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HomeMy WebLinkAbout92-045-C2 SchweinsburgSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Richard Schweinsberg File Docket: 92- 045 -C2 Date Decided: 9/28/93 Date Mailed: 10/07/93 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Joseph W. Marshall, III The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. §401 et seq. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was not filed and a hearing was waived. A consent agreement was . submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance 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). The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. 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, 65 P.S. 5409(e). Schweinsberg, 92- 045 -C2 Page 3 b. Schweinsberg participated in the Board action to appoint the supervisors as roadmasters. c. The actions were approved unanimously. d. No action was taken to divide the township into road districts. (1) The supervisors divided the township into zones after the Reorganization meeting each year. 3. The Shenango Township Auditors took action to approve supervisor's wages at their Annual Reorganization Meetings. Auditor Reorganization Minutes reflect the following action on wages: a. January 7, 1992: A motion was made to increase the township's supervisors' wages from $9.95 to $10.20 per hour. • Holidays, vacation, overtime, life insurance, health - accident insurance and hospitalization were all approved the same as the previous year. The auditors decided to research the wages of roadmasters- supervisors- laborers in the surrounding townships. b. January 5, 1993: Wages for supervisors (acting as roadmasters) were frozen at $10.20 /hour. Holidays, vacation, overtime, life insurance, health - accident insurance and hospitalization were all approved the same as the previous year. Supervisor Joseph Budai requested a letter of findings at the end of the audit. 4. Shenango Township employs four full -time road employees. a. These employees are hired by the supervisors. b. These employees perform all the road repairs and related maintenance to township roads. c. The years of employment for the road workers range from 7 to 27 years. Schweinsberg, 92- 045 -C2 Page 5 Week Week Week Week Week Week Week Week Week 22 ot maintenance; sewer maintenance; equipment maintenance; lift station check. 9. In April, 1992, when the township began using a different form of sign -in sheet the following was noted for Schweinsberg work logs for the period between April, 1992, and June, 1992: Week ending 4/10/92 - 40 hrs Week ending 4/17/92 - 40 hrs Week ending 4/24/92 - 40 hrs; 2 hrs OT Week ending 5/01/92 - 40 hrs Week ending 5/15/92 - 40 hrs regular; 1/2 OT No duties are listed on either card. Week ending 5/22/92 Week ending 5/29/92 Week ending 6/05/92 - Week ending 6/12/92 - 10. For the pay period ending 6/19/92, Schweinsberg altered his work schedule to (4) ten hour days, from 5:30 AM to 3:30 PM. The time cards show that he had previously worked a 7:00 AM to 3:30 PM shift with 1/2 hour lunch time. The time sheet for 6/19/92 pay period reflects that he was working 5:30 AM to 3:30 PM, straight ten hour day with no lunch break. Schweinsberg was not working on Fridays. 11. Beginning with the pay period ending 6/26/92 Schweinsberg altered his work schedule to Monday through Thursday, ten hours per day, working 5:00 AM to 3:30 PM, allowing a 1/2 hour lunch break. 12. From pay period ending 7/03/92 through pay period ending 8/28/92, Schweinsberg reported (40) hours worked each week. 13. Beginning with the pay period ending 9/04/92, Schweinsberg reverted to the regular hours of the road crew, 7:00 AM to 3:30 PM, Monday through Friday. 14. Work logs reflect the following regarding Schweinsberg reported work hours for the remainder of 1992: ending ending ending ending ending ending ending ending ending 9/11/92 7/17/92 9/25/92 10/02/92 10/09/92 10/16/92 10/16/92 10/23/92 10/30/92 - 36 - 24 40 40 - 32 - 40 - 40 - 40 - 40 - 40 8 40 40 regular hrs; 4 hrs vac -sick regular hrs; 8 sick; 8 holiday regular hrs. hrs. regular; 8 holiday; 8 ot regular regular; 14 ot regular; 3 ot regular regular ot regular; 1 ot regular hrs Schweinsberg, 92- 045 -C2 Page 7 18. The time cards show that between July 11 and August 6, Schweinsberg worked Monday, Tuesday, Thursday and Friday, and took Wednesdays off. 19. During the summers of 1992 and 1993, Schweinsberg changed his work hours and days so that he could watch his son while his wife worked. a. Schweinsberg worked 10 hour days., Monday through Thursday, 5:00 AM to 3:30 PM. b. Schweinsberg returned to the work schedule of the road crew when his son returned to school in the Fall. 20. Township records confirm payments made to Schweinsberg as follows. Paychecks: Check # 4897 4985 5016 5077 5092 5108 5163 5205 5289 5314 5365 5403 5440 5491 5529 5593 5624 5683 5707 5779 5854 5897 5906 5934 6005 6041 6060 6125 Date Amount 1/10/92 1/24/92 2/6/92 2/20/92 2/20/92 3/5/92 3/19/92 4/2/92 4/16/92 4/30/92 5/14/92 5/28/92 6/11/92 6/25/92 7/9/92 7/23/92 8/6/92 8/19/92 9/2/92 9/16/92 10/1/92 10/14/92 10/16/92 10/29/92 11/13/92 11/23/92 12/10/92 12/22/92 Total 1992: $17,980.40 $ 311.06 827.07 831.61 704.01 41.93 Overtime 622.71 831.11 883.32 632.72 630.71 713.42 619.71 609.71 619.71 612.16 612.16 612.16 667.32 643.78 702.48 813.35 622.16 108.33 632.70 622.16 1,000.02 695.18 757.64 Schweinsberg, 92- 045 -C2 Page 9 distributions held between January, 1992, and August, 1993. b. The road crew worked with Schweinsberg on this. c. Schweinsberg was responsible for signing for the food and ensuring that participants were registered and qualified. d. Supervisors estimate that distribution time takes approximately (31) hours. e. Supervisor Golba did not participate while supervisor Budai did so on an occasional basis. 