HomeMy WebLinkAbout1419 EppleyIn Re: James A. Eppley,
Respondent,
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 -053
Order No. 1419
10/4/2006
10/20/2006
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 allegations. 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 held. The record is complete.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Eppley, 04 -053
Page 2
I. ALLEGATION:
That James Eppley, a public employee in his capacity as Senior Civil Engineer
Manager for the Bureau of Facility, Design & Construction for the Department of
Conservation & Natural Resources "DCNR" violated Sections 1103(a) and 1105(b)(6), (7)
of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for a
private pecuniary gain for himself and or members of his immediate family when he
accepted an all expense paid trip to England from Thortex America, Inc. after he
recommended that products manufactured by Thortex America, Inc. be used for a bridge
repair project, and when he failed to disclose on a Statement of Financial Interest filed for
the 2003 calendar year the receipt of the trip to England as either a gift or as payment or
reimbursement for transportation, lodging or hospitality.
II. FINDINGS:
A. Pleadings
1. The Investigative Complaint was mailed to the Respondent on December 2, 2005.
2. James Eppley has been employed by the Commonwealth of Pennsylvania since
July 12, 1973.
a. Eppley has been employed as a Senior Civil Engineer Manager, Division of
Design Engineering, Bureau of Facility Design and Construction, DCNR
since approximately 1991.
3. From August 1, 2002 through March 19, 2003 Eppley routinely participated
in project meetings.
a. These project meetings include discussions and official actions taken to do
the following:
1. Determine the scope of repairs.
2. Select the contractor to complete the repair.
3. Select and approve materials to be used on the project.
4. A determination was made to complete the project in two phases, critical and non-
critical repairs.
a. Phase one was to consist of critical, emergency repairs to stabilize the
structure at an estimated cost of 4 million dollars.
1. Phase one repairs would have resulted in 40% to 50% of the bridge
being restored.
b. Phase two was to consist of the non critical repairs valued at an estimated
4.8 million dollars completing the restoration.
5. On October 17, 2002 a "kick -off meeting" was held at the Bradford Airport, Bradford,
PA to discuss the emergency repair design -build phase for the Kinzua Viaduct.
a. In attendance at this meeting included representatives from PennDot,
DCNR, Herbert, Roland & Grubic (Engineer), Raudenbush Engineering,
Knox & Kane RR, W.M. Brode (contractor) and TEC Associates (Engineer).
b. DCNR employees in attendance included James Eppley, Gene Comoss,
George DiCarlantonio, Gene Strick, Barrett Clarke, Gregg Sassaman, and
Eppley, 04 -053
Page 3
Tony Lupino.
c. During the kick -off meeting Brian Emberg of HRG /Raudenbush Engineering
reported that a site inspection occurred between June 17, 2002 and July 11,
2002 and discussed the inspection process and general findings.
6. Eppley introduced George M. Brode representing the W.M. Brode Company
(WMBC) of Newcomerstown Ohio as the project general contractor during the
October 17, 2002 meeting.
a. Mr. Brode reviewed his company's qualifications and experience as a multi -
disciplined general contractor with added emphasis on the maintenance,
repair, and replacement of all types of railroad structures.
b. WMBC offers throughout the entire United States fully equipped high -rail
bridge gangs to Class 1 regional and short line railroads, including structural
steel repairs of high railroad viaducts similar to the Kinzua Viaduct.
7 On February 4, 2003 a fully executed copy of this contract was finalized.
a. Eppley was not involved in the signing of the sole source contract.
8. Eppley participated in the project status meeting held at the Kinzua job site on
March 19, 2003.
a. Other attendees included: George Brode, Steven Brode;
W.M. Brode Company
Bill Yohe; Thortex America
Leeland Rowles;
Raudenbush Engineering Inc.
Brian Emberg; HRG
b. Yohe was present at Eppley's request.
9. During the March 19, 2003 status meeting a presentation was made by Bill Yohe
and Bob Foster sales representatives for Thortex of a product called "Poly -Nox ".
a. Eppley made the decision to utilize Thortex.
10. Raymond Clarke is the President of Thortex America Inc., 12 Iron Bridge Drive,
Collegeville, PA 19426.
a. Thortex America, Inc. is a division of E. Wood LTD, North Yorkshire, UK
b.
c.
Thortex product line includes specialized coatings and repair products.
Specific products include:
Floor Repair /Resurfacing Systems
Safety Surfacing Systems
Hygienic Internal Wall Coatings
Anti - Graffiti Coatings
External Wall Coatings
Fire Protection Systems
Concrete Repair Compounds
Timber Repair Systems
Chemical Protection Systems
Corrosion Protection Systems
Metal Repair Systems
Liquid Applied Roofing Membranes
Eppley, 04 -053
Page 4
d. Thortex America, Inc. is the supplier of Poly -Nox coating material.
11. On May 12, 2003, Eppley submitted a request to his supervisor for forty -five hours
of annual leave covering the period July 14, 2003 8:00 a.m. through July 21, 2003
4:30 p.m.
a. Eppley's request for leave was approved by Eugene Comoss on May 14,
2003.
1. Eppley did not advise Comoss that he was traveling to England as
Clarke's guest.
b. An additional 7.5 hours of annual leave for July 22, 2003 was approved by
Comoss on July 24, 2003.
12. The general trip itinerary for Eppley's trip to England included the following:
Date Event
07/14/03 Flight Philadelphia to London
07/15/03 Manor House Hotel, Wiltshire
Hotel Reception
07/16/03 Manor House Hotel, Wiltshire
9:00 a.m. -5:30 p.m. Coach transportation for excursion to Bath
07/17/03 Manor House Hotel, Wiltshire
9:00 a.m. -5:30 p.m. Coach transportation to Arboretum Westenbirt
and Sheldon Manor for visits.
07/18/03 Transfer Manor House Hotel to Manor Tudor Country Park,
Maidstone Afternoon at leisure
8:00 p.m. dinner at hotel.
07/19/03 Manor Tutor Country Park
Breakfast at hotel; 9:00 a.m. -5:30 p.m. British Open 3 rd round or
London sightseeing tour
7:30 p.m. Dinner at hotel.
07/20/03 Manor Tutor Country Park
Breakfast at the hotel; 9:00 a.m. -5:30 p.m. British Open 4 round or
trip to Hever Castle, Canterbury Cathedral, or Leeds Castle
7:30 p.m. Dinner at hotel.
07/21/03 Breakfast at hotel
12:45 p.m. depart for London Heathrow
4:25 p.m. scheduled departure
unscheduled stay over in London due to strike.
07/22/03 Flight from London /Heathrow to Montreal Canada via Air Canada
Flight from Montreal Canada to Boston MA
Rental car from Boston, MA to Philadelphia, PA.
07/23/03 Approximate arrival time in Philadelphia, PA 5:00 a.m.
a. British Air absorbed all costs associated with lodging on July 21, 2003 and
Air Canada on July 22, 2003.
b. William Yohe paid for the cost of the rental car to transport Eppley and his
wife from Boston, MA. to Philadelphia, PA.
1. Both Yohe and Eppley traveled in the rental car.
2. The costs for the rental car totaled $190.02.
13. While Eppley was traveling with Clarke in England, the Kinzua Bridge collapsed as
a result of a tornado hitting the area.
Eppley, 04 -053
Page 5
a. All work on phase one of the project was immediately terminated.
14. In a statement provided to investigators for the State Ethics Commission, Eppley
asserted that - - - he considered Clarke a friend.
15. Eppley's disclosure that the trip to England was for educational purposes was false.
a. No training on Thortex products occurred during the trip.
b. Eppley was aware of Thortex's products prior to the England Trip.
c. Thortex's Poly -Nox product was shown to Eppley prior to and during the
March 19, 2003 project meeting.
16. By way of correspondence dated August 30, 2004 Eppley was given notice of the
pre - disciplinary conference scheduled for August 31, 2004 at 1:30 p.m. Allegations
subject of the PDC are identified as:
a. Acceptance of a trip to England in July 2003, with an estimated cost of
approximately $3,000, wherein Thortex America paid for airfare, hotel,
dinner, and entertainment expenses. On or about August 13, 2004, the
Department first learned of the full details of these allegations upon receipt
of an investigative report from the Office of Inspector General (OIG).
Information in the report indicates that a product of Thortex America was
used by the department for repairs to the Kinzua Bridge based on your
conclusion in March 2003 that their repairs to the Kinzua Bridge based on
your conclusion in March 2003 that their product would be used to coat
portions of the bridge. The OIG report indicates your actions are violations
of:
b. The pre - disciplinary conference was held with Eppley on August 31, 2004 as
scheduled.
B. Testimon
The Public Official and Employee Ethics Act (Act) which prohibits
conflicts of interest which the Act defines as "[u]se by a public official
or public employee of authority of his office of employment... for the
private pecuniary benefit of himself...." 65 Pa. C.S. §§ 1102 and
1103. The Act also requires disclosure of "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." You failed to report the
acceptance of the travel expenses on your State Ethics Commission
Statement of Financial Interests form.
The governor's Code of conduct, Executive Order 1980 -18, amended
and revised, which states that no employee shall "engage directly or
indirectly in any business transactions or private arrangement for
profit which accrues from or is based upon his or her official position
or authority."
17. George Comoss is the Director of the Bureau of Facility Design (Bureau) in the
Department of Conservation and Natural Resources (DCNR).
