HomeMy WebLinkAbout1367 BryantIn Re: Terry Bryant
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
Nicholas A. Colafella
04 -004
Order No. 1367
6/6/05
6/17/05
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 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Bryant, 04 -004
Page 2
I. ALLEGATION:
That Terry Bryant, a (public official /public employee) in his capacity as a Highway
Maintenance Manager, Pennsylvania Department of Transportation, District 3 -7, violated
the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority
of his office for the private pecuniary gain of himself and /or businesses with which he is
associated, including but not limited to utilizing Commonwealth telephones, cellular
telephones, copy machines, fax machines, digital cameras, employees, facilities and a
Commonwealth vehicle assigned to him for the benefit of his outside employment with
Koch Homestead Realty, Acorn Markets, and Penn Oak Realty; and when he failed to
disclose on Statements of Financial Interests filed for the 1999, 2000 and 2001 calendar
years income in excess of $1,300 annually received from Acorn Markets.
II. FINDINGS:
1. Terry Bryant was employed by the Commonwealth of Pennsylvania, Department of
Transportation (PennDOT) from approximately July 9, 1979 until June 30, 2004.
a. From July 1992 until February 5, 2004, Bryant was employed by PennDOT
as the Highway Maintenance Manager for District 3 -7 in Tioga County.
b. Bryant was assigned to the District 3 -0 office in Montoursville from February
5, 2004 until June 30, 2004.
c. Bryant was employed as the Assistant County Highway Maintenance
Manager for District 3 -7 from approximately 1985 to July 1992.
2. Bryant's normal working hours were M -F 8 a.m. — 4:30 p.m.
a. Bryant position reported to the Assistant Highway District Executive -
Maintenance.
3. Bryant's job description for his position of Highway Maintenance Manager 3 details
the following duties and responsibilities:
a. Directs and monitors the highway and bridge maintenance operations of the
Tioga Maintenance District. Specific duties are:
Directs the personnel and administrative actions of the maintenance district
including:
1. Preparation of or supervision of correspondence and reports.
2. Supervision of the preparation and maintenance of payrolls and
personnel records.
3. Supervision of the organization's cash advance account.
4. Management of the organization's operations in compliance with the
labor contract and the conduct of periodic labor management
meetings.
5. Participates in the hiring process in accordance with current hiring
practices.
6. Enforces department work rules including taking disciplinary action
when warranted.
7. Directs training of organization's employees.
8. Develops and implements Employee Safety Committee.
9. Promotes continuous quality improvement within the maintenance
district.
Bryant, 04 -004
Page 3
Identifies maintenance needs and plans for corrective actions by:
1. Inspecting road conditions.
2. Inspecting bridges.
3. Developing long -range plans for systematic maintenance.
4. Developing long -range plans for improvements to highway and
bridges within the scope of maintenance activities.
Directs and supervises the maintenance district operations by:
1. Preparing the maintenance district's budget and Annual Work Plan.
2. Preparing the annual general Surface Maintenance Program.
3. Preparing the annual Bridge Maintenance and Repair Program.
4. Preparing the annual Risk Management Plan.
5. Preparing Winter Services.
6. Supervising preparation of period plans and weekly schedules.
7. Assigning work to subordinates.
8. Reviewing the plans for work activities prior to executing and
reviewing during and after execution.
9. Investigating and developing corrective measures and scheduling for
maintenance needs reported by internal and external sources.
10. Making plans and preparing for emergency operations due to natural
or man -made disruptions of traffic flows.
Performs other related duties as assigned or as identified by the employee.
b. Job location:
Work is performed in a variety of locations including offices such as the
Maintenance District Office, District Office, conference sites, maintenance
stockpiles, highway and bridges.
4. As the Highway Maintenance Manager for District 3 -7, Bryant had access to the
following Commonwealth equipment and personnel for official business.
a. Commonwealth vehicle permanently assigned to him.
b. Telephones, fax machines, computers, copiers at the District 3 -7 office.
c. Cellular phone.
d. Clerical staff.
e. Office facilities.
5. In addition to being employed by PennDOT, Bryant was employed as real estate
agent selling real estate in Wellsboro and the surrounding area.
a. Bryant is licensed by the Pennsylvania Department of State, Bureau of
Professional and Occupational Affairs as a real estate salesperson.
b. Bryant's license number RS221819L was issued on April 16, 1999 and is in
good standing.
c. Bryant's current real estate employer on file with the Department of State is
Penn Oak Realty, Inc., Wellsboro, PA 16901.
