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HomeMy WebLinkAbout1610-2 Nenstiel In Re: Donald R. Nenstiel, : File Docket: 11-016 Respondent : X-ref: Order No. 1610-2 : Date Decided: 4/10/13 : Date Mailed: 4/12/13 Before: John J. Bolger, Chair Nicholas A. Colafella, Vice Chair Raquel K. Bergen Mark Volk Mark R. Corrigan Roger Nick This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq., by the above-named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an “Investigative Complaint.” A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the Commission for consideration. The Stipulated Findings are set forth as the Findings in this Order. The Consent Agreement has been approved. I.ALLEGATIONS: That Donald Nenstiel, a public official/public employee in his capacity as a Supervisor of Black Creek Township, Luzerne County, violated Sections 1103(a), 1104(d) and 1105(b) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(d) and 1105(b), when he submitted hours for compensation for work allegedly performed as a Township Roadmaster and road worker, which were in excess of hours actually worked; when he subsequently approved payment of those hours; and when he intentionally failed to disclose the receipt of income received in excess of $1,300 on Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. II.FINDINGS: 1. Donald Nenstiel has served as a Member of the Black Creek Township, Luzerne County, Board of Supervisors since approximately 1996. a. Black Creek Township is a Township of the Second Class, governed by a three (3) Member Board of Supervisors. 2. Professionally, Nenstiel is employed as a heavy equipment operator through the International Union of Operating Engineers (“IUOE”), District 2, 477 Main Street, Virginville, Pennsylvania 19564. Nenstiel, 11-016 Page 2 a. The IUOE serves as a representative for Nenstiel, providing him with work referrals to companies looking to employ Union equipment operators. 3. Nenstiel also was employed by Black Creek Township as a part-time Roadmaster and laborer from approximately 2004 through October 2008. a. Nenstiel’s compensation as part-time Roadmaster and laborer was annually set by the Township Board of Auditors. 4. Black Creek Township financial records reflect Nenstiel was compensated as a Roadmaster at a rate of $17.70 per hour during 2006 and 2007 and $18.25 per hour during 2008. 5. Nenstiel received work assignments from then Supervisor Rickie Whitebread. a. The majority of the work assignments were related to flood cleanup and related road repairs/improvements. b. Whitebread asserted that this cleanup and repair work occurred from 2006 through 2008, due to Township financial constraints and the volume of the cleanup and road related repairs. 6. The Black Creek Township Road Department generally employs approximately four (4) full-time and four (4) part-time seasonal workers. a. The Township’s Road Department is responsible for the general care and maintenance of Township roads, parks and a swimming pool. b. Road Department employees receive their daily work assignments from the Supervisor(s) that serve as Roadmaster(s). c. Regular hours for the Road Department are 7:00 a.m. until 2:00 p.m. for full- time employees, based on a 35 hour work week. 7. Prior to October 2008, Road Department employee hours were recorded on bi- weekly timesheets. a. Bi-weekly timesheets were completed by Township clerical employee Bonnie Wagner, based on information provided to her by Supervisor/Roadmaster Rickie Whitebread. b. Whitebread was responsible for maintaining a daily activity record documenting employee hours worked and duties performed, which he would submit to Bonnie Wagner at the end of each bi-weekly pay period. c. Since October 2008, Black Creek Township has utilized a time clock to record employees’ daily start and finish times. d. This change in policy was made by the Township’s Board of Supervisors, as a result of questions being raised regarding the volume of hours being claimed as being worked by Supervisor/Roadmaster Donald Nenstiel. 8. Between July 9, 2006, and September 27, 2008, Nenstiel routinely received compensation as a result of time sheets submitted reflecting he worked ten or eleven hours on Saturdays, in non-weather, or emergency situations. Nenstiel, 11-016 Page 3 a. The Township’s Road Department’s normal workdays are Mondays through Fridays. b. Weekend and evening hours are only worked as a result of weather related emergencies. c. These hours claimed by Nenstiel were not related to any work performed with the Road Department. 9. Bi-weekly timesheets for Donald Nenstiel covering the period July 9, 2006, through September 27, 2008, reflect duties claimed to have been completed, including the following: a. Repair guiderails b. Clean ditches c. Plow and cinder roads d. Cut trees and brush e. Truck repairs f. Backhoe work g. Paving and road berming h. On thirty-eight (38) days no work was identified as being completed. 10. Bi-weekly timesheets for Donald Nenstiel for the period July 2006 through September 2008 were filled out by Bonnie Wagner based on information provided to her by Supervisor/Roadmaster Ricky Whitebread. a. Wagner was a subordinate to both Whitebread and Nenstiel in the Township’s chain of command. b. Nenstiel never made any changes or corrections to the bi-weekly timesheets submitted on his behalf. c. Nenstiel’s timesheets consistently claimed 10 to 11 hours worked on Saturdays. d. Of the eighty-nine (89) days when Nenstiel claimed hours worked on a Saturday, eighty-five (85) reflected ten (10) or more hours worked. 