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HomeMy WebLinkAbout894STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Francis Gregg File Docket: 92- 006 -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 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 §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). Gregg, 92- 006 -C2 Page 2 I. ALLEGATION: That Francis Gregg, a former 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 monthly compensation as a township roadmaster from 1987 through June, 1989, without performing any duties; utilized township employees, equipment and facilities to repair his personal vehicles, used township employees, equipment and materials to perform repairs to a private driveway in return for repairs to his personal vehicle and used township fuel for his personal vehicles. 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. 65 P.S. 403(a). (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward or promise of future employment based on any understanding that the vote, official action, or judgement of the public official or public employee or candidate from public office would be influenced thereby. 65 P.S. 403(b). That Francis Gregg, a former Mahoning Township Supervisor, 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 in the form of a monthly salary as township roadmaster from the period of June, 1989, through December, 1991, without performing any duties and when he used township fuel for his personal vehicles. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. Gregg, 92- 006 -C2 Page 3 403(a). II. FINDINGS: (b) No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donors understanding that the vote, official action or judgement of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 P.S. §403(b). 1. Francis Gregg served as a Mahoning Township Supervisor from at least 1983 through December, 1991. a. Gregg also served as a roadmaster and road superintendent during this period. b. In 1991, Gregg assumed responsibilities of superintendent. c. Gregg previously served as a township supervisor during the early 1960's. 2. Mahoning Township Supervisors reorganizational meetings include action taken to appoint supervisors as roadmasters annually between 1986 and 1991. a. Gregg 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 roadmaster and road superintendent. a. "Moved 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 ". Gregg, 92- 006 -C2 Page 4 "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: 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 1986 and 1991: a. January 6, 1986: A motion was approved to (set the) township supervisors (wages) the same as (the) previous year, $350 per month. No formal vote recorded." b. January 6, 1987: c. 1988: "Payments for (the) supervisors was set at $350 per month, as (the) previous year. Undated meeting. "Supervisor's pay set (the) same as (the) previous year." No formal vote recorded d. 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. Gregg, 92- 006 -C2 Page 5 e. 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. f. 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 5). 8. Minutes of the Mahoning Township Board of Supervisors meetings confirm that questions were raised regarding supervisors Gregg, 92- 006 -C2 Page 6 receiving pay as roadmasters: a. February 13, 1990: "Mike Pezzuolo asked the 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, roadmaster or supervisors. 1) Time sheets generally contained the signatures of Gregg, 92- 006 -C2 Page 7 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 AM to 4:00 PM . 12. Township bi- weekly time sheets also include hours worked and duties reported by Francis Gregg between January, 1986 and December, 1991. a. Calendar Year: 1986 Month Hours Work Performed January 2/1/86- 2/15/86 2/16/86- 2/28/86 3/1/86- 3/15/86 3/16/86 - 3/31/86 4/1/86- 4/15/86 4/16/86- 4/30/86 5/1/86 - 5/15/86 5/16/86 - 5/31/86 6/1/86- 6/15/86 Gregg reported no hours 15, 1986. 