Eppley, 04 -053
Page 6
a. Comoss has supervised Eppley for approximately 25 years.
b. The Bureau is responsible for design and construction activities in the state
parks and forests.
(1) Eppley is Chief of the Design Division in the Bureau.
c. Duties and responsibilities of Eppley at DCNR include:
(1) Establishing, coordinating and implementing inspection programs for
state park roads, bridges and dams;
(2) Supervising bridge inspection of vehicular bridges in state parks and
forests.
(3)
Participating in the planning and preparation for complex structural
portions of bridges, retaining walls, ski lifts, marinas and structural
frameworks; and
(4) Ensuring designs meet Bureau standards, signing contracts and
change orders, progress estimates, purchase requisitions, purchase
requests, invoices and other requests or authorizations.
d. Comoss became aware of problems with the Kinzua Bridge, a steel structure
approximately 2000 feet in length and 300 feet high, that carried rail traffic in
a state park.
(1) After DCNR performed a first inspection, a consulting engineering
firm, Herbert, Rowland and Grubic (HRG) was retained to determine
the extent of structural problems.
(A) HRG performed a cursory inspection that revealed major
structural deterioration.
(1) HRG then performed a full inspection of the Kinzua
Bridge.
(B) Eppley was assigned to the Kinzua Bridge project.
(1) Eppley would review the work of HRG.
(C) Due to the condition of the Kinzua Bridge, rail and then
pedestrian traffic were banned.
e. DCNR made the decision to have a contractor perform emergency repair
work to the Kinzua Bridge.
(1) Once the engineering repairs were done, DCNR contemplated
repairing the bridge in its entirety, including the structural steel
members, concrete foundations and paint, followed by a painting of
the structure.
(2) Eppley would be the project manager for the repairs.
(3) Due to the emergency situation, DCNR could bypass the bidding
process so that contractors could immediately work on the bridge.
Eppley, 04 -053
Page 7
(4) DCNR's project coordinator would review the materials and make
recommendations for the materials to be used on the bridge project.
(A) Eppley performed these functions for the Kinzua Bridge
project.
(B) Eppley made a recommendation as to a contractor for the
bridge contract.
(1) Eppley recommended Brode as the contractor.
(5) The initial estimate for repairs of the Kinzua Bridge was $1,000,000,
which escalated to $4,000,000.
f. On October 17, 2002, a meeting occurred among DCNR personnel, HRG
and others concerning the Kinzua Bridge.
(1) The meeting was to implement the emergency repair design -build
phase for the Kinzua Bridge.
(2) George Brode (Brode) of W.M. Brode Company was introduced.
(A) Eppley participated in researching and finding Brode.
(B) Brode was an impressive contractor with a history of doing
good work.
(3) Comoss played no role in the approval of work orders.
g. On the Kinzua Bridge project, the contractor submits a work order for the
previous month that is approved by the inspector (HRG).
(1) DCNR signs off by Eppley as the project manager.
h. Since the lack of paint contributed to the structural problems of the Kinzua
Bridge, DCNR intended to paint the bridge after completion of the project.
(1) Eppley, but not Comoss, was involved in researching a coating or
painting material for the bridge.
(A) Eppley advised Comoss that he found a product, Poly -Nox
from the Thortex Company, for coating the Kinzua Bridge.
Eppley submitted a leave slip to Comoss for the time period 8:00 a.m. on
July 14, 2003 to 4:30 p.m. on July 21, 2003.
(1) The leave slip for 45 hours was submitted on May 13, 2003.
(2) A second leave slip was submitted for July 22, 2003 for an additional
7.5 hours.
(3) Eppley went to the UK
(A) Eppley did not tell Comoss at that time that Raymond Clarke
(Clarke) paid for the trip.
(4) Comoss learned that Clarke /Thortex paid for Eppley's trip to the UK
Eppley, 04 -053
Page 8
J.
k.
only after the Inspector General contacted DCNR.
In the first phase of the Kinzua Bridge project, the emergency contract did
not require normal bidding procedures.
Generally, in a bidding process, the qualified low bidder is awarded the
contract.
Poly -Nox, made by Thortex, was selected as the product to be applied to the
Kinzua Bridge during the first phase of the project.
(1) Since a contractor may requisite a substitute product, subject to
DCNR approval, there was no guarantee that Poly -Nox would have
been used for phase two of the Kinzua Bridge project.
m. Eppley was directly responsible for selecting Brode as the contractor on the
Kinzua Bridge project.
n. Since Poly -Nox was "spec'd" for the initial phase of the Kinzua Bridge
project, it would have been the preferred product for coating as long as it
performed as expected in the emergency phase.
(1) With a "spec'd" product, other bidders would have an opportunity to
show that their product was the same or equal.
(A) If there would be no same or equal product, then the "spec'd"
material would be used.
o. Steve Brode indicated that the drying time for Poly -Nox was severely
hampered by both low temperature and high humidity.
(1) Poly -Nox washed off the bridge structure following its application.
(A) Eppley never advised Comoss of the problems with Poly -Nox.
(B) Eppley never advised Comoss that consideration was being
made to switch the bridge contract to a VOC (volatile organic
compound) base.
(C) Eppley did not advise Comoss about a problem with Thortex's
warranty for Poly -Nox.
p. It would be irregular for a Commonwealth employee who participated in the
selection of a vendor's product to take an all- expense -paid trip provided by
the vendor.
18. Timothy J. Chapham is the Human Resources Director in DCNR.
a. Chapham is responsible for all human resource activities in DCNR, such as,
employee /labor relations, classification, pay, personnel administration, equal
employment and similar matters.
b. DCNR has custody, control and maintenance of SFIs.
c. DCNR has inter alia Eppley's SFI for the calendar year 2003.
(1) Boxes 11 and 12 were checked "None" by Eppley.
Eppley, 04 -053
Page 9
d. In August of 2004, Chapham participated in a pre - disciplinary meeting with
Eppley regarding the non - reporting of the trip he took to the UK
(1) DCNR Deputy Secretaries Dick Sprenkle and Rita Cabin attended.
(2) When Eppley was asked about his trip to the UK, he responded that
initially he did not think it was a problem but later, as time passed,
thought that there was a problem.
Eppley stated that the Thortex contract was awarded "long before" the
trip to the UK.
(4) As to the SFI, Eppley noted initially that the non - disclosure of the trip
was inappropriate but later thought that it was not required because
the business (with Thortex) was done.
Regarding the trip to the UK, Eppley initially turned down the trip,
saying that it did not look right.
(3)
(5)
e. The pre - disciplinary meeting occurred on August 31, 2004 and a decision
was issued on September 3, 2004.
19. Donald Emberg is employed by HRG as Vice - President in charge of transportation
engineering.
a. HRG was requested by DCNR to perform a condition and safety inspection
of the Kinzua Bridge to assess its structural stability and general condition.
(1) As project manager for HRG, Emberg maintained records of meetings
with individuals.
(2) Eppley was the main contact person with DCNR for the Kinzua Bridge
project.
(A) Eppley was the project manager for DCNR.
(B) Eppley was the person to whom Emberg gave information and
requested decisions as to the project.
b. A meeting occurred on October 17, 2002 relating to the Kinzua Bridge after
HRG completed and delivered its inspection report on the Kinzua Bridge to
DCNR.
(1) HRG's report concluded the Kinzua Bridge would become
overstressed and unstable in wind conditions and structural steel
repairs should be done immediately to stabilize and prevent a
collapse.
(2) The report also made near -term and long -term repair
recommendations for the bridge.
(3)
An F -1 tornado hit the bridge in July 2003 and demolished that
portion of the bridge that had yet to be repaired.
(4) At the October 17, 2002 meeting, Brode was selected as the
contractor for the project involving the emergency repairs.
Eppley, 04 -053
Page 10
(A) Because the bridge in part collapsed during the tornado, the
project never proceeded to the near and long term phases.
(5) During the emergency repair stage, a paint or coating was needed
when steel plates were directly bolted to the existing steel structure.
(A) Coating the new steel would prolong the life of the repairs.
(6) Poly -Nox was identified as a potential coating by Eppley and DCNR.
(A) Representatives for Poly -Nox came to the Kinzua Bridge site
to make a presentation on Thortex's product.
(1) The two representatives of Thortex, Bill Yohe and Bob
Foster, made the presentation at the request of Eppley.
(2) Poly -Nox was presented as having zero VOC's.
(3) Poly -Nox was touted as being able to be applied in cold
temperatures down to 15 degrees.
(4) Poly -Nox would be offered with a ten year warranty by
Thortex.
(B) Eppley concluded that Poly -Nox was the product to be used
under the repair plates.
c. A meeting on the Kinzua Bridge project occurred on April 2, 2003.
(1) Brode stated that the drying time for Poly -Nox is severely hampered
by low temperature or high humidity.
(A) During such conditions, Poly -Nox washed off of the bridge
structure.
d. On April 14, 2003 another status meeting for the bridge project occurred.
(1) Brode recommended to DCNR that it obtain a copy of the warranty
language for Poly -Nox.
e. At an April 22, 2003 meeting on the bridge project, the low temperature /high
humidity limitations of Poly -Nox were considered by Brode as requiring a
shut down of operations between November through February.
(1) This was an unanticipated condition when the coating system was
evaluated.