11. The bi-weekly timesheets submitted to the Township indicate that Nenstiel received compensation covering the period beginning July 23, 2006, through September 27, 2008, as follows: a. Nenstiel submitted fifty-six (56) bi-weekly timesheets for the time period of July 23, 2006, through September 27, 2008, indicating that Nenstiel worked one hundred and twenty-three (123) days. b. Of the one hundred and twenty-three (123) days for which Nenstiel reported working on his time sheets, eighty-nine (89) of the days worked were reported as being on a Saturday. Nenstiel, 11-016 Page 4 12. Nenstiel stopped claiming any Township labor hours as of October 2008 when the Township began requiring employees to record hours worked via the time clock. a. Nenstiel’s claiming of hours stopped at or about the same time that Supervisor Whitebread resigned from office. 1. Whitebread resigned on or about October 10, 2008, after being charged criminally with theft by deception in relation to his personal use of a Township credit card. 13. Job assignment records maintained by the International Union of Operating Engineers (“IUOE”), District 2, 477 Main Street, Virginville, Pennsylvania 19564, indicate that Nenstiel was assigned to 7 projects from March 7, 2006, through December 1, 2008. a. During the time period of March 7, 2006, to December 1, 2008, Nenstiel started and was laid off from each of the projects. b. The companies that hired Nenstiel to work on these projects were Green Energy Services, Balfour Beatty Construction, and All One Services. 14. Black Creek Township issues payroll checks to its employees on a bi-weekly basis. a. Payroll is not approved as part of the routine monthly payment of bills. b. Payroll is considered approved by the issuance of checks, which are signed by two (2) of the three (3) Supervisors. 15. Between August 2006 and October 2008, Township checks, including payroll checks, were typically signed by Supervisors Rickie Whitebread and Donald Nenstiel. a. Nenstiel’s signature appeared on payroll checks, including checks issued to him. 16. Between August 10, 2006, and October 8, 2008, Nenstiel, in his official capacity as a Black Creek Township Supervisor, signed the front side of approximately fifty-five (55) payroll checks issued to him. a. These fifty-five (55) checks included payments totaling $16,104.96. b. These payments were for hours claimed on Nenstiel’s bi-weekly timesheets. 17. Questions were raised by Township Resident Ralph Brutosky and Supervisor Dennis Feerrar at the Black Creek Township Board of Supervisors February 3, 2009, meeting regarding hours Nenstiel allegedly worked for the Township. a. Questions were raised due to the number of hours Nenstiel claimed he worked on Saturdays, which were not regular working hours for the Road Department. 18. Minutes from the Black Creek Township Board of Supervisors February 3, 2009, meeting reflect Nenstiel was questioned regarding hours he allegedly did not work and Nenstiel’s signing of Township payroll checks issued to himself. a. Minutes from that meeting include the following excerpts from the discussion: Nenstiel, 11-016 Page 5 Ralph Brutosky also asked Donald Nenstiel if he ever had Township employees change his tires. Donald Nenstiel stated that yes, and it was done when they were done working. He was also questioned if he signed the payroll checks and if he noticed any problems. Nenstiel’s answer was that he was called into [sic] sign checks, but never looked at them. He stated that he signed all Township checks. Ralph Brutosky asked Donald Nenstiel why he did not resign. His reply was that he wants to stay on until he sees the outcome of the audit. Dennis Feerrar questioned Donald Nenstiel for the second time about his hours. He answered, “How am I going to account for them? I did not keep track of them.” Dennis Feerrar stated here is the problem I am having and everyone else is having. When you sign your own checkbook do you look at what you are signing? Donald Nenstiel replied hardly ever. Ralph Brutosky then asked, did you look at what you were signing when you signed the Township checks? He then answered sometimes they were, sometimes no. Ralph Brutosky questioned you are representing the people and didn’t know what you were signing? Donald Nenstiel said I relied on the people in that office. Scott Weller replied we relied on you and you let us down. Donald Nenstiel’s response was you are right and I was wrong. b. Minutes do not include any other recorded discussions on hours Nenstiel was compensated for, but allegedly did not work. 19. The Pennsylvania Department of the Auditor General conducted an audit of Black Creek Township Liquid Fuels Tax expenditures, covering the period January 1, 2007, through December 31, 2008, during 2009 and 2010. a. By way of correspondence dated November 8, 2010, from the Commonwealth of Pennsylvania, Department of Transportation, Black Creek Township was advised that it was required to reimburse the Liquid Fuels Tax account $32,517.30 as a result of audit findings covering the period January 1, 2007, through December 31, 2008. b. This reimbursement was due to the Township’s failure to follow proper bidding and purchasing procedures highlighted in the audit report. c. Black Creek Township was not required to reimburse the Commonwealth for any compensation Nenstiel received as a Township employee which was paid for with Liquid Fuels Tax funds. d. On December 8, 2010, Black Creek Township transferred $32,517.30 into the Liquid Fuels account to reimburse that account pursuant to the PennDOT request. e. This transfer was memorialized in correspondence dated December 8, 2010, from PNC Bank to PennDOT, documenting the transfer. 