Construction Company Fined for Submitting False Documents on State Project Regarding Minority-Owned Subcontractor

Modified: June 28, 2019 2:20pm

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Erie County District Attorney John J. Flynn announces that a construction company that fraudulently submitted documents to meet a requirement regarding the use of a minority-owned business on a state-funded construction project, was sentenced today and ordered to pay the maximum fine of  $10,000.

In February 2019, Nichter Construction, Inc., pleaded guilty before Erie County Court Judge Sheila A. DiTullio on behalf of the company to one count of Offering a False Instrument for Filing in the First Degree, a Class “E” felony. The corporation pleaded guilty in full satisfaction of charges that were filed in July 2018.

Nichter Construction, Inc. admitted to filing documents with the Dormitory Authority of the State of New York (DASNY) falsely claiming that McClendon Asphalt Paving, a minority-owned subcontractor company, performed work on a state-funded project.

An investigation by the Erie County District Attorney’s Office and the New York State Inspector General’s Office found that Nichter Construction entered into a contract with DASNY on November 5, 2015 to perform building improvements at the Buffalo Psychiatric Center in Buffalo, New York. The total value of this contract was approximately $350,000.

Under Article 15A of the New York State Executive Law, Nichter Construction was required to have a minimum of 13% minority business participation in the project. Nichter recruited William McClendon of McClendon Asphalt Paving to purportedly be the projects minority business participant. Nichter submitted various documents to DASNY falsely claiming that McClendon was performing plumbing and electrical work on the project at a cost of nearly $44,000. McClendon also allegedly filed a document with DASNY claiming that his company was performing this work on the project.

Nichter instead contracted with other companies to perform both the plumbing and electrical work. McClendon Asphalt Paving performed no work on the state project. McClendon, who was never seen at the job site, was to be paid a fee by Nichter, solely for the use of its identity in order to give the false appearance of minority business participation.

William McClendon, 51, of Niagara Falls, pleaded guilty to a violation for his role in circumventing State contracting requirements. McClendon, who pleaded guilty to the charge on February 15, 2019, was sentenced to a conditional discharge.

DA Flynn commends DASNY and the New York State Inspector General’s Office and the New York State Police for their assistance with in the investigation.

The case was prosecuted by Chief Candace K. Vogel and Assistant District Attorney Kelley A. Omel of the Erie County District Attorney’s Office Special Investigations and Prosecutions Bureau.