(2) Brode indicated that consideration was being given to a VOC based
paint for winter use to avoid a winter shut down of operations.
f. At a June 17, 2003 project meeting, Bill Yohe stated that Thortex would
provide a ten year warranty only after the entire bridge would be painted.
(1) Emberg concluded that Thortex was not living up to its warranty
promise.
Eppley, 04 -053
Page 11
g.
At the March 19, 2003 bridge project status meeting, no representatives from
other manufacturers appeared or received invitations.
h. In that the Kinzua Bridge project was an emergency contract, there was not a
total cost set for the project.
J.
On work orders for the bridge project, "paint" references referred exclusively
to Poly -Nox.
(1) Brode submitted a bill for Poly -Nox to the Commonwealth in the
amount of $18,682.50.
(A) For signature approvals as to the bill, Brode signed as the
contractor, Lee Rowles signed for Raudenbush and Eppley
signed for DCNR.
When Emberg appeared at the March 19, 2003 meeting, he had a report
with four alternative products for the coating of the bridge.
(1) Brode also appeared with specification sheets from different paint
manufacturers.
(2) The performance of the alternate products did not meet the cold
weather performance that was represented as to Poly -Nox.
k. At the end of the March 19, 2003 meeting, Eppley decided that Poly -Nox
would be used on the Kinzua Bridge project.
20. Sharon L. Enders was the secretary of Eppley in DCNR during the relevant time
period.
a. Eppley told Enders, approximately one month in advance, that he would be
taking a trip to the UK
b. Enders saw information that Eppley's trip to the UK emanated from Thortex.
c. Eppley was in charge of the Kinzua Bridge repair project.
d. Enders contacted Eppley near the end of his UK trip to inform him that the
Kinzua Bridge fell down after being hit by a tornado.
21. Robert Caruso is the Director of Investigations and Deputy Executive Director of the
State Ethics Commission.
a. The preliminary inquiry in the Eppley case was initiated on October 15, 2004
with assigned case number 04 -053.
b. The Eppley case was referred to the SEC by the Office of General Counsel
through the Inspector General.
c. The Executive Director of this Commission authorized the institution of a full
investigation on December 10, 2004.
(1) Eppley was notified of the commencement of the investigation on
December 10, 2004 by certified mail with return receipt.
d. Eppley was advised of an amended notice of investigation on December 1,
Eppley, 04 -053
Page 12
2005.
(1) The allegations remained the same.
(2) The amended notice reflected that the same conduct was being
reviewed but under Section 1105(b)(7) of the Ethics Act.
e. The Investigative Division requested a 90 -day extension that was granted by
the State Ethics Commission on June 6, 2005.
(1) A second 90 -day extension was requested by the Investigative
Division and granted by this Commission on August 22, 2005.
f. 90 -day notice letters were sent to both the Respondent and Complainant in
the case.
22. Raymond Clarke is the President of Thortex America, Inc.
a. Clarke testified that William Yohe is currently the President of one of
Clarke's contracting companies, Repair & Protection Technologies, Inc.
(1) During the relevant time period, Yohe was sales director at Thortex.
b. Clarke stated that Eppley and he have a friendship.
(1) Clarke and Eppley have never been to each other's residences.
(2) Clarke met Eppley's spouse for the first time during the UK trip.
(3) Clarke does not know if Eppley has children.
c. Clarke was not involved in the presentation of Poly -Nox that was selected for
the Kinzua Bridge project.
d. Clarke knew that Eppley was involved in the Kinzua Bridge project.
e. In 2003, Clarke contacted Eppley about going with a group of people to a trip
to the UK.
f. Every year Clarke takes a group of 16 people to the UK for the British Open
Golf Tournament.
(1) The trips are planned a year in advance.
g. Clarke testified that when a friend /client backed out of the 2003 UK trip, he
looked for a replacement since he already paid for the trip.
(1) Clarke stated that Eppley was one of the individuals considered as a
replacement.
(2) After Eppley was offered two seats for the UK trip, Eppley considered
and accepted Clarke's offer.
(A) Eppley's spouse accompanied him on the UK trip.
h. Thortex sold a quantity of Poly -Nox to Brode for the Kinzua Bridge project.
Eppley, 04 -053
Page 13
(1) Of a total invoice price of $14,008.64, $13,500 was for Poly -Nox and
$508.64 was for freight.
(A) The order was placed on March 20, 2003.
The UK trip was a golf outing for the men and sight seeing trip for the
women.
J.
(1) Others on the trip included William Yohe of Thortex; Bill (and Diane)
York, a project manager; Frederick (and Rebecca) McBrien, Clarke's
attorney; Joseph (and Susan) Lowe, Clarke's accountant; Peter
Bruckle, a New York associate of Clark; and Zack (and Kristen)
Mendelson, who assist Clarke in obtaining bonds for bridge projects.
(2) The trip was scheduled for July 14 to July 21, 2003.
(3) UK trip charges were made against Clarke's corporate American
Express card.
In that Thortex supplied Poly -Nox for the emergency work on the Kinzua
Bridge, Clarke anticipated supplying the product for the entire bridge.
k. Clarke had many conversations with Eppley about the Kinzua Bridge after it
fell down due to the tornado.
(1) Part of the conversation concerned Clarke's loss of an opportunity for
the whole Kinzua Bridge project.
I. Eppley was not invited by Clarke on prior or subsequent trips vis -a -vis the
time frame of the Kinzua Bridge project.
m. While on the UK trip in July of 2003, there was no visit to the Thortex plant.
n. Thortex did not sell Poly -Nox directly to the Commonwealth of Pennsylvania.
o. Clarke testified that friendship was the motivation in inviting Eppley to the UK
trip.
p. The UK trip was paid on Clarke's American Express card, which is in the
name of one of his companies.
q. The air fare for Eppley and his spouse was $757.80 individually.
23. William Yohe is employed by Repair & Protection Technologies, Inc.
a. In 2003, Yohe was technical director /national sales manager of Thortex.
b. Bob Foster, an independent sales representative, asked Yohe if he had a
coating that met the parameters for the Kinzua Bridge project.
(1) Yohe met with Eppley in December of 2002 to discuss Poly -Nox.
(A) Only Thortex products were discussed.
(B) A presentation was arranged at the bridge site in early 2003.
(i) Yohe and Foster made presentations.
Eppley, 04 -053
Page 14
c. Yohe and Clarke had a discussion in May of 2003, after Medford Crawford
dropped out of the UK trip, about a substitute.
(1) Clarke asked Yohe to check his customer list for a replacement.
(A) At some point, Eppley was considered.
d. Yohe went on the UK trip with Clarke, Eppley and the others.
e. Eppley's name came up for the UK trip after Thortex sold two skids of Poly -
Nox to Brode.
f. Eppley's name came up for the UK trip because Thortex was doing the
Kinzua Bridge project.
g. The UK trip was to end on a Monday but due to problems, a flight was not
obtained until Tuesday.
h. The UK trip was a means to strengthen relationships.
Yohe stated that the inroads that came out of the Kinzua Bridge project were
with persons like Brode, Emberg and HRC.
j. When dealing with situations that could impact Thortex sales, trips to the UK
keep the "doors open" for product sales.
24. George Brode is the President of WM Brode Company.
a. Brode is basically a railroad bridge and repair contractor.
b. Brode's partner was contacted by Eppley /DCNR regarding a project for the
Kinzua Bridge.
(1) After a meeting was held in Bradford, Brode was selected to
participate in the Kinzua Bridge project.
c. A partial renovation of the Kinzua Bridge in terms of emergency repairs was
planned.
d. Brode participated in the review process regarding coating materials for the
Kinzua Bridge project.
(1) Yohe and Foster made presentations at a March 19, 2000 meeting on
Poly -Nox, including a ten -year warranty.
(2) Eppley decided to use Poly -Nox.
(3) Poly -Nox was presented as being able to be applied in temperatures
as low as 15° and as being non -VOC.
e. Poly -Nox was purchased from Thortex for a delivered price of $14,233.64.
(1) Brode obtained reimbursement of the Poly -Nox purchase from the
Commonwealth of Pennsylvania.
(2) Drying time for Poly -Nox was hampered by low temperature or high
Eppley, 04 -053
Page 15
(3)
humidity.
The limitations of Poly -Nox could have delayed or stopped work on
the bridge project from November through February.
(4) The ten -year warranty had not been received from Thortex.
f. Brode had proposed the use of Rust -Oleum for the Kinzua project.
g. The decision to use Poly -Nox was influenced by the presentation of the
Thortex people.
(1) The final decision to use Poly -Nox was made by Eppley.
25. Dawn DeSimone is a Special Investigator 11 in the Office of Inspector General.
a. The Office of Inspector General reviewed an allegation against Eppley
concerning alleged employee misconduct vis -a -vis a trip to the UK in
violation of the Governor's Code of Conduct.
b. Eppley admitted that he went to the UK at the expense of Clarke, the owner
of Thortex.
(1) The trip was to be for pleasure and business with a tour of the
Thortex plant.
(A) No tour of the plant occurred.
c. Eppley admitted that he made the decision to use the Thortex product on the
Kinzua Bridge project.
d. All costs associated with the UK trip for Eppley and his spouse were paid by
Clarke.
e. Eppley admitted that he didn't think it [taking the UK trip] looked good." NT
390.