20. On April 8, 2009, Nenstiel was interviewed by Edwin Tyler and Nathan Lipton, Investigators with the Pennsylvania Department of the Auditor General, regarding hours listed on bi-weekly timesheets for both Nenstiel and Whitebread. Excerpts from that interview included the following admissions by Nenstiel: a. Nenstiel and Whitebread did a lot of work on Saturdays. b. Nenstiel and Whitebread were the only Black Creek Township employees who could productively run equipment. Nenstiel, 11-016 Page 6 c. Nenstiel would come home from his job as an operating engineer and directly start working for Black Creek Township. d. If weather would prohibit Nenstiel from working as an operating engineer, he would work on Black Creek Township roads, property, or equipment. e. Nenstiel reported the hours he worked each week to Whitebread, who put all of the hours on Saturday. f. Nenstiel would work on Saturdays, particularly during snow season and during the 2006 flooding. g. Nenstiel was working with Whitebread on the days hours were recorded for him. h. Nenstiel stated that hours worked during the week were reported as Saturday hours, by Ricky Whitebread, and he may not have worked all of the hours reported for each of those weeks. i. Nenstiel admitted that the hours he was paid for were not accurate, and he stated that, if there were unpaid wages [sic], he would have to compensate the Township in payments. 21. To date, Nenstiel has not made any reimbursement payment(s) to Black Creek Township. a. Bi-weekly timesheets reflect Nenstiel regularly was compensated for 10 or 11 hours work on most Saturdays, between 2006 and 2008. b. Nenstiel admitted to the Auditor General Investigators that he did not work the entire 10 or 11 hours on Saturday, as asserted. 22. On May 26, 2010, Nenstiel was interviewed by agents from the Federal Bureau of Investigation regarding, in part, allegations that he received compensation from Black Creek Township for Roadmaster/laborer hours not worked. Nenstiel made the following admissions during that interview: a. Nenstiel confirmed that he was interviewed by the Auditor General’s office during 2009 and during that interview, stated that he may have overcharged the Township for hours worked. b. He believed Supervisor Ricky Whitebread only put in hourly totals for the week and not an itemized list of individual day’s work. c. Nenstiel said that he earned $18.25 an hour for road work assignments. 23. On August 19, 2012, Nenstiel was interviewed by an Investigator with the State Ethics Commission. During that interview, Nenstiel clarified statements he previously made to representatives of the Auditor General’s Office on his time records. a. James R. Scallion, Esquire, Counsel for Donald R. Nenstiel, was present for this interview. b. Nenstiel admitted that the biweekly time sheets he was compensated from are not accurate. Nenstiel, 11-016 Page 7 c. Time sheets do not accurately identify dates and hours worked or duties performed. d. Nenstiel asserted that he would work various days throughout the week and not all on Saturday as many time sheets reflect. e. Nenstiel did not reimburse Black Creek Township for any hours he was compensated for but allegedly did not work. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT NENSTIEL FAILED TO REPORT THE RECEIPT OF INCOME ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR THE 2006 THROUGH 2010 CALENDAR YEARS. 24. Nenstiel, in his official capacity as a Black Creek Township Supervisor, was annually required to file a Statement of Financial Interests form by May 1 containing information for the prior calendar year. 25. Statement of Financial Interests forms on file with Black Creek Township include the following filings by Nenstiel in his official capacity as a Member of the Township’s Board of Supervisors: a. Calendar Year: 2011 Dated: 01/23/12 on form SEC 1 REV. 01/12 Position: Supervisor Occupation: Heavy equipment operator Creditors: PNC Bank; National Penn Direct/Indirect Income: Operating Engineers Local 542; Hazleton Area Water Company- SZYE; Black Creek Township; Stauffer & Sons Trucking. All other financial interests: None b. Calendar Year: 2010 Dated: 2/14/11 on form SEC 1 REV 01/11 Position: Supervisor Occupation: Supervisor, heavy equipment operator Creditors: None Direct/Indirect Income: Operating Engineers Local 542; Black Creek Township Supervisors All other financial interests: None c. Calendar Year: 2009 Dated: 01/28/10 on form SEC 1 REV 01/10 Position: Supervisor Occupation: Supervisor, heavy equipment operator Creditors: None Direct/Indirect Income: Operating Engineers Local 542; Black Creek Township Supervisors All other financial interests: None d. Calendar Year: 2008 Dated: 02/13/09 on form SEC 1 REV 01/09 Position: Supervisor Occupation: Heavy equipment operator Creditors: None Direct/Indirect Income: Operating