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HomeMy WebLinkAbout1368 MartinelliIn Re: David Martinelli 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 -040 Order No. 1368 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 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Martinelli, 04 -040 Page 2 I. ALLEGATION: That David Martinelli, a public official /public employee, in his capacity as a Councilman for West Newton Borough, West Moreland County, violated Sections 1103(a), 1103(f), 1104(a), 1105(b)(3), 1105(b)(4), 1105(b)(5), 1105(b)(6), 1105(b)(7), 1105(b)(8), 1105(b)(9) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), 1103(f), 1104(a), 1105(b)(3)(4)(5)(6)(7)(8)(9) when he used the authority of his office for a private pecuniary benefit of himself, a business with which he is associated, an immediate family member, or a business with which an immediate family member is associated by participating in actions of the borough to authorize the repair of borough vehicles at Martinelli's Auto, a business with which he is associated; when Martinelli's Auto Service entered into contracts in excess of $500.00 with the Borough without an open and public bidding process; when he participated in the approval of payments to Martinelli's Auto; when he participated in the approval of payments to Diane Kimberly, an immediate family member, for cleaning services; when he participated in the approval of payments to Kimberly's Service, a business with which an immediate family member is associated, for the lease of storage space; and when he failed to file a Statements of Financial Interests for the 2003 calendar year and when he failed to disclose direct /indirect sources of income, creditors in excess of $6,500, real estate interests, gifts, transportation, lodging and hospitality, and financial interests in any legal entity in business for profit for the Statement of Financial Interest filed for the 2002 calendar year. II. FINDINGS: 1. David Martinelli has served as a Councilman for West Newton Borough, Westmoreland County, since March 2002. a. Since January 2005, Martinelli has served as the council president. b. Martinelli has served as the Chairman of the Law and Finance Committee during his entire service on council. 1. In this capacity, Martinelli is responsible for reviewing and reporting the borough finances and legal issues to council. 2. In a private capacity, Martinelli is the owner /operator of an auto repair business known as Martinelli's Auto Service. a. This business focuses on automotive repair, service, maintenance, towing, and inspections and emissions testing among other things. b. The business is located in West Newton Borough at 301 First Street, West Newton, PA 15089. 3. For at least the last twenty -five years, the borough has utilized Martinelli's Auto Service to service and repair borough vehicles and equipment. a. Martinelli's has repaired vehicles and equipment for the borough's public works department, police department, and sewage treatment facility. b. Martinelli's provides service and repairs on borough equipment on an as needed basis, as well as performing weekly safety checks on both of the borough's police cars. 4. Martinelli's servicing of borough vehicles and equipment predated his service on borough council and continued after March 2002 when he began his service on council. Martinelli, 04 -040 Page 3 5. It has primarily been the responsibility of the various department heads to determine the necessity of maintenance and repairs of vehicles and equipment in their respective departments. a. The department heads typically were not required to receive pre - approval from council to have necessary work completed at the location of their choice. 6. Martinelli's Auto Service has been selected to perform the majority of maintenance and repairs on the borough's vehicles and equipment by the department heads. a. The reasons cited are that Martinelli's is the most established service center in and around the borough, and Martinelli's services the borough efficiently and at a reasonable rate. 7 Martinelli's is typically paid once per month by the borough. a. Martinelli's sends an invoice to the borough secretary /treasurer for each specific job completed. b. Martinelli's may be paid more than one check per month by the borough if it is necessary for payment to be made from the general fund and sewer system fund. 8. Council votes to approve the payment of all bills during the regular voting meetings by way of a motion /second /all in favor format. a. All bills and invoices are approved prior to being paid. b. All members of council can participate in votes to approve payment of bills. 9. The council president, vice - president and the secretary /treasurer all have signature authority on the borough's general fund and sewer system fund. a. Checks from both funds require at least two signatures, one of which needs to be that of the secretary /treasurer. b. Martinelli did not have signature authority on any borough accounts until January 2005. 