Construction Company Pleads Guilty for Submitting False Documents on State Project Regarding Minority-Owner Subcontractor

Modified: February 19, 2019 5:25pm

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Erie County District Attorney John J. Flynn announces that a construction company fraudulently submitted documents to meet a requirement regarding the use of a minority-owned business on a state-funded construction project, pleaded guilty today in Erie County Court.

Nichter Construction, Inc., pleaded guilty before Erie County Court Judge Sheila A. DiTullio 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 filed in July 2018. The defendant filed 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 electric 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.

Nichter Construction, Inc., is scheduled to appear on Tuesday, April 30, 2019 at 9:30 a.m. for sentencing.  The corporation faces a maximum fine of $10,000.

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.

“This law was enacted to provide minority and women-owned businesses an opportunity to work on state-funded projects, and these defendants attempted to abuse a system that was intended to increase diversity,” said Erie County District Attorney John Flynn. “My office along with the State Inspector General will continue to investigate and prosecute any business owners who attempts to take advantage of taxpayer dollars for their own benefit. I hope the residents of New York State feel justice has been served by the defendants pleading guilty today.”

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 Candace A. Vogel, Chief of the Erie County District Attorney’s Office Special Investigations and Prosecutions Bureau as well as Assistant District Attorneys Kelley A. Omel and Gary M. Ertel.