12/16/86- 12/31/86 b. Calendar Year: 1/1/87 - 1/15/87 30 Gregg claimed three 1/16/87- 1/31/87 42 2/1/87- 2/15/87 23 2/16/87- 2/28/87 21 3/1/87- 3/15/87 0 3/16/87- 3/31/87 4/1/87- 4/15/87 4/16/87- 4/30/87 5/1/87- 5/15/87 5/16/87 - 5/31/87 6/1/87- 6/15/87 6/16/87- 6/30/87 7/1/87- 7/15/87 0 0 44 Maintain, salt roads 44 Machine repairs salt roads 52 Clean, patch roads 40 Clean roads, machine repairs 41 Patch roads 50 Clean, patch roads 60 Clean, patch roads 56 Repair roads, replace sign from June 16, 1986, through December 53 Road maintenance, repairs 60 48 54 54 60 68 0 80 1987 Snow hours for working New Years day, 1987. Snow Road Road and maintenance removal, machine repairs maintenance, snow removal maintenance Clean streets Snow, road maintenance Road maintenance Road repair Street cleaning, maintain roads Road repair Road maintenance Gregg, 92- 006 -C2 Page 8 7/16/87- 7/31/87 8/1/87 - 8/15/87 8/16/87 - 8/31/87 9/1/87- 9/15/87 9/16/87- 9/30/87 10/1/87- 10/15/87 10/16/87 - 10/31/87 11/1/87- 12/15/87 12/16/87- 12/31/87 c. Calendar Year: 1988 1/1/88 - 1/15/88 44 Snow removal, repair roads Gregg claimed four hours for working New Years Day, 1988. 1/16/88- 1/31/88 40 Snow, maintenance Gregg claimed no hours from February 1, 1988 through May 31, 1988. 6/1/88- 6/15/88 76 Maintain roads 6/16/88- 6/30/88 0 7/1/88 - 7/15/88 48 Machine repairs, maintain roads Gregg claimed four hours for working July 4, 1988. 7/16/88- 7/31/88 0 8/1/88 - 8/15/88 54 Road maintenance Gregg claimed no hours from August 16, 1988 through December 15, 1988. 12/16/88- 12/31/88 48 Road maintenance, snow removal Gregg claimed four hours for working a listed holiday on December 26, 1988. d. Calendar Year: 1989 Gregg claimed no hours from January 1, 1989 through April 30, 1989. 5/1/89- 5/15/89 5/16/89 - 5/31/89 6/1/89 - 6/15/89 6/16/89- 6/30/89 7/1/89- 7/15/89 7/16/89- 7/31/89 8/1/89 - 8/15/89 8/16/89 - 8/31/89 66 Clean street, maintain roads 48 Clean ditches, maintain roads 42 Maintain roads 72 Road maintenance, repair machinery 88 Road maintenance 44.5 Road maintenance, machine repairs 44 Road maintenance, machine repairs 0 40 Maintain roads 44 Machine repair, road maintenance 52 Machine repair, road maintenance 46 Road maintenance 44 Road, machine maintenance 36 Road maintenance 44 Road maintenance 48 Maintain roads 50 Maintain roads Gregg, 92- 006 -C2 Page 9 9/1/89- 9/15/89 9/16/89- 9/30/89 10/1/89- 10/15/89 Gregg claimed four 1989. 10/16/89- 10/31/89 11/1/89- 11/15/89 11/16/89- 11/30/89 Gregg claimed four hours 1989 12/1/89- 12/15/89 32 12/16/89- 12/31/89 36 e. Calendar Year: 1990 1/1/90- 1/15/90 1/16/90- 1/31/90 0 2/1/90 - 2/15/90 8 2/16/90- 2/28/90 Gregg claimed two hours 1990. 3/1/90- 3/15/90 3/16/90- 3/31/90 4/1/90- 4/15/90 Gregg claimed four hours for working a 1990. 4/16/90- 4/30/90 5/1/90- 5/15/90 5/16/90 - 5/31/90 6/1/90- 6/15/90 6/16/90- 6/30/90 7/1/90- 7/15/90 7/16/90- 7/31/90 8/1/90 - 8/15/90 8/16/90 - 8/31/90 9/1/90- 9/15/90 44 Maintain roads 44 Maintain roads, machinery 42 Maintain roads, machinery hours for working a holiday on October 9, 54 Maintain roads, repair machinery 44 Repair machinery, maintain roads 26 Repair roads, maintain machinery for working a holiday on November 23, Snow removal, maintain roads Snow removal, maintain roads 12 Maintain roads 18 Cut trees, clean ditches Snow removal, patch holes for working a holiday on February 26 Clean ditches, work on equipment 26 Patch pot holes, clean ditches 28 Clean ditches 26 27 42 26 23 22 29 Maintain Maintain Maintain Maintain Maintain Maintain Maintain holiday on April 13, roads roads roads roads, repair machinery roads roads roads 19, Gregg claimed three hours for working on July 4th., and one hour for working a holiday listed on July 3, 1990. 