10. From March 2002, when Martinelli began serving on council, through July 2004, Martinelli's Auto Service submitted one - hundred sixty (160) invoices to West Newton Borough for work done on township vehicles and equipment totaling $20,500.35. a. As a result of the invoices submitted by Martinelli's Auto Service, the borough approved payments, prepared checks, and issued payments to Martinelli's for the work completed. b. The 160 invoices submitted by Martinelli's resulted in the borough issuing a total of 38 checks, which included checks from both the general and sewer system funds. 11. Martinelli participated in approving payment of 34 out of 38 checks issued to Martinelli's Auto Service. a. Checks issued to Martinelli's Auto Service by the borough were deposited into an account in the name of Martinelli's Auto Service at Commercial Martinelli, 04 -040 Page 4 National Bank of Westmoreland County. b. Martinelli, as a member of council, did not sign any of the checks issued to his business. c. Martinelli did not publicly disclose his business relationship to Martinelli's Auto Service. 1. It's common knowledge in the borough that Martinelli is the operator of Martinelli's Auto Service. 12. From March 2002 through July 2004, Martinelli's Auto Service was issued payment from West Newton Borough by year as follows: a. 2002: $5,896.94 b. 2003: $7,299.35 c. 2004: $7,250.06 d. Total: $20,446.35 13. From March 2002 -July 2004, Martinelli's Auto Service issued eight (8) invoices to the borough that reflected work done in excess of $500.00. a. The dates of these are as follows: c. Date December 16, 2002 January 29, 2003 February 3, 2003 November 12, 2003 January 21, 2004 March 23, 2004 April 7, 2004 June 10, 2004 14. The work completed by Martinelli's Auto Service that resulted in the issuance of invoices in excess of $500.00 was not publicly advertised and not awarded through an open and public process. a. Martinelli voted affirmatively to approve all of the payments to Martinelli's Auto Service that included payment for invoices in excess of $500.00. 15. IRS Forms 1040, Schedule C, Profit or Loss from Business (Sole Proprietorship), for the years 2002 and 2003 were used to calculate a percentage of profit for Martinelli's Auto Service for the years 2002 through 2004 as follows (Percent profit was calculated by dividing net profit by gross profit): a. 2002: Net Profit - Gross Profit - Percent of Profit- b. 2003: Net Profit - Gross Profit - Percent of Profit- $8,746 (divided by) $152,996 5.7 % Amount $932.70 $602.65 $854.05 $585.00 $809.44 $580.98 $588.44 $661.30 $10,950 (divided by) $177,968 6.2 2004: Average of 5.7 % and 6.2 % = 6.0 Martinelli, 04 -040 Page 5 1 The percentage of profit for 2004 was calculated by averaging the percentages from 2002 and 2003, as there is no tax filing for 2004 at this time. 16. Based on the percent of profit, Martinelli's Auto Service's profit on income received from West Newton Borough totaled $1,226.82 as follows: a. 2002: Income from Borough- $ 5,896.94 Percent of Profit- 5.7% Profit from Borough- $ 336.11 b. 2003: Income from Borough- $ 7,299.35 Percent of Profit- 6.2% Profit from Borough- $ 452.56 c. 2004: Income from Borough- $ 7,250.06 Percent of Profit- 6.0 Profit from Borough- $ 435.00 d. Total Profit from Borough: $ 1,223.67 The following findings relate to Martinelli's participation in the approval of payments to Diane Kimberly, an immediate family member, for cleaning services 17. Diane Kimberly is David Martinelli's daughter. 18. Diane Kimberly performs cleaning services for various businesses and individuals in and around West Newton Borough. a. Kimberly does not operate the cleaning service business on a full -time basis. 19. From approximately October 1999 through July 2004, Kimberly performed cleaning services for West Newton Borough. a. The borough secretary /treasurer hired Kimberly and negotiated the fee to be paid. b. Kimberly's hiring and compensation was never voted on by council. c. Kimberly was hired prior to Martinelli serving on council. 20. Kimberly typically cleaned the municipal offices approximately once per month. a. Kimberly was initially paid $50.00 per cleaning and the amount was increased to $60.00 as Kimberly was given additional cleaning duties in or around March 2003. 21. Martinelli was on council when Kimberly's rate was increased in or about March 2003. a. Council never voted to approve the increase. b. The decision to increase Kimberly's compensation was made by the secretary /treasurer with no input from Martinelli or council. c. Martinelli was not involved in the decision to increase the amount of compensation to Kimberly. Martinelli, 04 -040 Page 6 22. Checks issued to Kimberly were listed on check details prepared by the secretary and provided to council members prior to the vote to approve the payment of bills and invoices. a. Kimberly did not submit an invoice to the borough for her services. 