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HomeMy WebLinkAbout1729 HeroldPHONE: 717 - 783 -1610 TOLL FREE: 1 -800- 932 -0936 In Re: David Herold, Respondent STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 309 HARRISBURG, PA 17120-0400 File Docket: X -ref: Date Decided: Date Mailed: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics. ov 17 -011 Order No. 1729 1131118 2/6118 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Melanie DePalma Monique Myatt Galloway Michael A. Schwartz Shelley Y. Simms 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 sect., 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." An Answer was filed and a hearing was requested. 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. ALLEGATIONS: That David Herold, a public official /public employee violated [Sections 1103(a), 1104(d }}, and 1105(b)(5)a of the State Ethics Act (Act 93 of 1998) when he utilized the authority of his public office /employment for the private pecuniary benefit of a member of his immediate family, when in his capacity as a Commissioner for North Huntingdon Township, Westmoreland County, he directed and/or otherwise authorized Township employees to utilize Township equipment and supplies, namely road millings belonging to the Township, to be delivered to property owned b his son, Jonathan Herold; and when, as a Pennsylvania Department of Transportation � "PennDOT ") Foreman, he utilized the authority of his position to cause PennDOT employees, equipment, and/or supplies to be diverted from official PennDOT activities in furtherance of delivering road millings to property owned by his son, Jonathan Herold; and when he failed to disclose income from the Commonwealth of Pennsylvania upon Statements of Financial Interests filed for the 2012, 2013, 2014, and 2015 calendar years. II. FINDINGS: David Herold ( "Herold ") has served as a Commissioner for North Huntingdon Township ( "Township "), Westmoreland County, from January 2, 1996, through the present. Herold has served as Vice President of the Board of Commissioners from January 4, 2016, through the present. Herold, 17 -011 agage� 2. The Township is a First Class Township governed by a seven - Member Board of Commissioners ( "Board "). a. The Board holds one regularly scheduled legislative meeting per month on the third Wednesday of each month. b. Voting at Board meetings occurs via a roll call vote after a motion is made and seconded. 3. The Township, by and through the Commissioners, employs a Public Works Department to maintain Township roads, property, and structures. a. The Public Works Department is supervised by the Public Works Director, Richard Albert; ( "Albert"), and the Assistant Pubfc Works Director, Tab Fyock ( "Fyock "). b. The Public Works Department maintains regular hours from Monday through Friday, 7:00 a.m. to 3:00 p.m. 4. The Township houses the Public Works Department's materials and equipment at 12319 Route 30, Irwin, Pennsylvania 15642. a. This location is referred to as "the yard" by the Public Works Department. b. Materials stored at the Public Works yard include salt, stone, millings, etc. C. The Public Works yard is not secured by a fence or locked gate. 5. Road millings obtained from Township road projects are stockpiled at the Public Works yard. a. Road millings, also known as Recycled Asphalt Product ( "RAP "), are recycled asphalt pavement comprised of former asphalt projects that have been crushed into a gravel -like composition. As of October 2017, Federouch Landscape Supply charged customers in western Pennsylvania $18.00 a ton for mi kings. b. When compacted, RAP hardens /binds together and is suitable for longterm exposure to weather. C. The Public Works Department utilizes millings /RAP to complete pothole repairs, create road shoulders, etc. d. The Public Works Department does not retain a record of the amount of millings/RAP delivered to or dispersed from the Public Works yard stockpile. 6. Township materials stockpiled at the Public Works yard have been provided to the local natural gas company, North Huntingdon Township Municipal Authority, North Huntingdon Township Sewage Authority, the local school district, Brentzel ,( Iotal contractor), and the Pennsylvania Department of Transportation ( "PennDOT') on an as-needed /emergency basis. a. Neither the Township nor the Public Works Department has any written policy or procedure regarding the dispersal of Township supplies. Herold, 17 -011 iage� b. Any materials loaned to or borrowed by a non - Township entity are subsequently replenished by whomever received or borrowed the supplies. 7. Township materials/supplies that are commonly loaned or borrowed include stone, fill, and salt. a. Millings have historically not been loaned /provided to or borrowed by anyone. 8. Requests for Township materialslsupplies are to be directed to Albert, Fyock, orthe Township employee serving as the Loader Operator at the Public Works yard. a. The Township Loader Operator has the discretion to disperse Township materials/supplies without obtaining permission first from Albert or Fyock. b. Albert and Fyock are to be notified when Township materials/supplies are dispersed to entities other than the Township. 9. Herold was employed by PennDOT as a Highway Foreman from January 2, 1991, through March 15, 2013. a. Herold retired from PennDOT on March 15, 2013. b. At the time of his retirement, Herold's hourly wage as a PennDOT Highway Foreman was $24.56 an hour. 10. As a PennDOT Highway Foreman, Herold was responsible for performing the following duties and responsibilities: a. Planning, scheduling, and providing direct supervision to a crew of equipment operators and laborers regarding the performance of general highway maintenance activities. 