Engineers Local 542; Black Creek Township Supervisors Nenstiel, 11-016 Page 8 All other financial interests: None e. Calendar Year: 2007 Dated: 01/11/07 on form SEC 1 REV 01/07 Position: Supervisor candidate Occupation: Heavy equipment operator Creditors: None Direct/Indirect Income: None listed All other financial interests: None f. Calendar Year: 2006 Dated: 02/16/06 on form SEC 1 REV 01/06 Position: Supervisor candidate Occupation: Heavy equipment operator Creditors: None Direct/Indirect Income: None All other financial interests: None 26. Nenstiel did not report income received in excess of $1,300.00 from Stauffer & Sons Trucking or the Hazleton Area Water Company on any Statement of Financial Interests form filed for calendar years 2006 through 2010. a. Nenstiel reported receiving income in excess of $1,300.00 from both companies on his Statement of Financial Interests form filed for the 2011 calendar year. 27. Around May 2004, the Hazleton Area Water Company (“HAWC”), 410 West Mine Street, Hazleton, PA 18201 started a bulk water hauling operation on property located in portions of Black Creek and neighboring Sugarloaf Townships. a. This bulk water well site is commonly referred to as the Tomhicken Well. b. The HAWC also obtains bulk water from well sites located in White Haven and Tamaqua, PA. 28. In or around May 2004, Brian Zukowski approached Nenstiel inquiring whether he had any interest in hauling bulk water for the HAWC from the Tomhicken and White Haven, PA wells. a. Zukowski was one of the partners operating HAWC. b. Zukowski passed away approximately four years ago. c. The other two partners are Stephen Evancho and Dominic Yanuzzi. d. Nenstiel was a Member of the Black Creek Township Board of Supervisors at the time. 29. Nenstiel did not own or have any leased bulk water hauling equipment at any point in time since 2004. a. Nenstiel made arrangements with James Stauffer, owner of Stauffer & Sons Trucking Company (“SST”), 3 West Bridge Road, Ringtown, PA 17967 to transport bulk water for the HAWC. b. Stauffer agreed to pay Nenstiel $10.00 per truck load of bulk water hauled from both the Tomhicken and White Haven well locations. Nenstiel, 11-016 Page 9 c. This amount was later reduced to $5.00 per load upon a verbal agreement between Stauffer and Nenstiel. 30. Several times since 2006, Nenstiel felt Stauffer was not fulfilling Stauffer’s payment obligations to him. a. Each time this occurred, Nenstiel would contact management at HAWC seeking payment. b. In an effort to resolve the payment dispute, the HAWC would debit the $5.00 per load fee from payments the HAWC made to SST and issue a check for that amount directly to Nenstiel. 31. Between 2006 and 2010, Nenstiel received payments from both Stauffer & Sons Trucking and the HAWC, as a result of bulk water hauling operations described above. a. Nenstiel did not disclose the receipt of this income, in excess of $1,300.00 annually, on any Statement of Financial Interests form filed by him during this timeframe. b. Nenstiel also did not report the receipt of this income on any federal, state or local tax returns. * 32. Between 2006 and 2010, SST paid Nenstiel a total amount of $43,930.00. a. The amounts paid by SST to Nenstiel for each year are as follows: In 2006, the total amount SST paid to Nenstiel was $8,500.00; in 2007, the total amount paid was $7,110.00; in 2008, the total amount paid was $25,335.00; and in 2009, the total amount paid was $2,965.00. * [The sum of the amounts listed in Fact Finding 32 a is $43,910.00; the $20.00 difference is not significant to our disposition of this case.] 33. Business records of the Hazleton Area Water Company reflect the following annual totals were paid to Nenstiel between 2006 and 2010: a. 2006: None b. 2007: $11,780.00 c. 2008: None d. 2009: $31,520.00 e. 2010: $38,995.00 34. Nenstiel failed to disclose SST as a source of income in excess of $1,300.00 on Statement of Financial Interests forms filed for calendar years 2006 through 2009. a. Nenstiel received gross income in excess of $1,300.00 from SST during each of these calendar years. 35. Nenstiel failed to disclose HAWC as a source of income in excess of $1,300.00 on Statement of Financial Interests forms filed for calendar years 2007, 2009 and 2010. Nenstiel, 11-016 Page 10 a. Nenstiel received gross income in excess of $1,300.00 from HAWC during each of these calendar years. 36. Nenstiel failed to disclose Black Creek Township as a source of income in excess of $1,300.00 on Statement of Financial Interests forms filed for calendar years 2006 and 2007. a. Nenstiel received Roadmaster/laborer wages totaling $8,726.10 and Supervisor pay in the amount of $1,500.00 from Black Creek Township during the 2006 calendar year. b. Nenstiel received Roadmaster/laborer wages totaling $10,230.60 and Supervisor pay in the amount of $1,500.00 from Black Creek Township during the 2007 calendar year. 37. Nenstiel failed to report the IUOE as a direct/indirect source of income in excess of $1,300.00 on Statement of Financial Interests forms he filed for the 2006 and 2007 calendar years. a. Nenstiel received income in the amount of $1,725.00 from the IUOE during 2006. b. Nenstiel received income in the amount of $2,150.00 from the IUOE during 2007. c. Nenstiel reported the IUOE as a source of income in excess of $1,300.00 on SFIs he filed for calendar years 2008 through 2011. 