1. The secretary prepares a check to Kimberly after services are performed. b. Payments to Kimberly were approved in the same manner as all borough bills and invoices. c. Kimberly was paid from the borough general fund. 23. From March 2002, when Martinelli began his service on council, through July 2004, Kimberly was issued nineteen (19) checks for cleaning the borough offices totaling $1,285.21. 24. Martinelli participated in approving all nineteen payments to Kimberly, his daughter, for cleaning the municipal offices during the period of March 2002 through July 2004 by way of motion, second or vote. a. Martinelli did not abstain from the vote to approve payments to his daughter. b. Martinelli did not publicly disclose his relationship to Diane Kimberly at the time that the votes occurred. The following findings relate to Martinelli's participation in the approval of payments to Kimberly Services, a business which an immediate family member is associated, for the lease of storage space 25. Diane Kimberly, Martinelli's daughter, owns and operates a business known as Kimberly Contracting Services. a. This business focuses on snow removal; concrete and asphalt work; bobcat /backhoe service; sewer lines; hauling stone; top soil; etc. b. The address for the business is 421 North Second Street, West Newton, PA. 26. The borough owns a Vactor truck that is utilized to service and maintain the borough sewer system. a. The Vactor truck is utilized by the sewer department primarily in the summer months and requires heated storage space in the winter months. 27. Beginning in or around November 2001, the borough began leasing space from Kimberly Services to store the borough's Vactor truck in the winter months. a. The decision to lease space from Kimberly was made by the public works superintendent and informally approved by council 1. Council never voted or took any official action regarding the leasing of space from Kimberly. b. The borough pays $100.00 per month, typically for five or six months, to Kimberly for the lease of space. 28. Martinelli was not serving on council when the borough began leasing space from Martinelli, 04 -040 Page 7 Kimberly. a. Martinelli has played no role in the decision lease space or determining the amounts paid to Kimberly Contracting Services. 29. Checks issued to Kimberly Service are listed on check details prepared by the secretary and provided to council members prior to the vote to approve the payment of bills and invoices. a. Kimberly Services submits an invoice to the borough for the lease of space typically once per year. 1. The secretary prepares a check to Kimberly Services after an invoice is received b. Payments to Kimberly Services are approved in the same manner as all borough bills and invoices. 30. From March 2002, when Martinelli began his service on council, through July 2004, Kimberly Services was issued three (3) checks for the lease of space to the borough totaling $1,300.00. 31. Martinelli participated in approving all three of the payments to Kimberly Services, a business with which an immediate family member is associated, for leasing space to the borough during the period of March 2002 through July 2004. a. Martinelli did not abstain from the vote to approve payments to his daughter's business. b. Martinelli did not publicly disclose his relationship to Kimberly Services or his daughter at the time that the votes occurred. 1. The general public was aware that David Martinelli is the father of Diane Kimberly. The following findings relate to Martinelli's failure to disclose information on his 2002 calendar year Statement of Financial Interests form and his failure to file a 2003 Statement of Financial Interests form 32. Martinelli, in his capacity as a member of West Newton Borough council, was required to annually file Statements of Financial Interests (SFI) by May 1 of each year for the proceeding calendar year. 33. A Statements of Financial Interests compliance review was conducted at West Newton Borough on August 4, 2004 and the following was determined regarding Martinelli's SFIs: a. Martinelli filed a Statement of Financial Interests for the 2002 calendar year on August 25, 2003. b. Martinelli failed to disclose on his SFI filed for calendar year 2002 the following information. 1. Martinelli failed to complete blocks on this SFI as follows: Real Estate Interests; Creditors; Direct or Indirect Sources of Income; Gifts; Transportation, Lodging, Hospitality; Office, Directorship or Employment in any Business; Financial Interest in any Legal Entity in Business for Profit; and Business Interests Transferred to Immediate Family Member. Martinelli, 04 -040 Page 8 34. Martinelli failed to file an SFI for calendar year 2003 by May 1 2004. 