25 Repair machinery, 30 Maintain roads 28 Maintain roads maintain roads Gregg claimed two hours for working a holiday on September 3, 1990. Gregq, 92- 006 -C2 Page 10 9/16/90- 9/30/90 28 Maintain roads, machinery 10/1/90- 10/15/90 32 Maintain roads Gregg claimed two hours for working a holiday on October 8, 1990. 10/16/90- 10/31/90 37 Repair machinery, roads 11/1/90- 11/15/90 34 Maintain roads, machinery Gregg claimed two hours for working a holiday on November 12, 1990. 11/16/90- 11/30/90 12/1/90- 12/15/90 12/16/90- 12/31/90 Gregg claimed two hours for working Christmas day, 1990. f. Calendar Year: 1991: 1/1/91- 1/15/91 34 Maintain roads, repair machinery 1/16/91- 1/31/91 31 Maintain roads Gregg claimed two hours for working New Years Day, 1991. 2/1/91- 2/15/91 37 Patch holes, snow removal 2/16/91- 2/28/91 26 Maintain roads Gregg claimed four hours for working a holiday on February 1991. 3/1/91- 3/15/91 3/16/91- 3/31/91 4/1/91- 4/15/91 4/16/91- 4/30/91 5/1/91 - 5/15/91 5/16/91 - 5/31/91 6/1/91- 6/15/91 6/16/91- 6/30/91 7/1/91- 7/15/91 7/16/91 - 7/31/91 8/1/91 - 8/15/91 8/16/91 - 8/31/91 9/1/91- 9/15/91 Gregg claimed four 1991. 9/16/91- 9/30/91 10/1/91 - 10/15/91 24 Snow removal, maintain roads 24 Maintain roads 28 Maintain roads 24 Maintain roads 26 Maintain roads 12 Maintain roads 24 Maintain roads 28 Maintain roads 28 Maintain roads 34 Maintain roads 26 Clean ditches, pot holes 30 Clean roads, ditches 30 Install pipe, fix catch basins hours 18 Maintain roads, repair machinery 16 Maintain roads, machinery 32 Snow removal, maintain roads for working a holiday on September 18, 2, 26 Repair catch basins, cut grass 36 Patch roads, install pipe, fix guard rails Gregg, 92- 006 -C2 Page 11 10/16/91- 10/31/91 11/1/91- 11/15/91 Gregg claimed four 1991. 11/16/91- 11/30/91 34 12/1/91- 12/15/91 30 12/16/91- 12/31/91 10 13. Francis Gregg received net as roadmaster. a. 1986: c. 1988: Date 02/25/86 04/22/86 06/24/86 08/26/86 10/28/86 12/22/86 b. 1987: d. 1989: Check # 3844 3935 4045 4156 4298 4396 1986 Roadmaster total: Date 02/24/87 04/28/87 06/23/87 08/25/87 10/27/87 12/22/87 1987 Roadmaster Date 02/23/88 04/26/88 06/28/88 08/23/88 10/25/88 12/22/88 1988 Roadmaster 32 Clear roads, patch pot holes 28 Snow preparation hours for working a holiday on November 11, Check # 4519 4623 4745 4895 5005 5125 Check # 5243 5341 5449 5559 5681 5798 Repair road signs Clean ditches, snow removal Maintain roads compensation as follows for duties $2,858.34. total: $2,789.82. total: $3,348.18. Amount $ 476.39 476.39 476.39 476.39 476.39 476.39 Amount $ 464.97 464.97 464.97 464.97 464.97 464.97 Amount $ 558.03 558.03 558.03 558.03 558.03 558.03 Gregg, 92- 006 -C2 Page 12 e. 1990: f. 1991: Date Check # Amount 02/28/89 4914 $ 784.51 03/28/89 5976 402.25 04/25/89 6029 402.25 05/23/89 6079 392.25 06/27/89 6160 402.25 07/25/89 6223 402.25 08/22/89 6281 402.25 09/26/89 6355 402.25 10/24/89 6412 402.25 11/28/89 6473 402.25 12/20/89 6525 402.25 1989 Roadmaster total: $4,761.01. Date Check # Amount 01/23/90 6565 $ 401.62 02/27/90 6637 401.62 03/27/90 6704 401.62 04/24/90 6767 391.62 05/22/90 6820 401.62 06/26/90 6919 401.62 07/24/90 6983 401.62 08/28/90 7062 401.62 09/25/90 7142 401.62 10/23/90 7210 401.62 11/20/90 7291 401.62 12/21/90 7350 401.62 1990 Roadmaster total: $4,809.44. Date Check # Amount 01/22/91 7401 $ 277.98 02/12/91 7427 49.07 02/26/91 7474 302.50 03/12/91 7497 24.55 03/26/91 7528 196..22 04/09/91 7544 123.67 04/23/91 7594 218.93 05/14/92 7615 98.12 05/28/91 7660 212.57 06/11/91 7680 98.12 06/25/91 7737 203.37 07/09/91 7757 130.82 07/23/91 7821 228.93 08/13/91 7848 98.12 08/27/91 7901 212.57 Gregg, 92- 006 -C2 Page 13 09/10/91 09/24/91 10/08/91 10/22/91 11/12/91 11/26/91 12/10/91 12/20/91 7921 7969 7987 8045 8065 8118 8136 8193 112.68 241.43 80.49 289.69 32.19 225.33 96.58 241.42 1991 Roadmaster total: $3,795.35. g. Total Roadmaster wages 1986 through 1991 - $22,362.14. 14. Gregg performed no physical labor on the township roads with township road workers. a. Gregg would spend approximately one to two hours a day at the township building reviewing correspondence and making phone calls. b. Gregg would drive by township work sites approximately two times a week. c. Gregg would give direction to foreman Frank McCree. 