1. General highway maintenance activities include: patching; crack sealing; stabilizing and repairing road shoulders; installing and cleaning drainage pipes; installing guide rails; sweeping roadways; etc. b. Completing and keeping clear, accurate records of field work activities. C. Preparing payroll. d. Reviewing and keeping road log records of conditions within an assigned area to recommend and assist In effective priority planning of work operations and estimates. e. Recommending and scheduling scope of work, manpower requests, equipment, and materials to minimize nonproductive or down time. f. Following proper attendance procedures, scheduling non-emergency absences in advance; observing start/stop times, breaks, and meal times; working efficiently and effectively alone and with others; being available for overtime emergency responses; and minimizing nonproductive and down time for himself and crew. 11. Herold was required to review and sign PennDOT's Working Rules Acknowledgement form annually. Herold, 17 -011 a4 a. The Working Rules Acknowledgement form identified minor and major PennDOT rule violations. b. The completed Working Rules Acknowledgement form is maintained in each employee's personnel file. PennDOT is unable to locate Herold's personnel file to document forms completed by Herold. C. The Working Rules Acknowledgement form includes both minor and major violations. 12. PennDOT's minor rule violations are "violations which have little effect on the continuity, efficiency, and safety of work, but which cannot be tolerated." a. An example of a minor rule violation is "performing unauthorized personal work during working time." 13. PennDOT's maJor rule violations are "violations of Department or safety rules of such a degree that continued employment of the individual may not be desirable." a. Major rule violations include: "Theft, misappropriation or conversion of Department or anyone else's property. Without the prior written approval of the District Executive /Bureau Director, the taking, removal, acceptance or provision to others Department property or any other property, even that with little or no apparent value, that an employee has access to during work hours or based on one's employment will result in discharge. Examples include, but are not limited to, money, tools, equipment, supplies, materials, fuel, millings, berm dirt, wood, scraplrefuse, and items from accidents scenes or found in the course of one's employment." 14. Herold's immediate supervisor was Dave Forkey SForkey "), Assistant County Maintenance Manager, Westmoreland County, Penn OT, during the time period of October 1, 2012, through March 15, 2013. a. Forkey was responsible for supervising PennDOT activities in PennDOT section numbers 30 and 50 of Westmoreland County. 1. PennDOT section number 30 of Westmoreland County includes PennDOT sheds located in or near the municipalities of Adamsburg and Murrysville. 2. PennDOT section number 50 of Westmoreland County includes PennDOT sheds located in or near the municipalities of Youngwood, Mt. Pleasant, and Monroeville. 15. Herold was assigned to the PennDOT Youngwood shed during the time period of October 1, 2012, through March 15, 2013. a. The physical address of the Youngwood shed is 825 State Rt. 119 South, Youngwood, PA 15697. b. The Youngwood shed is located approximately 14.5 miles from the Public Works yard. 1. Round trip travel from the Youngwood shed to the Public Works yard takes approximately forty -two minutes to complete. Herold, 17 -011 al e5 16. Herold supervised no less than eight (8) full -time and temporary PennDOT employees assigned to the Youngwood shed, including PennDOT employee Thomas Neal ( "Neal "), between October 1, 2012, and March 15, 2013. 17. Herold and his direct report employees maintained PennDOT work hours of Monday through Friday, 12:00 m. to 8:00 p.m., during the time period of October 1, 2012, through March 15, 2013. 18. Herold completed daily payroll sheets when he served as the supervisor of the Youngwood shed crew. a. Herold's payroll sheets were to detail all of the work that he and the Youngwood shed crew completed. 19. PennDOT shed crews do not typically work outside of their designated county section. a. PennDOT shed crews occasionally assist neighboring shed crews that are located in a different PennDOT county section. 20. PennDOT shed crews utilize PennDOT materials and equipment to complete PennDOT- sanctioned projects. a. As a practice, PennDOT does not use materials owned by municipalities to complete PennDOT projects. b. PennDOT foremen are required to obtain permission from their county manager if they desire to use municipal -owned materials to complete a PennDOT project. 21. Jonathan Herold is Herold's son. 22. Jonathan Herold has owned property located at [address redacted] since February 27, 2013. a. Jonathan Herold was granted possession of the property when he executed an installment land contract on February 27, 2013, with the previous owner of the property, RWS Land Company Inc. b. Jonathan Herold purchased the property from RWS Land Company Inc. through a mortgage agreement that was executed on July 12, 2013. C. Jonathan Herold's property is located approximately 4.3 miles from the Public Works yard. 1. A round trip from the Public Works yard to Jonathan Herold's property takes approximately twenty -two minutes to complete. 23. The residence and property located at [address redacted] were abandoned for approximately twenty years prior to February 2013. a. The driveway leading to the residence at [address redacted] had previously been constructed of stone and dirt prior to January 2013. 