35. Martinelli completed an amended SFI for calendar year 2002 and an SFI for calendar year 2003 on November 2, 2004. 36. In a sworn statement to State Ethics Commission investigators on January 31, 2005 Martinelli provided information including the following: a. He participated in all votes to approve payments to Martinelli's Auto Service, Diane Kimberly, and Kimberly Services and was not aware of the need to abstain from the votes. b. None of the work completed by Martinelli Auto Service that was in excess of $500.00 was publicly advertised or awarded through and open and public process. c. He did not seek, nor was he provided, any advice from the borough solicitor or other borough officials regarding possible conflicts regarding Martinelli's Auto Service, Diane Kimberly, or Kimberly Services. d. He provides various services free -of- charge to the borough including towing and weekly safety checks of the borough police vehicles. e. He did not initially fully complete his SFI for calendar year 2002 and he did not file an SFI for calendar year 2003. f. Since approximately September 2004, when he received the notice of investigation from the Commission, he has abstained from votes to approve payment to Martinelli's Auto Service, Diane Kimberly, and Kimberly Services and automotive repairs and service in excess of $500.00 is now being publicly bid. III. DISCUSSION: At all times relevant to this matter, the Respondent, David Martinelli, hereinafter Martinelli, 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 Martinelli, as a West Newton Borough Councilman, violated Sections 1103(a), 1103(f), 1104(a), 1105(b)(3), 1105(b)(4), 1105(b)(5), 1105(b)(6), 1105(b)(7), 1105(b)(8), 1105(b)(9) of the Ethics Act when he participated in actions of the borough to authorize the repair of borough vehicles at Martinelli's Auto; entered into contracts in excess of $500.00 with the Borough without an open and public bidding process; participated in the approval of payments to Martinelli's Auto; participated in the approval of payments to Diane Kimberly; participated in the approval of payments to Kimberly's Service for the lease of storage space; and failed to file a Statement of Financial (SFI) Interests for the 2003 calendar year and failed to disclose direct /indirect sources of income, creditors in excess of $6,500, real estate interests, gifts, transportation, lodging and hospitality, and financial interests in any legal entity in business for profit for the SFI filed for the 2002 calendar year. 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. Martinelli, 04 -040 Page 9 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 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103(f) of the Ethics Act provides: Section 1103. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract 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 Martinelli, 04 -040 Page 10 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. Section 1104(a) of the Ethics Act requires that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 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. Section 5(b)(6)/1105(b)(6) of the Ethics Act requires that every public official /public employee and candidate list the name and address of the source and amount of any gift valued in the aggregate of $200 or more and the circumstances of each gift. § 1105. Statement of financial interests (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (3) 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. (4) The name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property which is the principal or secondary residence of the person filing shall not be included. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this paragraph, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. (7) The name and address of the source and Martinelli, 04 -040 Page 11 the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. (8) Any office, directorship or employment of any nature whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. 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. Martinelli has served as a councilman and Chairman of the Law and Finance Committee for West Newton Borough since March of 2002. In a private capacity, Martinelli is the owner /operator of Martinelli's Auto Service, a business that performs auto repair, service, maintenance, towing, inspections and emissions testing. The borough has utilized Martinelli's Auto Service for approximately the last 25 years which predates Martinelli's service on council. Martinelli's Auto Service has been selected by the borough to perform the majority of maintenance and repairs for borough vehicles and equipment because it is the most established service center in the borough area and its services are done efficiently at a reasonable