38. Nenstiel failed to report Balfour Beatty Construction and/or Balfour Beatty Infrastructure as a direct/indirect source of income in excess of $1,300.00 on his Statement of Financial Interests forms filed for the 2006 and 2007 calendar years. a. Nenstiel received income in the amount of $42,219.29 from Balfour Beatty Construction during 2006. b. Nenstiel received income in the amount of $49,162.64 from Balfour Beatty Infrastructure during 2007. 39. Nenstiel failed to report All One Services, Inc. as a direct/indirect source of income in excess of $1,300.00 on his Statement of Financial Interests form filed for the 2006 calendar year. a. Nenstiel received income in the amount of $14,989.78 from All One Services, Inc. during 2006. b. Nenstiel reported the IUOE as the only source of direct or indirect income. 40. Nenstiel failed to report Green Energy Services as a direct/indirect source of income in excess of $1,300.00 on his Statement of Financial Interests form filed for the 2008 calendar year. a. Nenstiel received income in the amount of $109,815.05 from Green Energy Services during 2008. b. Nenstiel reported the IUOE as the only source of direct or indirect income. Nenstiel, 11-016 Page 11 41. Nenstiel failed to report S.T. Cotter Turbine Services, Inc.; OTIS Eastern Service; Precision Pipeline, LLC; and Day & Zimmermann NPS, LLC as direct/indirect sources of income in excess of $1,300.00 on his Statement of Financial Interests form filed for the 2010 calendar year. a. Nenstiel received income in the amount of $19,785.02 from S.T. Cotter Turbine Services, Inc. during 2010. b. Nenstiel received income in the amount of $29,825.37 from OTIS Eastern Service during 2010. c. Nenstiel received income in the amount of $11,399.90 from Precision Pipeline, LLC during 2010. d. Nenstiel received income in the amount of $2,845.18 from Day & Zimmermann NPS, Inc. during 2010. e. Nenstiel reported the IUOE as the only source of direct or indirect income. 42. Nenstiel failed to report Precision Pipeline, LLC; Indianhead Pipeline Services, LLC; and OTIS Eastern Service, Inc. as direct/indirect sources of income on his SFI filed for the 2011 calendar year. a. Nenstiel received income in the amount of $41,084.70 from Precision Pipeline, LLC during 2011. b. Nenstiel received income in the amount of $6,423.52 from Indianhead Pipeline Services, LLC during 2011. c. Nenstiel received income in the amount of $50,583.44 from OTIS Eastern Service, Inc. during 2011. d. Nenstiel reported the IUOE as the only source of direct or indirect income. 43. Nenstiel received a private pecuniary gain as the result of compensation he received as Roadmaster/laborer for Black Creek Township for hours which he admitted were not accurately reported. 44. Nenstiel did not accurately file Statement of Financial Interests forms for calendar years 2006 through 2010, and failed to disclose income received from SST, HAWC and Black Creek Township. 45. Nenstiel received a financial gain as the result of transgressions of the State Ethics Act, detailed in these findings. III.DISCUSSION: As a Member of the Black Creek Township (“Township”) Board of Supervisors since approximately 1996, Respondent Donald R. Nenstiel, hereinafter also referred to as “Respondent,” “Respondent Nenstiel,” and “Nenstiel,” has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. The allegations are that Respondent Nenstiel violated Sections 1103(a), 1104(d), and 1105(b) of the Ethics Act: when he submitted hours for compensation for work allegedly performed as a Township Roadmaster and road worker, which were in excess of hours actually worked; when he subsequently approved payment of those hours; and when Nenstiel, 11-016 Page 12 he intentionally failed to disclose the receipt of income in excess of $1,300 on Statements of Financial Interests (“SFIs”) filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. 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. The term 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 of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed an SFI as required by the Ethics Act. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Nenstiel, 11-016 Page 13 The Township Board of Supervisors consists of three Members. Nenstiel has served as a Township Supervisor since approximately 1996. From approximately 2004 through October 2008, Nenstiel also was employed by the Township as a part-time Roadmaster and laborer. Nenstiel was compensated as a Roadmaster at a rate of $17.70 per hour during 2006 and 2007 and $18.25 per hour during 2008. Between July 9, 2006, and September 27, 2008, Nenstiel routinely received compensation from the Township as a result of time sheets submitted reflecting he worked ten or eleven hours on Saturdays, in non-weather, or emergency situations. These hours claimed by Nenstiel were not related to any work performed with the Road Department. The Township Road Department’s normal workdays are Mondays through Fridays. Weekend and evening hours are only worked as a result of weather related emergencies. Nenstiel submitted fifty-six (56) bi-weekly timesheets for the time period of July 23, 2006, through September 27, 2008. The bi-weekly timesheets for Nenstiel for the period July 2006 through September 2008 were completed by Township clerical employee Bonnie Wagner based upon information provided to her by then