6. Bryant previously was involved as an independent contractor for Koch Homestead
Bryant, 04 -004
Page 4
Realty, 91 Princeton Street, Wellsboro, PA 16901 as well as having private clients
from approximately February 21, 2000, until May 19, 2003.
a. Bryant was considered an independent contractor while affiliated with Koch
Homestead Realty.
7 Bryant has worked for Penn Oak Realty Inc., 65 Main Street, Wellsboro, PA 16901
since approximately July 2003.
a. Penn Oak Realty Inc. is owned by Bryant's wife, Nancy Harman.
8. Bryant submitted supplemental employment requests for Koch Homestead Realty
and the Rocky Mountain Elk Foundation to PennDOT's personnel office.
a. Bryant did not request supplemental employment approval for Penn Oak
Realty.
9. Bryant submitted a request for supplemental employment with Koch Homestead
Realty, 91 Princeton Street, Wellsboro, PA 16901 on or about September 5, 2001.
a. Bryant's requested employment was real estate sales, four (4) hours per
week, Saturdays, 8:00 a.m. to 12:00 p.m.
b. Bryant's normal Commonwealth hours are identified as M -F 7:00 a.m. —4:30
p.m.
c. Attached to Bryant's request is a general affidavit also signed by Bryant on
September 5, 2001.
d. The general affidavit has nine provisions which Bryant agreed to.
Conditions five through eight specifically relate to Bryant not conducting
private real estate dealings on state time, using state equipment and
facilities. Conditions five through eight read:
No. 5. I may not solicit work in connection with my supplementary
employment during work hours or at facilities of the
Department or of any state agency;
No. 6. I may not use the property of the Department or of any state
agency for my supplemental activities;
No. 7. I must comply with Management Directive 205.14 and am
prohibited from conducting any private business in the offices
of the Department or any state agency at any time before,
during or after normal working hours or anywhere during
normal working hours; and
No. 8. The above conditions apply at all times regardless of whether I
am in an active or inactive employment status. Inactive
employment status includes but is not limited to all periods of
unpaid leave with or without benefits, absences without leave
and disciplinary suspensions.
No. 9. Violation of any of the above conditions may result in
disciplinary action against me by the Department of
Transportation including, but not limited to, suspension and /or
dismissal."
Bryant, 04 -004
Page 5
e. Bryant's supplemental employment request was approved by Daniel Cramer
(title unknown) on September 17, 2001.
10. Bryant used Commonwealth time, equipment, personnel and facilities in conjunction
with his supplemental employment activities.
a. Bryant used the office fax machine to assist in his supplemental employment
activities with the Rocky Mountain Elk Foundation.
1. Bryant faxed documents on at least two (2) separate occasions
related to this organization.
2. Both faxes were sent from fax number (570) 724 -1168 to (570) 278-
3389.
7
3. (570) 724 -1168 is the fax number for PennDOT maintenance office 3-
4. (570) 278 -3389 was the fax number for Dave Ragantesi.
5. Ragantesi is the regional director of the Rocky Mountain Elk
Foundation.
11. On May 15, 2003 Bryant sent a one page fax from District 3 -7 offices to Dave
Ragantesi fax (570) 278 -3389 regarding a "closeout meeting June 17, 2003 ".
a. This one page fax listed the following four (4) items for the June 17, 2003
meeting:
1. Nancy's sponsor — Bugle to Green Free Library, 134 Main Street,
Wellsboro, PA 16901.
2. Need print or something for NWTF local chapter.
3. Youth field day, Earle Robbins — 724 -1920
Question — request $500 PAC 3 %?
Can we get BB gun for give away?
4. General raffle situation: need to send.
b. This fax did not relate to Bryant's duties with PennDOT.
12. On September 11, 2003 Bryant sent a one (1) page fax to (570) 278 -3389 titled
Rocky Mountain Elk Foundation.
a. (570) 278 -3389 was the fax number for Dave Ragantesi, the Rocky Mountain
Elk Foundations regional director.
b. This fax contained information on funds collected and due as part of a
foundation raffle.
c. This fax did not relate to Bryant's duties with PennDOT.
13. Bryant directed subordinate employee Tonya Carleton to type a letter and
approximately 200 -250 address labels relating to the Rocky Mountain Elk
Foundation.
a. Carleton was on Commonwealth time when this occurred.
b. Commonwealth labels were used for the addresses which were affixed to
Bryant, 04 -004
Page 6
post cards.
c. Bryant had Carleton save the addresses to a computer disk for future use.
d. Carleton spent at least two hours typing the letter and mailing address list.
e. Carleton did not document the exact date she did this work for Bryant.
f. Carleton's lowest hourly rate since 2000 was $11.87 per hour.
g. Bryant realized a minimum financial gain of $23.74 as a result of Carleton's
time.
h. Bryant realized an undetermined private pecuniary gain from the use of
PennDOT owned labels for this mailing.
