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HomeMy WebLinkAbout1365 TittertonIn Re: John Titterton File Docket: 03 -055 X -ref: Order No. 1365 Date Decided: 6/6/05 Date Mailed: 6/17/05 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Act, Act 9 of 1989, P.L. 26, 65 P.S. § 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Titterton, 03 -055 Page 2 I. ALLEGATION: That John Titterton, a public official /public employee, in his capacity as a supervisor for Upper Makefield Township, Bucks County, violated Sections 1103(a), and 1103(f) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), and 1103(f) when he used the authority of his office for the private pecuniary gain of himself and /or a member of his immediate family and /or a business with which he and /or a member of his immediate family is associated; including but not limited to participating in discussions and actions of the board of supervisors to award a contract to his wife and /or a company controlled by his him and /or his wife, in excess of $500 without an open and public process; and when he participated in actions of the board of supervisors to approve payments to SGT Designs and /or Sharon Titterton. II. FINDINGS: 1. John Titterton served a six (6) year term as a member of the Board of Supervisors (BOS) for Upper Makefield Township (UMT), Bucks County, PA, from January 1998 through December 2003. 2. A website for UMT has been in existence since approximately 1996. a. The creation /management of the UMT website was initially done by Richard Gestrich, Township Manager. 3. Information available on the UMT website from 1996 until 2000 consisted of the following: a. UMT contact information. b. UMT meeting notices /agendas. c. UMT meeting minutes. 4. Prior to January 2000, the majority of the members of the board of supervisors for UMT did not support changing /enhancing the UMT website. a. Titterton was in the minority of the board members who supported enhancements to the website. 5. In January 2000, meetings of the BOS began to be videotaped and televised. 6. Video Gold Productions, Inc., was contracted by the township to videotape the UMT BOS meetings in 2000 and 2001. 7 John Titterton, in the year 2000, was a proponent of seeking volunteers from the community to work pro bono on the UMT website. a. Prior to 2001 there was no funding in the UMT budget for website maintenance and /or development. 8. At the January 19, 2000, meeting of the UMT BOS, John Titterton placed the issue of professional website services on the agenda. a. The meeting minutes reflect the following: "Professional Web Services — John Titterton Titterton, 03 -055 Page 3 Mr. Titterton stated he wanted this issue on the agenda to discuss the township's web site. Mr. Titterton complimented Mr. Gestrich for initiating this project. Mr. Gestrich stated the web site has been in place for four (4) years. Mr. Titterton stated that the status of various development projects could possibly be added. Mr. Titterton stated that maintaining, expanding and adding new features could be added to the current site but possibly through a voluntary effort or to retain a firm. Mr. Titterton stated that the Falls Township website is being designed and operated by students at Bucks County Community College as a credit course taught by the College. Mr. Titterton stated that if the College is not able to re- design and maintain the website that Mr. Gestrich be authorized to solicit proposals from companies for a period of one (1) year. Mr. Gestrich stated that this was discussed at budget time but did not pass. Mr. Gestrich stated that several companies had submitted quotes. One of the companies was World Wide Web Solutions at a cost of $500.00 /year for hosting the website, $80.00 /hour for design, $80.00 /hour for maintenance. P.P.M. &G. recently sent in a proposal for $50.00 /hour for design and maintenance. The approximate cost is between $5,000.00 /year and $7,500.00 /year including hosting, design and maintenance. Dr. Ford would like to have some volunteers work on this website. Mr. Titterton stated that volunteers should be pursued first before some of the commercial proposals are discussed. Dr. Ford asked Mr. Gestrich to contact Council Rock High School, Bucks County Community College and any other school to see if anyone could assist in this objective." 