26. Daniel Cali is a Special Investigator with the State Ethics Commission.
a. Cali was assigned the Eppley investigation.
b. Cali and his supervisor, Dan Bender, interviewed Eppley on December 1,
2005.
(1) The interview was tape recorded with the consent of Eppley who was
administered an oath or affirmation.
(2) Eppley admitted that he made the decision to use Thortex's product.
(3) No other companies had representatives to present coating products
because Eppley did not invite them.
(4) Eppley characterized his trip to the UK as an educational trip.
27. Robert E. Foster for the relevant time period was independently associated with
Thortex inter alia as to consultation and sales.
Eppley, 04 -053
Page 16
a. Foster's work entailed the specification and sale of materials and bid work
for contractual application of materials.
b. Foster along with Bill Yohe went to the Kinzua Bridge to assess the situation.
(1) Brode and his son were the general contractors for the project.
c. Foster had a relationship with Eppley who would direct Foster to Eppley's
subordinates about specific projects and applications.
d. Since Foster did not have familiarity with Poly -Nox, he suggested to Eppley
that Yohe was experienced and knowledgeable about the product.
(1) Poly -Nox was touted as environmentally friendly with no VOC's, and
with a flexible application even in low temperatures.
(2) Eppley, Foster and Yohe had meetings about the possible use of
Poly -Nox on the Kinzua Bridge project.
e. Yohe and Foster made a presentation for Poly -Nox on the Kinzua Bridge
project at a meeting held on March 19, 2003.
(1) Brode and Emberg asked questions about Poly -Nox.
f. Although Foster during the relevant time period was an independent
contractor as to Thortex, he received sales commissions.
g.
At the meeting where a presentation was made on Poly -Nox, the matter of a
ten -year warranty for Poly -Nox was proffered.
h. Foster had conversations with Brode who raised concerns about the low
temperature and high humidity limitations of applying Poly -Nox.
28. Eppley is employed by DCNR as the Division Chief of Engineering with Facility
Design and Construction.
a. In 2000, Eppley and representatives of HRG went up on the rigging of the
Kinzua Bridge and found that the structure was not adequate.
(1) DCNR had a meeting with HRG where it was determined that
emergency repairs were needed to stabilize the Kinzua Bridge.
(A) Legal counsel for DCNR approved an emergency design -build
contract for the Kinzua Bridge.
b. Eppley contacted Foster and told him that he (Eppley) was looking for a
product that the contractor for the Kinzua Bridge project could use as a
coating.
c. Eppley was interested in Poly -Nox because it purportedly could be applied in
low temperature without having to sand blast the surface before application.
d. The March 19, 2003 meeting on the Kinzua Bridge was for finding products
and sharing information.
e. Ray Clarke of Thortex invited Eppley to the U K trip in approximately April of
2003.
Eppley, 04 -053
Page 17
(1) Eppley testified that he declined the first invitation but accepted when
Clarke invited him the second time.
f. Eppley testified that the UK trip was paid by Repair Protection Technologies
(RPT), the company of Bill Yohe.
1. As to the payment for the UK trip, Eppley testified that he did not
recall Clarke stating that he (Clark) paid for the trip.
2. When Eppley viewed a Department of State printout that reflected
Clarke as President of RPT, Eppley admitted that the document
showed no connection between Yohe and RPT.
g.
Eppley listed the UK trip as a gift having a value of $3,000 on the Governor's
Code of Conduct after he was first interviewed by the Office of Inspector
General.
h. Eppley testified that he viewed the UK trip as educational because he did
not golf and toured various sites in the UK.
J.
(1) In the pleadings, Eppley admitted that his disclosure of the UK trip as
educational was a false statement.
Eppley stated that he listed the amount of $3,000 in the Governor's Code of
Conduct based upon his guess as to the value of the UK trip.
When Eppley accepted the UK trip, he testified that he did not know if a tour
of the Thortex plant was part of the itinerary.
(1) After the UK trip, when Eppley was interviewed by the Office of
Inspector General, he (Eppley) stated that there was a plan to visit
the Thortex plant on the UK trip, even though there was no such plan.
k. In the time context of April -May, 2003, Eppley accepted Clarke's invitation
for the UK trip while Brode's minutes, of which copies were supplied to
Eppley, reflect that Brode complained about the drying time of Poly -Nox that
was washing off of the Kinzua Bridge.
(1) Brode's concerns about the Thortex warranty on Poly -Nox and a
potential winter shut down due to the low temperatures /high humidity
issue with Poly -Nox were also made in this time frame.
(2) About three weeks after Eppley is listed as a guest on the UK
itinerary, discussions occurred about switching the Kinzua Bridge
coating to a VOC based product by DCNR.
(A) Eppley testified that he would not do anything unless the
design -build team could not solve the problem.
The coating for the Kinzua Bridge was switched from VOC Poly -Nox to a
Poly -Nox VOC based coating approximately one week before Eppley went
on the UK trip with Clarke of Thortex, the manufacturer of Poly -Nox.
m. Clarke never offered Eppley trips, lodging or formal gifts either before or
Eppley, 04 -053
Page 18
after the Kinzua Bridge project.
C. OTHER FACT FINDINGS
29. Eppley, as the Design Division Chief, Senior Civil Engineer Manager, in DCNR had
an affirmative duty as the Project Manager for the Kinzua Bridge repairs to ensure
that the repairs to the bridge would be completed expeditiously without delays and
in a good and workmanlike manner with long lasting results.
a. Project Manager Eppley made decisions not to intercede as to the Kinzua
Bridge project even though he was apprised of the following problems with
Poly -Nox: application problems in low temperatures; application problems in
high humidity; Poly -Nox washing off after applied to bridge repair parts;
promised 10 year warranty of Poly -Nox not provided; potential winter shut
down of repair work due to problems with Poly -Nox; and a switch from Poly -
Nox to a VOC Thortex product that would have environmental concerns.
(1) Such actions by Eppley occurred during the time when he was offered
and accepted the UK trip and thereafter, up to the actual time of the
UK trip.
30. Eppley is not credible.
a. Eppley was evasive and non - responsive to certain questioning during cross -
examination. See, Fact Finding 28; NT 531 -567.
b. Eppley made statements before different governmental bodies including this
Commission where the statements were contradictory/inconsistent, including
but not limited to: the nature of the UK trip as business, educational or
pleasure; the payor of the trip as Clarke of Thortex or Yohe of RPT; the visit
or not to a Thortex plant while on the UK trip; the propriety of taking the UK
trip; and the non - reporting of the UK trip on the SFI.
c. Several responses by Eppley to questions posed to him were non - plausible.
See, Fact Finding 28.
d. Eppley has made inconsistent /contradictory assertions. See, Fact Findings
18, 25, 26, 28.
e. Eppley has admitted to making a false statement about his conduct in the
context of this case. See, Fact Finding 15.
D. DOCUMENTS
31. ID1 is a photocopy of a memo dated October 15, 2004 of John J. Contino,
Executive Director authorizing a preliminary inquiry as to Eppley.
32. 1D2 is a photocopy of a memo dated December 10, 2004 of John J. Contino,
Executive Director authorizing a full investigation of Eppley, docket number 04 -053.
33. 1D3 is a photocopy of a letter of John J. Contino, Executive Director dated
December 10, 2004 giving Eppley notice of the commencement of the investigation
with delineated allegations sent first class certified receipt U.S. mail.
34. 1D4 is a photocopy of a letter of John J. Contino, Executive Director dated
December 1, 2005 giving Eppley amended notice of the commencement of the
investigation with delineated allegations sent first class certified receipt U.S. mail.
Eppley, 04 -053
Page 19
35. 1D6 is a photocopy of an Order of the State Ethics Commission issued on June 6,
2005 granting a 90 day extension as to the investigation of Eppley, 04 -053.
36. 1D7 is a photocopy of an Order of the State Ethics Commission issued on August
22, 2005 granting a second 90 day extension as to the investigation of Eppley, 04-
053.
37. 1D8 are photographs of 90 day status letters as to the investigation of Eppley, 04-
053.
38. The Investigative Division complied with the statutory time requirements of the
Ethics Act as to completion of the preliminary inquiry, investigation, notices and
issuance of the Investigative Complaint.
39. 1D9 is a photocopy of a job description of Eppley as a Senior Civil Engineer
Manager in DCNR.
a. Eppley has in part the following duties and responsibilities: manage the
Bureau's design effort, establish design standards and manage the Bureau's
design consultants; manage the activities and programs of the Design
Division; develop division programs and assignments with consultation;
establish, coordinate and implement inspection programs; supervise bridge
inspection of vehicular bridges; supervise the forestry bridge program;
supervise staff engineers; supervise drafting personnel; ensure the
completion and processing of permits; participate in the preparation of plans
and specifications for structural portions of bridges; handle
administrative /personnel matters; provide expert witness testimony; evaluate
educational training needs and courses; ensure that designs meet Bureau
standards; and sign various contract and related documents.
40. ID10 consists of photocopies of Eppley's SFIs for the calendar years 1999 through
2003.
a. The 2003 calendar year SFI was signed and dated by Eppley on April 28,
2004.
(1) Eppley listed DCNR as a source of income in block 10.
(2) Eppley listed "Surveying" with the position of "owner" in block 13 for
Office, Directorship or Employment in any Business.
(3) Eppley checked "None" for all other blocks of financial interests.