1. The driveway is approximately 0.2 miles long (1,056 feet). 2. Jonathan Herold's residence is not located within the service zone of the Youngwood shed (PennDOT Section 50). Herold, 17 -011 Page 3. Jonathan Herold's residence is located within the service zone of the Adamsburg shed (PennDOT Section 30). 24. Jonathan Herold started making renovations to the residence and property located at [address redacted] on or about February 27, 2013. a. Jonathan Herold made renovations to the residence and property with the intent to use it as a residence. 25. In or about February 2013, Herold directed Township Loader Operator Mike Dietz ( "Dietz ") to load a PennDOT tandem truck with Township millings. a. A tandem truck is a three -axle vehicle consisting of one axle in the front and two rear axles. b. A PennDOT tandem truck has a maximum payload capacity of fifteen tons. 26. Neal, in his capacity as a PennDOT employee, was present with Herold when Herold directed' that the Township millings be loaded into the PennDOT tandem truck. a. Neal's hourly wage as a PennDOT employee was $14.73 an hour in 2013. 27. James McHugh ( "McHugh "), who was then a Townshipp Equipment. Operator, witnessed Dietz loading the PennDOT tandem truck with Township millings. a. McHugh witnessed Herold receiving Township millings during a weekday between approximately 8:30 a.m. and 9:00 a.m. b. Herold and Neal remained present at the Public Works yard while the millings were loaded. C. It took Dietz at least fifteen minutes to load the PennDOT tandem truck to capacity. d. Both Dietz and McHugh were aware that Herold was a Township Commissioner. 28. Dietz did not seek approval from his immediate supervisors, Albert and Fyock, regarding the dispersal of Township millings to Herold. a. Dietz provided the materials to Herold due to the Township having a good working relationship with PennDOT. b. Dietz believed the millings were for PennDOT use. 29. Herold did not seek authorization from Forkey, his immediate supervisor, to utilize a PennDOT truck to obtain millings from the Township. a. Herold did not seek permission from Albert or Fyock regarding his receipt of millings from the Township. 1. Herold did not seek any authorization as either a Township Commissioner or an employee of PennDOT. 30. PennDOT had not requested or obtained millings from the Township prior to February 2013. Herold, 17 -011 Page a. PennDOT has not requested or obtained millings from the Township after February 2013. 31. Herold's PennDOT payroll time sheets confirm that Herold and the Youngwood shed crew did not perform any work that required the use of millings during the time period of January 1, 2013, through March 10, 2013. 32. Use of PennDOT equipment and misappropriation /conversion of PennDOT/Township supplies is a major rule violation per PennDOT's working rules. a. Herold acknowledged PennDOT's working rules on an annual basis. 33. Contemporaneous with his receipt of the milling from the Township, Herold inquired of Township resident Mark Huss ("Huss" whether McHugh, a Township Equipment Operator, would be interested in rolling the millings on Herold's son's driveway. a. Herold was aware that Huss and McHugh were friends and that McHugh operated a private business that utilized heavy equipment. b. Huss subsequently relayed Herold's request to McHugh. 34. Huss and McHugh discussed utilizing McHugh's roller in or about the time that McHugh witnessed Herold at the Public Works yard directing that Township millings be loaded into a PennDOT tandem truck. a. Huss and McHugh then agreed that Huss could use McHugh's Bomag 118 roller to roll millings at Herold's son's residence. At the time Huss rolled the millings, he had submitted an employment application to the Township for a laborfroad worker position. 2. Huss had hoped that Herold would recognize Huss's abilitylskill in operating equipment in an effort to acquire employment with the Township. b. Huss then advised Herold that he (Huss) could roll the millings at Jonathan Herold's property. C. Herold and Huss agreed to meet at Herold's son's residence at a predetermined date and time so that Huss could complete the rolling work. 35. In or about March 2013, Huss transported McHugh's Bomag 118 roller to Herold's son's residence. 36. Herold met Huss at his son's property and directed that Huss roll a combination of millings, red dog, and stone that had been spread on Jonathan Herold's driveway. a. Huss spent approximately two hours rolling the materials on Jonathan Herold's driveway. b. Huss rolled Jonathan Herold's driveway on only one occasion. c. Huss was not able to roll the entirety of Herold's son's driveway due to snow and icy conditions and operational problems with McHugh's roller. Herold, 17 -011 aFage-18 1. Milling compaction is ideally performed during warm weather conditions. 37. At the February 17, 2016, Board of Commissioners meeting, Township Police Detective Kirk Youngstead publicly informed the Board of Commissioners that he had received information alleging that Herold had stolen Township millings. a. The Board of Commissioners decided via a 7 -0 vote to have the matter investigated by Ideal Investigations & Security Group LLC ( "Ideal Investigations "). 1. Herold was present at the meeting and voted in favor of retaining Ideal Investigations. 38. Kenneth Munshower ("Munshower" the the President of Ideal Investigations, conducted the investigation into the ailegations against Herold. a. Munshower was previously employed with the Pennsylvania State Police for over twenty years prior to obtaining employment with Ideal Investigations. 