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HomeMy WebLinkAbout893STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Edward DeVite File Docket: 92- 007 -C2 Date Decided: June 28, 1993 Date Mailed: June 30, 1993 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III The State Ethics Commission received complaints regarding possible violations of the State Ethics Law, Act No. 170 of 1978 and Act No. 9 of 1989. 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 filed and a hearing was waived. A Consent Order was submitted by the parties to the Commission for considera- tion which was subsequently approved. This adjudication of the Commission is hereby issued which sets forth the individual Allega- tions, 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, reconsidera- tion 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 §2.38 and /or 51 Pa. Code §21.29(b). The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 and 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. §409(e). DeVite, 92- 007 -C2 Page 2 I. ALLEGATION: That Edward DeVite, a Supervisor for Mahoning Township, Lawrence County, violated the following sections of the Public Officials and Employees Ethics Act, Act 170 of 1978, when he received compensation not provided for by law by accepting a monthly salary from 1988 through June, 1989, as a township roadmaster without performing roadmaster related duties and when he participated in the Board of Supervisor's decision to award contracts to Ambrosia Coal Company, a company with which he is associated, without an open and public process. Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. § §403(a), (c). That Edward DeVite, a Supervisor for Mahoning Township, Lawrence County, violated the following sections of the Public Officials and Employees Ethics Act, Act 9 of 1989, when he received compensation not provided for by law by accepting a monthly salary from 1988 through June, 1989, as a township roadmaster without performing the roadmaster duties and when he participated in the Board of Supervisor's decision to award contracts to Ambrosia Coal Company, a company with which he is associated, without an open and public process. DeVite, 92- 007 -C2 Page 3 (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. § §403(a), (f). II. FINDINGS: a . Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 1. Edward DeVite II, has served as a supervisor for Mahoning Township, Lawrence County since April 12, 1988. DeVite was appointed to fill a vacancy created on the Board by the death of his father, Edward DeVite I. 2. Mahoning Township Supervisors reorganizational meetings include action taken to appoint supervisors as roadmasters annually between 1988 and 1991. a. DeVite annually participated in Board actions to appoint supervisors as roadmasters. b. The actions were approved unanimously. 3. Supervisors reorganizational meeting of January 7, 1991, reflect the following action taken regarding the position of DeVite, 92- 007 -C2 Page 4 roadmaster and road superintendent. a. "Move by DeVite, seconded by Gregg to name Gregg, DeVite and Johnson as roadmasters for all districts for the year 1991. All in favor ". "Moved by DeVite and seconded by Gregg to name Gregg as superintendent of roads for the year 1991. All in favor ". "Moved by Gregg and seconded by DeVite to name Devite as assistant superintendent of roads for the year 1991." Devite, yes; Johnson, no; Greg, yes. Present: DeVite, Gregg, Johnson b. Prior to 1991, the roadmasters were not appointed for particular districts. 4. Action was taken by the Mahoning Township Supervisors at a meeting held on March 12, 1991, to define road districts. a. It was moved by Johnson and seconded by Gregg to name each of the following supervisors as roadmasters to a separate district as follows: a. 1988: Francis Gregg - Hillsville Edward DeVite - North of Mahoning River, West of 551. Jeff Johnson - East of Hill Top Estates, South of Mahoning River, East of 551. b. The motion was approved unanimously. 