15. Gregg collected the monthly salary whether any hours were worked in relation to township road matters. The auditors prior to 1991 set a fixed monthly compensation which did not relate to hours worked. a. The duties recorded on time sheets were for road department employees specifically. 1) Those duties were not hours which Gregg was performing. 2) Gregg's time sheets do not reflect specific duties performed for which he was compensated. 16. Gregg had open heart surgery during January, 1990. a. Gregg was in the hospital from January 5, 1990, until February 5, 1990. b. He continued to collect wages while off sick. c. Gregg's monthly wage for January, 1990 was $450.00. d. The township does not have any accumulated sick time policy. Greaq, 92- 006 -C2 Page 14 17. Between December 16, 1985, and December 31, 1990, hours claimed on bi- weekly time sheets were not the criteria used to compute Gregg's monthly compensation. 18. Mahoning Township maintains a garage for equipment storage and township vehicle repair. a. This facility is not available to the general public. 19. Francis Gregg utilized township labor and materials to service his personal vehicle at the above referenced facility. a. This includes the use of both full -time and part -time employees. b. Services included oil changes, replacement of windshield wiper blades and light bulbs. 20. Full -time road department employee Lewis McFarland was instructed by Gregg to service Gregg's vehicle while on township time: a. McFarland performed two oil changes on Gregg's vehicle. 1. Both involved the use of five quarts of motor oil. 2. Township motor oil was used in both instances. b. McFarland changed windshield wiper blades on Gregg's car on at least one occasion. 1. Wiper blades used here were purchased by the township. c. McFarland replaced burned out taillight bulbs on several occasions. 1. Replacement bulbs used were from the township supply. d. McFarland's hourly wage ranged between $6.50 and $7.85 per hour during this period. e. All materials used were similar to those used in the township vehicles. 21. Full -time road department employee William Anderson was instructed by Gregg to service Gregg's vehicle while on township time: a. Anderson performed two oil changes on Gregg's vehicle. Gregg, 92- 006 -C2 Page 15 1. Both involved the use of five quarts of township motor oil. 2. One involved an oil filter which was picked up by Anderson from Romano's Auto Parts Store. b. Anderson installed one set of wiper blades on Gregg's car. 22. Former part -time road department employee, Anthony Angelo was instructed by Gregg to replace burned out light bulbs on Gregg's vehicle. This occurred on two occasions during 1990, while Angelo was on township time. a. Each repair took approximately 45 minutes. b. Replacement bulbs used were from the township supply. c. Angelo was compensated at a rate of $5.25 per hour during 1990. 23. Former part -time road department employee Harry Allen was instructed by Gregg to service Gregg's vehicle on township time on three occasions. a. On two separate occasions, Allen replaced burned out light bulbs in Gregg's vehicle. 1. Replacement bulbs came from township supplies. 2. Allen spent approximately 30 minutes on each repair. 3. Allen was compensated between $5.00 and $5.75 per hour during this time span. b. During 1991, Allen performed one oil change for Gregg. 1. Five quarts of township oil were used. 2. Township facilities were used. 3. Allen spent approximately 45 minutes on the repair. 