HomeMy WebLinkAbout895STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Jeffrey Johnson File Docket: 92- 008 -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 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 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
§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. §409(e).
Johnson, 92- 008 -C2
Page 2
I. ALLEGATION:
That Jeffrey Johnson, a Supervisor for Mahoning Township,
Lawrence County violated the following sections of the Public
Officials and Employee Ethics Act, Act 9 of 1989, when he received
compensation not provided for by law by accepting a monthly salary
from 1990 through 1991 as a township roadmaster without performing
any roadmaster related duties and when he voted to give himself a
pay increase without auditor approval.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
§403(a).
II. FINDINGS:
1. Jeffrey Johnson has served as a Mahoning Township Supervisor
since January, 1990.
2. Mahoning Township Supervisors reorganizational meetings
include action taken to appoint supervisors as roadmasters in
1990, 1991 and 1992.
a. Johnson 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 ".
"Moved by Gregg and seconded by DeVite to name DeVite as
assistant superintendent of roads for the year 1991."
DeVite, yes; Johnson, no; Gregg, yes.
Present: DeVite, Gregg, Johnson
b. Prior to 1991, the roadmasters were not appointed for
particular districts.
Johnson, 92- 008 -C2
Page 3
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 the Mahoning Township Supervisors reorganizational meeting
of January 6, 1992, the supervisors divided the township into
three distinct road districts assigning one to each
supervisor / roadmaster.
McCree - Andrews Road, West to the Ohio line.
Johnson - Andrews Road, East to Edinburg and 551 East.
DeVite - North Mahoning, Ambrosia Road to 422.
6. At their annual reorganization meetings, the Mahoning Township
auditors took action to approve supervisors' wages. Auditor
reorganizational minutes reflect the following action on
wages:
a. 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.
b. 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.
Johnson, 92- 008 -C2
Page 4
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.
c. January 7, 1992:
Motion approved to set roadmasters working pay rate at
$10.85 per hour, full benefits paid for full -time work.
(35 hours per week).
1. Work must be documented and verified through time
sheets or time clocks.
2. Work must be performed during normal working hours.
Except in time(s) of emergency such as snow
removal, downed trees, landslides, floods or any
other similar occurrence that might happen during
the night or day.
3. The roadmasters are to be limited to forty hours
per month with the exception of the full time
roadmaster working with the road crew. Time sheets
are to be signed by the superintendent.
7. 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 1991 and
1992.
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.
8. In 1991, the Mahoning Township Auditors changed the roadmaster
and road superintendent compensation from a monthly salary to
an hourly rate. (Refer to finding 6).
9. Minutes of the Mahoning Township Board of Supervisors meetings
confirm that questions were raised regarding supervisors
receiving pay as roadmasters:
a. February 13, 1990:
Johnson, 92- 008 -C2
Page 5
"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
10. 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.
11. The work activities of the township road crew are reported on
biweekly 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 and at least one other supervisor.
12. Mahoning Township Road Department employees work hours are not
recorded by a time clock. Daily start and finish times are
Johnson, 92- 008 -C2
Page 6
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.
13. Mahoning Township biweekly time reports include hours worked
and duties reported by Jeffrey Johnson between January 1990
and July 15, 1992.
a. 1990:
b. 1991:
Date Hours
01/01/90- 01/15/90 20
01/16/90- 01/31/90 21.5
02/01/90 - 02/15/90 17.5
02/16/90- 02/28/90 13
03/01/90- 03/15/90 15.5
03/16/90 - 03/31/90 25.5
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
07/16/90- 07/31/90
08/01/90- 08/15/90
08/16/90- 08/31/90
09/01/90- 09/15/90
09/16/90 - 09/30/90
10/01/90 - 10/15/90
10/16/90- 10/31/90
11/01/90- 11/15/90
Johnson claimed one
November 12, 1990.