Supervisor/Roadmaster Rickie Whitebread (“Whitebread”). Nenstiel has admitted that the biweekly time sheets he was compensated from are not accurate. Such time sheets do not accurately identify dates and hours worked or duties performed. However, Nenstiel never made any changes or corrections to the bi-weekly timesheets submitted on his behalf. Nenstiel stopped claiming any Township labor hours as of October 2008 when the Township began requiring employees to record hours worked via the time clock. Nenstiel’s claiming of hours stopped at or about the same time that Whitebread resigned from office. Township payroll is considered approved by the issuance of checks, which are signed by two of the three Supervisors. Between August 10, 2006, and October 8, 2008, Nenstiel, in his official capacity as a Township Supervisor, signed the front side of approximately fifty-five payroll checks issued to him. These fifty-five checks included payments totaling $16,104.96. These payments were for hours claimed on Nenstiel’s bi- weekly timesheets. As of the date of the Consent Agreement (February 17, 2013), Nenstiel had not made any reimbursement payment(s) to the Township. The parties have stipulated that Nenstiel received a private pecuniary gain as the result of compensation he received as Roadmaster/laborer for the Township for hours which he admitted were not accurately reported. We shall now review the material facts relating to Nenstiel’s SFIs. Between 2006 and 2010, Nenstiel received payments from Stauffer & Sons Trucking (“SST”) and the Hazleton Area Water Company (“HAWC”) as a result of bulk water hauling operations that Nenstiel arranged. From 2006 through 2009, the following amounts were paid by SST to Nenstiel: in 2006, $8,500.00; in 2007, $7,110.00; in 2008, $25,335.00; and in 2009, $2,965.00. Nenstiel failed to disclose SST as a source of income in excess of $1,300.00 on SFI forms filed for calendar years 2006 through 2009. In 2007, 2009, and 2010 the following amounts were paid by HAWC to Nenstiel: in 2007, $11,780.00; in 2009, $31,520.00; and in 2010, $38,995.00. Nenstiel failed to disclose HAWC as a source of income in excess of $1,300.00 on SFI forms filed for calendar years 2007, 2009 and 2010. Nenstiel, 11-016 Page 14 Nenstiel failed to disclose the Township as a source of income in excess of $1,300.00 on SFI forms filed for calendar years 2006 and 2007. Nenstiel received Roadmaster/laborer wages totaling $8,726.10 and Supervisor pay in the amount of $1,500.00 from the Township during the 2006 calendar year. Nenstiel received Roadmaster/laborer wages totaling $10,230.60 and Supervisor pay in the amount of $1,500.00 from the Township during the 2007 calendar year. In a private capacity, Nenstiel is employed as a heavy equipment operator through the International Union of Operating Engineers (“IUOE”) District 2, located at 477 Main Street, Virginville, Pennsylvania. Nenstiel failed to report the IUOE as a direct/indirect source of income in excess of $1,300.00 on SFI forms filed for the 2006 and 2007 calendar years. Nenstiel received income in the amount of $1,725.00 from the IUOE during 2006. Nenstiel received income in the amount of $2,150.00 from the IUOE during 2007. Nenstiel failed to report Balfour Beatty Construction and/or Balfour Beatty Infrastructure as a direct/indirect source of income in excess of $1,300.00 on his SFI forms filed for the 2006 and 2007 calendar years. Nenstiel received income in the amount of $42,219.29 from Balfour Beatty Construction during 2006. Nenstiel received income in the amount of $49,162.64 from Balfour Beatty Infrastructure during 2007. Nenstiel failed to report All One Services, Inc. as a direct/indirect source of income in excess of $1,300.00 on his SFI form filed for the 2006 calendar year. Nenstiel received income in the amount of $14,989.78 from All One Services, Inc. during 2006. Nenstiel failed to report Green Energy Services as a direct/indirect source of income in excess of $1,300.00 on his SFI form filed for the 2008 calendar year. Nenstiel received income in the amount of $109,815.05 from Green Energy Services during 2008. Nenstiel failed to report S.T. Cotter Turbine Services, Inc.; OTIS Eastern Service; Precision Pipeline, LLC; and Day & Zimmermann NPS, LLC as direct/indirect sources of income in excess of $1,300.00 on his SFI form filed for the 2010 calendar year. Nenstiel received income in the amount of $19,785.02 from S.T. Cotter Turbine Services, Inc. during 2010. Nenstiel received income in the amount of $29,825.37 from OTIS Eastern Service during 2010. Nenstiel received income in the amount of $11,399.90 from Precision Pipeline, LLC during 2010. Nenstiel received income in the amount of $2,845.18 from Day & Zimmermann NPS, Inc. during 2010. Nenstiel failed to report Precision Pipeline, LLC; Indianhead Pipeline Services, LLC; and OTIS Eastern Service, Inc. as direct/indirect sources of income on his SFI filed for the 2011 calendar year. Nenstiel received income in the amount of $41,084.70 from Precision Pipeline, LLC during 2011. Nenstiel received income in the amount of $6,423.52 from Indianhead Pipeline Services, LLC during 2011. Nenstiel received income in the amount of $50,583.44 from OTIS Eastern Service, Inc. during 2011. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. §1103(a) occurred when Nenstiel received compensation from Black Creek Nenstiel, 11-016 Page 15 Township for hours in excess of those actually worked as Roadmaster/laborer, and when he subsequently approved those hours for payment as a Black Creek Township Supervisor. b. That a violation of §1105(b) of the Ethics Act occurred when Nenstiel failed to disclose the receipt of income received in excess of $1,300.00 on Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. c. As part of a negotiated settlement agreement, no violation of Section 1104(d) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(d) occurred in relation to Nenstiel’s failure to disclose the receipt of income received in excess of $1,300.00 on his Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. 4. Nenstiel agrees to make payment in the amount of $3,399.50 in settlement of this matter as follows: a. $1,000.00 payable to Black Creek Township, and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. b. $1,250.00 payable to the Commonwealth of Pennsylvania, representing settlement of violations arising under 65 Pa.C.S. §1105(b) for failing to disclose the receipt of income received in excess of $1,300.00 on Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years, and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. c. $1,149.50 in reimbursement, representing a portion of the expenses and costs incurred by the State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission, and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Nenstiel agrees to file complete and accurate amended Statements of Financial Interests with Black Creek Township, through the Pennsylvania State Ethics Commission, for the 2006, 2007, 2008, 2009 and 2010 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. Nenstiel, 11-016 Page 16 6. Nenstiel agrees to not accept any reimbursement, compensation or other payment from Black Creek Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 2-3. In considering the Consent Agreement, we accept the recommendation of the parties for a finding that a violation of Section 1103(a) of the Ethics Act occurred when Nenstiel received compensation from the Township for hours in excess of those actually worked as Roadmaster/laborer, and when he subsequently approved those hours for payment as a Township Supervisor. The parties have stipulated that Nenstiel received a private pecuniary gain as the result of compensation he received as Roadmaster/laborer for the Township for hours which he admitted were not accurately reported. Specifically, Nenstiel has admitted that the biweekly time sheets he was compensated from are not accurate. Between July 9, 2006, and September 27, 2008, Nenstiel routinely received compensation from the Township as a result of time sheets submitted reflecting he worked ten or eleven hours on Saturdays, in non-weather, or emergency situations. Nenstiel submitted fifty-six (56) bi-weekly timesheets for the time period of July 23, 2006, through September 27, 2008. Between August 10, 2006, and October 8, 2008, Nenstiel used the authority of his public office as a Township Supervisor when he signed, as a Township signatory, the front side of approximately fifty-five payroll checks issued to him for hours claimed on such bi-weekly timesheets. By signing the aforesaid payroll checks, Nenstiel approved for payment the hours claimed on such bi-weekly timesheets. With each element of a violation of Section 1103(a) established, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Nenstiel received compensation from the Township for hours in excess of those actually worked as Roadmaster/laborer, and when he subsequently approved those hours for payment as a Township Supervisor. Cf., Harton, Order 1421. As for Nenstiel’s SFIs, based upon the Stipulated Findings, Nenstiel failed to disclose the following direct/indirect sources of income in excess of $1,300.00 on his SFIs for the indicated calendar years: (1) SST -- calendar years 2006 through 2009; (2) HAWC -- calendar years 2007, 2009 and 2010; (3) The Township -- calendar years 2006 and 2007; (4) IUOE – calendar years 2006 and 2007; (5) Balfour Beatty Construction – calendar year 2006; (6) Balfour Beatty Infrastructure – calendar year 2007; (7) All One Services, Inc. -- calendar year 2006; (8) Green Energy Services -- calendar year 2008; Nenstiel, 11-016 Page 17 (9) S.T. Cotter Turbine Services, Inc. – calendar year 2010; (10) OTIS Eastern Service – calendar years 2010 and 2011; (11) Precision Pipeline, LLC – calendar years 2010 and 2011; (12) Day & Zimmermann NPS, LLC -- calendar year 2010; and (13) Indianhead Pipeline Services, LLC – calendar year 2011. We note that the allegations before us do not encompass Nenstiel’s SFI for calendar year 2011. We agree with the parties and therefore hold that a violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Nenstiel failed to disclose direct/indirect sources of income in excess of $1,300.00 on SFIs filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. We accept the parties’ recommendation and hold that as part of a negotiated settlement agreement, no violation of Section 1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d), occurred in relation to Nenstiel’s failure to disclose the receipt of income in excess of $1,300.00 on his SFIs filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. As part of the Consent Agreement, Respondent Nenstiel has agreed to make payment