39. From February 2016 to April 2016, Ideal Investigations interviewed Township emplo ees and various PennDOT representatives with regard to Herold's alleged theft of Township millings. a. Ideal Investigations presented its findings to the Board of Commissioners via a written report dated April 5, 2016. b. Munshower's report opined that the evidence and statements obtained supported a finding that Township millings were removed by Herold without authorization by the Township. 40. On April 14, 2016, the Board of Commissioners decided via a 7 -0 vote to release Ideal Investigation's report to the Pennsylvania State Police, the Westmoreland County District Attorney, and the Pennsylvania Office of Attorney General forfurther investigative purposes. a. Herold was present at the meeting and voted in favor of releasing the report. 41. Township employees and PennDOT representatives were interviewed by the Investigative Division of the State Ethics Commission. The following summaries of statements provided to the Investigative Division are consistent with the statements those employees previously provided to Ideal Investigations. a. John Shepherd, former Township Manager. 1. Shepherd was made aware of the alleged theft of millings in approximately 201312014. 2. Shepherd was informed that millings were loaded into a PennDOT vehicle and delivered to Herold's son's residence. 3. Shepherd believed that Township employee Mike Dietz was the individual who loaded the PennDOT vehicle with millings. 4. Neither Shepherd nor any other Township representative to Shepard's knowledge provided Herold with approval to obtain the millings. Herold, 17 -011 al' ge J b. Richard Albert, Public Works Director, Township. 1. Albert was informed that Herold allegedly stole millings from the Township in approximately 201312014. 2. Albert did not give Herold permission to obtain Township millings for PennDOT or personal use. 3. Albert learned that Mike Dietz was the loader operator involved in the situation through discussions with James McHugh. 4. Herold contacted Albert on February 17, 2016, and informed Albert that the millings were obtained for PennDOT use. 5. Herold has asked Tab Fyock for various Township materials in the past. aa. Fyock directed Herold that he must speak with Albert with regard to obtaining Township materials. 6. Herold has also asked Albert for various Township materials over the years. aa. Albert has routinely denied Herold's requests for Township materials. C. Tab Fyock, Assistant Public Works Director, Township. 1. Fyock had been informed that Herold allegedly stole millings from the Township in approximately 201312014. 2. Fyock did not give Herold permission to obtain any Township -owned millings. 3. Herold contacted Fyock after the February 17, 2016, Board of Commissioners meeting and informed Fyock that the millings were for PennDOT use. 4. Herold informed Fyock that a PennDOT employee (not Herold) drove the PennDOT truck and loaded it with the millings. d. James McHugh, retired Township Equipment Operator. 1. McHugh witnessed Mike Dietz loading a PennDOT tandem truck with millings in approximately 201312014. 2. McHugh estimated witnessing the situation in late February during the early morning. 3. McHugh observed Herold inside the Public Works shed while the PennDOT truck was being loaded with millings. 4. McHugh did not recall seeing Herold's personal vehicle at the Public Works property. aa. McHugh was led to believe that Herold traveled in the PennDOT tandem vehicle due to the absence of Herold's personal vehicle. Herold, 17 -011 P ge—1 D 5. McHugh did not observe a PennDOT employee operating the Township loader. 6. Mark Huss borrowed McHugh's roller approximately two to three weeks after the Township millings were taken. e. Mike Dietz, Township Loader Operator. 1. Dietz was present at the Public Works property with Herold when Township millings were loaded into a PennDOT vehicle. 2. Dietz loaded the PennDOT truck with millings on two separate occasions on the same day. 3. Dietz loads vehicles without questioning the act and does not inform his superiors of his actions. f. Al Halterman, Equipment Operator, PennDOT. 1. Tom Neal, PennDOT employee, approached Halterman "a few years ago" and advised that Herold instructed Neal to deliver millings to Herold's son's residence. 2. Neal informed Halterman that the millings were from the Township. g. Mark Huss, Township resident. 1. Huss rolled millings and gravel to create a driveway for Jonathan Herold. 2. Huss estimated rolling the millings sometime between February and April. 3. Huss explained that snow was on the ground and that he was concerned that he might get the roller stuck. 4. Herold was present for some of the time while Huss was running the roller. 42. When interviewed by Ideal Investigations on March 9, 2016, Thomas Neal stated that he delivered Township millings to Herold's son's residence on several occasions in approximately 2013. 43. On March 7, 2016, Herold provided a recorded statement to representatives of Ideal Investigations, which included the following: a. He took millings from the Township in 2011 or 2012 in order to complete a PennDOT project near Clay Pike Road. b. He directed a PennDOT employee to drive him to the Public Works property in order to take the millings. C. He was at the Public Works property in his capacity as a PennDOT Foreman. Herold, 17 -011 age 1 d. He contacted Fyock after the February 17, 2016, Board of Commissioners meeting in order to refresh Fyock's memory as to why the millings were taken by Herold. THE FOLLOWING FINDINGS RELATE TO HEROLD'S STATEMENTS OF FINANCIAL INTERESTS FOR THE 2012, 2013, 2014, AND 2015 CALENDAR YEARS. 