9. Subsequent to the January 19, 2000, BOS meeting, Jim Gieseke, President of Data Basyx, Inc., spoke with John Titterton in relation to the UMT website. a. Data Basyx, Inc., designs and manages internet websites. b. John Titterton informed Gieseke that he had to submit any quote for services to Richard Gestrich, Manager for UMT. 10. On February 4, 2000, Gieseke submitted a Quote for Services to Gestrich. a. Gieseke offered to do some of the work on a pro bono basis. b. Gieseke also offered a discounted pricing structure on services to UMT. 11. The Data Basyx, Inc., quote in part included the following: Web Hosting: Web Design: Web Maintenance: $450 per year to host your website — less a 20% discount The township's cost = $360 per year If you buy 2 years of hosting up front, the discount goes to 25% The township's cost = $675 for 2 years or $337.50 per year We will waive the design fee Will use existing site design and update and upgrade the HTML $40 per hour to maintain website, upgrade and update content and HTML as required — less a 15% discount The township's cost = $34 per hour If you use > 100 hours worth of maintenance in any calendar year, the discount goes up to 25% The township's cost = $30 per hour One free e -mail account provided Other: Additional fees may apply for custom work: Titterton, 03 -055 Page 4 12. UMT Manager, Richard Gestrich, also contacted Video Gold Productions seeking a price quote for website related services. 13. The quote for services submitted by Video Gold Productions to UMT on March 15, 2000, contained the following: Web Hosting: Pair Networks: $10 setup fee, $8.95 per month 30 MB of space will be allotted InterNIC Registration: $150 initial fee for 2 years Every year after that is $70 per year Web Design: $55 per hour to create new design to make site look more professional, update links and pages and HTML code 20% discount for the first year (Total being $44 per hour) Web Maintenance: $55 per hour to update site on a daily /weekly /monthly basis 20% discount for the first year (Total being $44 per hour) Other: Animations, custom graphics, special effects, java script, etc., all at the same rate ($44 per hour) If you would like to insert forms on the site, you will have to buy a larger plan from Pair networks. The next step to take would be to purchase the advanced account, which includes 60MB of space and CGI capabilities. This plan would cost $15 to setup and $16.95 per month. InterNIC registration fees are additional. We can setup all registration and hosting plans for the township at the discounted rate. 14. The quotes for services provided by DataBasyx, Inc., and Video Gold Productions were discussed with and provided to members of UMT BOS, including John Titterton. a. No official action was taken by the board regarding the proposals. 15. During budget discussions for the 2001 budget, the UMT board of supervisors included the amount of $5,000.00 for the 2001 budget for website management/ maintenance. a. Titterton participated in the budget discussions and approvals. b. John Titterton voted in favor of adopting the budget for 2001 for UMT. 16. In or about September 2000 John Titterton suggested to his wife, Sharon Titterton, that she do volunteer work on the UMT website. a. Sharon Titterton has experience in software applications and website design. 17. John Titterton advised township manager Richard Gestrich that his wife would be volunteering to work on the website. Titterton, 03 -055 Page 5 18. Sharon Titterton started doing volunteer work on the UMT website during October 2000. 19. During the January 2, 2001, UMT BOS meeting John Titterton made inquiries on the status of the UMT website. a. Richard Gestrich, Township Manager, confirmed that funding for the website was included in the 2001 budget. 20. Sharon Titterton submitted a quote for services to UMT on January 29, 2001, for website design /maintenance services. a. Sharon Titterton was not solicited by any township official /representative to submit such a quote. 21. The quote for services [was] submitted under the business name of SGT Designs. a. The address for SGT Designs, 3 Bunker Hill Drive, Washington Crossing, PA, is the home address of Sharon and John Titterton. b. The telephone number for the business was the personal cell phone number of Sharon Titterton. 22. The quote for services submitted by SGT Designs on January 29, 2001, in part contained the following: Web Design: Web Maintenance: Additional Fees: Design fee has been waived. Work performed up until January 31, 2001, will be pro bono. Any future design work will be charged at a rate of $40 per hour. Any web maintenance performed on the web site after February 8, 2001, will be charged at a rate of $36 per hour. These will result in the event that any custom work has to be performed both as a result of design and /or maintenance to the website. Examples of custom work being: * Enhanced graphics, multimedia video and sound * Special effects * Additional databases (excluding feedback databases) * Custom front -ends These additional fees will only be incurred should the above custom work result in any additional cost to SGT Designs. Additional Pro -Bono work included in this quote: * Documentation on design of website, how to perform routine updates, as well as configuration of e -mail system. * Weekly meeting with Township Manager to discuss web design, maintenance issues, updates, etc. 23. Following receipt of the SGT Designs proposal, Richard Gestrich, Township Manager for UMT, advised Sharon Titterton that UMT wouldn't accept anything other than a rate of $34 per hour for web maintenance services. Titterton, 03 -055 Page 6 a. The amount of $34 per hour was equal to the amount quoted by DataBasyx, Inc. for web maintenance in February 2000. 