41. ID11 is a photocopy of invoices for the UK trip billed to Ray Clarke of Thortex
America.
a. The bill for eight passengers with tickets for two days at the British Open
totaled $9,768.
b. The total for eight passengers without golf tickets totaled $8,288, or $2,072
per couple.
c. Roundtrip tickets for the UK trip from Philadelphia to London and return
totaled $6,062.40 based upon a per passenger faire of $757.80. cf ID15.
(1) The faire per couple was $1,515.60.
Investigative
Division
Exhibit 18
Page No.
Estimate #
Estimate Period
from Date to Date
Eppley
Signature
Date of Eppley's
Signature
2
0014 Final
11/16/03- 11/30/03
Yes
12/10/03
10
0013
10/16/06 - 10/31/03
Yes
11/10/03
13
0012
10/01/03 - 10/15/03
Yes
10/27/03
16
0011
9/16/03 - 9/30/03
Yes
10/20/03
18
010
9/1/03 - 9/15/03
Yes
9/22/03
21
010
9/1/03 - 9/15/03
Yes
9/22/03
25
009
8/16/03 - 8/31/03
Yes
9/11/03
30
008
8/1/03 - 8/15/03
Yes
8/20/03
37
007
7/1/03 - 7/15/03
Yes
8/3/03
42
006
6/16/03 - 6/30/03
Yes
7/11/03
43
006
6/16/03 - 6/30/03
Yes
7/8/03
44
006
6/16/03 - 6/30/03
Yes
7/8/03
47
005
6/1/03 - 6/15/03
Yes
6/26/03
52
004
5/16/03 - 5/31/03
56
003
5/1/03 - 5/15/03
61
002
4/16/03 - 4/30/03
Yes
5/15/03
Eppley, 04 -053
Page 20
d. Roundtrip tickets for the UK trip from New York to London and back totaled
$2,112.90 based upon a per passenger faire of $704.30.
e. Eppley and his spouse were on the round trip flight out of Philadelphia.
42. 1D12 is a photocopy of a National Rental Car receipt for the rental of a vehicle on
July 23, 2003 from Logan International Airport in Boston to Philadelphia.
a. The fee for the rental car was $190.02.
(1) Half the fee was $95.01.
43. ID13 consists of two annual leave slips of Eppley from DCNR covering the dates
July 14, 2003 to July 21, 2003 and for July 22, 2003.
44. 1D16 consists of a bill for the stay of Eppley and his spouse at the Manor House
during the UK trip in the total amount of £736.90 ($1,167.81).
45. 1D17 consists of photocopies of sales slips and invoices as to Poly -Nox from
Thortex America, Inc. used on the Kinzua Bridge project.
a. The total cost of the Poly -Nox for the emergency phase of the bridge project
was $14,233.64.
46. ID18 consists of photocopies of DCNR estimated progress reports for the Kinzua
Bridge project.
a. The reports contain estimates /payments of the contractor Brode.
b. A representative from HRC and usually Eppley for DCNR signed off on the
reports.
47. Eppley took the following actions as to DCNR Estimated Progress Report -Lump
Sum regarding Agreement No. FDC 128 -2911, Project No. 0303 as to the Kinzua
Bridge project where the description included Paint (Poly -Nox) at a listed fee of
$18,980.63.
67
001
3/16/03 - 4/15/03
Yes
5/6/03
74
002
4/16/03 - 4/30/03
75
012
4/15/03 - 4/30/03
76
002
4/15/03 - 4/30/03
77
012
4/15/03 - 4/30/03
78
002
4/1/03 - 4/15/03
Yes
4/18/03
79
001
3/16/03 - 3/31/03
Yes
4/9/03
Eppley, 04 -053
Page 21
48. ID19 consists of photocopies of a series of minutes prepared by Brian D. Emberg of
HRG for the Kinzua Bridge project.
a. The minutes of the meeting on March 19, 2003 (ID19, pp 22 -24)
reflect the following partial statements as to coating systems:
At the request of Jim Eppley, Bill Yohe and Bob Foster made a
presentation on a potential coating product that would be utilized to
coat areas between existing steel and new repair plates, angles, and
lacing bars. Mr. Yohe presented an overview of the product called
"Poly -Nox" and reported that the product has a 15 year history and
was originally designed for flexible structures, primarily support
cables of suspension bridges. The product was reformulated in the
mid 1990's and has zero VOCs and excellent flexibility. Mr. Yohe
reported that Thortex America, Inc. had a corrosion engineer on site
on March 18 to review the conditions and identified that the proposed
application is ideal for the entire bridge, as well as the plate repairs,
provided that the application of the repair coating conformed to the
installation and application procedures identified by Thortex America,
Inc.
If the final installation procedures are followed, Thortex America, Inc.
will warranty that the system will arrest the existing corrosion for
coated areas for a 10 -year period.
The area of concern for the limited warranty is the leading edge of the
coating where uncoated existing corrosion will begin to creep beneath
the leading edge of the coated surfaces. If the bridge is completely
painted in the future, a new warranty will be issued which will cover
the repaired areas. The corroded areas beneath the repair plates will
also be subject to the 10 -year warranty; but, if the leading edge of the
coatings are maintained or painted in the future, the areas beneath
the plates should continue to arrest existing corrosion.
The application specification also addressed the need for cold
weather application in which the product could be applied at
temperatures as low as 15° Fahrenheit with proper coating
preheating.
Id. 19, pp. 22 -23.
b. The minutes of the meeting on April 2, 2003 provide in part as to the
coating system for the Kinzua Bridge:
Steven Brode identified that the drying time of the Poly -Nox product is
severely hampered by low temperature /high humidity. These
conditions occurred during the early part of this work week and, as a
result, the recently applied paint system literally washed off the
Eppley, 04 -053
Page 22
Id. 19, p. 26.
c. The minutes of the April 14, 2003 meeting provide in part as to the
Kinzua Bridge project coating system:
W.M. Brode recommended that DCNR should request a copy of
warranty language from Poly -Nox to verify the extent of the warranty
promised for the project.
Id. 19, p. 33.
d. The minutes of the meeting on April 22, 2003 provide as to the
coating system for the Kinzua Bridge repair project:
Due to the low temperature /high humidity limitations of paint
application, Steve Brode speculated that November through February
will not be practical to paint and may delay the work during the winter,
possibly requiring a winter shutdown.
Id. 19, p. 29.
e. The minutes of the May 29, 2003 meeting provide in part as to the
project coating system:
W.M. Brode recommended that DCNR should request a copy of
warranty language from Poly -Nox to verify the extent of the warranty
promised for the project.
Id. 19, p. 37.
f. The meeting minutes of July 3, 2003 note in part as to the bridge
project:
"Potential for winter shut downs [sic] due to paint complications."
Id. 19, p. 44.
g.
structure. Attention to environmental conditions will be necessary
during late winter /early spring and late fall /early winter conditions.
Steve Brode reported that DCNR is investigating the possible use of a
VOC based system for use during winter months that is not as
temperature sensitive to avoid a winter shutdown. DCNR is currently
evaluating the system information submitted by Poly -Nox.
The July 8, 2003 meeting minutes contain the following
commentary as to the Kinzua Bridge repair project:
Steve Brode presented a technical sheet on a new paint product to be
considered for wintertime work. The Thortex Product — "Polynox -WG"
can be applied in temperatures down to 0 degrees Fahrenheit but has
a 24 -hour initial set time and is water soluble. Additional concerns
include flammability, VOC precautions, and environmental impacts.
Steve Brode will contact Bill Yohe to investigate more details
regarding Flammability precautions, Cure Time, Water Solubility in
Eppley, 04 -053
Page 23
Cold weather, Protective equipment (respirators, gloves, etc.) Brian
Emberg will investigate environmental precautions. Also Brian
Emberg will draft a modified paint application procedure for
submission to Thortex for approval that permits drilling through
painted existing steel.
Id. 19, p. 46
h. The July 29, 2003 minutes indicate a class F1 tornado hit the Kinzua
Bridge on July 21, 2003 resulting in the collapse of a large portion of
the structure.
49. 1D21 is a demonstrative chart reflecting a calculation by the Investigative Division of
the costs that Clarke of Thortex America, Inc. expended on Eppley and his spouse
for the UK trip.
a. The calculation of the Investigative Division totals $4,850.32 as follows:
Airline Tickets: $1,515.50*
*This figure is incorrect and should be $1,515.60. See, Fact Finding 41 c.
Expenses at Manor House Hotel: $1,167.81
Expenses for British Open and
Lodging at Manor Tudor
Country Park Hotel $2,072.00
1/2 car rental expense from
Boston to Philadelphia $ 95.01
50. 1D24 is a printout of the U.S. Federal Reserve Bank of New York.
a. The conversion rate for U.S. dollars to UK pounds on July 18, 2003 was
1.5867.
51. 1D25 is a printout from the Pennsylvania Department of State.
a. Repair and Protection Technologies, Inc. is a Pennsylvania Business
Corporation.
(1) The filing date was March 11, 1997.
(2) Raymond Clarke is the President.
52. The expenses paid by Clarke of Thortex for Eppley and his spouse for the UK trip
totaled $4,850.42 ($1,515.60 + $2,072 + $1,167.81 + $95.01). See, Fact Findings
41, 42, 44.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, James A. Eppley, hereinafter
Eppley, 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."