11/16/90 - 11/30/90
12/01/90 - 12/15/90
12/16/90 - 12/31/90
Duties
Maintain roads, snow
removal
Maintain roads
Fixed culvert, snow
plow
Patch pot holes
Clean ditches, work
on equipment
Clean roads, patch
holes
20.5 Repair machinery
clean ditches
18 Maintain roads
24.5 Maintain roads
31.5 Maintain roads
26 Maintain roads
repair machines
7 Maintain roads
10.5 Maintain roads
21.5 Maintain roads
18 Maintain roads
9.5 Maintain roads
16 Maintain roads
17.75 Maintain roads,
machinery
14.75 Repair machinery,
maintain roads
17.75 Maintain roads
18 Maintain roads
hour for working a holiday on
12
0
12.5
Maintain roads
Maintain roads
Johnson, 92- 008 -C2
Page 7
Date
03/01/91- 03/15/91
03/16/91- 03/31/91
04/01/91- 04/15/91
04/16/91- 04/30/91
05/01/91- 05/15/91
05/16/91 - 05/31/91
06/01/90- 06/15/90
06/16/90- 06/30/91
07/01/91 - 07/15/91
Johnson claims one
07/16/91- 07/31/91
08/01/91 - 08/15/91
08/16/91- 08/31/91
09/01/91- 09/15/91
09/16/91- 09/30/91
10/01/91- 10/15/91
10/16/91- 10/31/91
11/01/91- 11/15/91
11/16/91 - 11/30/91
12/01/91- 12/15/91
12/16/91 - 12/31/91
Hours
4
18
23
21
22.5
28
20
20
20
Duties
Road / b r i d g e
inspection
Check equipment,
road, bridge
inspection
Meet with Bill
Humphrey to go over
plans for Cochran
Bridge; check bridge
construction
Repair wood guard
post, check clean -up
Check catch basin,
backup
Check road patch,
road complaint
Check complaints
Check equipment,
repair, check
culvert
Inspect equipment
and tools, inspect
roads
hour for working July 4, 1991.
25 Job planning,
inspect work done by
road crew
20 Check pot holes,
bridges, grass
20 Inspect bridges,
roads, check grass
needing cut
17 Check bridges, roads
23 Check work done,
check equipment
21 Check equipment,
check Churchill Road
for repairs
20 Inspect work done,
bridges
20 Check work done by
crew, c h e c k
culverts, machinery
20 Check work done
20 Check salt supplies,
inspect roads and
bridges
20 1/2 Check work done,
Johnson, 92- 008 -C2
Page 8
1992:
01/01/92- 01/15/92
01/16/92- 01/31/92
02/01/92- 02/15/92
02/16/92- 02/29/92
03/01/92- 03/15/92
03/16/92- 03/31/92
04/01/92 - 04/15/92
04/16/92- 04/30/92
05/01/92 - 05/15/92
05/16/92- 05/31/92
06/01/92- 06/15/92
06/16/92- 06/30/92
07/01/92 - 07/15/92
answer complaint,
plan work
20 Check work done,
check complaint
18 I n s p e c t
tools /machinery,
inspect roads
20 Inspect roads,
equipment, bridges
18.5 Check high -lift to
see if brakes were
repaired, inspect
roads and bridges
20 Check work done and
equipment, culverts
19 Check condition of
roads, street signs,
truck equipment
21 Inspect roads, check
street signs, check
work done by crew
20 Check signs, inspect
roads and bridges
20 Inspect work done by
crew, inspect roads
and bridges
20 Inspect roads and
bridges, work done
and culverts
20 Inspect trap basins,
check pipe put in,
potholes
20 Check equipment,
stone hauled, paving
being done
26 C h e c k r o a d
complaint, inspect
holes
Johnson claims 3 hours on July 4, 1992, for checking
roads, and inspects work done by the road crew on
Hillsville Road.
14 Johnson regularly filled out and signed his own time sheets.
a. No other signatures appear on Johnson's time sheets.