in the amount of $3,399.50 payable as follows: (a) $1,000.00 payable to Black Creek Township and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter; (b) $1,250.00 payable to the Commonwealth of Pennsylvania, representing settlement of violations arising under 65 Pa.C.S. § 1105(b) for failing to disclose the receipt of income in excess of $1,300.00 on SFIs filed for the 2006, 2007, 2008, 2009 and 2010 calendar years, and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter; and (c) $1,149.50 in reimbursement, representing a portion of the expenses and costs incurred by this Commission in the investigation and administrative prosecution of the instant matter, payable by certified check or money order made payable to the Pennsylvania State Ethics Commission and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Respondent has also agreed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in the settlement of this matter. Respondent has further agreed to file complete and accurate amended SFIs with the Township, through this Commission, for the 2006, 2007, 2008, 2009 and 2010 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Nenstiel is directed to make payment in the amount of $3,399.50 payable as follows: (a) $1,000.00 payable to Black th Creek Township and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order; (b) $1,250.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission by no later than the th thirtieth (30) day after the mailing date of this adjudication and Order; and (c) $1,149.50 payable by certified check or money order made payable to the Pennsylvania State Ethics th Commission and forwarded to this Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Nenstiel, 11-016 Page 18 Per the Consent Agreement of the parties, Nenstiel is directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. To the extent he has not already done so, Nenstiel is directed to file complete and accurate amended SFIs with the Township, through this Commission, for the 2006, 2007, th 2008, 2009 and 2010 calendar years by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Member of the Black Creek Township (“Township”) Board of Supervisors since approximately 1996, Respondent Donald R. Nenstiel (“Nenstiel”) has been a public officialsubject to the provisions of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et seq. 2. Nenstiel violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he received compensation from the Township for hours in excess of those actually worked as Roadmaster/laborer, and when he subsequently approved those hours for payment as a Township Supervisor. 3. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Nenstiel failed to disclose direct/indirect sources of income in excess of $1,300.00 on Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. 4. As part of a negotiated settlement agreement, no violation of Section 1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d), occurred in relation to Nenstiel’s failure to disclose the receipt of income in excess of $1,300.00 on his Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. In Re: Donald R. Nenstiel, : File Docket: 11-016 Respondent : Date Decided: 4/10/13 : Date Mailed: 4/12/13 ORDER NO. 1610-2 1. As a Member of the Black Creek Township (“Township”) Board of Supervisors, Donald R. Nenstiel (“Nenstiel”) violated Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), when he received compensation from the Township for hours in excess of those actually worked as Roadmaster/laborer, and when he subsequently approved those hours for payment as a Township Supervisor. 2. A violation of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred when Nenstiel failed to disclose direct/indirect sources of income in excess of $1,300.00 on Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. 3. As part of a negotiated settlement agreement, no violation of Section 1104(d) of the Ethics Act, 65 Pa.C.S. § 1104(d), occurred in relation to Nenstiel’s failure to disclose the receipt of income in excess of $1,300.00 on his Statements of Financial Interests filed for the 2006, 2007, 2008, 2009 and 2010 calendar years. 4. Per the Consent Agreement of the parties, Nenstiel is directed to make payment in the amount of $3,399.50 payable as follows: (a) $1,000.00 payable to Black Creek Township and forwarded to the Pennsylvania State Ethics Commission by no later th than the thirtieth (30) day after the mailing date of this Order; (b) $1,250.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania th State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order; and (c) $1,149.50 payable by certified check or money order made payable to the Pennsylvania State Ethics Commission and forwarded to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Nenstiel is directed to not accept any reimbursement, compensation or other payment from the Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 6. To the extent he has not already done so, Nenstiel is directed to file complete and accurate amended Statements of Financial Interests with the Township, through the Pennsylvania State Ethics Commission, for the 2006, 2007, 2008, 2009 and 2010 th calendar years by no later than the thirtieth (30) day after the mailing date of this Order. 7. Compliance with Paragraphs 4, 5 and 6 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ John J. Bolger, Chair