Eppley, 04 -053
Page 24
The allegations are that Eppley, as Senior Civil Engineer Managerforthe Bureau of
Facility, Design & Construction for the Department of Conservation & Natural Resources
( "DCNR ") violated Sections 1103(a) and 1105(b) of the Ethics Act when he accepted an
all expense paid trip to the United Kingdom (UK) from Thortex America, Inc. after he
recommended that its product be used for a bridge repair project, and when he failed to
disclose on a Statement of Financial Interest (SFI) filed for the 2003 calendar year the
receipt of the trip to the UK as either a gift or as payment or reimbursement for
transportation, lodging or hospitality.
Pursuant to Section 1103(a) of the Ethics Act quoted above, 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. 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.
(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.
Eppley, 04 -053
Page 25
(7) The name and address of the source and 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 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. 65 Pa.C.S. §1105(b).
Section 1105(b)(6) of the Ethics Act quoted above 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 $250 or more and the circumstances of each
gift.
Section 1105(b)(7) of the Ethics Act requires the filer to list the name and address of
the source and the amount of any payment for or reimbursement of actual expenses for
transportation /lodging /hospitality received in connection with public office or employment
where such actual expenses exceed $650 in the course of a single occurrence. This
disclosure requirement excludes expenses reimbursed by a governmental body or by an
organization or association of public officials or employees of political subdivisions which
the public official or employee serves in an official capacity.
facts.
Having noted the issues and applicable law, we shall now summarize the relevant
Eppley has been an employee of the Commonwealth since July of 1973 and a
Senior Civil Engineer in the Design Engineering Division in the Bureau of Facility and
Design Construction of DCNR since 1991. Eppley has duties and responsibilities in his
position that include but are not limited to the following: manage the Bureau's design
effort; establish design standards; manage the Bureau's design consultants; manage the
activities and programs of the Division; coordinate, implement and supervise inspection
activities; supervise staff, engineers and other personnel; complete and process permits;
and participate in the preparation of plans, specifications and the administration of DCNR
projects.
In the Fall of 2002, DCNR personnel became aware of a stability problem with the
Kinzua Bridge that is located in a State Park within the Commonwealth. DCNR personnel,
including Eppley, performed a cursory inspection of the Kinzua Bridge. DCNR retained the
engineering firm of Herbert, Rowland & Grubic (HRG) to do a detailed inspection of the
Kinzua Bridge. The inspections revealed that the Kinzua Bridge was in a deteriorated
state to the point that it was unstable and subject to collapse in high wind situations. As a
result, train traffic was initially barred from the bridge and then pedestrian traffic as well,
thereby closing the bridge.
Due to the precarious state of the Kinzua Bridge, it was determined that there
should be a two phase process for repairs: in the first phase, emergency repairs would be
made to stabilize the structure and in the second phase, repairs would be made to the
whole structure followed by its painting. Since the initial repairs to stabilize the bridge had
to be made immediately, emergency repairs were authorized by DCNR, thereby eliminating
the time consuming bid process.
The company of W.M. Brode Company was selected to be the general contractor in
that it had good qualifications and experience in the area of maintenance, repairs and the
Eppley, 04 -053
Page 26
replacement of all types of railroad structures. A sole source contract between DCNR and
Brode was executed on February 4, 2003 as to the performance of the emergency repairs
on the Kinzua Bridge. Although Eppley was not involved in the signing of the contract, he
was designated by DCNR as the project manager.
After Eppley learned that various steel plates and other repair pieces would be
added to the bridge for stabilization, the concern existed that there should be some type of
coating on the steel plates to inhibit rusting from contact with the existing structure. To
that end, Eppley contacted Bob Foster who was an independent consultant and sales
representative of Thortex Corporation. Foster told Eppley that Thortex had a product
called Poly -Nox and that Eppley should meet with Bill Yohe, an employee of Thortex, who
could provide Eppley with more information. Eppley met with Yohe to tour a New York job
site where Poly -Nox was used.
When a Kinzua Bridge status meeting was held on March 19, 2003, personnel from
Brode, HRG and DCNR attended. Eppley invited Bill Yohe and Bob Foster of Thortex to
make a Poly -Nox presentation at that meeting. Eppley did not invite representatives from
any other competing companies. The representatives of Thortex portrayed Poly -Nox as an
environmentally friendly metal coating that could be applied in low temperatures down to
15 °. The Thortex representatives also stated that Poly -Nox would have a 10 year
warranty. Following the presentation by the Thortex representatives, Eppley solely made
the decision to utilize Poly -Nox for the emergency repairs on the Kinzua Bridge.
Brode then made a purchase of Poly -Nox for the emergency repair stage of the
project. The delivery price of the Poly -Nox from Thortex to the bridge site was $14,008.64.
Although that comprised the purchase of Poly -Nox for the emergency repair stage of the
project, there was an expectation that Poly -Nox would be used for Phase 2, provided that
there were no problems with its usage during Phase 1. See, Fact Finding 17n. However,
problems arose with the application of the Poly -Nox during the emergency phase:
application problems in low temperature, application problems in high humidity, adherence
problems in washing off the bridge after application, no provision of the promised 10 year
warranty, potential of a winter shutdown due to application problems of Poly -Nox and a
switch to a VOC Thortex product that would have environmental concerns. The foregoing
problems with Poly -Nox were conveyed to Eppley as project manager for the Kinzua
Bridge project. However, Eppley took no action to deal with the various problems
associated with Poly -Nox.
During the pendency of the problems with Poly -Nox, Eppley received an invitation
from the President of Thortex, Raymond Clarke, for an all expense paid trip to the UK for
Eppley and his spouse. The initial invitation was made in the early part of April 2003 with
the actual trip scheduled for July 14 through July 21, 2003. Parenthetically, due to flight
problems, the trip extended into July 22, 2003. Ostensibly, the trip offer was made from
Clarke to Eppley on the basis of their friendship. However, the record reflects that the
typical indicia of a friendship did not exist in this case, that is, Eppley and Clarke never
went to each other's homes, did not meet their spouses until the trip, did not know about
each other's families, and had no prior (or past) history of gift giving.
As to the UK trip itself, Eppley provided different statements as to the circumstances
of the trip. For example, Eppley on different occasions characterized the trip as
educational, for pleasure or for business. At one point according to Eppley, the trip was to
include a tour of the Thortex plant; at another point there was not to be any tour. Eppley
was inconsistent as to why he did not disclose the trip on the Governor's Code of Conduct
financial disclosure form or the SFI. Similarly, Eppley was not consistent as to his
explanations as to the propriety of taking such a trip offered by Thortex, given his decision
to utilize the Thortex product, Poly -Nox, at the Kinzua Bridge site, and the numerous
problems associated with Poly -Nox as to the bridge repair project. The inconsistencies of
Eppley went so far as Eppley providing contrary statements as to who provided the UK trip:
Eppley, 04 -053
Page 27
Clarke of Thortex or Yohe of Repair Protection Technologies (RPT). Although Eppley
testified that RPT was Yohe's company, records of the Department of State establishes
that Clarke is also the President of that company.
As to the UK trip itself, Clarke of Thortex took a group of couples to the UK trip with
an itinerary of the men playing golf and the women going on sight seeing trips in the UK.
As noted, there was no tour of a Thortex plant. The air travel for Eppley and his spouse,
as well as the lodging, meals and all expenses for the trip were paid by Clarke of Thortex.
While Eppley was on the UK trip, a tornado occurred on July 21, 2003. The portion of the
Kinzua Bridge that had not been reinforced collapsed due to the tornado. Given such
circumstances, DCNR did not go any further with the Kinzua Bridge repair project. Eppley
filed his SFI for the calendar year 2003 on April 28, 2004. Eppley listed DCNR as a source
of income and surveying /owner for Office, Directorship or Employment in any Business.
Eppley checked "none" for all other blocks of financial interest. See, Fact Finding 40.
At a subsequent point in time, the Inspector General reviewed Eppley's conduct as
to taking the all expense paid trip to the UK by Thortex vis -a -vis Eppley's position as
project manager for the Kinzua Bridge project where the Thortex product Poly -Nox was
utilized. Following a pre - disciplinary meeting in DCNR in August 2004, a decision was
issued on September 3, 2004.
The Investigative Division filed a Closing Statement raising the following:
• Eppley, as DCNR's project manager for the Kinzua Bridge renovation
project, supervised the conduct of all work on the bridge.
• For the emergency repair phase of the Kinzua Bridge project, Eppley had the
responsibility to review and select the contractors and materials for the
project.
• Eppley only invited representatives of Thortex, the manufacturer of Poly -
Nox, to a Kinzua Bridge project team meeting regarding the coating for the
bridge.
• Eppley made the decision to use Poly -Nox on the Kinzua Bridge project.
• The application of Poly -Nox to the Kinzua Bridge presented problems as to
adherence, temperature sensitivity and humidity.
• The use of Poly -Nox on the Kinzua Bridge project coincided with the offer of
an all expense paid trip to the United Kingdom (UK) by Ray Clarke and Bill
Yohe of Thortex America, Inc. to Eppley and his spouse.
• Eppley never advised his supervisor that Thortex, the company he selected
to supply the coating material for the Kinzua Bridge project, paid $4,850.32
[sic] for his and his spouse's trip to the UK.