5. At their annual reorganization meetings, township auditors took action to approve supervisors wages. Auditor reorganizational minutes reflect the following action on wages between 1988 and 1991: Undated meeting. "Supervisor's pay set (the) same as (the) previous year." No formal vote recorded. b. January 4, 1989: A motion was approved to make Francis Gregg's pay $450 per month as roadmaster. (The) pay scale for Henry Pezzoulo and Ed DeVite, Jr., (is) to stay the same as previous year, $350 per month. DeVite, 92- 007 -C2 Page 5 c. January 3, 1990: A motion was approved to keep (the) supervisors pay (the) same as (the) previous year. $350 per month (for) Ed DeVite and Jeff Johnson, and $450 a month (for) Francis Gregg. d. January 8, 1991: A motion was made to approve wages as follows for the roadmaster: 1. Superintendent of Roads at $9.11 an hour. 2. Other members at $7.50 an hour. 3. The following practices should be followed: Work must be documented through time sheets, time clock, if possible, and performed during normal working hours when reasonable, except in times of emergency such as snow removal, downed trees, landslide, floods and other similar occurrence to the roads that may occur at anytime during the day or night. Roadmasters to be limited to forty hours per month. Time sheets (are) to be signed by (the) superintendent. 4. A vehicle allowance of $.26 per mile was approved for use of personal vehicles on township business when a township truck is unavailable. 6. It was a practice for the Mahoning Township Auditors to approve a monthly wage for the supervisors without referencing to the position of roadmaster. a. Wages were specifically set for roadmaster in 1989 and 1991. b. Former auditors, Fox and Pagley, were unaware of a distinction between supervisors and roadmasters. c. Auditor, Richard Carna, set the monthly wage to cover all duties associated with being a supervisor, including roadmaster. 7. In 1991, the Mahoning Township Auditors changed the roadmaster and road superintendent compensation from a monthly salary to an hourly rate. (Refer to Finding 5d). a. This change was made after questions were raised by township citizens regarding hours worked by the supervisors in their respective positions of roadmaster DeVite, 92- 007 -C2 Page 6 and superintendent. 8. Minutes of the Mahoning Township Board of Supervisors meetings confirm that questions were raised regarding supervisors receiving pay as roadmasters: a. February 13, 1990: "Mike Pezzuolo asked that supervisors three questions ": 1. What do you supervisors get paid per month? 2. What are your duties? 3. How can you work and be a supervisor? Present: Johnson, DeVite. b. November 13, 1990: "Max Grilli asked about an investigation which was conducted last week. Mr. Gregg said that a lady from the Auditor General's Office met with Ed Devite and him and asked a few questions. Mr. Johnson said that those who filed complaints would get their answer. Mr. Verterano (township solicitor) said that the allegations were that the supervisors were not earning their pay." Present: Gregg, DeVite, Johnson. 9. Mahoning Township employs three full -time and occasional part - time road employees. a. These employees are hired by the supervisors. b. These employees perform all of the road repairs and related maintenance to township roads. 1. The workers were directed on day to day basis by road foreman, Frank McCree, from 1986 until 1992. 10. The work activities of the township road crew are reported on bi- weekly time sheets. a. Between 1986 and 1991, the time sheets were prepared by road foreman, Frank McCree. b. The time sheets contain information which includes dates worked, hours worked, a general description of work performed, and payroll information. c. Time sheets are approved by the superintendent, DeVite, 92- 007 -C2 Page 7 roadmaster or supervisors. 1. Time sheets generally contained the signatures of Francis Gregg and at least one other supervisor. 11. Mahoning Township Road Department employees work hours are not recorded by a time clock. Daily start and finish times are not recorded. a. Normal hours of operation for the Mahoning Township Road Department are Monday through Friday, 7:30 a.m. to 4:00 p.m. 12. Township bi- weekly time sheets contain hours worked and duties as claimed by Edward DeVite for the period 1988 through March 15, 1991. Calendar Year: 1988 Hours Work Performed 04/16/88 - 04/30/88 0 05/01/88 - 05/15/88 0 05/16/88 - 05/31/88 34 Maintenance DeVite claims three hours for working Memorial Day, May 30, 1988. 06/01/88 - 06/16/88 - 07/01/88 - 07/16/88 - 08/01/88 - 08/16/88 - 09/01/88 - 09/16/88 - 10/01/88 - 10/16/88 - 11/01/88 - 06/15/88 06/30/88 07/15/88 07/31/88 08/15/88 08/31/88 09/15/88 09/30/88 10/15/88 10/31/88 11/15/88 DeVite claims three 11, 1988. 11/16/88 - 11/30/88 hours 0 38 0 34 40 41 for working Road maintenance Road maintenance Road maintenance Machine repairs, maintain roads 33 + 1 day unreadable Road maintenance 33 Road maintenance 0 Road maintenance 28 Road maintenance, repair machinery 32 Road maintenance 29 a holiday on November Repair machinery, maintain roads DeVite claimed three hours for working a holiday on November 24, 1988. DeVite, 92- 007 -C2 Page 8 12/01/88 - 12/15/88 12/16/88 - 12/31/88 Note: 1988. Calendar Year: 1989 01/01/89 - 01/15/89 01/16/89 - 01/31/89 02/01/89 - 02/15/89 02/16/89 - 02/28/89 DeVite claimed four hours for working a holiday on February 20, 1989. 03/01/89 - 03/15/89 33 Road maintenance, snow removal 03/16/89 - 03/31/89 39 Road maintenance DeVite claimed four hours for working a holiday on March 24, 1989. 04/01/89 04/16/89 05/01/89 05/16/89 06/01/89 06/16/89 07/01/89 07/16/89 08/16/89 08/16/89 09/01/89 DeVite claimed - 04/15/89 - 04/30/89 - 05/15/89 - 05/31/89 - 06/15/89 - 06/30/89 - 07/15/89 - 07/31/89 - 08/31/89 - 08/31/89 - 09/15/89 DeVite claimed three hours 4, 1989. 09/16/89 - 09/30/89 10/01/89 - 10/15/89 10/16/89 - 10/31/89 four hours for 31 Machine repair, snow removal 33 Road maintenance, snow removal Hours 0 41 38 working Christmas day, 24 Maintain machinery 36 Maintain machinery 43 Maintain machinery Work Performed Road maintenance Snow removal, road maintenance 30 Road maintenance 0 29 Road maintenance 38 Machine repair, road maintenance 24 Machine repair, road maintenance 30 Road maintenance 34 Machine maintenance, road maintenance 35 Road maintenance 40 Road Maintenance 0 41 Maintain roads 34 Maintain roads for working a holiday on September roads, roads, roads, DeVite, 92- 007 -C2 Page 9 11/01/89 - 11/15/89 11/16/89 - 11/30/89 DeVite claimed four 23, 1989. 12/01/89 - 12/15/89 12/16/89 - 12/31/89 Calendar Year: 1990 01/01/90 - 01/15/90 01/16/90 - 01/31/90 02/01/90 - 02/15/90 02/16/90 - 02/28/90 DeVite claimed five 19, 1990. 03/01/90 - 03/15/90 03/16/90 - 03/31/90 04/01/90 - 04/15/90 04/16/90 - 04/30/90 05/01/90 - 05/15/90 05/16/90 - 05/31/90 06/01/90 - 06/15/90 06/16/90 - 06/30/90 07/01/90 - 07/15/90 DeVite claimed three one hour for July 3, 07/16/90 08/01/90 08/16/90 09/01/90 - 07/31/90 - 08/15/90 - 08/31/90 - 09/15/90 29 23 hours for working 43 35 Hours 33 34 hours for working Repair machinery, maintain roads Repair machinery, maintain roads a holiday on November S now removal, maintain roads S now removal, maintain roads Work Performed Snow removal, road maintenance Snow removal, road maintenance 37 Road maintenance, clean catch basin 22 Patch pot holes a holiday on February 25 Clean ditch 15 Patch pot holes 25 Clean ditches DeVite claimed three hours for working a holiday on April 13, 1990. 22 Road maintenance, clean ditches 25 Road maintenance 31 Road maintenance 24 Maintain roads, repair machinery 17 Maintain roads 12 Maintain roads hours for working on July 4, 1990, and 1990, which is listed as a holiday. 27 Maintain roads 18 Maintain roads, repair machinery 11 Maintain roads 13 Maintain roads, DeVite, 92- 007 -C2 Page 10 09/16/90 10/01/90 10/16/90 11/01/90 DeVite claimed two hours to work a holiday on November 12, 1990. 11/16/90 12/01/90 12/16/90 - 09/30/90 - 10/15/90 - 10/31/90 - 11/15/90 - 11/30/90 - 12/15/90 - 12/31/90 14 14 15 DeVite claimed two hours for working for working Christmas Day, December Calendar Year: 1991 01/01/91 - 01/15/91 01/16/91 - 01/31/91 02/01/91 - 02/15/91 02/16/91 - 02/28/91 Hours 03/01/91 - 03/15/91 3 repair machinery 18 Maintain roads 24 Maintain roads 26 Maintain roads 20 Repair machinery, maintain roads Maintain roads, repair machinery Maintain roads, machinery Maintain roads December 24, and one hour 25, 1990. Work Performed 16 Maintain roads DeVite claimed one hour for working New Years Day, 1991. 8 Maintain roads, snow removal 9 Clean ditches 7 Maintain roads DeVite claimed one hour for working a holiday on February 18, 1991. Maintain roads 13. Time reported on the bi- weekly time sheets for Edward Devite was completed by Supervisor Francis Gregg. 14. Township road workers have no recollection of Edward DeVite working on township roads. 15. Road foreman, Frank McCree, would not sign time sheets for the supervisors because they were not performing work with the road crew. 16. DeVite believes his wages were to compensate him for his role as supervisor and roadmaster. a. He physically worked on the roads on three or four occasions and removed downed trees in emergency DeVite, 92- 007 -C2 Page 11 situations. b. He received telephone calls from citizens regarding road conditions and other township problems. c. He spent 5 to 6 hours each week discussing township problems with Francis Gregg. d. He gave occasional directions to roadmaster, Frank McCree. 17. DeVite is employed by C.D. Ambrosia Coal & Construction Inc. a. DeVite's normal shift is Monday through Friday 7:00 a.m. to 5:30 p.m. b. DeVite's hours with C.D. Ambrosia run concurrent to normal township non - emergency hours. 18. Edward DeVite received net compensation as follows for duties as roadmaster: a. 1988 b. 1989 Date Check # Amount 06/28/88 5451 $ 607.03 08/23/88 5560 607.03 10/25/88 5683 607.03 12/22/88 5800 607.03 1988 Roadmaster total: $2,428.12 Date Check # Amount 02/28/89 5915 $ 610.73* for Jan & Feb 03/28/89 5978 312.86 04/25/89 6031 312.86 05/23/89 6081 312.86 06/27/89 6162 312.86 07/25/89 6225 312.86 08/22/89 6283 312.86 09/26/89 6357 312.86 10/24/89 6414 312.86 11/28/89 6475 312.86 12/20/89 6527 312.86 1989 Roadmaster total $3,739.33 DeVite, 92- 007 -C2 Page 12 c. 1990 Date 01/23/90 02/27/90 03/27/90 04/24/90 05/22/90 06/26/90 07/24/90 08/28/90 09/25/90 10/23/90 11/27/90 12/21/90 6566 6638 6705 6768 6821 6921 6985 7064 7144 7212 7293 7352 1990 Roadmaster total $3,748.44 d. 1991 Check # Amount Date Check # Amount 01/22/91 7402 $ 107.10 02/12/91 7428 53.55 02/26/91 7475 60.26 03/12/91 7498 46.86 03/26/91 7529 20.09 1991 Roadmaster total $287.86 19. Edward DeVite received a total net compensation of $10,203.75 between January, 1988, and March, 1991, for hours claimed working as a township roadmaster. 20. DeVite stopped claiming hours as a roadmaster on March 13, 1991. $ 312.37 312.3712 312.37 312.37 312.37 312.37 312.37 312.37 312.37 312.37 312.37 312.37 a. DeVite discontinued the practice due to township citizens questioning the wages. 21. DeVite has been employed since at least 1987 as a mine foreman for C.D. Ambrosia Coal Company and Construction. 22. Articles of Incorporation on file with the Pennsylvania Department of State indicate Ambrosia Coal & Construction was incorporated on January 10, 1950. a. Business address is listed as R.D. 1, Edinburg, PA, Lawrence County. b. Initial incorporators were: DeVite, 92- 007 -C2 Page 13 c. Edward DeVite is not an incorporator or Ambrosia Coal and Construction. 23. Mahoning Township records confirm that on (28) occasions between October 11, 1988, and June 9, 1992, the township utilized C.D. Ambrosia Trucking for purposes of stone and material hauling. a. This selection was not done by open and public process. b. The arrangements were made by Frank McCree, road foreman. c. Edward DeVite played no role in the selection of C.D. Ambrosia. 24. C.D. Ambrosia Trucking is a separate business entity from C.D. Ambrosia Coal and Construction. a. The trucking company is owned by Carmen D. Ambrosia. 25. Payments were made to C.D. Ambrosia Trucking by Mahoning Township as follows: a. 1988 b. 1989 c. 1990 Carmen D. Ambrosia, R.D. 1, Edinburg, PA Rose Ambrosia, R.D. 1, Edinburg, PA Marshall G. Mathney, 322 E. Wallace Avenue, PA Date 10/11/88 12/13/88 TOTAL Date 01/03/89 03/14/89 03/14/89 04/11/89 09/12/89 11/14/89 11/14/89 11/14/89 TOTAL Check # Amount 5649 5754 5821 5930 5952 5988 6341 6429 6430 6468 $ 328.32 249.23 $ 577.55 Check # Amount $ 345.14 105.78 116.48 129.13 398.87 480.00 50.00 139.41 $ 1,764.81 New Castle, officer in DeVite, 92- 007 -C2 Page 14 d. 1991 e. 1992 Date Check # Amount 01/02/90 6545 $ 126.49 02/13/90 6492 657.82 02/27/90 6646 560.80 02/13/90 6665 141.74 04/10/90 6724 45.53 05/08/90 6784 1,596.56 07/06/90 6869 2,471.65 07/10/90 6957 996.62 12/11/90 7311 207.00 TOTAL $ 6,804.21 Date Check # Amount 02/12/91 7443 $ 967.43 02/12/91 7464 1,143.76 03/12/91 7504 284.07 04/01/91 7555 127.90 TOTAL $ 2,523.16 Date Check # Amount 02/11/92 8212 $ 459.11 03/10/92 8374 400.18 04/14/92 8435 343.75 05/12/92 8506 2,475.41 06/09/92 8559 408.18 TOTAL $ 4,086.63 f. Edward DeVite was one of three co- signers on checks to Ambrosia Trucking. 26. Minutes of meetings of the Mahoning Township Supervisors reflect that Edward DeVite participated in voting to approve bill listings, which included payments to C.D. Ambrosia Trucking. (See Finding 25). a. Bill listings are voted on in their entirety. b. All bill listings were approved unanimously. 27. Statements of Financial Interests filed by Edward DeVite for the 1987, 1988, 1989, 1990 and 1991 calendar years includes Ambrosia Coal and Construction as a source of income. III. DISCUSSION: DeVite, 92- 007 -C2 Page 15 Initially, it is noted that the allegations in this case relate to both Act 9 of 1989 and Act 170 of 1978. In this regard, Section 9 of Act 9 of 1989, P.L. 26, provides, in part, as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violations occurred prior thereto. Under both Act 170 of 1978 and Act 9 of 1989, as a Supervisor for Mahoning Township, Lawrence County, Edward DeVite, hereinafter DeVite, is a public official as that term is defined under both acts. See also, 51 Pa. Code. As such, his conduct is subject to the provisions of both laws and the restrictions therein are applicable to him. Under Section 3(a), of Act 170 of 1978 quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987) . Similarly, Section 3(a) of the Ethics Act would prohibit a public official/ employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Section 3(c) of Act 170 of 1978 quoted above provides in part that no public official /public employee or a member of his immediate family may contract with his governmental body if the contract is five hundred dollars or more unless it is awarded through an open and public process including prior public notice and subsequent public disclosure. Under Section 3(a) of Act 9 of 1989 quoted above, a public official shall not engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions. DeVite, 92- 007 -C2 Page 16 65 P.S. §402. "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 or his immediate family or a business with which he or a member of his immediate family is associated. In addition, Section 3(f) of Act 9 of 1989 specifically provides in part that no public official /employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /employee is associated unless the contract is awarded through an open and public process. The issues before us are whether DeVite violated either Section 3(a) or 3(c) of Act 170 of 1978 or Section 3(a) or 3(f) of Act 9 of 1989 regarding two allegations that he as a Supervisor received compensation as a roadmaster without performing roadmaster related duties and secondly that he participated in the award of a contract without an open and public process to the Ambrosia Coal Company, a business with which he was associated. DeVite has been a Supervisor in Mahoning Township since 1988 and a roadmaster between 1988 and 1991. Although the roadmasters were not appointed for particular districts prior to 1991, road districts were defined on March 12, 1991, so that Supervisors Gregg, DeVite and Johnson became roadmasters within specified separate road districts. At the annual reorganizational meetings of the Township Auditors, wages were established for the employee - Supervisors. (Fact Finding 5). As to the activities of Township employees working on the roads, the Road Department employees did not clock in and out for their daily work schedule. The activities of the road crew were reported on bi- weekly timesheets which were prepared by the road DeVite, 92- 007 -C2 Page 17 foreman and approved by the Supervisors. The bi- weekly timesheets for DeVite were completed by Supervisor Gregg. As to DeVite's activities as an employee- Supervisor, the record reflects that the Township road workers have no recollection of seeing him working on the Township roads. The road foreman would not sign timesheets for the Supervisors because they did not work with the road crew. In addition, citizens raised questions regarding the propriety of Supervisors receiving pay as roadmaster. (Fact Finding 8). DeVite contends that the wages he received were to compensate him both as Supervisor and roadmaster. The record reflects that he did physically work on roads on three or four occasions to remove downed trees in emergency situations. In addition, he received telephone calls from citizens regarding road conditions, spent five to six hours each week discussing road problems with Supervisor Gregg and gave direction to the road foreman on occasion. DeVite's submitted timesheets list the dates, amount of time worked, and the work claimed by DeVite. (Fact Finding 12). In March, 1991, DeVite discontinued the practice of claiming hours as roadmaster due to citizens' complaints about his wages. Turning the matter of the Ambrosia Coal Company, DeVite has been employed by that company as a mine foreman since 1987. The C.D. Ambrosia Trucking is another company which