14. Bryant used District 3 -7 employees, equipment and facilities in connection with
private real estate dealings.
a. Bryant used District 3 -7 employees to prepare a real estate presentation
using PennDOT computers.
b. Bryant personally used a District 3 -7 digital camera to take photos of
potential real estate and download the images on a PennDOT computer.
c. Bryant used Commonwealth phones, fax and copy machines for real estate
business.
d. Bryant utilized a Commonwealth vehicle to travel to his real estate office.
e. Bryant conducted real estate business during normal PennDOT hours
without utilizing leave.
15. In April or May 2001, Bryant directed Tonya Carleton to download approximately
twenty (20) pictures of properties onto her computer at District 3 -7.
a. Carleton was a Clerk Typist 2 under Bryant's overall supervision at the time.
b. These photos were stored on a Commonwealth digital camera.
1. The photos were unrelated to any Commonwealth business.
c. Carleton also printed out pictures of the properties for Bryant's use.
d. Carleton spent approximately one hour downloading and printing out the
photos for Bryant.
e. Carleton was compensated at a rate of $12.46 per hour in May of 2001.
f. These photos did not relate to Bryant's duties at District 3 -7.
g. Bryant realized a minimum financial gain of $12.46 as a result of Carleton
downloading and printing photos of real estate at his direction.
16. In the spring of 2003, Carleton created a PowerPoint presentation for Bryant on
Commonwealth time at his request.
Bryant, 04 -004
Page 7
a. Carleton created a five (5) page manual called Blue Blazer Realty, Policy
Manual and Office Procedures.
b. Bryant supplied the information needed for the presentation.
c. Carleton spent approximately two hours creating the presentation including
reviews and corrections made by Bryant.
d. This presentation was for a real estate class Bryant was taking.
e. Carleton was compensated at a rate of $13.93 per hour in the spring of 2003.
f. Bryant realized a minimum financial gain of $27.86 as a result of Carleton
preparing this presentation.
g. This presentation did not relate to Bryant's duties at District 3 -7.
17. The issue of employee, Tonya Carleton, doing personal work for Bryant on
Commonwealth time was the subject of e-mail and correspondence from PennDOT
officials admonishing Bryant for his conduct.
a. April 17, 2003: E -mail from Shirl Theis, Labor Relations Coordinator,
Engineering District 3 -0, phone (570) 368 -4301, to Bryant. Included in
Theis' message is reference to a formal letter relating to Carleton's personal
work on state time. Theis writes "Just for your information so I don't surprise
you in a formal letter. Tonya (Carleton) indicated she was given work to do
during working hours that was personal, non - department but would not
elaborate. We will also tell you this should cease and desist."
b. April 28, 2003: Correspondence from James A. Kendter, District Engineer,
Engineering District 3 -0 to Bryant, referencing an April 11, 2003, meeting
Robert Butters and Shirl Theis had with Bryant and Carleton. The main
focus of the memo was to inform Bryant of job assignments needing to be
made. Also included was the following cautionary language related to
personal work on state time:
"Also during meetings with members of your staff, it was
noted that you were assigning personal work to members of
your clerical staff that was unrelated to PennDOT to be
completed during Department business hours. This practice
must immediately cease and desist. Any further occurrences
will be subject to discipline."
18. Bryant used the copier, fax machine and phones at the District 3 -7 office for real
estate business.
a. Bryant was observed using the copier and fax machine on numerous
occasions by District 3 -7 employees.
b. No records were maintained at District 3 -7 on the personal use of the fax
machine or copier by Bryant.
c. Bryant admitted to using the copier and fax machine for real estate business
during an interview with investigators from the Office of Inspector General on
November 3, 2003.
d. Use of PennDOT office equipment for personal real estate purposes was not
Bryant, 04 -004
Page 8
permitted by Bryant's supplemental employment approval.
e. No reimbursement payments were made by Bryant for the personal use of
the copier or fax machine.
19. Bryant used District 3 -7 office and cellular phones for real estate and other personal
business.
a. Bryant used the phone at the District 3 -7 office as a point of contact for
private real estate dealings.
b. Bryant would routinely close his office door when placing or receiving a
personal business call.
c. District 3 -7 employees were not required to log personal calls.
d. Bryant's personal use of the office phone was observed by District 3 -7
employees.
e. Bryant typically would receive upwards of 15 personal and /or real estate
related calls per week.
f. These calls typically were a few minutes in duration.
g. Bryant often times would leave the office for periods of time after receiving
such calls.