44. Statement of Financial Interests ( "SFI ") filing requirements for public officials and public employees are mandated by Section 1104 of the Ethics Act. a. Section 1104(a) mandates, in part, the following: Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 45. The identification of direct or indirect sources of income on SFI forms is mandated by Section 1105 of the Ethics Act. a. Section 1105(b)(5) mandates, in part, the following: The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more .... 46. Herold, in his official capacity as a Township Commissioner, is required to file an SFI form by May 1 It annually containing information for the prior calendar year. a. Commissioners are annually provided with blank SFI forms by a representative of the Township for completion. 47. On May 2, 2017, an SFI compliance review was conducted of the Township by the Investigative Division of the State Ethics Commission. a. Herold's SFIs for calendar years 2012 and 2013 did not indicate that he received income from the Commonwealth as a PennDOT employee. 48. Herold received compensation in excess of $1,300.00 from the Commonwealth as a PennDOT employee in 2012 and 2013. a. Herold failed to disclose the income he received from the Commonwealth as a PennDOT employee on his SFIs for calendar years 2012 and 2013. b. Herold was not required to disclose income from PennDOT for calendar years 2014 and 2015 as a result of his retirement. III. DISCUSSION: As a Member of the Board of Commissioners of North Huntingdon Township (("Township" , Westmoreland County, from January 2, 1996, through the present, I�esponden David Herold, also referred to hereinafter as "Respondent," "Respondent Herold," and "Herold," has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act' j, 65 Pa.C.S. § 1101 et se As a Highway Foreman for the Pennsylvania Department of I ransportation ( "PenniS from January 2, 1991, through March 15, 2013, Herold was a public employee subject to he provisions of the Ethics Act. Herold, 17 -011 � � 2 The allegations are that Herold violated Sections 1103(a), 1105(b)(5), and 1104(d) of the Ethics Act when he utilized the authority of his public officelemployment for the pprivate pecuniary, benefit of a member of his immediate family, when in his capacity as a Township Commissioner, he directed and/or otherwise authorized Township employees to utilize Township equipment and supplies, namely road millings belonging to the Township, to be delivered to property owned by his son, Jonathan Herold; when, as a PennDOT Highway Foreman, he utilized the authority of his position to cause PennDOT employees, equipment, and/or supplies to be diverted from official PennDOT activities in furtherance of delivering road millings to property owned by his son, Jonathan Herold; and when he failed to disclose income from the Commonwealth of Pennsylvania on Statements of Financial Interests ( "SFIs ") filed for the 2012, 2013, 2014, and 2015 calendar years. Per the Consent Agreement, the Investigative Division has exercised its prosecutorial discretion to nol pros the allegation under Section 1104(d) of the Ethics Act. Based upon the nol pros, we need not address the Section 1104(d) allegation that is no longer before us. Pursuant to Section 1103(a) of the Ethics Act, a public officiallpublic 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 officiallpublic employee from using the authority of public officelemployment 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 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. Herold, 17 -011 Paged 3 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. The Township is governed by a seven - Member Board of Commissioners ( "Board "). Herold has served as a Township Commissioner from January 2, 1996, through the present. Herold has served as Vice President of the Board from January 4, 2016, through the present. The Township Public Works Department ( "Public Works Department ") maintains Townshipp roads, property, and structures. The Public Works Department is supervised by the Public Works Director, Richard Albert ( "Albert"), and the Assistant Public Works Director, Tab Fyock ( "Fyock "). The Public Works Department maintains regular hours from Monday through Friday, 7:00 a.m. to 3:00 p.m. The Township stores the Public Works Department's materials and equipment at a location that the Public Works Department refers to as "the yard" ( "the Public Works Yard "). Road millings obtained from Township road projects are stockpiled at the Public Works Yard. Road millings, also known as Recycled Asphalt Product ( "RAP "), are recycled asphalt pavement comprised of former asphalt projects that have been crushed into a gravel -like composition. When compacted, RAP hardens /binds together and is suitable for long -term exposure to weather. The Public Works Department utilizes miliingslRAP to complete pothole repairs and create road shoulders. The Public Works Department does not retain a record of the amount of millings /RAP delivered to or dispersed from the Public Works Yard stockpile. As of October 2017, Federouch Landscape Supply charged customers in western Pennsylvania $1 5.00 a ton for millings. Township materials stockpiled at the Public Works Yard have been provided to various entities, including PennDOT, on an as-needed/emergency basis. Any materials loaned to or borrowed by anon- Township entity are subsequently replenished by the borrower or recipient of the materials. Township materials that are commonly loaned or borrowed include stone, fill, and salt. Millings have historically not been loaned /provided to or borrowed by anyone. Neither the Township nor the Public Works Department has any written policy or procedure regarding the dispersal of Township materials. Requests for Township materials are to be directed to Albert, Fyock, or