24. On February 15, 2001, Sharon Titterton t/a SGT Designs submitted a revised quote for services. a. The hourly rate for web maintenance services was reduced to $34 per hour. 25. Neither Video Gold Productions [n]or Data Basyx, Inc., were [sic] contacted and offered the opportunity to submit a "revised" quote for services in 2001. 26. At the February 21, 2001, meeting of the UMT BOS, SGT Design's website proposal was considered by the board. a. John Titterton was present for the meeting. 27. The minutes of the February 21, 2001, BOS meeting confirmed the following: "L(4) Website Proposal Mr. Gestrich stated that since October 2000, he and Mrs. Sharon Titterton have been working on the Township website. Mrs. Titterton has re- designed the website that is now up and running. Mrs. Titterton has volunteered her services since last October. Mrs. Titterton now has submitted a proposal for the website maintenance at $34 /hour and additional fees for any custom work that needs to be done beyond the basic maintenance at $40 /hour. Mrs. Titterton has also included pro bono work in the quote (documentation on design of the website and weekly meetings with township manager to discuss website design, maintenance issues, updates, etc.) Mrs. Titterton's quote is consistent with lowest quotes received last year. The board agreed that the new website is impressive. A motion is made by Dr. Ford and seconded by Mr. Stevenson to approve Mrs. Sharon Titterton's quote for the website subject to Mr. Harris's documentation stating that she is an independent contractor, releases, etc. 3 aye votes — Mr. Titterton abstained." 28. Titterton did not state any reasons for his abstention for the record during the February 21, 2001, meeting. 29. No quotes were solicited from companies other than the quotes from Video Gold and Data Basyx in 2000. 30. A Professional Services Agreement (PSA) was drawn up by UMT Solicitor Stephen Harris between UMT and Sharon Titterton t/a SGT Designs concerning her performing website related services. 31. The final PSA was not reviewed or approved by the board of supervisors. 32. Other Professional Service Agreements entered into by UMT provided for signatures of all members of the board. a. The PSA entered into with SGT Designs was the only such agreement not signed by the members of the board of supervisors. 33. At the time Sharon Titterton d /b /a SGT Designs entered into the PSA with UMT had no other contracts or agreements with any other public or private entities. Titterton, 03 -055 Page 7 a. SGT Designs' only client was UMT. b. SGT Designs had no business bank accounts, business records or independent office location. c. All activity occurred at either the Titterton residence or the UMT Municipal Building. 34. During the period March 1, 2001, through June 20, 2002, Sharon Titterton, t/a SGT Designs was compensated for work done on the UMT website. 35. SGT Designs submitted fifteen (15) invoices covering work performed during the aforementioned period. a. The invoices total $6,366.50. 36. John Titterton in a sworn statement before the State Ethics Commission on July 19, 2004, admitted payments made by UMT to his wife, Sharon Titterton, t/a SGT Designs, were deposited into personal bank accounts owned by him and his wife. a. John Titterton asserted that income derived from SGT Designs was reported on the joint local, state and federal tax returns of himself and his wife, Sharon Titterton. 37. Invoices from SGT Designs /Sharon Titterton were included on bill lists approved by the UMT Board of Supervisors in 2001 and 2002. 38. The UMT Board of Supervisors voted on 14 occasions to approve payments to SGT Designs /Sharon Titterton. 39. Titterton participated in one vote to approve payments to SGT Designs on January 16, 2002. a. He abstained on all other votes. 40. Sharon Titterton t/a SGT Designs terminated her PSA with UMT in June 2002. 