is a separate business entity from C.D. Ambrosia Coal and Construction. (Fact Finding 24). As to Ambrosia Coal and Construction, DeVite is not an incorporator nor an officer in that particular company. (Fact Finding 22c). The Township did utilize C.D. Ambrosia Trucking for purposes of stone and material hauling which was not done through an open and public process. DeVite played no role in the selection of C.D. Ambrosia Trucking but did participate in voting to approve the invoices for payment and co- signed the checks to Ambrosia Trucking. In applying the provisions of Section 3(a) of Act 170 and Act 9 to the question of whether DeVite improperly accepted compensation as roadmaster without performing roadmaster related duties, the disposition of the matter turns upon whether DeVite received a financial gain or private pecuniary benefit as to services he did not perform. Cohen, Order No. 610 -R; Williams, Order No. 734 -R. Similarly, a second class township supervisor may not receive compensation as a working or employee supervisor relative to perform duties which are encompassed within the office of elected supervisor. Henderson, Order No. 818; Detisch, Order No. 813; Wilmont, Order No. 788. We have held that a public official as an elected township supervisor is limited to receiving only that compensation which is allowed by law. That same public official as an employee- DeVite, 92- 007 -C2 Page 18 supervisor may receive compensation provided that the rate is set by the township board of auditors and that the duties are related to that particular position of employment. Conversely, the compensation received as an employee - supervisor may not be for duties which are encompassed within the function of an elected township supervisor as per the limitation of Section 515 of the Second Class Township Code noted above. In resolving this issue, we note the concerns of the Township citizens regarding whether DeVite performed these services. In this regard, the Township road workers did not recollect seeing DeVite working on Township roads. We are also confronted with Fact Finding 12, DeVite's timesheets, which not only delineates the date and hours worked but also type of work performed which on its face does relate to road related matters. Therefore, based upon the facts of record, we are constrained to find no violation of Sections 3(a) of Act 170 of 1978 or Act 9 of 1989 based upon the evidence. Turning to the matter of the Ambrosia Coal Company, since DeVite is employed by that firm, it is a business with which he is associated. 65 P.S. §402. However, the contracting that was done for the Township was not by Ambrosia Coal and Construction Company but by C.D. Ambrosia Trucking which is a separate business entity. Since C.D. Ambrosia Trucking is not a business with which DeVite is associated, there was no violation of Section 3(c) of Act 170 of 1978 or Section 3(f) of Act 9 of 1989 regarding the award of that contract and DeVite's participation as to C.D. Ambrosia Trucking. Conversely, as to C.D. Ambrosia Coal and Construction, the Township had no contracting services with that company. On that basis, we find no violations of Sections 3(c) of Act 170 of 1978 or Section 3(f) of Act 9 of 1989. IV. CONCLUSIONS OF LAW: 1. Edward DeVite, as a Mahoning Township Supervisor, is a public official subject to the provisions of Act 170 of 1978 and Act 9 of 1989. 2. DeVite did not violate either Section 3(a) of Act 170 of 1978 or Act 9 of 1989 regarding the acceptance of compensation as a roadmaster relative to performing roadmaster duties based upon the evidence. 3. DeVite did not violate Section 3(c) of Act 170 of 1978 or Section 3(f) of Act 9 of 1989 regarding the award of a contract to C.D. Ambrosia Trucking in that the company is not a business with which DeVite is associated. In re: Edward DeVite ORDER NO. 893 File Docket: 92- 007 -C2 Date Decided: June 28, 1993 Date Mailed: June 30, 1993 1. Edward DeVite, as a Mahoning Township Supervisor, did not violate either Section 3(a) of Act 170 of 1978 or Act 9 of 1989 regarding the acceptance of compensation as a roadmaster relative to performing roadmaster duties based upon the evidence. 2. DeVite did not violate Section 3(c) of Act 170 of 1978 or Section 3(f) of Act 9 of 1989 regarding the award of a contract to C.D. Ambrosia Trucking in that the company is not a business with which DeVite is associated. BY THE COMMISSION, JAMES M. HOWLE