15. Johnson is employed by Ohio Edison, Youngstown, Ohio on a full
Johnson, 92- 008 -C2
Page 9
time basis.
a. Johnson's normal work shift is Monday through Friday 7:00
a.m. to 4:00 p.m.
b. Johnson's work shift runs concurrent with normal township
road department hours.
16. Johnson's time sheets reflect he regularly claims hours worked
on Saturdays.
a. Beginning in 1991, the auditors recommended that the
supervisor /roadmasters work to be performed during normal
road department hours i.e. Monday - Friday, 7:30 a.m. -
4:00 p.m.
17. Johnson's time sheets reflect him regularly claiming hours for
road and bridge inspection.
a. Three to five inspections are claimed during each pay
period.
18. Mahoning Township is responsible for approximately 60 to 70
miles of roads and approximately six bridges.
a. Supervisors conduct two semi - annual road inspections.
b. Bridge inspections are handled by PennDOT and Taylor
Engineering, the township engineer.
1. An inspection report is sent to the township
indicating any needed repairs.
19. During 1992, Frank McCree served as a full time supervisor/
roadmaster.
a. McCree was out with the crew daily.
b. McCree was responsible for daily work assignments.
20. Johnson regularly claimed hours during 1992 for checking work
done by the road crew and job planning.
21. Johnson had part -time employees, David Bradley and Bill
Barber, work Tuesdays through Saturdays between May 16, 1990,
and June 15, 1990.
a. This was done to give Johnson a crew on Saturdays.
b. The Saturdays that this occurred consisted of May 19,
1990, May 26, 1990, June 2, 1990, and June 9, 1990.
Johnson, 92- 008 -C2
Page 10
c. Duties performed on these Saturdays are listed as
maintenance of roads.
d. Johnson asserts that the work was necessary to get the
road department caught up.
e. No additional hours were being worked by these employees.
22. Road department employees generally do not work weekends
except in emergency situations.
a. Situations outlined in finding no. 21 were not emergency
situations.
23. Jeffrey Johnson received the following net compensation for
duties as a township roadmaster.
a. 1990:
Date
01/23/90
02/27/90
03/27/90
04/24/90
05/29/90
06/26/90
07/24/90
08/28/90
09/25/90
10/23/90
11/27/90
12/21/90
Total: 1990 roadmaster wages - $3,748.44
b. 1991:
Date Check # Amount
03/26/91
04/09/91
04/23/91
05/14/91
05/28/91
06/11/91
06/25/91
07/09/91
07/23/91
08/13/91
08/27/91
Check # Amount
6567
6639
6706
6769
6822
6920
6984
7063
7143
7211
7292
7351
7530
7547
7599
7618
7661
7681
7738
7758
7822
7849
7902
$ 312.37
312.37
312.37
312.37
312.37
312.37
312.37
312.37
312.37
312.37
312.37
312.37
$ 26.78
120.50
153.96
113.81
150.62
117.16
133.88
133.88
133.88
133.88
133.88
Johnson, 92- 008 -C2
Page 11
09/10/91
09/24/91
10/08/91
10/22/91
11/12/91
11/26/91
12/10/91
12/20/91
12/10/91
c. 1992:
7922
7970
7988
8046
8066
8121
8137
8194
131.78
112.02
151.55
138.39
125.19
131.78
131.78
160.95
Total: 1991 roadmaster wages - $2,435.67 without back
pay.
8188 $ 498.84
The above was a net back pay, payment sought by Johnson
(see finding 25).
Date Check # Amount
01/28/92 8265 $ 190.41
02/11/92 8293 172.26
02/25/92 8353 191.39
03/10/92 8369 177.04
03/24/92 8404 191.39
04/14/92 8424 181.83
04/28/92 8489 200.97
05/12/92 8502 191.39
05/26/92 8541 191.39
06/09/92 8602 191.39
06/23/92 8609 191.39
07/14/92 8636 192.04
07/28/92 8684 249.66
08/11/92 8712 134.43
08/25/92 8774 259.26
Total: 1992 roadmaster wages - $2,906.24
24. In 1991 Jeffrey Johnson sought back pay because he was
compensated at a lower rate than Superintendent, Francis
Gregg.
a. Johnson's rate as approved by the auditors was $7.50 /hr.