41. John Titterton filed Statements of Financial Interests (SFIs) with UMT during his term of office. a. Titterton filed SFIs as follows: Calendar Year Date Filed 1999 02/15/2000 2000 01/17/2001 2001 02/24/2002 2002 02/28/2003 42. John Titterton disclosed on Statements of Financial Interests filed for the 2001 and 2002 calendar years SGT Designs as a Direct /Indirect Sources of Income (block 10). III. DISCUSSION: At all times relevant to this matter, the Respondent, John Titterton, hereinafter Titterton, has been a public official subject to the provisions of the Public Official and Titterton, 03 -055 Page 8 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 Titterton, as an Upper Makefield Township Supervisor, Bucks County, violated Sections 1103(a) and 1103(f) of the Ethics Act when he participated in discussions and actions of the Board of Supervisors to award a contract to his wife or a company controlled by him or his wife, in excess of $500 without an open and public process; and participated in actions of the Board of Supervisors to approve payments to SGT Designs or Sharon Titterton. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(f) of the Ethics Act imposes certain restrictions as to contracting. Section 1103(f) of the Ethics Act provides: Section 1103. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract 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 Titterton, 03 -055 Page 9 public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 Pa. C. S. § 1103(f). Section 1103(f) of the Ethics Act provides in part that no public official /public employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /public employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Titterton served as an Upper Makefield Township ( "Township ") Supervisor from January 1998 through December 2003. The Township has had its own website since approximately 1996. The website was initially created and managed by the Township Manager, Richard Gestrich ( "Gestrich "). In January 2000, Titterton proposed maintaining, expanding and adding new features to the Township's website using volunteers rather than professional website services companies to accomplish this task. In February and March 2000, two companies, Data Basyx, Inc. and Video Gold Productions, submitted proposals to provide website related services to the Township. Data Basyx's quote of $34 per hour for web maintenance was $10 less than Video Gold Production's quote of $44 per hour. Although the proposals were presented to the Township Board of Supervisors, the Board did not take any official action relative to the proposals. Titterton participated in discussions and the vote to adopt the 2001 budget, which included $5,000 for website management /maintenance. In or about September 2000, Titterton suggested to his spouse, Sharon Titterton, that she volunteer to work on the Township's website given that she had experience in software applications and website design. Thereafter, Titterton advised Gestrich that his spouse would be volunteering to work on the Township website. During October 2000, Sharon Titterton began to work on the Township's website on a volunteer basis. In January 2001, Sharon Titterton, doing business as SGT Designs, submitted an unsolicited quote to the Township for website design /maintenance services. SGT Design's quote included, inter alia, web maintenance services at a rate of $36 per hour. Upon receipt of SGT Designs' quote, Gestrich advised Sharon Titterton that the Township would not accept anything other than $34 per hour for web maintenance, which was the rate quoted by Data Basyx in February 2000. Sharon Titterton then submitted a revised quote to the Township that included web maintenance services at a rate of $34 per Titterton, 03 -055 Page 10 hour. Neither Data Basyx nor Video Gold Productions were contacted to submit a revised quote. At the February 21, 2001, Board of Supervisors Meeting, the Board considered and approved SGT Designs' quote for website design /maintenance with Titterton abstaining. Thereafter, a professional services agreement was drawn up by the Township Solicitor concerning website related services to be performed by Sharon Titterton t/a SGT Designs for the Township. The professional services agreement was never reviewed, approved or signed by the Board of Supervisors. During the time period from March 1, 2001, through June 20, 2002, Sharon Titterton, t/a SGT Designs submitted fifteen (15) invoices to the Township for website related services totaling $6,336.50. Such invoices were included in bills lists approved by the Board of Supervisors in 2001 and 2002. Titterton participated in approving one of the fifteen (15) invoices, but abstained on all others. The compensation that Titterton's spouse received from the Township was deposited into personal bank accounts held by Titterton and his spouse, reported as income on their joint local, state and federal tax returns, and disclosed on Titterton's Statements of Financial Interests for calendar years 2001 and 2002. In June 2002, Sharon Titterton, t/a SGT Designs, terminated the professional services agreement with the Township. 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 recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. § 1103(a) occurred in relation to the contract between Upper Makefield Township and SGT Designs as Titterton abstained or did not participate in actions related to the award of said contract and payments resulting therefrom. b. That a technical violation of Section 1103(f) of the Public Official and Employee Ethics Law, 65 Pa.C.S. § 1103(f) occurred in relation to the township's award of a contract to SGT Designs, a business with which Titterton's spouse was associated, as such contract was in excess of $500 and awarded without an open and public process. Consent Agreement, paragraph 3. In considering paragraph 3(a) of the Consent Agreement quoted above, Titterton abstained from the vote to approve Sharon Titterton's /SGT Designs' proposal to maintain the Township's website. Titterton also abstained on all but one of the votes to approve invoices payable to his spouse /her business. While we note that Titterton's participation in voting to approve one invoice constitutes a use of authority of office, the Stipulated Findings do not state the amount of that invoice, and it is possible that the invoice may have been de minimis. Regardless, the parties, through the negotiation process, have Titterton, 03 -055 Page 11 stipulated in the Consent Agreement that no violation of Section 1103(a) of the Ethics Act occurred as to this allegation; thus, we will treat that part of the Consent Agreement as a non pros by the Investigative Division within the context of a comprehensive settlement of this case. Accordingly, we find that Titterton did not violate Section 1103(a) of the Ethics Act in relation to the contract between the Township and Sharon Titterton /SGT Designs, as Titterton abstained from participating in actions related to the award of said contract and the approval of all but one of the payments resulting therefrom. In considering paragraph 3(b) of the Consent Agreement quoted above, pursuant to Section 1103(f) of the Ethics Act, a public official /public employee or his spouse or child or any business in which his spouse or child is associated may contract with the public official's /public employee's governmental body, but if the contract is $500 or more, it must be awarded though an open and public process. In this case, SGT Designs was a business with which Sharon Titterton was associated. The value of the contract between Sharon Titterton /SGT Designs and the Township exceeded $500; however, the contract was not advertised for open bidding. Accordingly, we find that Titterton technically violated Section 1103(f) of the Ethics Act in relation to the Township's award of a contract to Sharon Titterton /SGT Designs, as such contract was in excess of $500 and awarded without an open and public process. 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. We will take no further action in this case which is closed. IV. CONCLUSIONS OF LAW: 1. John Titterton ( "Titterton "), as a Supervisor for Upper Makefield Township ( "Township "), was at all times relevant to these proceedings a public official subject to the provisions of the Ethics Act. 2. Titterton did not violate Section 1103(a) of the Ethics Act in relation to the contract between the Township and Sharon Titterton /SGT Designs, as Titterton abstained from participating in actions relating to the award of said contract and the approval of all but one of the payments resulting therefrom, which payment may have been de minimis. 3. Titterton technically violated Section 1103(f) of the Ethics Act in relation to the Township's award of a contract to Sharon Titterton /SGT Designs, as such contract was in excess of $500 and awarded without an open and public process. In Re: John Titterton ORDER NO. 1365 File Docket: 03 -055 Date Decided: 6/6/05 Date Mailed: 6/17/05 1 John Titterton ( "Titterton "), as a Supervisor for Upper Makefield Township ( "Township "), did not violate Section 1103(a) of the Ethics Act in relation to the contract between the Township and Sharon Titterton /SGT Designs, as Titterton abstained from participating in actions relating to the award of said contract and the approval of all but one of the payments resulting therefrom, which payment may have been de minimis. 2. Titterton technically violated Section 1103(f) of the Ethics Act in relation to the Township's award of a contract to Sharon Titterton /SGT Designs, as such contract was in excess of $500 and awarded without an open and public process. BY THE COMMISSION, Louis W. Fryman, Chair