20. District 3 -7 employees, Tonya Carleton and Tracy English, received incoming calls
for Bryant which related to personal real estate dealings.
a. Carleton was responsible for taking telephone messages for Bryant when he
was unavailable.
b. Carleton also had the ability to retrieve e-mail messages sent to Bryant.
21. Bryant received calls pertaining to private real estate dealings from individuals
and /or businesses including but not limited to:
a. Gary Butters /Butters Homes
John Banik, Steve Banik
Tom Rudy /Century 21
Bob McConnell /Koch Homestead Realty
Richard Tickner /Koch Homestead Realty
Kathy Doty /Penn Oak Realty
William Wilson
Dushant Sharma
Edward Owlett
b. Phone messages were left for Bryant with District 3 -7 staff by John Banik on
January 23, 2002, and William Wilson on May 13, 2003.
22. On August 26, 2003, Bryant informed Tonya Carleton that he was being
investigated for selling real estate on Commonwealth time.
a. Bryant wanted Carleton to screen his calls, telling those individuals that
called in regards to real estate to contact him after hours.
Bryant, 04 -004
Page 9
b. Bryant was Carleton's immediate supervisor at the time of his directive.
c. The number of personal /real estate calls received by Bryant decreased after
issuing this directive.
23. Bryant had a PennDOT cellular phone issued to him in his official capacity as the
Maintenance Director for District 3 -7.
a. Bryant's cellular phone number was (570) 971 -8064.
b. ATT Wireless was the wireless service provider for this number.
c. Bryant had the AT &T Digital Advantage $29.99 per month plan.
d. Personal calls for this plan were to be reimbursed at $0.30 per call.
e. Bryant had this cellular phone from approximately June 2002 until December
2003.
24. Employees of PennDOT District 3 -7 are subject to the Departments policy with
respect to cellular phone usage.
a. On October 13, 1998 a District 3 -0 cellular phone use policy was established.
b. This policy was most recently revised on June 20, 2001.
c. Maintenance District 3 -7 is part of District 3 -0.
d. Bryant was subject to District 3 -0 policy with respect to personal use of the
Commonwealth cell phone.
e. District 3 -7 employees who had Commonwealth issued cellular phones were
not required to sign the cell phone policy.
25. A reimbursement procedure for personal use of PennDOT cellular telephones has
been in place for employees of District 3 -0 since June 20, 2001:
a. General Policy
1. Routine personal calls, both outgoing and incoming, are not
permitted. Use of cellular telephones for personal use is limited to
emergency and /or unexpected situations needing immediate
attention. (See attached example situations).
2. Users are responsible for reviewing monthly invoices and indicating
all personal calls by circling or highlighting all personal calls.
Charges for these calls will be based on the current plan rates.
b. Reimbursement Procedure
1. Office personnel route monthly, itemized invoices to users
2. Users sign the top of invoice stating that all calls were made for
Department business unless indicated otherwise (personal calls
circled /highlighted)
3. User returns itemized invoice to office personnel
4. Office personnel records any claimed personal calls in the Cellular
Telephone Reimbursement Log (see attached). A log should be kept
for each user.
5. On a semi - annual (December and June) or annual basis (June), office
Bryant, 04 -004
Page 10
personnel sends users a statement to collect payment for any
previously claimed personal calls (see attached example).
Organization can choose billing frequency based on the amount of
calls claimed in the organization.
6. User writes check for amount due and forwards to office personnel.
(Payable to PA Department of Transportation)
7. Office personnel holds checks until all are collected and then
forwards all checks to District Fiscal Office for processing.
26. PennDOT District 3 -0 cellular telephone reimbursement logs for Bryant covering the
period June 2002 through December 2003 identify the cellular bill date, date, time
and cost of call.
a. The actual number called is not listed on the reimbursement logs.