(See finding 6b(2)).
b. Gregg's rate was $9.16 /hr (See finding 6b(1)).
25. At the Mahoning Township Board of Supervisors Meeting for
December 10, 1991, action was taken by the board of
supervisors to grant Johnson a pay increase.
Johnson, 92- 008 -C2
Page 12
a. Motion was made by Gregg and seconded by DeVite to pay
Jeff Johnson back pay at $1.66 /hr effective March 12,
1991. All were in favor.
b. Johnson was present at this meeting.
c. Check #8188 in amount of $498.84 for back pay for Johnson
was approved at this meeting.
1. Johnson voted in favor of the motion.
2. Jeffrey Johnson was one of three signatories on
this check.
26. Mahoning Township auditors did not take any official action
regarding Johnson's back pay request.
a. Auditors, Carna and Greco, became aware of Johnson's back
pay in 1992 when auditing the 1991 accounts.
b. They took no action.
27. Johnson believed he was entitled to a pay increase since he
was performing the same duties as Francis Gregg.
28. Jeffrey Johnson has received compensation in the form of
mileage reimbursement from Mahoning Township.
a. April 28, 1992 - $130.00 - 500 miles at $.26 /mile
b. July 14, 1992 - $170.30 - 655 miles at $.26 /mile
c. October 27, 1992 - $178.10 - 685 miles at $.26 /mile
d. December 22, 1992- $156.00 - 600 miles at $.26 /mile
Total $634.40
e. There is no itemized listing of miles travelled.
29. In 1992, the Mahoning Township auditors did not approve
township supervisors being reimbursed mileage for use of
personal vehicles.
30. In 1992, township vehicles were available for Jeffrey
Johnson's use while on township business.
31. Jeffrey Johnson did not believe that he was violating the
State Ethics Law as the result of the foregoing events because
in March of 1991 the supervisors divided the township into
districts, and each roadmaster was responsible for his own
Johnson, 92- 008 -C2
Page 13
district. Therefore, the supervisors interpreted the
auditors' resolution as authorizing each roadmaster to receive
the rate that had been established for superintendent, and it
was Johnson's belief that he was, in fact, superintendent of
his district and held the same position as Gregg and was
therefore entitled to the same hourly rate as Gregg. The
motion authorizing the payment of back pay to Johnson related
to the difference in hourly rate between the rate set for the
superintendent and the rate that Johnson had been previously
receiving prior to the division of the township into
districts, with each roadmaster being responsible for his own
district. Furthermore, Johnson believed that he was entitled
to mileage reimbursement for the use of his own personal
vehicle as he was of the understanding that the township
vehicles which remain available were for use by the road crew
and not for the general duties associated with that of being
roadmaster. Johnson was further concerned that he was not
insured relative to the use of township vehicles and therefore
it would be less expensive to the township to utilize his own
vehicle and receive mileage reimbursement than to seek to be
insured for the use of township vehicles.
III. DISCUSSION:
As a Supervisor for Mahoning Township, Jeffrey Johnson,
hereinafter Johnson, is a public official as that term is defined
under Act 9 of 1989. 65 P.S. §402. As such, his conduct is
subject to the provisions of the Ethics Law and the restrictions
therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 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 violation occurred prior thereto.
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
Johnson, 92- 008 -C2
Page 14
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
a business with which he or a member of his
immediate family is associated. 65 P.S. §402.
The issue before us is whether Johnson violated either Section
3(a) 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 voted to give
himself back pay without auditor approval.
Johnson has been a Supervisor and roadmaster in Mahoning
Township since January, 1990. 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 6 -8). 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
Johnson, 92- 008 -C2
Page 15
As to Johnson's activities, he worked in a private capacity as
an employee of Ohio Edison on a weekly shift of Monday through
Friday, 7:00 a.m. to 4:00 p.m. For the Township, Johnson filled
out and signed his own time sheets. Johnson's time sheets are for
periods when he claimed that he worked alone or on Saturdays/
holidays with three to five inspections per pay period for roads
and bridges. Questions were raised regarding the propriety of
Supervisors receiving pay as roadmaster. (Fact Finding 9).
