HomeMy WebLinkAbout846 BauschIn re: David K. Bausch
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
: File Docket:
: Date Decided:
: Date Mailed:
Before: Dennis C. Harrington
James M. Howley, Vice
Daneen E. Reese
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
91 -003 -C
April 23, 1992
April 27, 1992
Chair
Chair
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883.
Written notice, of the specific allegation(s) was served at the
commencement of the investigation. A Findings Report was issued and
served, upon completion of the investigation, which constituted the
Complaint by the Investigation Division. An Answer was filed and a
hearing was waived. A Consent Order was submitted by the parties to the
Commission for consideration which was subsequently approved. This
adjudication of the Commission is hereby issued which sets forth the
individual Allegations, Findings of Fact, Discussion, Conclusions of
Law and Order.
This adjudication is final and will be made available as a public
document fifteen days after issuance. However, reconsideration may be
requested which will defer public release of this adjudication pending
action on the request by the Commission. A request for reconsideration,
however, does not affect the finality of this adjudication. A
reconsideration request must be received at this Commission within
fifteen days of issuance and must include a detailed explanation of the
reasons as to why reconsideration should be granted in conformity with
51 Pa. Code S2.38.
The files in this case will remain confidential in accordance with
Section 8(a) of Act 170 of 1978 during the fifteen day period and no one
unless the right to challenge this Order is waived, may violate
confidentiality by releasing, discussing or circulating this Order.
However, confidentiality does not preclude discussing this case with an
attorney at law.
Any person who violates confidentiality of the Ethics Act is guilty
of a misdemeanor subject to a fine of not more than $1,000 or
imprisonment for not more than one year, 65 P.S. S409(e).
David K. Bausch
April 27, 1992
Page 2
I. ALLEGATION:
That David K. Bausch, County Executive in Lehigh County, violated
the following provisions of the State Ethics Act (Act 170 of 1978):
1. When he used county employees on county time to repair
his personal vehicle in the county garage;
2. When he stored his personal vehicles in county
garages without compensating the county; and
3. When he used county employees and vehicles for
transportation to the New York airport when he took
trips to Germany.
Section 3. Restricted Activities.,
(a) No public official or public employee
shall use his public office or any confidential
information received through his holding public
office to obtain financial gain other than
compensation provided by law for himself, a member
of his immediate family, or a business with which
he is associated.
65 P.S. 5403(a).
II. FINDINGS:
1. David Bausch has served as County Executive for Lehigh County
since 1978.
a. The County Executive is an elected office.
2. Bausch served as a Lehigh County Commissioner from 1976 to 1978.
a. Bausch was also employed by Lehigh County as Director of the
Cedarbrook Home from 1963 to 1976.
3. Article IV of the Lehigh County Home Rule Charter describes the
composition of the Executive Branch of the County as the County
Executive and all officers, agents and employees under his or her
supervision or authority.
4. Article IV, Section 402 of the Home Rule Charter contains the
following duties and responsibilities of the County Executive:
a. To supervise and direct the administration and the internal
organization of all agencies of the County government except
those specifically placed under the jurisdiction of any other
David K. Bausch
April 27, 1992
Page 3
j
officer by the charter or by applicable law.
b. To appoint, suspend, and remove all County employees except
those specifically placed under the jurisdiction of any other
officer by the charter or by applicable law and except staff
of the Board appointed under Section 305.
c.
d.
e .
g-
To execute and enforce resolutions, motions, and ordinances of
the Board.
To exercise the power of veto as set forth in this Charter.
To prepare, as chief budget officer, the annual operating and
capital budgets and submit them to the board prior to October
1 of each year and execute same in accordance with provisions
of the Charter.
f. To represent the County in deliberations with other
governmental bodies.
To assure that all laws relating to the affairs and government
of the County are duly executed and enforced within the
County.
h. To report to the board annually within sixty (60) days after
the close of the fiscal year, and at such other times as he or
she may deem necessary or as the Board shall direct, on the
activities of the agencies of the County in such detail as he
or she may deem necessary or as the Board shall require or
direct.
i. To serve on all boards and commissions, except as otherwise
provided in this Charter, on which a County Commissioner was,
prior to the adoption of this Charter, required to serve.
However, when permitted by law, he or she may designate
someone else to serve in his or her place.
To sign or cause to be signed on the County's behalf all
deeds, contracts, papers, and other instruments, including
those which prior to the adoption of the Charter required the
signature of the Chairman or any member of the Board of
Commissioners.
k. To appoint and dissolve from time to time voluntary advisory
boards of citizens to assist and advise him or her on issues
and matters pertaining to his or her office including, but not
limited to, a Prison Board.
1. To declare a "state of emergency" whenever there is an
immediate threat to the life, health and /or property of the
inhabitants of Lehigh County and during such state of
David R. Bausch
April 27, 1992
Page 4
emergency to take appropriate action to meet the emergency,
including action of a legislative nature in the absence of a
quorum of the board.
m. To have the authority to recommend such matters for
legislative action as may be in the best interests of the
County.
n. To have necessary implied and incidental powers to perform and
execute the duties and functions as set forth in the Charter
or lawfully delegated to him or her.
5. The Lehigh County Administrative Code, Article IV, Section 403
contains a description of specific administrative service
departments under the supervision of directors appointed by the
County executive. Those departments are as follows:
DEPARTMENT
Department of Administration
Department of Property Services
Department of Planning and
Development
Department of Human Services
Department of Corrections
Department of Law
Office of Public Defender
Department of Purchasing
DIRECTED BY
Director of Administration
Director of Property Services
Director of Planning and
Development
Director of Human Services
Director of Corrections
Solicitor
Public Defender
Purchasing Agent
6. Lehigh County operates a maintenance facility for the purpose of
repairing and performing necessary upkeep to all county vehicles and
the Lehigh County Authority.
a. The county employs mechanics and other maintenance personnel
to perform these repairs.
b. Maintenance employees are immediately supervised by the
supervisor in the Bridge & Utility Department.
7. David Bausch brought one of his personal vehicles into the county
garage in 1985.
a. A county mechanic, Willard Reinhard, took the car to a private
garage where the vehicles was inspected and received an
inspection sticker.
b. This work was performed by the county mechanics during their
regular working hours.
c. County employees took the vehicle to General Auto Sales.
David K. Bausch
April 27, 1992
Page 5
8. General Auto Sales invoice #44226, dated January 23, 1985, indicates
a state inspection was performed on a vehicle owned by David K.
Bausch.
a. The total charge for the inspection and the sticker was $8.48.
9. Bausch has had the majority of his personal vehicles serviced at
Pollard Tire Company, 230 N. 7th Street, Allentown, PA, since at
least 1984.
a. The tire company is located near his home and is readily
accessible.
b. Bausch has a Pollard Tire Company credit card which he used to
make some purchases.
10. Bausch charged a number of repairs to his vehicles to his Pollard
credit card.
a.
August 23, 1984. Invoice No. 98420.
Service: Lube, oil, filter and battery.
Total $79.32
b. September
Service:
Total
c. September
Service:
Total
4, 1984. Invoice No. 100762.
Check gas leak, lube, oil, filter, fuel hose.
$17.90
14, 1985. Invoice No. 11744.
PA State Inspection, PA Im. Testing Wiper
refills, Front wheel bearing tighten.
$35.72
d. August 30, 1986. Invoice No. 23461.
Service: (4) tires, wheel balance, tire valves,
shocks, idler arm, front -end alignment.
Total: $350.87
e. January 18, 1989. Invoice No 54472.
Service: PA State Inspection, PA Im. Test, Motor oil
Total: $23.32
f. October 23, 1990. Invoice No. 73378.
Service: Electrical analysis, battery, starter.
Total: $165.58
g. January 22, 1991. Invoice No. 76686.
Service: PA State Inspection, PA Im. Test, Master Cylinder,
Brake Fluid.
Total: $109.71
David K. Bausch
May 8, 1992
Page 6
11. Bausch owns seven vehicles, six of which are antiques.
a. Two of the antique vehicles owned by Bausch are an 1889 Nadig,
and a 1918 Franklin.
12. While employed as Director of Cedarbrook Home, Bausch stored an
inoperable antique vehicle in a garage on the grounds of Cedarbrook.
a. As director of the Cedarbrook Home, Bausch was entitled to the
use of a home and garage.
A county commissioner in charge of Human Services and the
County Home, gave permission to store the vehicle and other
artifacts that were to be used for a future transportation
museum collection.
b.
c. He intended to donate the vehicle to a planned County
Transportation Museum but the museum never materialized.
d. The vehicle remained stored in otherwise unused space in the
garage after Bausch left as Director of Cedarbrook in 1976
until November 1990.
13. Lehigh County operates a county garage located in Allentown.
a. A section of that garage was allocated for use by the County's
Historical Society.
14. For approximately one and one -half years, until November 1990,
Bausch stored an 1889 Nadig antique auto in the section of the
garage allocated for use by the historical society, with their
permission.
15. Beginning in November, 1990, Bausch also began storing a 1918
Franklin in another section of the Allentown garage.
16. Records of the Lehigh Controller confirm that beginning in October,
1990, Bausch began making $64.00 per month payments to Lehigh County
for storing the two antique vehicles in the county's Allentown
garage.
a. Bausch is continuing to make those monthly payments.
17. On December 15, 1990, Bausch issued a personal check in an amount of
$500 to Lehigh County payment for storing the antique vehicle in the
Cedarbrook garage from 1976 until 1990.
18. During his years as an employee and elected official of Lehigh
County, David Bausch has travelled on an annual basis to Europe.
a. Bausch has travelled on county business and for pleasure.
David K. Bausch
April 27, 1992
Page 7
b. Bausch has travelled to Saarbucken, Germany in the county of
Stadtverband.
1) Saarbucken is the sister city of Allentown and
Stadtverband is the sister county of Lehigh.
2) Lehigh County developed an exchange program and as a
result local officials, including Bausch, have
participated.
19. Bausch travelled to Saarbucken in his capacity as Lehigh County
Executive.
a. Bausch was transported to the airport in New York City by
county employee Robert Roscoe in a county van.
1) Roscoe assisted in carrying county memorabilia.
b. Roscoe would use either annual leave or comp time when driving
Bausch to the airport for travel to Europe.
c. Bausch took County memorabilia on his visits to the sister
County of Stadtverband.
d. Bausch paid for all expenses incurred on the trips.
20. By personal check dated March 16, 1992, Bausch made an additional
payment of $500.00 through the State Ethics Commission in
restitution to Lehigh County.
III. DISCUSSION:
As a County Executive in Lehigh County, David R. Bausch, hereinafter
Bausch, is a public employee as that term is defined in the Ethics Act,
65 P.S. 5402; 51 Pa. Code 1.1. As such, his conduct is subject to the
provisions of the Ethics Act and the restrictions therein are applicable
to him.
Initially, it is noted that Section 9 of Act 9 of June 26, 1989,
P.L. 26, provides, in part, as follows:
"This amendatory act shall not apply to
violations committed prior to the effective date of
this act, and causes of action initiated for such
violations shall be governed by the prior law,
which is continued in effect for that purpose as if
this act were not in force. For the purposes of
this section, a violation was committed prior to
the effective date of this act if any elements of
the violation occurred prior thereto."
David K. Bausch
April 27, 1992
Page 8
Since the occurrences in this case transpired prior to the effective
date of Act 9 (June 26, 1989), we must apply the provisions of Act 170
of 1978, P.L. 883, to determine whether the Ethics Act was violated.
Under Section 3(a), quoted above, this Commission has determined
that use of office by a public official to obtain a financial gain for
himself or a member of his immediate family or a business with which he
is associated which is not provided for in law transgresses the above
provision of law. Thus, use of office by a public official to obtain a
financial gain which is not authorized as part of his compensation is
prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commissio
77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics
Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly,
Section 3(a) of the Ethics Act would prohibit a public official /employee
from using public office to advance his own financial interests; Koslow
v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988).
In the instant matter we must determine whether Bausch, as the
Lehigh County Executive, violated Section 3(a) of Act 170 of 1978
regarding the following three allegations:
1. The use of county employees on county time to repair his personal
vehicles in the county garage;
2. Storage of personal vehicles in county garages without compensating
the county; and
3. The use of county employees and vehicles for transportation to New
York airport for trips to Germany.
Factually, Bausch was employed by Lehigh County as Director of the
Cedarbrook Home from 1963 to 1976, was elected as Lehigh County
Commissioner from 1976 to 1978 and has been employed as Lehigh County
Executive since 1978. The Lehigh County Home Rule Charter, Article IV,
establishes that the county executive branch encompasses the county
executive together with all officers, agents, employees under his
supervision and authority. In addition, Section 402 of Article IV of
the Home Rule Charter sets forth the duties and responsibilities of the
County Executive (Fact Finding 4).
In Lehigh County, maintenance operations are performed by employees
who are supervised by the supervisor in Bridge and Utility Department
who in turn is appointed and supervised by the county executive.
Although Lehigh County operates a maintenance facility for the
repair and upkeep of Lehigh County or Authority vehicles, Bausch brought
one of his personal vehicles into the county garage in 1985 so that
county employees, during regular working hours, could take the vehicle
to a private garage for an inspection sticker.
David K. Bausch
April 27, 1992
Page 9
Turning to the factual basis as to the second allegation, it appears
that Bausch owns seven vehicles, six of which are antiques including a
1889 Nadig and a 1918 Franklin. When Bausch was employed as Director of
the Cedarbrook Home, he stored the antique vehicle(s) in the garage on
the grounds of Cedarbrook. Bausch was given permission to store the
vehicle by a county commissioner. Although Bausch as Director was
entitled to the use of a home and the garage while he was Director, one
vehicle remained in storage at the garage after Bausch left that
position until November, 1990. In addition, Lehigh County operates a
county garage located in Allentown, with a section of that garage
allocated for use of the County's Historical Society. For one and a
half years, until November 1990, Bausch stored his 1889 Nadig antinque
auto in a section of the garage allocated for use by the Historical
Society and beginning in November 1990 Bausch also began storing his
1918 Franklin automobile in another section of the Allentown garage.
Beginning in October 1990, Bausch began making monthly payments of
$64.00 to Lehigh County for storing the two antique vehicles. In
addition, on December 15, 1990, Bausch issued a personal check in the
amount of $500.00 to Lehigh County for storage of the antique vehicle in
the Cedarbrook garage from 1976 through 1990.
As to the third and final allegation, Bausch has traveled on county
business and for pleasure to Germany. Saurbroken, County of
Stadtverband, Germany is the sister city of Allentown and Stadtverband
is the sister county of Lehigh. Bausch's travels to Saurbroken were in
his capacity as Lehigh County Executive. During such trips, Bausch was
transported to the New York City Airport by a county employee in a
county van, but Bausch paid for all expenses incurred on the trips.
As to the first allegation concerning the use of county employees
and county time to repair his vehicles, we find no violation of Section
3(a) of Act 170 of 1978 by Bausch. The only action taken by Bausch was
to have his vehicle transported for one inspection sticker. Such
minimal activity by Bausch in the context of the facts of this case does
not in our view constitute a use of public office for financial gain.
Compare Rakowskv, Order 744. Accordingly, we find that Bausch did not
violate Section 3(a) of Act 170 of 1978 regarding the use of county
employees on county time to repair his personal vehicles in a county
garage in that the record reflects only one instance of a county
employee taking Bausch's automobile for an inspection sticker.
Turning to the second allegation, we find a violation of Section
3(a) of Act 170 of 1978 regarding the storage by Bausch of his personal
vehicles in the county garages. Although Bausch, after the fact, did
make a $500.00 payment for the storage of his vehicle at the Cedarbrook
Home and began paying a $64.00 per month payment beginning in October of
1990 for storage of his vehicles in the county-garage, the facts reflect
that Bausch had been utilizing the storage facilities of the county
garage for at least one and a half years prior to the point in time when
he began making payments. Bausch has since made an additional payment
David K. Bausch
April 27, 1992
Page 10
of $500.00 in restitution to Lehigh County.
Such action violated Section 3(a) of Act 170 of 1978 in that Bausch
used public office by virtue of his position to store his vehicles in
the county garage which was a financial gain in that he did not pay rent
for that year and one half period. The financial gain was also other
than compensation provided for by law because there is no provision in
law which allows public officials to store their private vehicles in the
governmental garages. Therefore, the financial gain received by Bausch
as to the storage of his vehicles in the county garage was a violation
of Section 3(a) of Act 170 of 1978.
As to the third and final allegation regarding the use of county
personnel and vehicles for transportation by Bausch to the New York
Airport for trips to Germany, we find no violation of Section 3(a) of
Act 170 of 1978 as to this allegation. The facts reflect that the trips
by Bausch were in his capacity as the County Executive and that Bausch
also paid all expenses incurred on such trips. Accordingly, since the
trips were not private or personal but were official in nature and since
Bausch did not receive any financial gain, we find no violation of
Section 3(a) of Act 170 of 1978 as to this particular allegation. Huff,
Opinion 84 -015.
The preamble of Act 170 of 1978 provides:
The legislature hereby declares that public
office is a public trust and that any effort to
realize personal financial gain through public
office other than compensation provided by law is a
violation of that trust. In order to strengthen
the faith and confidence of the people of the State
in their government, the Legislature further
declares that the people have a right to be assured
that the financial interests of holders of or
candidates for public office present neither a
conflict nor the appearance of a conflict with the
public trust. Because public confidence in
government can best be sustained by assuring the
people of the impartiality and honesty of public
officials, this act shall be liberally construed to
promote complete disclosure.
65 P.S. 5401.
Bausch is reminded that public office is a public trust and he must
ensure that his future actions comport with the Ethics Law.
Given the totality of the facts and circumstances of this case and
the payments in restitution, this Commission will take no further
action.
David K. Bausch
April 27, 1992
Page 11
IV. CONCLUSIONS OF LAW:
1. David Bausch, as the Lehigh County Chief Executive, is a public
official subject to the provisions of Act 170 of 1978.
2. Bausch did not violate Section 3(a) of Act 170 of 1978 when he used
one county employee to take his personal vehicle for an inspection
sticker.
3. Bausch violated Section 3(a) of Act 170 of 1978 when he obtained a
financial gain by storing his personal vehicles in the county garage
without paying rent to the county.
4. Bausch did not violate Section 3(a) of Act 170 of 1978 when he
utilized county employees and a county van for transportation to the
New York Airport for a trip to Germany when he was on official
county business and paid for his own expenses.
In re: David R. Bausch
: File Docket: 91 -003 -C
: Date Decided: April 23. 1992
: Date Mailed: April 27. 1992
ORDER NO. 846
1. David Bausch, as the Lehigh County Chief Executive, did not violate
Section 3(a) of Act 170 of 1978 when he used one county employee to
take his personal vehicle for an inspection sticker.
2. Bausch violated Section 3(a) of Act 170 of 1978 when he obtained a
financial gain by storing his personal vehicles in the county garage
without paying rent to the county.
3. Bausch did not violate Section 3(a) of Act 170 of 1978 when he
utilized county employees and a county van for transportation to the
New York Airport for a trip to Germany when he was on official
county business and paid for his own expenses.
4. Bausch is directed to desist in the future from utilizing county
employees on county-time to transport his personal vehicle to obtain
an inspection sticker or any other private or personal services.
5. Based upon the totality of the facts and circumstances, this
Commission will take no further action.
BY THE COMMISSION,
DENNIS C. HARRINGTON,'CHAIR