27. Bryant identified calls to the following numbers from his Commonwealth cellular
phone as being personal in nature for the purposes of reimbursement:
a. Billing Period: 06/25/02 — 12/26/02
(570) 724 -0727 (607) 862 -7777
(570) 724 -3500
b. Billing Period: 01/26/03 — 06/26/03
(570) 723 -8003 (570) 723 -1669
(570) 971 -8064 incoming form Yates, NY
(570) 723 -1669
c. Billing Period: 07/26/03 — 12/26/03
(570) — incoming Lock Haven (570) 971 -8064
(207) 723 -5700 (570) 662 -3181
(570) 724 -0055 (570) 724 -4197
(570) 724 -1656 (570) 724 -2141
(570) 724 -4142 800 - 326 -9384
(570) 662 -0536 (570) 370 -0857
(570) 971 -9322
28. Bryant issued two (2) reimbursement payments totaling $13.05 for cellular phone
calls he identified on monthly statements as being personal in nature.
a. Bryant issued personal check number 937 in the amount of $9.00 on
June 23, 2003 to reimburse PennDOT for personal cellular calls made
during the 06/25/02 — 12/26/02 billing period.
b. Bryant issued personal check number 1077 in the amount of $4.05 on April
9, 2004 to reimburse PennDOT for personal cellular calls made during the
01/26/03 — 06/26/03 billing period.
29. Bryant did not reimburse the Commonwealth $25.95 for personal cell phone calls
he identified making during the 07/26/03 — 12/26/03 billing period.
30. Bryant did not identify on cellular telephone logs all cell phone calls of a personal
nature for reimbursement purposes.
a. Bryant did not initially identify (570) 724 -0055 as a personal call for
reimbursement purposes on bills for the 06/25/02 — 12/26/02 and 01/26/03-
06/26/03 billing periods.
Bryant, 04 -004
Page 11
b. (570) 724 -0055 is a number used to access personal message.
c. (570) 724 -0055 was not a number used in the normal course of PennDOT
business.
31. On November 3, 2003, Bryant reviewed Commonwealth cellular phone records
covering the period June 2002 through May 2003 for the Office of Inspector
General and identified 37 calls as either personal or work related.
32. Bryant confirmed to the Office of Inspector General investigators on November 5,
2003 that he did not claim all personal cell phone calls.
a. Based on the calling plans available monthly minutes, Bryant's personal
usage did not exceed minutes included in the base rate.
33. Between June 2002 and December 2003 approximately 1178 cell phone calls were
placed by Bryant.
a. Of these 1178 calls, approximately 506 did not relate to PennDOT business.
34. Bryant utilized his Commonwealth issued cellular phone in conjunction with his
private real estate business.
a. Approximately 11 calls were placed to Kathy Doty (570) 971 -7743, (570)
724 -5476, (570) 724 -0056.
b. Approximately 5 calls were placed to Gary Gleason (570) 724 -1832.
c. Approximately 5 calls were placed to Gary Butters /Butters Homes (570) 662-
1102.
d. Approximately 12 calls were placed to Kathy Doty /Koch Homestead Realty
(570) 724 -0727.
e. Approximately 13 calls were placed to Koch Homestead Realty (570) 724-
3500.
f. Approximately 224 calls were placed to his answering service (570) 724-
0055 to check messages.
35. Bryant's use of a Commonwealth cellular phone to conduct private real estate
business was not consistent with his supplemental employment approval or the
District's cellular phone usage policy.
a. Bryant's unreimbursed personal cellular phone calls also was not consistent
with the District's cellular phone usage policy.
36. Bryant used a Commonwealth issued vehicle in relation to his private real estate
activities.
a. Bryant was issued Commonwealth vehicle equipment number 145 -5009,
Ford Taurus Wagon.
b. This vehicle was permanently assigned to Bryant. Bryant was to log vehicle
mileage and travel destinations consistent with Commonwealth Management
Directive 615 -9.
c. Bryant often would drive his personal vehicle to work and throughout the
Bryant, 04 -004
Page 12
workday, even though he was permanently assigned a Commonwealth
vehicle.
37. Bryant confirmed to investigators of the Office of Inspector General that he had, on
occasion, used his Commonwealth vehicle to stop in his real estate office for
messages or to drop off documents.
38. Offices for Koch Homestead Realty, 91 Princeton Street, Wellsboro, PA and Penn
Oak Realty Inc., 65 Main Street, Wellsboro, PA are both in close proximity to the
District 3 -7 offices.
a. Bryant would stop by his real estate office on virtually a daily basis checking
messages.
b. Bryant would stop at these real estate offices in his Commonwealth vehicle
on occasion.
39. Mark C. Foust was the District 3 -7 equipment manager under Bryant's supervision.
a. Between November 1999 and February 2000 while on Commonwealth time
Foust had several discussions about real estate with Bryant.
b. These discussions occurred in conjunction with others relating to PennDOT
business.
c. On one occasion, Bryant left a sealed envelope of real estate information in
Fousts' pick -up truck at work.
d. Foust's real estate dealings with Bryant occurred primarily on evenings and
weekends.
e. Foust used Bryant's real estate services in 2004 to sell this property.
1. Interactions relating to this sale occurred during evenings or
weekends.
40. Around August 2003 Dushant Shamus contacted Putnam Oil d /b /a Acorn Markets
regarding the purchase of an Exxon Gas Station.
a. Shamus was provided with Bryant's home phone number as a point of
contact.
b. Bryant had previously provided real estate services for Putnam Oil /Acorn
Markets.
c. Bryant returned an inquiry call from Shamus advising that Shamus could
reach Bryant at either (570) 724 -4142 or (570) 971 -8064.
1. (570) 724 -4142 was the main phone line to the district 3 -7 offices.
2. (570) 971 -8064 was Bryant's Commonwealth issued cell phone
number.
d. Shamus talked to Bryant about purchasing an Exxon station in Athens, PA.
e. Shamus had approximately 10 phone conversations with Bryant regarding
this property.
f. Shamus never personally met Bryant.
Bryant, 04 -004
Page 13
g.
Bryant called Shamus at (484) 951 -8604 on August 15, 2003 at 8:59 a.m.
using Bryant's Commonwealth issued cell phone.
h. Shamus did not like the property and no transaction occurred.
Shamus did not know that the phone numbers Bryant provided him were for
PennDOT business.
j. Shamus did not have any dealings with PennDOT District 3 -7.
41. Bryant in his official capacity as PennDOT Maintenance Manager for District 3 -7
was annually required to file a Statement of Financial Interests form by May 1
containing information relating to the prior calendar year.
42. Statement of Financial Interests forms filed by Bryant with PennDOT include the
following forms:
a. Calendar year:
Filed:
Position:
Direct /indirect income:
All other financial interests:
b. Calendar year:
Filed:
Position:
Creditors:
Direct /indirect income:
All other financial interests:
c. Calendar year:
Filed:
Position:
Creditors:
Direct /indirect income:
All other financial interests:
d. Calendar year:
Filed:
Position:
Creditors:
Direct /indirect income:
[sic]
e. Calendar year:
Filed:
Position:
Creditors:
Direct /indirect income:
All other financial interests:
f. Calendar year:
2003
04/15/04 on SEC Form 1/04
Construction Manager
Department of Transportation, Koch
Homestead Realty, Penn Oak Realty
None
2002
04/07/03 on SEC Form 1/03
Maintenance Manager
None
Department of Transportation, Koch
Homestead Realty
None
2001
04/08/02 on SEC Form 01/02
Maintenance Manager
None
Department of Transportation, Koch
Homestead Realty
None
2000
04/26/01 on SEC Form 1/01
Maintenance Manager
None
Department of Transportation, Koch
Homestead Realty
1999
04/11/00 on SEC Form 1/00
Maintenance Manger
None
Koch Homestead Realty, Department of
Transportation
None
1998
Bryant, 04 -004
Page 14
Filed: 04/12/99 on SEC Form 1/99
Position: Maintenance Manager
Creditors: None
Direct /indirect income: PA Dept. of Transportation
All other financial interests: None
g. Calendar Year: 1997
Filed: 04/01/98 on SEC Form 1/98
Position: Highway Maintenance Manager
Creditors: None
Direct /Indirect Income: Department of Transportation
All other financial interests: None
43. Bryant did not disclose income received in excess of $1,300 from Acorn Markets on
Statements of Financial Interests forms filed for calendar years 1999, 2000 and
2001.
a. Bryant received income from Acorn Markets in the amount of $1,670.67
during the 1999 calendar year.
b. Bryant received income from Acorn Markets in the amount of $2,255.12
during the 2000 calendar year.
c. Bryant received income from Acorn Markets in the amount of $7,949.48
during the 2001 calendar year.
44. Bryant did not have supplemental employment approved from PennDOT for his
employment with Acorn Markets.
a. Bryant's failure to disclose income received from Acorn Markets on any
Statement of Financial Interests from filed concealed his business
relationship from his employer and the public.
45. Bryant disclosed income he received from Penn Oak Realty on his Statement of
Financial Interests form filed for calendar year 2003.
a. Bryant did not obtain supplemental employment approval for Penn Oak
Realty.
b. Bryant earned $14,406.25 from Penn Oak Realty during 2003.
c. Bryant earned $18,616.13 from Penn Oak Realty between January 2004 and
June 2004.
d. Bryant's last day with PennDOT was June 30, 2004.
46. Bryant utilized PennDOT facilities including phones and office space in conjunction
with his involvement with Edward Owlett d /b /a Acorn Markets and Penn Oak Realty.
a. Bryant placed and /or received calls from individuals affiliated with both
entities.
b. Bryant pursued both of these supplemental employment opportunities
without approval from PennDOT.
c. Bryant's use of phone and facilities in relation to these supplemental
employment endeavors was prohibited by the PennDOT guidelines for
Bryant, 04 -004
Page 15
Bryant's supplemental employment with Koch Homestead Realty or the
Rocky Mountain Elk Foundation.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Terry Bryant, hereinafter Bryant,
has been a public employee 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, Bryant, as a Highway Maintenance Manager, Pennsylvania
Department of Transportation, District 3 -7, violated Sections 1103(a) and 1105(b)(5) of the
Ethics Act when he utilized Commonwealth telephones, cellular telephones, copy
machines, fax machines, digital cameras, employees, facilities and a Commonwealth
vehicle assigned to him for the benefit of his outside employment with Koch Homestead
Realty, Acorn Markets, and Penn Oak Realty; and when he failed to disclose on
Statements of Financial Interests (SFI's) filed for the 1999, 2000 and 2001 calendar years
income in excess of $1,300 annually received from Acorn Markets.
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
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 1105(b) of the Ethics Act requires that every public official /public employee
and candidate list the name and address of any direct or indirect source of income totaling
in the aggregate of $1,300 or more.
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.
Bryant, 04 -004
Page 16
Bryant was employed by PennDOT from July of 1979 until June 30, 2004. The last
position Bryant held with PennDOT was as the Highway Maintenance Manager with duties
and responsibilities as delineated in Fact Finding 3. Bryant had the use of a
Commonwealth vehicle that was permanently assigned to him and Commonwealth
equipment and facilities such as telephones, fax machines, computers, copiers, cell phone,
as well as clerical staff.
In a private capacity, Bryant was employed as a real estate agent from February
2000 through May 2003. When Bryant was associated with the firm of Koch Homestead
Realty, he was considered an independent contractor. Bryant submitted a request for
supplemental employment with Koch Homestead Realty and the Rocky Mountain Elk
Foundation in September 2001. He did not submit a request for supplemental employment
with Penn Oak Realty, his current real estate employer. Bryant received approval for
supplemental employment with Koch Homestead Realty subject to a number of conditions
including but not limited to prohibitions against soliciting work during department hours,
using department property, and conducting private business in the Commonwealth office
during office hours.
Nevertheless, Bryant used Commonwealth time, equipment, personnel and facilities
in conjunction with his supplemental employment activities. In particular, Bryant used the
PennDOT fax machine for purposes relating to Rocky Mountain Elk Foundation; Bryant
used a subordinate employee, Tonya Carleton, to do typing relating to the Rocky Mountain
Elk Foundation during Commonwealth time using Commonwealth supplies and equipment;
Bryant used PennDOT employees, equipment and facilities in conjunction with private real
estate dealings; Bryant directed Tonya Carleton to download pictures of properties onto
her computer and create a PowerPoint presentation on Commonwealth time for a manual
Bryant was preparing in a private /business capacity; Bryant used the District fax machine,
copier and telephones for real estate business; Bryant used the Commonwealth cell phone
for private real estate and other personal business; Bryant used Tonya Carleton and Tracy
English, another District employee, to receive incoming calls relating to his private real
estate dealings; and Bryant used the Commonwealth phone relating to private real estate
dealings. Bryant also used a Commonwealth vehicle assigned to him for his private real
estate activities. The specific details of the sundry uses of Commonwealth equipment,
facilities, personnel and supplies are delineated in Fact Findings 10 -16, 18 -21, 33 -36.
Bryant confirmed his use of the Commonwealth vehicle as well as his use of a
PennDOT copier and fax machines for his real estate business to investigators in the
Office of Inspector General. Similarly, Bryant confirmed to the investigators that he
occasionally used the Commonwealth vehicle for private real estate purposes and did not
list all of the personal calls on the Commonwealth cell phone. The use by Bryant of
PennDOT employee Tonya Carleton for personal /business work resulted in his receipt of
two e -mails in April of 2003 wherein he was admonished for assigning personal work to
PennDOT clerical staff during business hours. Bryant was told that such action had to
cease.
Bryant as a PennDOT Maintenance Manger was required annually to file SFI's on or
before May 1 containing financial information for the prior calendar year. Fact Finding 42
delineates the disclosures made by Bryant on the SFI's he filed for the calendar years
1997 through 2003 inclusive. On his SFI's, Bryant failed to disclose income in excess of
$1,300 from Acorn Markets for the calendar years 1999, 2000, and 2001. See, Fact
Finding 43. Bryant did not have supplemental approval from PennDOT for his employment
with Acorn Markets.