rates. Generally, Martinelli's Auto Service submits invoices to the borough which are paid on a monthly basis following approval at regular voting meetings of council when the bills are reviewed for payment. For the issuance of borough checks, council president, vice president, and the secretary /treasurer all have signature authority as to the borough's general and sewer system funds. Each borough check requires at least two signatures, one of which has to be the secretary /treasurer. Martinelli did not have signature authority on any borough accounts until January of 2005. From March 2002, after Martinelli was on council, Martinelli's Auto Service submitted 160 invoices totaling $20,500.35 to the borough which issued a total of 38 checks in payment. Martinelli participated in the approval of 34 of the 38 checks issued to Martinelli's Auto Service. Martinelli did not sign any of the checks issued to his business nor did he publicly disclose his business relationship to Martinelli's Auto Service, even though it was common knowledge within the community. A yearly breakdown of the payments from the borough to Martinelli's Auto Service is delineated in Fact Finding 12. From the time span of March 2002 to July 2004, Martinelli's Auto Service issued 8 invoices for work that was in excess of $500. See, Fact Finding 13. Such work was awarded to Martinelli's Auto Service without any public advertisement or open and public process. Calculations of yearly profit on borough contracts as well as the dollar amounts of such profits are set forth in Fact Findings 15 and 16. Martinelli has a daughter, Diane Kimberly (Kimberly), who operates a cleaning service business on a full -time basis for businesses and individuals in the borough area. Between October 1999 and July 2004, Kimberly performed cleaning services for the borough as per an arrangement with the borough that was negotiated by the secretary/ Martinelli, 04 -040 Page 12 treasurer of the borough prior to Martinelli's service on council. Kimberly typically cleans the borough offices once a month for $50.00 which fee was increased to $60.00 in March of 2003. Although Martinelli was on council when Kimberly's rate was increased, that decision was made by the secretary /treasurer without input from either Martinelli or council. Although Kimberly did not submit invoices to the borough, the secretary /treasurer placed details of the services performed by Kimberly on the monthly list to approve bills which included those services by Kimberly. From March 2002 through July 2004 while Martinelli was on council, Kimberly was issued 19 checks for cleaning services which totaled $1,285.21. Martinelli participated in approving 19 of the payments to Kimberly for performing such services by either making a motion, seconding a motion, or voting. Martinelli did not abstain on those votes nor publicly disclose his familial relationship with his daughter. Kimberly also owns and operates a business known as Kimberly Contracting Services. Beginning in November of 2001, the borough began to lease space from Kimberly to store a borough truck during the winter months for a rental rate of $100.00 per month. The decision to rent the space from Kimberly was made by the Public Works superintendent and informally approved by council which never took any official action. Martinelli did not serve on council when the borough began leasing the space and played no role in the decision to lease space or determine the amounts paid to Kimberly Contracting Services. Kimberly Contracting Services submitted an invoice to the borough for the lease of the space typically on an annual basis which invoice was submitted to council for approval and payment with other bills and invoices. From March 2002 through July 2004, while Martinelli was on council, Kimberly Contracting Services received three checks for the lease of space to the borough totaling $1,300.00. Martinelli participated in approving all three of those payments to Kimberly Contracting Services. Martinelli did not abstain from the vote and did not publicly disclose his familial relationship to Kimberly. As a member of borough council, Martinelli is required to file SFI's on or before May 1 of each year for the preceding calendar year. During an SFI compliance review at the borough, it was determined that Martinelli did not file an SFI for the calendar year 2002 until August 25, 2003. In addition to being untimely, Martinelli failed to complete most, if not all, of the blocks on the form relating to financial interests. See, Fact Finding 33.b.1. In addition, Martinelli failed to file an SFI for the 2003 calendar year by May 1 of 2004. Martinelli completed amended SFI's for the calendar years 2002 and 2003 on November 2, 2004. Martinelli has stated that although he participated in the votes to approve payments to Martinelli's Auto Service, Kimberly individually, and Kimberly Contracting Services, he has abstained from votes to approve such payments since September of 2004. Martinelli further admits that none of the work that was in excess of $500 was publicly advertised or awarded through an open and public process. Martinelli notes that he has provided various services free of charge to the borough including towing and weekly safety checks of the borough police vehicles. 