Harold Zimmerman ("Zimmerman"). The Township Solicitor did not attend the special meeting. During the special meeting Zimmerman submitted a letter of interest for the vacant Township Supervisor seat. Despite being presented with Zirnmerinan's interest in the Board vacancy, no suggestion was made to table the vote to award the Witman Road paving project until a fiill Board was seated. The Township is required to accept the lowest responsible bid, subject to final review by the Township Solicitor. During the special meeting, three sealed bids for the Witman Road paving project were opened for review: (1) H&K Group - $103,675.65; (2) New Enterprise Stone & Lime - $104,777.70; and (3) CMS - $119,685.00. After the bids were reviewed, Feick made a motion to award the Witman Road paving project to H&K Group for the amount of $103,675.65. Deck seconded Feick's motion and voted in favor of the motion, which passed by a vote of 2-0. Subsequent project changes and price index adjustments for materials increased the final total cost of the Witman Road paving project to $121,795.84. Deck, 24-0135-C Page 9 Deck had no direct involvement as an employee of H&K Group in the planning, estimating, or completion of the Witman Road paving project. H&K Group did not award any commission or bonus to Deck as a direct result of the Witman Road paving project. With respect to Deck's SFI for calendar year 2023, Deck failed to disclose any direct or indirect interest in real estate that was sold or leased to or purchased or leased from the Commonwealth or its agencies or political subdivisions, or that was the subject of condemnation proceedings by the Commonwealth or its agencies or political subdivisions. 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 as follows: 3. The Investigative Division will reconunend the following in relation to the above allegations: a. That a technical violation of Section 1.103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to when Deck used the authority of his office to award a contract to H&K Group, Inc., a business with which he is associated. b. That a violation of Section 1105(b)(3) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1105(b)(3), occurred in relation to when Deck failed to disclose any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased or leased from the Conuhhonwealtlh, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions, on his Statement of Financial Interests for calendar year 2023. 4. Deck agrees to make payment in the amount of $250 in settlement of this matter payable to the Commonwealth of Pennsylvania, and forwarded to the Pennsylvania State Ethics Commission, within thirty (30) days of the issuance of the final adjudication in this matter. a. There is no financial penalty assessed to Deck for the violation of Section 1103(a) as the financial gain was realized by a business with which Deck is associated and not Deck himself. Deck, 24-0135-C Page 10 5. To the extent that lie has not already done so, Deck agrees to file a complete and accurate amended Statement of Financial Interests with Tulpehocken Township, through the Pennsylvania State Ethics Commission, for calendar year 2023 within thirty (30) days of the issuance of the final adjudication in this matter. 6. Deck agrees to not accept any reimbursement, compensation or other payment from Tulpehocken Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Deck's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. a. Deck has been advised that as a matter of course, all orders from the Commission are provided to the Attorney General, albeit without any specific recommendations pursuant to Paragraph 7 above. b. Deck has been advised that all orders become public records and may be acted upon by law enforcement as they deem appropriate. The non -referral language contained in this paragraph is considered an essential part of the negotiated Consent Agreement. Consent Agreement, at 1-3. In considering the Consent Agreement, we accept the parties' recommendation for a finding of a technical violation of Section 1103(a) of the Ethics Act with respect to Deck's actions as a Township Supervisor. H&K Group is a business with which Deck is associated in his capacity as an employee. Because the arnount of H&K Group's bid for the Witman Road paving project was more than de ininimis, Deck had a conflict of interest under Section 1103(a) of the Ethics Act with regard to participating in awarding the Witman Road paving project to H&K Group. Deck used the authority of his public office when, at the Board's meeting on May 24, 2022, he seconded a motion by Township Supervisor Feick to award the Witman Road paving project to H&K Group for the amount of $103,675.65 and then voted in favor of the inotion, which passed by a vote of 2- 0. Although Section 11030) of the Ethics Act permitted Deck to second Feick's motion because there was no third Township Supervisor to second the motion, see, Garner, supra, there was no basis under Section 11030) for Deck to then vote on the motion despite his conflict of interest. See, Urtz, supra. Deck, 24-0135-C Page 11 Based upon the Stipulated Findings and Consent Agreement, we hold that a technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to when Deck used the authority of his office to award a contract to H&K Group, a business with which he is associated. We agree with the parties, and we hold, that a violation of Section 1105(b)(3) of the Ethics Act, 65 Pa.C.S. § 1105(b)(3), occurred in relation to when Deck failed to disclose any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions, on his SFI for calendar year 2023. As part of the Consent Agreement, Deck has agreed to make payment in the amount of $250.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Deck has further agreed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. Additionally, to the extent he has not already done so, Deck has agreed to file a complete and accurate amended SFI for calendar year 2023 with the Township, through this Commission, within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition of this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV, CONCLUSIONS OF LAW; 1. As a Supervisor for Tulpehocken Township ("Township"), Berks County, Pennsylvania, since 2012, Gary Deck ("Deck") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec . 2. A technical violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to when Deck used the authority of his office to award a contract to H&K Group, Inc., a business with which he is associated. 3. A violation of Section 1105(b)(3) of the Ethics Act, 65 Pa.C.S. § 1105(b)(3), occurred in relation to when Deck failed to disclose any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions, on his Statement of Financial Interests for calendar year 2023. In Re: Gary Deck, File Docket: 24-0135-C Respondent Date Decided: 10/10/25 Date Mailed: 10/10/25 ORDER NO. 1850 A technical violation of Section 1103(a) of the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa, C.S, § 1103(a), occurred in relation to when Gary Deck ("Deck"), as a Supervisor for Tulpehocken Township, Berks County, Pennsylvania, used the authority of his office to award a contract to H&K Group, Inc., a business with which he is associated. 2. A violation of Section 1105(b)(3) of the Ethics Act, 65 Pa,C.S, § 1105(b)(3), occurred in relation to when Deck failed to disclose any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions, or purchased or leased from the Commonwealth, any of its agencies or political subdivisions, or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions, on his Statement of Financial Interests for calendar year 2023. 3. Per the Consent Agreement of the parties, Deck is directed to make payment in the amount of $250.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of this Order. 4. Deck is directed to not accept any reimbursement, compensation or other payment from Tulpehocken Township representing a firll or partial reimbursement of the amount paid in settlement of this matter. 5. To the extent he has not already done so, Deck is directed to file a complete and accurate amended Statement of Financial Interests for calendar year 2023 with Tulpehocken Township, through this Commission, by no later than the thirtieth (30"') day after the mailing date of this Order. 6. Compliance with paragraphs 3, 4, and 5 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, David L. Reddecliff, Vice Ch r