Having highlighted the Stipulated Findings and issues before us, we shall now apply
the Ethics Act to determine the proper disposition of this case.
Bryant, 04 -004
Page 17
The parties' Consent Agreement sets forth a proposed resolution of the allegations.
The Consent Agreement proposes that this Commission find:
"a. Terry Bryant violated Section 1103(a) of the Ethics Act (Act 93 of 1998) when he
utilized Commonwealth facilities, including copy and fax machines, telephones,
cellular telephones, digital cameras and employees in support of his outside
employment with real estate companies and;
b. Terry Bryant violated Section 1105(b)(5) of the Ethics Act (Act 93 of 1998) when he
did not disclose on Statements of Financial Interests filed for the 1999, 2000 and
2001 calendar years income in excess of $1,300 received from Acorn Markets."
Consent Agreement, paragraphs 3(a) and (b).
In addition, Bryant agrees to make payment in the amount of $2,000.00 to the
Commonwealth of Pennsylvania through this Commission within thirty (30) days of the
issuance of this order.
In applying Section 1103(a) of the Ethics Act to the allegations before us, there
were uses of authority of office on the part of Bryant. But for the fact that Bryant was a
PennDOT Highway Maintenance Manager, he would not have been in a position to use a
Commonwealth assigned vehicle, to supervise PennDOT employees and to use various
Commonwealth equipment such as copiers, fax, cell phones, as well as office supplies and
facilities. The utilization of Commonwealth employees, facilities, equipment, and supplies
by Bryant were uses of authority of office. See, Juliante, Order 809. The uses of authority
of office on the part of Bryant resulted in pecuniary benefits in that he did not have any out
of pocket expenses by using the Commonwealth equipment, facilities, personnel and
supplies. The pecuniary benefits received by Bryant were private. In this regard, Bryant,
as a public employee and as the recipient of an approval for his supplemental employment,
was advised that he could not use Commonwealth equipment, facilities, personnel and
supplies for personal or private business interests. Accordingly, Bryant's decision to
engage in such prohibited activities resulted in pecuniary benefits that were private in that
they were not authorized in law. Lastly, the private pecuniary benefits inured to Bryant
himself. Accordingly, Bryant violated Section 1103(a) of the Ethics Act when he utilized
Commonwealth facilities, equipment, personnel, and supplies in support of his private
outside employment with real estate companies.
Our decision above is consistent with the myriad of our prior precedents that public
officials /public employees cannot use government offices, equipment, facilities, staff and
supplies for non - governmental functions such as business, campaign, re- election or
political activities. See, Friend, Order 800; Rieger, Order 680; Rockefeller, Order 1004;
Habay, Order 1313; Metrick, Order 1037.
Turning to the SFI allegations, the parties have stipulated that Bryant failed to report
income in excess of $1,300 from Acorn Markets for the calendar years 1999, 2000 and
2001. Since Bryant was required to disclose such financial information and failed to do so,
he violated Section 1105(b) of the Ethics Act when he failed to disclose on his SFI's for the
calendar years 1999, 2000 and 2001 income in excess of $1,300 from Acorn Markets.
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, Bryant is directed to make
payment in the amount of $2,000.00 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.
Bryant, 04 -004
Page 18
IV. CONCLUSIONS OF LAW:
1. Bryant, as a Highway Maintenance Manager in the Pennsylvania Department of
Transportation, was a public employee subject to the provisions of Act 9 of 1989 as
codified by Act 93 of 1998.
2. Bryant violated Section 1103(a) of the Ethics Act when he utilized Commonwealth
facilities, equipment, personnel, and supplies in support of his private outside
employment with real estate companies.
3. Bryant violated Section 1105(b) of the Ethics Act when he failed to disclose on his
SFI's for the calendar years 1999, 2000 and 2001 income in excess of $1,300 from
Acorn Markets.
In Re: Terry Bryant
ORDER NO. 1367
File Docket: 04 -004
Date Decided: 6/6/05
Date Mailed: 6/17/05
1 Bryant, as a Highway Maintenance Manager in the Pennsylvania Department of
Transportation, violated Section 1103(a) of the Ethics Act when he utilized
Commonwealth facilities, equipment, personnel, and supplies in support of his
private outside employment with real estate companies.
2. Bryant violated Section 1105(b) of the Ethics Act when he failed to disclose on his
SFI's for the calendar years 1999, 2000 and 2001 income in excess of $1,300 from
Acorn Markets.
3. Per the Consent Agreement of the parties, Bryant is directed to make payment in
the amount of $2,000.00 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,
Louis W. Fryman, Chair