4. Allen was compensated at a rate of $5.75 per hour at that time. 24. Part -time employee Jack Carbon replaced the fan belts on Gregg's Volkswagen on one occasion, on township time. a. This occurred during either 1986 or 1987. Gregg, 92- 006 -C2 Page 16 b. Township facilities were used. c. Carbon spent roughly two hours on the repairs. d. Carbon may have been assisted by Louis McFarland. e. Carbon was compensated between $4.00 and $4.50 per hour during this time span. 25. During 1989, Road Department employees Frank McCree and Louis McFarland went to the residence of Gregg to open the garage door on Gregg's residence so that Gregg could get his personal vehicle out of the garage in order to come to the Township Building for Gregg to perform his duties as roadmaster. a. Both McCree and McFarland were on township time when this occurred. b. This work was done at the direction of Supervisor Gregg. c. McCree was compensated at a rate of $8.24 per hour in 1989. d. McFarland was compensated at a rate of $7.00 per hour in 1989. 26. Mahoning Township has a refueling station at the municipal building for refueling township equipment. 27. Township fuel is purchased in bulk through annual competitive bid process. 28. Township records reflect contracts awarded for fuel as follows: a. 1987: Guttman Oil Regular .518 per /gallon Unleaded .518 per /gallon Diesel .485 per /gallon b. 1988: Reed Oil Regular .50 per /gallon Unleaded .49 per /gallon Diesel .5025 per /gallon c. 1989: Reed Oil Regular .6350 per /gallon Unleaded .585 per /gallon Diesel .579 per /gallon d. 1990: Reed Oil Gregg, 92- 006 -C2 Page 17 Regular .6034 per /gallon Unleaded .5737 per /gallon Fuel Oil .5881 per /gallon e. 1991: Reed Oil Regular .7156 per /gallon Unleaded .6651 per /gallon Fuel Oil .5767 per /gallon 29. Francis Gregg directed township road department employees to refuel his personal vehicle on a regular basis between 1987 and 1990. 30. Employee Anderson filled Gregg's vehicle up with diesel fuel approximately six times between 1987 and 1990. a. Each occurrence required approximately twelve gallons of diesel fuel. 31. Employee McFarland filled Gregg's vehicle on a weekly basis during the summer months of 1990. a. Each occurrence required roughly 17 to 18 gallons of fuel. 32. Former part -time employee Anthony Angelo filled Gregg's vehicle on at least twenty occasions, primarily during the summer months of 1990. a. Each fill -up took between eight and fourteen gallons of fuel. 33 Former part -time employee Harry Allen filled Gregg's vehicle up on almost a weekly basis during 1989, 1990 and 1991. a. Each fill -up took between eight and eleven gallons. b. Allen was a seasonal employee, working from March through October each year. 34 No provision was set by the township auditors or board of supervisors to receive fuel from township supplies. 35. At the Auditor's January 8, 1991 Reorganization meeting, a vehicle allowance of $.26 per mile was approved for the use of personal vehicles on township business when a township truck is unavailable. 36. Township business records include mileage records for Francis Gregg during 1991. Gregg, 92- 006 -C2 Page 18 a. Gregg was compensated for 1150 miles at a rate of $.26 per mile. b. Check number 8200, dated December 20, 19 91, in the amount of $299.00 was issued to Gregg. 37. Gregg admitted to having his vehicle refueled by township employees on a weekly basis and to having his vehicle repaired by township employees. a. He asserts each fill -up took roughly ten gallons of fuel. b. Gregg believed he received approximately two hundred gallons of fuel a year. c. Gregg believed he was entitled to both since he regularly used his personal vehicle on township related business. 38. The value of the gas that was pumped into Gregg's personal automobiles was $750.00. 39. The value of the parts and labor used by the township employees in repairing Gregg's personal automobile was $77.00. 