Aside from the above, Johnson sought back pay which was
considered by the Board of Supervisors at a December 10, 1991
meeting. On a motion by Gregg, second by DeVite, to grant
Johnson's request for back pay, the motion carried with Johnson
voting in favor of the motion. Johnson was one of the signatures
on the check for his back pay which amounted to $498.84. The
Township Auditors, however, did not consider or approve the back
pay for Johnson.
From April, 1992 to December, 1992, Johnson also received
$634.00 for mileage reimbursement even though the Township Auditors
never approved such reimbursements for personal vehicle use. (Fact
Findings 28, 29). The record reflects that Township vehicles were
available during the time that Johnson was on Township business.
In applying the provisions of Section 3(a) of Act 9 to the
question of whether Johnson improperly accepted compensation as
roadmaster without performing any duties, the disposition of the
matter turns upon whether Johnson 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. That same public official 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 the allegation of whether Johnson received
compensation without performing any duties, we are confronted with
Johnson's ostensible time working alone or on Saturdays or
holidays. Under the circumstances of this case, there is no means
of verifying or establishing that he did or did not perform the
Johnson, 92- 008 -C2
Page 16
work. Therefore, based upon the facts of record, we are
constrained to find no violation of Sections 3(a) of Act 9 of 1989
based upon the evidence.
Regarding the allegation that Johnson received back pay and
mileage reimbursement, we find violations of Section 3(a) of Act 9.
It is clear that there was a use of authority of office by Johnson
as to the back pay when he voted in favor of the motion to grant
himself back pay. Johnson was also a co- signatory of the check for
the back pay. See, Juliante, Order 809. The back pay was a
private pecuniary benefit to Johnson since the compensation was not
approved by the Township Auditors. Similarly, as to the mileage
reimbursement, Johnson received a private pecuniary benefit as to
the mileage reimbursement which was not approved by the Township
Auditors. Such action also constituted a violation of Section 3(a)
of Act 9 in that Johnson received same by virtue of his position as
Supervisor and officially claimed that reimbursement through the
(use of) authority of office.
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 $1133.24 is warranted based
upon the receipt of back pay and the mileage reimbursement.
IV. CONCLUSIONS OF LAW:
1. Jeffrey Johnson, as a Mahoning Township Supervisor, is a
public official subject to the provisions of Act 9 of 1989.
2. Johnson did not violate either Section 3(a) of Act 9 of 1989
regarding the acceptance of compensation as a roadmaster
relative to performing roadmaster duties based upon the
evidence.
3. Johnson violated Section 3(a) of Act 9 of 1989 by using the
authority of office to obtain a private pecuniary benefit for
himself consisting of the receipt of back pay and the mileage
reimbursement without Auditor approval.
4. The private pecuniary benefit received by Johnson amounted to
$1133.24.
In Re: Jeffrey Johnson
ORDER NO. 895
File Docket:
Date Decided:
Date Mailed:
92- 008 -C2
June 28, 1993
June 30, 1993
1. Jeffrey Johnson, as a Mahoning Township Supervisor, did not
violate Section 3(a) of Act 9 of 1989 regarding the acceptance
of compensation as a roadmaster relative to performing
roadmaster duties based upon the evidence.
2. Johnson violated Section 3(a) of Act 9 of 1989 by using the
authority of office to obtain a private pecuniary benefit for
himself consisting of the receipt of back pay and the mileage
reimbursement without Auditor approval.
3. The private pecuniary benefit received by Johnson amounted to
$1133.24.
4. Johnson is ordered to timely submit checks or payments in the
amount of $1133.24 through this Commission payable to the
order of Mahoning Township.
BY THE COMMISSION,
JAMES M. HOWL , HAIR