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 David Martinelli, in his position as a West Newton Borough Councilman unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) when he participated in actions of the borough council to Martinelli, 04 -040 Page 13 pay bills regarding services rendered by Martinelli's auto service, a business with which is associated. b. That David Martinelli unintentionally violated Section 1103(f) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(f) on eight occasions when the borough conducted business with Martinelli's auto service, a business with which he is associated, in excess of $500 without an open and public process. c. That David Martinelli unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) when he participated in the approval of borough payments to Diane Kimberly, a member of his immediate family, relating to cleaning services performed by her for which she was compensated by the borough. d. That David Martinelli unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) when he participated in actions of the borough council to authorize payments to Kimberly Contracting Services, a business with which a member of his immediate family is associated, relating to the lease of the space for the storage of a borough truck. e. That David Martinelli unintentionally violated Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a) when he failed to file a Statement of Financial Interests for calendar year 2003 by May 1, 2004. f. That David Martinelli technically violated Sections 1105(b)(3)(4)(5)(6)(7)(8)(9) when he failed to complete his Statement of Financial Interests relating to the noted disclosure categories." In addition, Martinelli agrees to make payment in the amount of $1,000.00 to the Commonwealth of Pennsylvania through this Commission within thirty (30) days of the issuance of this order. Also, Martinelli agrees to abstain from participating in any action of the borough council relating to any business with which he or a member of his immediate family is associated or any other action involving individual members of his immediate family. As to the Section 1103(a) allegations before us, there were uses of authority of office on the part of Martinelli. But for the fact that Martinelli was a council member, he would not have been able to participate in the bill approval process as to the services that were provided by Martinelli Auto Services, by Diane Kimberly as to the borough cleaning services, and by Kimberly Contracting Services as to lease space to store the borough truck. Martinelli did not have any involvement as to the selections of those businesses nor did he have any involvement as to the negotiations and agreements as to rates or pricing. Martinelli's involvement was limited to the routine bill /invoice approval process. That consisted of participating in certain instances as to making motions, seconding motions, or voting for approvals. Such actions were uses of authority of office. See, Juliante, Order 809. As a result of the bill approval process, the two businesses and Kimberly received payments on their invoices as to the services performed for the borough. Those payments constituted profits in whole or part, depending upon the services provided, from each respective business and Kimberly. The receipt of such payments was accordingly private pecuniary benefits. As to Martinelli's Auto Service, the pecuniary benefits went to Martinelli himself. As to the Diane Kimberly Cleaning business and Kimberly Contracting Service, those private pecuniary benefits inured to Diane Kimberly, who as Martinelli's daughter is a member of his immediate family as that term is defined under the Ethics Act. 65 Pa.C.S. §1102. Accordingly, Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of borough council to pay bills for services rendered by Martinelli's Auto Service, a business with which he is associated. Martinelli unintentionally Martinelli, 04 -040 Page 14 violated Section 1103(a) of the Ethics Act when he participated in the approval of borough payments to Diane Kimberly, his daughter, relating to cleaning services performed by her for which she received compensation from the borough. Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of borough council to authorize payments to Kimberly Contracting Services, a business with which his daughter is associated, relating to the lease of space for the storage of a borough truck. See, Catalone, Order No. 1234; Kern, Order No. 1199. Turning to Section 1103(f) of the Ethics Act, there were 8 instances where the borough had auto service contracts with Martinelli's Auto Service that were in excess of $500. The stipulated findings reflect that Martinelli's Auto Service performed these contracts which were not awarded through an open and public process. As noted, Martinelli's Auto Service is solely owned and operated by Martinelli. Accordingly, Martinelli unintentionally violated Section 1103(f) of the Ethics Act in each of the 8 occasions when the borough conducted business with Martinelli's Auto Service, a business with which he is associated, as to contracts that were in excess of $500 and were not awarded through an open and public process. See, Garris, Order No. 1312. As to the SFI issues for the calendar years 2002 and 2003, the record reflects that Martinelli failed to file his SFI for the calendar year 2003 by May 1 of 2004. Based upon the stipulated findings, Martinelli unintentionally violated 1104(a) of the Ethics Act when he failed to file an SFI for the calendar year 2003 before May 1 of 2004. See, Keefer, Order No. 1266. For Martinelli's 2002 calendar year SFI, the record reflects that he failed to complete most if not all of the financial interest categories. Accordingly, based upon the stipulated findings, Martinelli technically violated Section 1105(b)(3)(4)(5)(6)(7)(8)(9) of the Ethics Act when he filed a deficient SFI for the calendar year 2002 by failing to complete the disclosure categories. Since the record reflects that Martinelli filed amended SFI's for the calendars 2002 and 2003 on November 2, 2004, it appears that he has corrected the deficiencies and we will take no further action as to the SFI allegations. 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, Martinelli is directed to pay $1,000.00 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. IV. CONCLUSIONS OF LAW: 1. Martinelli, as a West Newton Borough Councilman, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of borough council to pay bills for services rendered to the borough by Martinelli's Auto Service, a business with which he is associated. 3. Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in approval of borough payments to Diane Kimberly, his daughter, relating to cleaning services performed by her for the borough. 4. Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of borough council to authorize payments to Kimberly Martinelli, 04 -040 Page 15 Contracting Services, a business with which his daughter is associated, relating to its lease of space for the storage of a borough truck. 5. Martinelli unintentionally violated Section 1103(f) of the Ethics Act in each of 8 instances when the borough conducted business with Martinelli's Auto Service, a business with which he is associated, as to contracts that were in excess of $500 and were not awarded through an open and public process. 6. Martinelli unintentionally violated 1104(al of the Ethics Act when he failed to file an SFI for the calendar year 2003 by May 1 t of 2004. 7 Martinelli technically violated Section 1105(b)(3)(4)(5)(6)(7)(8)(9) of the Ethics Act when he filed a deficient SFI for the calendar year 2002 and failed to complete the disclosure categories. In Re: David Martinelli ORDER NO. 1368 File Docket: 04 -040 Date Decided: 6/6/05 Date Mailed: 6/17/05 1 Martinelli, as a West Newton Borough Councilman, unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of borough council to pay bills for services rendered to the borough by Martinelli's Auto Service, a business with which he is associated. 2. Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in approval of borough payments to Diane Kimberly, his daughter, relating to cleaning services performed by her for the borough. 3. Martinelli unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions of borough council to authorize payments to Kimberly Contracting Services, a business with which his daughter is associated, relating to its lease of space for the storage of a borough truck. 4. Martinelli unintentionally violated Section 1103(f) of the Ethics Act in each of 8 instances when the borough conducted business with Martinelli's Auto Service, a business with which he is associated, as to contracts that were in excess of $500 and were not awarded through an open and public process. 5. Martinelli unintentionally violated 1104(al of the Ethics Act when he failed to file an SFI for the calendar year 2003 by May 1 t of 2004. 6. Martinelli technically violated Section 1105(b)(3)(4)(5)(6)(7)(8)(9) of the Ethics Act when he filed a deficient SFI for the calendar year 2002 and failed to complete the disclosure categories. 7 Per the Consent Agreement of the parties, Martinelli is directed to pay $1,000.00 to the Commonwealth of Pennsylvania through this Commission within 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