the Township employee serving as the Loader Operator at the Public Works Yard. The Township Loader Operator has the discretion to disperse Township materials without first obtaining permission from Albert or Fyock. Albert and Fyock are to be notified when Township materials are dispersed to entities other than the Township. Herold was employed by PennDOT as a Highway Foreman from January 2, 1991, through March 15, 2013, when he retired from PennDOT. As a PennDOT Highway Foreman, Herold was responsible for performing various duties and responsibilities, including providing direct supervision to a crew of equipment operators and laborers regarding the performance of general highway maintenance activities. During the time period of October 1, 2012, through March 15, 2013, Herold's immediate PennDOT supervisor was Dave Forkey ftorkey "), Assistant County Maintenance Manager, Westmoreland County. Forkey was responsible for supervising PennDOT activities in PennDOT section numbers 30 and 50 of Westmoreland County. PennDOT section number 50 of Westmoreland County includes a PennDOT shed located in or near the municipality of Youngwood. Herold was assigned to the PennDOT Herold, 17 -011 alrg e__� 4 Youngwood shed "the Youngwood Shed ") during the time period of October 1, 2012, through March 15, 2013. The Youngwood shed is located approximately 14.5 miles from the Public Works Yard. Between October 1, 2012, and March 15, 2013, Herold supervised various PennDOT employees assigned to the Youngwood Shed, including Thomas Neal ( "Neal "). Herold and his direct report employees maintained work hours of Monday through Friday, 12:00 p.m. to 8:00 p.m. PennDOT shed crews utilize PennDOT materials and equipment to complete PennDOT- sanctioned projects. As a practice, PennDOT does not use materials owned by municipalities to complete PennDOT projects. PennDOT foremen are required to obtain permission from their county manager if they desire to use municipal -owned materials to complete a PennDOT project. Since February 27, 2013, Herold's son, Jonathan Herold, has possessed or owned a property (the "Property ") located approximately 4.3 miles from the Public Works Yard. The Property and the residence on the Property were abandoned for approximately twenty years prior to February 2013. As of January 2013, the driveway leading to the residence was approximately 1,056 feet long and was constructed of stone and dirt. On or about February 27, 2013, Jonathan Herold started making renovations to the Property and the residence. In or about February 2013, Herold directed Township Loader Operator Mike Dietz �"Dietz') to load a PennDOT tandem truck with millings from the Public Works Yard. A ennkT tandem truck has a maximum payload capacity of fifteen tons. Neal, in his capacity as a PennDOT employee, was present with Herold when Herold directed that the Township millings be loaded into the PennDOT tandem truck. At the time, Herold and Neal had hourly wages of $24.56 and $14.73, respectively, as PennDOT employees. James McHugh ( "McHugh "), who was then a Township Equipment Operator, witnessed Dietz loading the PennDOT tandem truck with Township millings. McHugh witnessed Herold receiving Township millings during a weekday between approximately 8:30 a.m. and 9:00 a.m. Herold and Neal remained present at the Public Works Yard while the millings were loaded. It took Dietz at least fifteen minutes to load the PennDOT tandem truck to capacity. Both Dietz and McHugh were aware that Herold was a Township Commissioner. Dietz did not seek approval from his immediate supervisors, Albert and Fyock, regarding the dispersal of Township millings to Herold. Dietz believed the millings were for PennDOT use, and he provided the materials to Herold due to the Township having a good working relationship with PennDOT. Herold did not seek authorization from his immediate PennDOT supervisor, Forkey, to utilize a PennDOT truck to obtain millings from the Township. Herold did not seek authorization or permission from Albert or Fyock regarding his receipt of millings from the Township. PennDOT had not requested or obtained millings from the Township prior to February 2013. Herold's PennDOT payroll time sheets confirm that Herold and the Youngwood Shed crew did not perform any work that required the use of millings during the time period of January 1, 2013, through March 10, 2013. Contemporaneous with his receipt of the millings from the Township, Herold inquired of Township resident Mark Huss ( "Huss ") whether McHugh would be interested in rolling the millings on the driveway of the residence at Jonathan Herold's property. Herold was aware that Huss and McHugh were friends and that McHugh operated a private business which utilized heavy equipment. Huss subsequently relayed Herold's request to McHugh. Huss and McHugh discussed the matter and agreed that Huss could use McHugh's Bomag 118 roller to roll the millings on the driveway. At the time, Huss had submitted an Herold, 17 -011 Page 15 employment application with the Township for a laborfroad worker position, and he hoped that Herold would recognize Huss's ability and skill in operating equipment. Huss then advised Herold that he could roll the millings on the driveway, and Huss and Herold agreed to meet at Jonathan Herold's property at a predetermined date and time so that Huss could complete the rolling work. In or about March 2013, Huss transported McHugh's Bomag 118 roller to Jonathan Herold's property. Herold met Huss at the property and directed that Huss roll a combination of millings, red dog, and stone which had been spread on the driveway of the residence at the property. Huss spent approximately two hours rolling the materials on the driveway. Huss was not able to roll the entirety of the driveway due to snow and icy conditions and operational problems with McHugh's roller. At the February 17, 2016, meeting of the Board, Township Police Detective Kirk Youngstead public) informed the Board that he had received information alleging that Herold had stolen Township millings. Herold was present at the meeting and participated in a unanimous Board vote to retain Ideal Investigations & Security Group LLC (`Ideal Investigations ") to investigate the matter. Kenneth Munshower ( "Munshower "), who is the President of Ideal Investigations, conducted the investigation into the allegations against Herold. From February 2016 to April 2016, Ideal Investigations interviewed Township employees and various PennDOT representatives with regard to Herold's alleged theft of Township millings. Ideal Investigations presented its findin s to the Board via a written report dated April 5, 2016, from Munshower. In his report, Munshower opined that the evidence and statements obtained supported a finding that Township millings were removed b Herold without authorization by the Township. On April 14, 2016, Herold participated in a unanimous Board vote to release Ideal Investigation's report to the Pennsylvania State Police, the Westmoreland County District Attorney, and the Pennsylvania Office of Attorney General for further investigative purposes. As a Township Commissioner, Herold is required to annually file an SFI form by May 1 containing information for the prior calendar year. Herold did not disclose the Commonwealth of Pennsylvania as a source of income in excess of $1,300.00 on his SFls for calendar years 2012, 2013, 2014, or 2015. 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: The Investigative Division will recommend the following in relation to the above allegations: That no violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to David Herold utilizing the authority of his public office /public employment to effectuate the delivery of road millings to property owned by his son, Jonathan Herold, through the use of public employees, equipment, and/or supplies, in that the Investigative Division cannot produce sufficient clear and convincing evidence to establish a beyond de minimis pecuniary gain. That a violation of Section 1105(b)(5) of the Herold, 17 -011 � 6 Public Official and Employee Ethics Act, 65 Pa-C.S. § 1105(b)(5), occurred in relation to David Herold failing to disclose income from the Commonwealth of Pennsylvania upon Statements of Financial Interests filed for the 2012 and 2013 calendar years. That no violation of Section 1105(b)(5) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred in relation to David Herold failing to disclose income from the Commonwealth of Pennsylvania upon Statements of Financial Interests filed for the 2014 and 2015 calendar years because Herold was retired from PennDOT. d. That no action will be undertaken pursuant to Section 1104(d) of the Public official and Employee Ethics Act, 65 Pa.C.S. § 1104(d). Herold agrees to make payment in the amount of $750.00 in settlement of this matter payable as follows: $500.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. $250.00 which represents a portion of the expenses and costs incurred by the State Ethics Commission in the investigation and administrative prosecution of the instant matter, payable b certified check or money order made payableo the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Herold agrees to file complete and accurate Statements of Financial Interests with North Huntingdon Township through the Pennsylvania State Ethics Commission, for the 2012 and 2013 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. 6. Herold agrees to not accept any reimbursement, compensation or other payment from North Huntingdon Township representing a full or partial reimbursement of the amount paid in settlement of this matter. 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 Herold, 17 -011 Fage-1 7 cooperating with any other authority who may so choose to review this matter further. Consent A reement, at 1 -2. In considering the Consent Agreement, we accept the recommendation of the parties for a finding of no violation as to the Section 1103(a) allegation. Although Herold used the authority of his public office /public employment as a Township Commissioner /PennDOT Highway Foreman when he utilized Township and PennDOT employees and PennDOT equipment to obtain Township millings and deliver them to the Property owned by his son, Jonathan Herold, for use on the driveway of the residence at the Property, the Stipulated Findings do not quantify the resulting pecuniary benefit to Jonathan Herold. Accordingly, based upon the parties' Stipulation of Findings and Consent Agreement, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1 T03 (a), occurred in relation to Herold utilizing the authority of his public office /public employment to effectuate the delivery of road millings to property owned by his son, Jonathan Herold, through the use of public employees, equipment, and/or supplies, based upon an insufficiency of evidence to establish a pecuniary gain beyond a de minimis amount. As for the allegations regarding Herold's SFIs, it is clear that Herold failed to disclose the Commonwealth of Pennsylvania as a source of income on his SFIs for calendar years 2012 and 2013. As a result of his retirement from PennDOT, Herold was not required to disclose the Commonwealth of Pennsylvania as a source of income on his SFIs for calendar years 2014 and 2015. Cf., Tr�ac ,Order 1255 (holding that the filer of an SFI was not required to disclose governmentally mandated payments such as retirement income from the Public School Employees Retirement System). We hold that a violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred in relation to Herold failing to disclose income from the Commonwealth of Pennsylvania on SFIs filed for the 2012 and 2013 calendar years. We further hold that no violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. 1105(b)(5), occurred in relation to the allegation that Herold failed to disclose income rom the Commonwealth of Pennsylvania on SFIs filed for the 2014 and 2015 calendar years, in that Herold had retired from PennDOT. As part of the Consent Agreement, Herold has agreed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Herold has further agreed to make payment to this Commission in the amount of $250.00, 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 within thirty (30) days of the issuance of the final adjudication in this matter. Herold has agreed 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. Additional /y, Herold has agreed to file complete and accurate SFIs with the Township, through this Commission, for the 2012 and 2013 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. Herold, 17 -011 Paged 8 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, Herold is directed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to this Commission by no later than the thirtieth (30th) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the arties, Herold is further directed to make payment to this Commission in the amount of $250.00, 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 by no later than the thirtieth (30th) day after the mailing date of this adjudication and Order. Herold 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, Herold is directed to file complete and accurate SFIs with the Township, througgh this Commission, for the 2012 and 2013 calendar years b no later than the thirtieth (30th) 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 Board of Commissioners of North Huntingdon Township, Westmoreland County, from January 2, 1996, through the present, Respondent David Herold ( "Herold") has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. As Highway Foreman for the Pennsylvania Department of Transportation ( "PennD8T ") from January 2, 1991, through March 15, 2013, Herold was a public employee subject to the provisions of the Ethics Act. 3. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Herold utilizing the authority of his public office /public employment to effectuate the delivery of road millings to property owned by his son, Jonathan Herold, through the use of public employees, equipment, and/or supplies, based upon an insufficiency of evidence to establish a pecuniary gain beyond a de minimis amount. 4. A violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred in relation to Herold failing to disclose income from the Commonwealtth of Pennsylvania on Statements of Financial Interests filed for the 2012 and 2013 calendar years. 5. No violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred in relation to the allegation that Herold failed to disclose income from the Commonwealth of Pennsylvania on Statements of Financial Interests filed for the 2014 and 2015 calendar years, in that Herold had retired from PennDOT. In Re: David Herold, File Docket: 17 -011 Respondent Date Decided: 1131118 Date Mailed: 216118 ORDER NO. 1729 No violation of Section 1103 (a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a)), occurred in relation to David Herold ( "Herold "), as a Commissioner for North Hun {in don Township ( "Township "), Westmoreland Countyla Highway Foreman for the Pennsylvania Department of Transportation ( "PennDOT" ), utilizing the authority of his public office /public employment to effectuate the delivery of road millings to property owned by his son, Jonathan Herold, through the use of public employees, equipment, and/or supplies, based upon an insufficiency of evidence to establish a pecuniary gain beyond a de minimis amount. 2. A violation of Section 110M)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred in relation to Herold ailin to disclose income from the Commonwealtth of Pennsylvania on Statements of Financial Interests filed for the 2012 and 2013 calendar years. 3. No violation of Section 1105(b)(5) of the Ethics Act, 65 Pa.C.S. § 1105(b)(5), occurred in relation to the allegation that Herold failed to disclose income from tthe Commonwealth of Pennsylvania on Statements of Financial Interests filed for the 2014 and 2015 calendar years, in that Herold had retired from PennDOT. 4. Per the Consent Agreement of th arties, Herold is directed to make payment in the amount of $500.00 payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Herold is further directed to make payment to the Pennsylvania State Ethics Commission in the amount of $250.00, representing a portion of the expenses and costs incurred by this Commission in the investigation and administrative prosecution of the instant matter, pa able by certified check or money order made payable to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this Order. Herold 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, Herold is directed to file complete and accurate Statements of Financial Interests for the 2012 and 2013 calendar years with the Township, through the Pennsylvania State Ethics Commission, by no later than the thirtieth (30th) day after the mailing date of this Order. Compliance with paragraphs 4, 5, 6, and 7 of this Order will result in the closing of this case with no further action by this Commission. Herold, 17 -011 ag e- -20 Non - compliance will result in the institution of an order enforcement action.