• Eppley accepted the UK trip from Thortex at the time when the Kinzua Bridge
project team experienced problems with using Poly -Nox on the bridge.
• Eppley used his DCNR position to obtain the UK trip and failed to disclose
the trip, reflecting deliberative and intentional conduct on his part.
• Eppley's receipt of the paid UK trip constituted a private pecuniary benefit.
• Pecuniary benefits include labor, service, gifts that can be estimated or
valued in money.
Eppley, 04 -053
Page 28
• Use of authority of office constitutes some action by a public official that
facilitates in some fashion the receipt of a financial gain.
• The duties, powers and responsibilities performed by Eppley as a Senior
Civil Engineer Manager in DCNR constituted uses of authority of office.
• Eppley had a critical role as to all decisions regarding the Kinzua Bridge
project, including the selection of Poly -Nox for coating the repairs on the
Kinzua Bridge.
• Eppley determined that Thortex's product, Poly -Nox, was the product to be
used on the Kinzua Bridge.
• Representatives of Thortex posited three reasons for using Poly -Nox:
application in low temperatures, ten year warranty and volatile organic
compound free product.
• Eppley received copies of reports about problems with Poly -Nox — low
temperature /high humidity, weather problems vis -a -vis its application and the
non - receipt of a warranty — but Eppley took no action.
• Even though Eppley received information that the problems with Poly -Nox
could cause a winter shutdown in the Kinzua Bridge project, he took no
action.
• Although Eppley was proactive in selecting Poly -Nox, he ignored the
problems that developed in utilizing the product.
• By June 2003, all of the proffered benefits in using Poly -Nox did not exist.
• When the time came to switch to a VOC product for the Kinzua Bridge
project, Eppley did not consider any non - Thortex products.
• During the time that the Kinzua Bridge project team experienced problems
with Poly -Nox, Eppley accepted an all expense paid trip to the UK from
Thortex President, Raymond Clarke.
• The UK trip offer to Eppley occurred prior to May 9, 2003, that is, some time
in April 2003.
• Eppley received the trip invitation right after he selected Poly -Nox for use on
the Kinzua Bridge project.
• Thortex National Sales Representative William Yohe admitted that the UK
trip is a way to strengthen business relationships.
• The timing of the UK trip offer to Eppley corroborates Yohe's statement
about generating sales and maintaining Thortex customers.
• Clarke of Thortex anticipated that after the emergency phase of the Kinzua
Bridge project, more bridge work would be obtained.
• Yohe advised the Kinzua Bridge project team that Thortex would give a
warranty only if the entire bridge would be painted.
Eppley, 04 -053
Page 29
• Eppley never received gifts or trip invitations from Clark or Yohe either
before or after the Kinzua Bridge project.
• Some economic loss to the Commonwealth does not constitute a condition
precedent for a violation of the Ethics Act.
• Other Commission precedent, as for example, Hawes, Order 1263; Helsel,
Order 801; Johnson, Order 1137; Shaner, Order 1163; Munford, Order 1390;
and Espenshade, Order 1387 establishes violations of the Ethics Act when
public officials /public employees receive gifts from persons who have
ongoing contractual relationships with their governmental bodies.
• Eppley intentionally attempted to conceal his acceptance of the UK trip from
the company whose product Eppley selected for the Kinzua Bridge project.
• When Eppley was questioned by the Office of Inspector General about the
UK trip, Eppley falsely responded that the trip was educational in nature.
• Eppley failed to disclose the UK trip on his SFI in an effort to conceal the gift
from a vendor whose product Eppley selected for use by DCNR.
• Eppley lacks credibility as is evidenced by his detailed testimony on direct
examination and his vague, elusive testimony on cross - examination.
• Eppley fabricated a story when he testified that it was not Clarke of Thortex
but Yohe of Repair Protection Technologies who paid for the UK trip.
• Eppley's failure to disclose the UK trip constituted an evasion of SFI
reporting requirements and intentional action to conceal his conflict of
interest.
• Eppley filed his SFI nine months after the UK trip so that he had full
knowledge that he did not pay for the trip.
• Although Eppley argues that he did not have to report the trip in that it was a
gift from a friend, the evidence establishes that there was no close, personal
relationship between Eppley and Clarke.
• The failure of Eppley and Clarke to spend time together on the UK trip
negates the existence of any close personal relationship.
• Eppley had a casual acquaintance with Clarke that was of a business nature.
• For the Ethics Act violations that Eppley committed, the Commission should
impose restitution and a treble penalty and also refer the case for criminal
and disciplinary action.
• Eppley's conduct constituted blatant, intentional actions that warrant the
imposition of a treble penalty.
• The Commission should order restitution of $4,850.32 [sic] plus treble
penalty in the amount of $14,550.96 [sic].
• Eppley received supplemental compensation for performing public duties in
derogation of the Administrative Code.
Eppley, 04 -053
Page 30
• In addition to referral for review by law enforcement agencies, the case
should be referred to DCNR and the Office of General Counsel for review
and appropriate action.
The Respondent has filed a Brief raising the following:
• The Ethics Act does not support a violation based upon strict liability or
passive culpability.
• The Ethics Act requires clear and convincing proof for a violation.
• For a violation of Section 1103(a) of the Ethics Act, a public official must
commit some improper act, citing McGuire v. State Ethics Commission, infra.
• Violations of the Ethics Act occur through affirmative action by a public
official to improperly misuse public office.
• The Investigative Division failed to present clear and convincing evidence of
violations as to the allegations.
• Eppley did not solely decide to use Poly -Nox, the use of which was the result
of a collective effort with Emberg and Brode.
• Clarke invited Eppley to go on the UK trip because a couple slated for the
trip backed out and because Clarke liked Eppley's company.
• Clarke neither scheduled nor arranged the UK trip specifically for Eppley.
• The Investigative Division failed to establish that Clarke of Thortex had an
ongoing business relationship to sell Poly -Nox to the Commonwealth.
• The evidence does not establish that Clarke had an expectation to supply
Poly -Nox for the second phase of the Kinzua Bridge project.
• The Investigative Division failed to establish that Eppley's acceptance of the
UK trip from Clarke of Thortex was inappropriate.
• The Investigative Division failed to establish that Clarke's decision to offer
the UK trip to Eppley was for any reason other than personal friendship and
the last minute cancellation by Crawford who was originally slated for the
trip.
• Contrary to the Commission's decision in Volpe, Order 579 -R, the evidence
fails to establish that Clarke's decision to offer the paid UK trip to Eppley was
done to secure Eppley's decision to use or continue to use Poly -Nox on the
Kinzua Bridge project.
• Clarke and Yohe both testified that Eppley did not ask for the UK trip or any
kickback in return for his decision to use Poly -Nox.
• Emberg and Brode testified that Eppley did not influence them as to the use
of Poly -Nox during the emergency phase of the Kinzua Bridge project.
• The minutes from the Kinzua Bridge project do not establish a use of
authority of office by Eppley.
Eppley, 04 -053
Page 31
• Perception or non - action does not rise to the level of a violation of the Ethics
Act.
• The acceptance of Clarke's offer for the UK trip by Eppley does not
constitute a use of authority of office by Eppley as a public employee of the
Commonwealth.
• The Investigative Division failed to establish by clear and convincing proof
that Eppley violated Section 1105(b)(6 -7) of the Ethics Act as to his failure to
disclose the UK trip on his 2003 calendar year SFI.
• SFI reporting of the UK trip was not required because it involved a gift from a
friend, that is, Clarke who substituted Eppley and his spouse for the trip due
to a last notice cancellation of another couple.
• The Investigative Division failed to establish that the transportation and
hospitality received by Eppley on the UK trip occurred in connection with
public office or employment.
• The Investigative Division failed to establish a violation of the Governor's
Code of Conduct.
• The Investigative Division failed to establish by clear and convincing proof
that Eppley's acceptance of the UK trip constituted a misuse of authority of
office as a DCNR Chief Engineer vis -a -vis his project manager status on the
Kinzua Bridge project.
Having summarized the above relevant facts, we must now determine whether the
actions of Eppley violated Section(s) 1103(a) and 1105(b) of the Ethics Act.
In applying the provisions of Section 1103(a) of the Ethics Act in the instant matter,
there were uses of authority of office on the part of Eppley. Eppley, as the DCNR Senior
Civil Engineer Manager was the project manager for the Kinzua Bridge project. Eppley
solely made the decision to use Poly -Nox as the coating during the emergency repair
phase of the Kinzua Bridge project. Eppley took action by signing off on the DCNR
estimated progress report /lump sum forms, both on April 9 and 18, 2003, that included
Poly -Nox as the paint for the Kinzua Bridge project. Eppley, as project manager, made the
decision to limit a presentation for coating materials at the March 19, 2003 Kinzua Bridge
meeting to only Foster and Yohe who proffered Poly -Nox. Beginning on April 2, 2003,
Eppley was provided with information about the numerous problems with Poly -Nox on the
Kinzua Bridge project. Eppley repeatedly made decisions not to intercede as to the
problems with Poly -Nox usage. All such actions by Eppley were uses of authority of office.
See, Juliante, Order 809.