25. Bi- weekly time sheets show that one food distribution took place between January, 1992, and March, 1992, the date that the time sheets no longer reflect specific duties of the road crew and supervisor /roadmasters. 3/5/92 - Food pick -up and equipment maintenance - 8 hrs. 3/6/92 - Food giveaway - 8 hrs. 26. Schweinsberg's personal work logs reflect that he was performing the following duties related to picking up and distributing food. 3/5/92 - Pick up food for give -away (Dave, Dan, Chip, Bob); - met with Dick Vori on, insurance; - work on equipment repair (tigermower and back hoe); - take scrap to junk yard (Bob, Dave). - checked road to be resurfaced due to sewer lines (Bill Brako); - junk complaint at 2033 Pennsylvania Avenue; - dumping complaint across Big Run from Kerr's Trailer Park; - request from the high school for cold patch. 3/16/92 - Food give -away at the firehall, count and return 7:00 to 3:00. 4/9/92 - Pick up food for food distribution; - finish berms on Spring Hill Lane; - put fill dirt in sunken water line; - clean out ditch on Sherwood Drive; - get prices and order tires for grader and front end loader; - complaint of pipe plugged on Hoover Road; - Dave to haul dirt for Athletic Association ball fields. 4/10/92 - Food give -a -way; Schweinsberg, 92- 045 -C2 Page 11 a. The Sewer Department handles billings, payments and customer service. b. The construction of the sewer lines is contracted out. c. The township road crew and roadmasters perform maintenance and emergency repairs on the sewer lines. 29. The Shenango Township Sewer Department reimburses the township General Fund for maintenance and emergency repairs performed by the road crew and roadmasters. 30. Between 1990 and 1993, the Sewer Department reimbursed the township on three occasions. The payments are as follows: 8/10/90 8/9/91 6/10/93 Check #1367 Check #1497 Check #1766 $ 408.20 150.00 2,130.19 Wages (flusher) Crew wages Road crew wages 31. Invoices dated 7/22/93 from the township to the Sewer Department for maintenance and repairs on the sewer lines on Brookshire Drive, show that Richard Schweinsberg was paid for performing work on the sewer lines. a. Schweinsberg was paid an overtime rate of $15.30 for 10.5 hours of work for a total of $160.65. b. The invoice also included hours for the road crew and Supervisor Joseph Budai for Brookshire Drive and several other locations. c. Schweinsberg's personal logs do not reflect that he worked on sewer line maintenance on 7/22/93. (1) Schweinsberg asserts that he did not always record hours that he was called out on after regular work hours. 32. In 1992, the township performed repairs on the sewer lines as a result of lines damaged by contractor, Bruce Sikora Excavating. a. The township is attempting to recover the cost of the repair from the contractor. b. The Sewer Department has not reimbursed the township for those repairs. 33. Township records include an invoice dated 7/22/93 from the township to Bruce Sikora Excavating for the repairs caused by the contractor which includes labor costs for two supervisors, Schweinsberg, 92- 045 -C2 Page 13 a. Schweinsberg supplied a log of his duties to Golba to account for his time. 38. The members of the township confirmed the following in regards to Schweinsberg working with the road crew. a. The construction of the pump house, which was going on at the time that Schweinsberg first took office. Schweinsberg did observe the construction on a couple of occasions, but did not assist. b. When snow plowing during the winter, Schweinsberg rode with the road crew on several occasions, but most of the time, if the supervisors came out, they spent the time in the township building, while the road crew was plowing snow. c. Schweinsberg assisted with the paving of Old Pittsburgh Road. d. Schweinsberg assisted with the work on the manholes on Savannah Road. e. Most of the time, supervisors are tied up with meetings, etc., at the township building and are not out on the roads with the road crew. f. The supervisors spent approximately 40% of their time working on the roads. 39. Schweinsberg's personal logs reflect that he was performing the following duties on the days that the bi- weekly time sheets show that he was working on the pump house. 1/7/92 - Conferred with Bill Smith regarding the township's responsibility to install a pipe in the drainage ditch of the Everett Hunt property; contacted PennDOT regarding a stop sign on a corner of Pennsylvania Avenue. 1/8/92 - No duties recorded for this date. 1/28/92 - Took a request from the school that the road crew install 2 "school bus stop" signs on Route 388, and contacted PennDOT regarding same; - called Bureau of Purchases regarding cooperative purchasing with the state on equipment for police services; - met with Mr. Hunt regarding drains. (A notation indicates the type of work needed, but is not clear whether the work was performed). Schweinsberg, 92- 045 -C2 Page 15 c. Most complaints and meetings relating to the Police Department occurred during regular work hours. d.' Schweinsberg was also in charge of working with PennDOT on the State Road Turn Back Program. 42. Schweinsberg handled grants, specifically in regard to the application for funds to rebuild Dougherty Road. a. He attended meetings and made phone calls in relation to this Grant Application. b. Schweinsberg believes that since this was road related, it applied to the duties of a roadmaster. c. The township secretary is compensated through a provision of the grant, to administer the funds awarded. (1) The application process is included in this compensation. 43. Schweinsberg often answered road related emergencies after regular township hours. a. He would investigate, but if he did not need to call the crew out, he did not charge the township for his time. b. He would install temporary safety measures, such as barricades. c. He only charged the township when he had to call his crew out. 44. Schweinsberg changed his hours during the summer to watch his son while his wife worked. a. He consulted with the other two supervisors who did not have a problem with it. b. Between 5:00 AM and 7:00 AM, Monday through Thursday, he would perform the following types of duties: (1) Reviewed and caught -up on complaint forms. (2) Completed his personal log. (3) Repaired equipment that he could do himself. (4) Worked on the computerized records of the township roads (condition and resurfacing schedule). Schweinsberg, 92- 045 -C2 Page 17 The duties which Schweinsberg performed from January 1992 through March 1992 are detailed in Fact Finding 8. From April 1992 forward, the duties performed are not listed by Schweinsberg, only the weeks and hours worked. (Fact Finding 9.) Schweinsberg varied his working hours both in terms of start /stop times, days worked and hours worked. (Fact Findings 10 -19.) When Shenango Township participated in a food distribution program sponsored by Lawrence County, the bi- weekly time sheets of Schweinsberg reflect that he picked up and distributed food while being paid as a roadmaster. (Fact Finding 24.) The dates and times for such food distribution work by Schweinsberg are set forth in (Fact Findings 24 -27.) The township road crew and roadmasters also performed maintenance and emergency repairs on sewer lines which are operated by the Shenango Township Sewer Authority within the township. (Fact Finding 28.) The dates and hours as to which Schweinsberg worked on sewer related matters as well as the compensation he received are set forth in Fact Finding 31. Although the time reports reflect that Schweinsberg performed work on a pump house project for which he was compensated, Schweinsberg did not perform any such manual work. (Fact Findings 35,36.) In fact, Schweinsberg's personal logs reflect that he was performing other duties for the township on the days and at the times that the time reports reflect that he was purportedly working on the pump house. (Fact Finding 39.) Schweinsberg received wages in the amount of $61.20 (Fact Finding 35c.) for "work" on the pumphouse he did not perform. (Fact Findings 36,38a.) In applying the provisions of Section 3(a) of Act 9 of 1989, we find no violation of the Ethics Law regarding the receipt of compensation by Schweinsberg. Both the Ethics Law, the Second Class Township Code and decisional law are clear that a supervisor as an elected official is limited to receiving only the compensation allowed in the Code based upon the population density of the Township. 53 P.S. § 65515; Coltar v. Warminster Township, 8 Pa. Commw. 163, 302 A.2d 859 (1973). A supervisor as an elected official cannot receive any additional compensation for administrative or related duties performed as elected supervisor. Cowder, Order 892; Henderson, Order 818; Wilmot, Order 788. A supervisor may receive compensation as a working township employee if appointed to one of the enumerated working positions and if the compensation is authorized by the township board of auditors. In this case the Shenango Board of Supervisors appointed Schweinsberg to the working position of roadmaster and the auditors at their annual reorganization meeting set the compensation for such position. The only question that we must resolve at this point is whether Schweinsberg received compensation for performing Schweinsberg, 92- 045 -C2 Page 19 actions as a public official conform to both the letter and spirit of the Ethics Law. IV. CONCLUSIONS OF LAW: 1. Richard Schweinsberg as a Supervisor for Shenango Town-hip is a public official subject to the provisions of Act 9 of 1989. 2. Schweinsberg did not violate Section 3(a) of Act 9 of 1989 regarding the receipt of compensation for duties which he performed as township roadmaster. 3. Schweinsberg did not violate Section 3(a) of Act 9 of 1989 regarding his receipt of $61.20 for pump house work he did not perform in that such action had a de minimis economic impact.