40. Francis Gregg did not believe that he was violating the State Ethics Law as the result of the above incidents because he used his personal vehicle extensively on township business and that utilizing township fuel and having minor maintenance done to his vehicle would be less expensive to the township than being reimbursed for actual mileage. Furthermore, Gregg advised the other supervisors of this procedure and had their approval, although no formal vote was taken on the matter. III. DISCUSSION: 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 former Gregg, 92- 006 -C2 Page 19 Mahoning Township Supervisor, Francis Gregg, hereinafter Gregg, 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(b) of Act 170 of 1978 provides that no person shall solicit or accept anything of value based on the understanding that the vote, official action or the judgement of the public official or employee would be influenced thereby. 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. "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 Gregg, 92- 006 -C2 Page 20 65 P.S. §402. a business with which he or a member of his immediate family is associated. In addition, Section 3(b) of Act 9 of 1989 provides in part that no person shall offer to a public official /employee anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. The issues before us are whether Gregg violated either Section 3(a) or 3(b) of Act 170 of 1978 or Section 3(a) or 3(b) of Act 9 of 1989 by receiving compensation without performing any duties and secondly by using Township employees, equipment, materials or fuel for private personal purposes. Gregg served as a Supervisor and roadmaster in Mahoning Township from 1983 through December, 1989. 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 Findings 5 -7). The Auditors traditionally set the compensation for employee - Supervisors at a monthly rate until they changed the practice at the January, 1991 reorganizational meeting whereby compensation was then set at an hourly rate. As to the activities roads, the Road Department their daily work schedule. reported on bi- weekly time foreman and approved by the generally contained the Supervisor. of Township employees working on the employees did not clock in and out for The activities of the road crew were sheets which were prepared by the road Supervisors. The bi- weekly time sheets signatures of Gregg and one other As to Gregg's activities as an employee - Supervisor, the record reflects that Gregg performed no physical labor with the Township road workers on the Township roads. The duties recorded on Gregg's time sheet (Fact Finding 12) reflect claimed work hours by himself or on holidays. Gregg did drive to the Township sites approximately twice a week to give the foreman directions. The record does not establish what duties Gregg did or did not do on an individual basis without road workers or others present. Questions were raised regarding the propriety of Supervisors receiving pay as roadmaster. (Fact Finding 8). Regarding the allegation that Gregg utilized Township employees, equipment, materials and fuel for his personal use, the Gregg, 92- 006 -C2 Page 21 record reflects that Gregg did use Township labor and materials to service his personal vehicle. (Fact Finding 19). Gregg instructed Township employees Louis McFarland, William Anderson, Anthony Angelo, Jack Corbin, and Harry Allen to service Gregg's vehicle which was done by these employees during Township working hours. (Fact Findings 20 -24). Such servicing also involved the use of Township materials. The record also reflects instances where Gregg directed Township Road Department employees to place fuel in his personal vehicle. (Fact Findings 29 -33). Although the Township Auditors at the January, 1991 reorganizational meeting approved a vehicle allowance of $.26 per mile for personal vehicle use on Township business, there was no authorization for the use of Township fuel. In applying the provisions of Section 3(a) and 3(b) of Act 170 and Act 9 to the question of whether Gregg improperly accepted compensation as roadmaster without performing roadmaster related duties, the disposition of the matter turns upon whether Gregg 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. A second class township supervisor may not receive compensation as a working or employee supervisor relative to performing 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. An elected supervisor as an employee - 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. In resolving this issue, we are confronted with the fact that Gregg's purported work did not occur when the road crew or others were present so that there is no means of verifying or establishing that he did or did not perform the work. 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. As to the use of Township employees, materials and fuel for personal use, we find a violation of Section 3(a) but not 3(b) of Act 170 as to the above activities and also a violation of Section 3(a) but not 3(b) of Act 9 as to the fuel usage for personal purposes. Gregg, 92- 006 -C2 Page 22 In this case, it is clear that there was a use of office or use of authority of office when Gregg directed the Township employees to service his vehicle or to place Township fuel in his personal vehicle. Such would not have occurred but for the position of Gregg as an elected Township Supervisor. See, Juliante, Order No. 809. The vehicle service, parts and fuel constituted a financial gain or pecuniary benefit to the extent that Gregg did not have to outlay such sums from his own personal finances. Lastly, the gain or benefit was other than compensation provided by law or private in that there is no provision in the Second Class Township Code which authorizes such action. We therefore find violations of Section 3(a) of act 170 and Act 9. As to Section 3(b) of Act 170 or Act 9, we find no violation because there is no evidence of record to establish that any understanding existed between Gregg and the Township employees vis- a-vis his receipt of the vehicle services and fuel in return for any offer or action by Gregg. The power of this Commission to impose restitution is founded both in the Ethics Law and by judicial precedent. Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). In this case, restitution in the amount of $827.00 is warranted based upon the usage of $750.00 in fuel (Fact Finding 38) plus $77.00 in parts and labor as to Gregg's vehicle. (Fact Finding 39). Gregg is therefore directed to make restitution in the amount of $827.00 to Mahoning Township through this Commission in a timely manner. IV. CONCLUSIONS OF LAW: 1. Francis Gregg, as a former Mahoning Township Supervisor, is a public official subject to the provisions of Act 170 of 1978 and Act 9 of 1989. 2. Gregg did not violate either Section 3(a) or 3(b) 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. Gregg violated Sections 3(a) but not 3(b) of Act 170 of 1978 and Act 9 of 1989 as to the utilization of Township parts, labor and fuel for private personal purposes 4. Gregg violated Section 3(a) but not 3(b) of Act 9 of 1989 regarding the utilization of Township fuel for his personal use. 5. The financial gain and private pecuniary benefit received by Gregg amounted to $827.00. In re: Francis Gregg ORDER NO. 894 File Docket: 92- 006 -C2 Date Decided: June 28, 1993 Date Mailed: June 30, 1993 1. Francis Gregg, as a former Mahoning Township Supervisor, did not violate either Section 3(a) or 3(b) 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. Gregg violated Sections 3(a) but not 3(b) of Act 170 of 1978 and Act 9 of 1989 as to the utilization of Township parts, labor and fuel for private personal purposes. 3. Gregg violated Section 3(a) but not 3(b) of Act 9 of 1989 regarding the utilization of Township fuel for his personal use. 4. The financial gain and private pecuniary benefit received by Gregg amounted to $827.00. 5. Gregg is ordered to timely submit checks or payments in the amount of $827.00 through this Commission payable to the order of Mahoning Township. BY THE COMMISSION, JAMES M. HO IR