The uses of authority of office on the part of Eppley resulted in a private pecuniary
benefit consisting of an all expense paid trip to the UK for him and his spouse from Clarke
of Thortex. The private pecuniary benefit totaling $4,850.42 consisted of the paid travel,
lodging and other expenses on behalf of Eppley and his spouse. Accordingly, Eppley
violated Section 1103(a) of the Ethics Act when he used the authority of office for a private
pecuniary benefit for himself and spouse in accepting an all expense paid trip to the UK by
Raymond Clarke of Thortex, vis -a -vis Eppley's decision to utilize the Thortex product, Poly -
Nox on the Kinzua Bridge repair project and to continue using that product despite its
drawbacks. See, Espenshade, Order 1387; Shaner, Order 1163. Cf., Audit of Hanover
Township School Dist., 265 Pa. 157 (1919).
Eppley's arguments for no violations reduce to the following: Section 1103(a)
violations require affirmative action by a public official, with passive culpability being
Eppley, 04 -053
Page 32
insufficient; a violation requires clear and convincing proof; Eppley chose Poly -Nox as a
result of a collective effort; Clarke did not offer the UK trip to Eppley based upon an
expectation to supply Poly -Nox for phase two of the project or to strengthen an ongoing
business relationship but rather out of friendship; Eppley did not (continue to) use Poly -
Nox in return for the UK trip; and Eppley did not have to report the UK trip because the gift
was from a friend.
Before we address Eppley's arguments seriatim, we initially note that Eppley is not
credible. See, Fact Finding 30.
Eppley asserts that decisional law precludes the finding of a violation of Section
1103(a) of the Ethics Act because Eppley took no affirmative action, citing McGuire v.
State Ethics Commission, 657 A.2d 1346 (Pa. Cmwlth. 1995).
The element of use of authority of public office /employment requires action by the
public official /public employee that in some way facilitates receipt of compensation to
which the public official /public employee is not entitled. See, McGuire, supra. In the
instant matter, Eppley attempts to avoid accountability for his actions favoring Thortex by
citing McGuire, supra, for the proposition that he did not "use" the authority of his public
employment position in violation of the Ethics Act. However, we find the McGuire
precedent to be inapplicable to Eppley.
In McGuire, the Commonwealth Court of Pennsylvania determined that two authority
board members did not "use" their public offices to obtain personal financial gain when
they unknowingly and passively received unauthorized compensation based upon an
erroneous payment practice that they did not participate in promulgating and that predated
their service on the authority board.
Relying on McGuire, supra, Eppley contends that his decision to use Poly -Nox
occurred before he accepted the trip to the United Kingdom and that he did not "use" the
authority of his public position thereafter. Eppley would have this Commission ignore the
obvious fact that it was at the time that Respondent accepted the trip from Thortex that
Eppley as project manager used the authority of his public position by choosing to ignore
the serious problems that had developed with Poly -Nox. Eppley's "action" consisted of his
refusal to perform his affirmative duty to the Commonwealth of Pennsylvania to protect the
interests of the Commonwealth by addressing these problems and, if necessary, choosing
a different product. Eppley's decision to withhold performance of his affirmative duty to
address the problems with Poly -Nox was itself an action, and that action stands in sharp
contrast to the passive conduct in McGuire.
Not only did Eppley make the sole decision to use Poly -Nox, he also approved the
Brode Kinzua Bridge progress reports that included the purchase of Poly -Nox for use on
the Kinzua Bridge project. Lastly, as noted, Eppley made the decision not to intercede after
he was advised of the numerous problems with Poly -Nox as to the Kinzua Bridge project.
Hence, there were uses of authority of office on the part of Eppley as to the application
problems of Poly -Nox on the Kinzua Bridge. The Investigative Division presented clear
and convincing evidence that Eppley used the authority of office that resulted in the private
pecuniary benefit to him and his spouse of the all expense paid trip to the UK by Clarke of
Thortex.
Eppley asserts that the decision to use Poly -Nox was a collective one. To the
contrary, Eppley solely made the decision to use Poly -Nox. See, Fact Findings 9, 19, 24.
Eppley subsequently signed off for DCNR for the "estimates" submitted by Brode that
included Poly -Nox as the paint for the project. Finally, Eppley also made the decision to
ignore the problems with Poly -Nox, thereby ensuring its continued use.
Eppley, 04 -053
Page 33
Eppley's arguments, regarding any (lack of) expectation to supply Poly -Nox during
the second phase of the Kinzua Bridge project or any ongoing business relationship with
Clarke, are not supported by the record. The record establishes that Eppley solely made
the decision to use Poly -Nox, sign Brode's project estimates that included Poly -Nox and
consciously ignore the numerous problems with Poly -Nox.
Eppley's conscious failure to take particular action that was affirmatively required of
him by the very duties of his position was a use of authority of office that occurred at the
time when Eppley accepted Clarke's invitation for the UK trip and made the decision not to
intercede despite the numerous complaints he received about the inadequacies of using
Poly -Nox on the Kinzua Bridge project.
This case may be simply understood by posing and then answering two questions:
(1) why did Clarke offer the UK trip to Eppley and (2) why did Eppley act the way he did on
the Kinzua Bridge project after learning of the problems with Poly -Nox? As to the first
question, Clarke stated that he anticipated also supplying Poly -Nox for phase two of the
bridge project and Yohe stated that the UK trips are a means of strengthening business
relationships. See, Fact Findings 22j, 23h. The answer to the first question is the trip was
offered for business reasons, not friendship. As to the second question, Eppley accepted
the UK trip and chose not to use Rust -O -Leum or some other non - Thortex product to
remedy the existing problems with Poly -Nox. The answer to the second question is Eppley
was cognizant of his benefactor (Clarke) when he (Eppley) chose not to deal with the
problems associated with Poly -Nox. Simply understood, this case is about one hand
washing the other at the expense of the public trust.
As to Section 1105(b) of the Ethics Act, the record establishes that as to the 2003
calendar year SFI filing by Eppley, he made no disclosures other than DCNR as a source
of income and his ownership as to a surveying business. Eppley received a gift from
Clarke of Thortex consisting of the all expense paid trip to the UK. The gift exceeded the
$250 threshold of the Ethics Act. Accordingly, Eppley violated Section 1105(b) of the
Ethics Act when he failed to disclose an all expense paid UK trip from Clarke of Thortex on
his SFI for the calendar year 2003.
The argument by Eppley that he did not have to disclose the trip on the basis that it
was a gift from a friend is unavailing. Although Section 1105(b)(6) provides an exclusion
as to gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild,
other family member or friend, the exclusion does not apply for two reasons. First, Clarke
and Eppley are not friends. To the contrary, the evidence of record establishes that there
is no friendship relationship as contemplated by Section 1105(b)(6). Second, the evidence
establishes that the circumstance of the gift was not motivated by friendship but rather as a
means to continue a business relationship. See, Fact Findings 22j, 23h.
If Eppley has not already done so, he is directed to file an amended SFI for the
2003 calendar year listing the UK trip from Clarke of Thortex within 30 days of the date of
issuance of this Order with the original filed at DCNR and a copy filed with this
Commission for compliance verification purposes.
Section 1107(13) of the Ethics Act empowers this Commission to impose restitution
in instances where a public official /public employee has obtained a financial gain in
violation of the Ethics Act. Restitution is warranted in this case in the amount of
$4,850.42. See, Fact Finding 52. Accordingly, Eppley is directed within 30 days of the
date of mailing of this Order to make payment in the amount of $4,850.42 to the
Pennsylvania State Treasury through this Commission. Non - compliance will result in the
institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
Eppley, 04 -053
Page 34
1. James A. Eppley, as a Senior Civil Engineer Manager in the Department of
Conservation & Natural Resources, is a public employee subject to the provisions of
Act 9 of 1989 as codified by Act 93 of 1998.
2. Eppley violated Section 1103(a) of the Ethics Act when he used the authority of
office for a private pecuniary benefit for himself and spouse in accepting an all
expense paid trip to the UK from Raymond Clarke of Thortex, vis -a -vis Eppley's
decision to utilize the Thortex product, Poly -Nox on the Kinzua Bridge repair project
and to continue using that product despite its drawbacks.
3. Eppley violated Section 1105(b) of the Ethics Act when he failed to disclose an all
expense paid UK trip from Clarke of Thortex on his SFI for the calendar year 2003.
In Re: James A. Eppley,
Respondent,
ORDER NO. 1419
File Docket: 04 -053
Date Decided: 10/4/2006
Date Mailed: 10/20/2006
1 James A. Eppley, as a Senior Civil Engineer Manager in the Department of
Conservation & Natural Resources, violated Section 1103(a) of the Ethics Act when
he used the authority of office for a private pecuniary benefit for himself and spouse
in accepting an all expense paid trip to the UK from Raymond Clarke of Thortex,
vis -a -vis Eppley's decision to utilize the Thortex product, Poly -Nox on the Kinzua
Bridge repair project and to continue using that product despite its drawbacks.
2. Eppley violated Section 1105(b) of the Ethics Act when he failed to disclose an all
expense paid UK trip from Clarke of Thortex on his SFI for the calendar year 2003.
3. If Eppley has not already done so, he is directed to file an amended SFI for the
2003 calendar year listing the UK trip from Clarke of Thortex within 30 days of the
date of issuance of this Order with the original filed at DCNR and a copy filed with
this Commission for compliance verification purposes.
4. Eppley is directed within 30 days of the date of mailing of this Order to make
payment in the amount of $4,850.42 to the Pennsylvania State Treasury through
this Commission. Non - compliance will result in the institution of an order
enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair