HomeMy WebLinkAbout848 DaubertIn re: Dale W. Daubert
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
: File Docket:
: Date Decided:
: Date Mailed:
91 -002 -C
April 23, 1992
April 27, 1992
Before: Dennis C. Harrington,
James M. Howley, Vice
Daneen E. Reese
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
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.
Chair
Chair
This adjudication is final and will be made available as a public
document fifteen days after issuance. However, reconsideration may be
requested which will defer public release of this adjudication pending
action on the request by the Commission. A request for
reconsideration, however, does not affect the finality of this
adjudication. A reconsideration request must be received at this
Commission within fifteen days of issuance and must include a detailed
explanation of the reasons as to why reconsideration should be granted
in conformity with 51 Pa. Code §2.38.
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. 409(e).
Daubert, 91 -002 -C
April 27, 1992
Page 2
I. ALLEGATION:
That Dale W. Daubert, Director of Property Services and Purchasing
for 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 used county employees on county time to
repair a fence at his residence; and
3. When he used county employees and equipment to
uncover a septic system at his residence:
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. Dale Daubert has served as Director of Property Services and
Purchasing for Lehigh County since 1978.
2. Daubert's job description as Director of Property Services and
Purchasing for Lehigh County contained the following:
a. General Information:
This is administrative management work directing all aspects
of the county's procurement and property management and
maintenance functions, at the department head level. The
position in this class plans, directs and controls, through
lower level managers, the activities of a large staff of
clerical and skilled and semiskilled technical personnel
engaged in bridge maintenance and repair, equipment
acquisition and maintenance, building management, parks
management and maintenance, and centralized purchasing for
all county offices. Work includes coordinating activities
among and advising individuals in internal organizational
entities and other county agencies, and administering civil
defense emergency operations. The position in this class is
Daubert, 91 -002 -C
April 27, 1992
Page 3
differentiated from those in related classes by the level of
accountability, the impact of decisions across
organizational lines, and assignment to the property
management field. The position in this class reports
directly to an elected executive position.
b. Typical Examples of Work:
Determines long and short -range goals, programs, policies
and schedules; develops general policies for implementation
of same; confers with lower level managers for specific
requirements, objectives and procedures; recommends and
develops plans for major expansions, additions and /or
deletions to facilities or programs; identified related
budget, staffing, material and other needs for such
recommendations and insures development of complete
justifications, statistics and other backup information for
submission to other offices; prepares long -range plans,
capital and /or operating budgets, work programs, technical
reports and projections necessary for discussion and /or
adoption of programs.
Confers with and advises lower level managers and
supervisory personnel on program and facility plans,
progress and performance within their respective areas of
responsibility; provides advice and assistance with
technical and administrative problems affecting the
management and maintenance of bridges, equipment, buildings,
parks and recreational facilities; oversees administrative
and technical policies and procedures governing the
procurement program; reviews work programs, plans, technical
reports, and budget, staffing and other administrative
information submitted by departmental managers; develops
departmental work programs and budgets from that
information; reviews proposed and actual ordinances and
regulations from a variety of sources, determining impact on
departmental concerns and need for further attention.
3. Lehigh County operates a maintenance facility for the purpose of
repairing and performing necessary upkeep to all county vehicles.
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.
1) The Bridge & Utility Department is a section directly
responsible to the Director of Property Services and
Purchasing.
Daubert, 91 -002 -C
April 27, 1992
Page 4
4. On two occasions in 1985 county mechanics took Daubert's personal
vehicles to a private garage where the vehicles received
inspection stickers.
a. This conveyance was performed by the county mechanics during
their regular working hours.
b. County employees took Daubert's vehicles to General Auto
Sales for inspection stickers.
c. The vehicles were taken to the garage by mechanic, Willard
Reinhard.
d. Invoices for inspection services for January 23, January 29,
1985 and February 15, 1985 were located.
1) Invoice No. 44246 dated 1/29/85 was made out to Dale
and Virginia Daubert in an amount of $8.48 for
inspection and sticker.
2) Invoice No. 44299 dated 2/15/85 was made out to Dale
and Virginia Daubert for $8.48 for inspection and
sticker.
5. On October 3, 1990, two county employees removed a fence post from
the residence of Dale Daubert.
a. Daubert discussed a problem with a fence post with Tony
Mazziotta, a county employee and requested assistance.
b. Following this conversation, Mazziotta and Thomas Elias, Jr.
another county employee, went to Daubert's Windsor Drive
residence and removed a fence post.
1) Daubert was at the home when the work was performed.
2) Mazziotta and Elias performed the work during their
regular working hours.
3) Mazziotta and Elias had to pass by Daubert's residence
in performance of their regular work duties that day.
4) Because Mazziotta and Elias worked more than 8 hours
that work day and did not request any overtime payment,
the county suffered no actual loss.
c. Both Mazziotta and Elias are employees under Daubert's
supervision.
d. The Lehigh County Controller determined that the county
Daubert, 91 -002 -C
April 27, 1992
Page 5
employees spent one -half hour to one hour at Daubert's
residence.
1) No independent effort was undertaken to confirm the
actual time spent by the employees.
6. Daubert made restitution to Lehigh County by patrolling the County
Game Preserve on a Saturday during the 1990 deer hunting season.
a. Daubert patrolled on December 1, 1990 from 7:30 a.m. to 5:00
p.m.
b. County Executive, David Bausch, directed Daubert to make
restitution to the county for the time spent by the
employees at his residence.
7. In 1983, Daubert had a conversation with Bridge Superintendent J.
Raymond Cramsey and Martha McEllroy, a subordinate county
employee, regarding a malfunctioning septic system at his home
located on Washington Street, Snecksville, Pennsylvania.
a. Daubert discussed with Cramsey and McEllroy contractors they
could recommend to repair the system.
8. McEllroy directed Erwin Knecht, a Lehigh County Equipment operator
and truck driver, to take the county backhoe to Daubert's home.
a. The backhoe was loaded on a county lowboy and driven to
Daubert's residence.
b. Knecht spent approximately one hour at Daubert's residence
uncovering the septic tank.
1) Knecht did not dig up the tank or repair it.
2) Daubert arrived at the property after Knecht and
directed him to leave with the equipment.
c. This work was done during Knecht's working hours utilizing
county equipment.
d. Restitution for the use of the equipment and manpower was
made by Daubert to Lehigh County in the form of patrolling
the county game preserve during the 1990 hunting season.
(See Finding #6.)
9. By personal check dated March 20, 1992, Daubert made a payment of
$200.00 through the State Ethics Commission in restitution to
Lehigh County.
Daubert, 91 -002 -C
April 27, 1992
Page 6
III. DISCUSSION:
As a Director of Property Services and Purchasing for Lehigh
County, Dale W. Daubert, hereinafter Daubert, is a public employee as
that term is defined in the Ethics Act, 65 P.S. 402; 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."
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 Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet
v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536
(1987). Similarly, Section 3(a) of the Ethics Act would prohibit a
public official /employee from using public office to advance his own
financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw.
Ct. 19, 540 A.2d 1374 (1988).
In this case, we must determine whether Daubert violated Section
3(a) of Act 170 of 1978 as to the allegations that county employees on
county time repaired his personal vehicle in the county garage,
repaired a fence at his residence and uncovered his septic system at
his residence with a county backhoe.
Factually, Daubert is employed by Lehigh County since 1978 as the
Director of Property Services and Purchasing. Daubert's duties and
responsibilities are set forth in a job description (Fact Finding 2).
Daubert, 91 -002 -C
April 27, 1992
Page 7
In Lehigh County, maintenance operations are performed in the
Bridge and Utility Department which is under the responsibility of
Daubert as Director of Property Services and Purchasing.
On two occasions in 1985, county mechanics took Daubert's vehicles
to a private garage for inspections. The transport was done by county
mechanics during regular hours when they moved the vehicles to the
General Auto Sales for inspection stickers.
In addition, Daubert requested two county employees under his
supervision to remove a fence post from his residence. The work was
performed by the county employees during regular working hours and
Daubert was at home when the work was performed. Since the two
employees spent one half to one hours time at Daubert's residence and
said employees worked more than eight hours that day for the County
without claiming overtime, the County did not incur a loss (Fact
Finding 5). Subsequently, Daubert patrolled the County Game Preserve
during hunting season in order to make restitution to the county. In
addition, Daubert has made a payment of $200.00 in restitution to
Lehigh County.
Finally, when Daubert's home septic system was malfunctioning, he
discussed the problem with Bridge Superintendent Cramsey and McEllroy,
a subordinate. McEllroy subsequently directed county equipment
operator Knecht to take the county backhoe to Daubert's home. Knecht
spent about one hour to uncover the septic tank. When Daubert
arrived, he directed Knecht to leave with the equipment. The work was
done during Knecht's regular working hours. Daubert has made
restitution by patrolling the county game preserve during the 1990
hunting season.
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 Daubert. The action of Daubert in
having his vehicles inspected on only one occasion does not, in our
view, rise to the level of a use of public office for financial gain.
Compare Rakowskv, Order 744. Accordingly, we find that Daubert did
not violate Section 3(a) of Act 170 of 1978 regarding the use of
county employees on one occasion to take his vehicles to obtain state
inspection stickers.
We do find violations of Section 3(a) of Act 170 of 1978 as to the
use of authority of office by Daubert both as to directing the county
employees to remove a fence post from his residence and also as to the
utilization of the county equipment operator and the backhoe to
uncover his malfunctioning septic system. Such was a use of office on
the part of Daubert in that he held a supervisory position and
subordinate employees were directed to perform private services for
Daubert. Daubert received a financial gain in that he had no out of
pocket expenses for having the work done. Finally, there is no
Daubert, 91 -002 -C
April 27, 1992
Page 8
provision in law which allows for such practices.
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.
Daubert 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 in particular the restitution made by Daubert as well as his
patrolling of the county preserve, this Commission will take no
further action.
IV. CONCLUSIONS OF LAW:
1. Dale W. Daubert, as the Lehigh County Director of Property
Services and Purchasing, is a public employee subject to the
provisions of Act 170 of 1978.
2. Daubert did not violate Section 3(a) of Act 170 of 1978 when he
used county employees on one occasion to transport his vehicles to
obtain state inspection stickers.
3. Daubert violated Section 3(a) of Act 170 of 1978 when he used
county personnel during regular working hours to remove a fence
post and when he used a county employee and equipment to uncover a
septic system at his personal residence.
In re: Dale W Daubert
: File Docket: 91 -002 -C
: Date Decided: April 23, 1992
: Date Mailed: April 27, 1992
ORDER NO. 848
1. Dale W. Daubert, as the Lehigh County Director of Property
Services and Purchasing, did not violate Section 3(a) of Act 170
of 1978 when he used county employees on one occasion to transport
his vehicles to obtain state inspection stickers.
2. Daubert violated Section 3(a) of Act 170 of 1978 when he used
county personnel during regular working hours to remove a fence
post and when he used a county employee and equipment to uncover a
septic system at his personal residence.
3. Daubert is directed to desist in the future from utilizing county
employees on county time to transport his personal vehicles for an
inspection sticker or to perform repair work or services at his
personal residence.
4. Based upon the totality of the facts and circumstances, this
Commission will take no further action.
BY THE COMMISSION,
DENNIS C. HARRINGTON, CHAIR