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HomeMy WebLinkAbout823 LatchIn Re: Joseph R. Latch Jr. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG. PENNSYLVANIA 17120 : File Docket: : Date Decided: : Date Mailed: Before: Dennis C. Harrington, James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher Allan M. Kluger 90- 039 -C2 December 5.1991 December 11.491 Chair The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. 401 et. seq. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing held. The record is complete. 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 Act 9 of 1989, 65 P.S. 408(h) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). Latch, 90- 039 -C2 Page 2 I. ALLEGATION: That, Joseph Latch, Jr., Director of Public Works for the City of Johnstown, Cambria County, violated the following provisions of the State Ethics Act (Act 9 of 1989), when he participated in the hiring of his son for a utility man position at the City's Bureau of Sewage: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. 5402. II. FINDINGS: 1. Joseph R. Director through February Latch, Jr., hereinafter Latch, served as the of the Department of Public Works from June 1988 1, 1991. a. Latch formerly served as the Emergency Management Coordinator for the City of Johnstown. b. Latch was formerly employed by the State of Pennsylvania as District Administrator with the Department of Revenue in the Johnstown District. 2. There is a sewage treatment plant for the City of Johnstown. a. Utility workers are employed by the City of Johnstown to perform .a number of labor related functions at the sewer treatment plant. b. The plant is under the Department of Public Works of the City of Johnstown. c. The Johnstown Redevelopment Authority has responsibility of overseeing the conversion of the plant from a primary to a secondary sewage treatment facility. 3. The City of Johnstown's Wage and Salary Ordinance mandates the number of employees the city hires and the individual wages. a. The ordinance authorizes eleven utility positions for the sewage treatment plant. 4. Ordinance No. 4507, Bill No. 24 of 1989, passed by Johnstown Latch, 90- 039 -C2 Page 3 City Council on December 20, 1989 fixed the salaries and wages to be paid to all appointed officials and employees of the Bureau of Sewage of the City of Johnstown for the 1990 calendar year. a. The ordinance fixed the number of utility men (11) at a rate of $10.56 /hour. 5. In 1990, two utility positions were filled at the sewage treatment plant. a. The positions became available due to a death and a retirement. 6. In mid -1990, the Johnstown City advertised for vacant positions. a. All city positions were advertised for the year 1990. 7. The City of Johnstown published an advertisement in Johnstown Tribune Democrat on July 22, 25, 28, 1990 for the purpose of seeking applicants for employment in all departments except the police and fire departments. The ad advised as follows: a. That the City of Johnstown is now accepting applications for employment opportunities in all departments except Police and Fire. The applications will be used to fill future vacant positions. b. Applications may be obtained at the Department of Community and Economic Development, Room 104 City Hall, Main and Market Streets, Johnstown, PA between the hours of 8:30 a.m. and 3:30 p.m., Monday through Friday. 8. To fill the utility position at the sewage treatment plant, Robert Manculich, Director of Community and Economic Development, and Ronald Andrews, Special Programs Officer in the Department of Community and Economic Development, reviewed applications received from December 1989 through August 1990. a. Seventeen individuals were selected for interviews. b. The interviews were conducted Manculich, Andrews and Ronald sewage treatment plant. c. They rated the applicants and candidates. on August 30, 1990 by Merriman, foreman of the agreed on three top Latch, 90- 039 -C2 Page 4 d. A recommendation was then to be made to the mayor. 9. Records of the City of Johnstown confirm that an application from Joseph Richard Latch III, hereinafter Latch III, 690 Von Lunen Road, Johnstown, Pennsylvania 15902, dated July 23, 1990, was received for a position at the sewage treatment plant center. a. Previous experience listed included supervisor of a maintenance and security operation, bartender, and operations manager of Protective Security Agency. b. Training was listed as a Mobile Intensive Care Paramedic at Altoona Hospital, including 1800 clock hours of clinical and didactic emergency medicine. c. Educational background noted was three years of college at St. Francis College. d. Latch, 690 Von Lunen Road, was listed as emergency notification. e. Latch answered "no" to the question of whether any of his friends or relatives work for the City of Johnstown. 10. Latch III is the son of Latch, Director of the Department of Public Works. 11. Prior to October 9, 1990, the City of Johnstown's Office of Controller received a memo from Margaret Scott, Assistant Bookkeeper for the City's Bureau of Sewage. The memo advised as follows: a. Latch III started as Utility Man on October 9, 1990. b. Rate of Man: $10.56 /Hourly c. Social Security No: 160 -42 -9215 12. Within one day, Edward Wojarnoski, the Johnstown City Controller, received a memo dated October 9, 1990 from Latch concerning the employment of his son, Latch III. 13. By letter dated October 9, 1990, Edward Wojarnoski, was advised that Latch III had been hired in the Public Works Department, Bureau of Sewage, as a utility man with a starting date of 10/9/90. a. The letter is signed by Latch, Director Department of Latch, 90-039-C2 Page 5 Public Works. b. The letter also stated that if further information is required to contact his office. c. The rate of pay was listed at $10.56 /hour. 14. Timothy Cragg, Chief Clerk of the Department of Public Works, was directed by Latch to call Latch's son and get the son signed up for employment. a. Cragg had Latch's son sign the necessary paperwork on a Friday. The son was to begin work the following Monday. 15. Payroll records of the City of Johnstown confirm the following regarding Latch III: a. Pay Period Hours Ending Worked Rate 10/21/90 72 $10.56 /Hr. 11/04/90 80 10.56 /Hr. 11/18/90 80 10.56 /Hr. 8 .19 /Hr. 8 5.28/Hr. 12/02/90 64 10.56 /Hr. 8 5.28/Hr. b. Payroll records confirm that Latch III was removed from the payroll on November 28, 1990. c. Latch III received payments as follows: Date Amount Check No. 10/26/90 $561.47 08427 11/09/90 627.61 08671 11/21/90 706.16 08915 12/07/90 540.10 09158 16. Records of the City of Johnstown indicate the following benefits were paid by the City of Johnstown on behalf of Latch III during his employment as a utility person with the Bureau of Sewage from October 9, 1990 through November 28, 1990. a. Life and Accident Death & Disability Premium and WDI Premium with Central Life Assurance Company, Milwaukee, Wisconsin, were paid in the amount of $35.70 for December and January (Total - $71.40). Latch, 90- 039 -C2 Page 6 b. Hospitalization in the form of.Blue Cross, UCR 100, Major Medical, and drugs for November and December in the amount of $134.57 each (Total - $269.14). c. Dental coverage with Prudential Insurance Company in the amount of $8.96 for October, November and December 1990 (Total - $26.88). d. Other benefits in the form of Social Security - $252.16; Unemployment Compensation - $119.08; and Employees Share of FICA - $115.37 were calculated by the City of Johnstown Finance Office (Total - $486.61 - deducted out of gross pay). e. Total of all benefits combined - $854.03. 17. W -2 Wage and Tax Statement for 1990 for Latch III confirms total wages of $3,296.24. 18. An undated letter, signed by Latch, Director Department of Public Works, to Edward Wojarnoski, Sr., Johnstown City Controller, advised that as of November 27, 1990, and pursuant to Ordinance No. 47 passed by City Council on November 26, 1990, Latch III, employed by the City of Johnstown, Bureau of Sewage, has been removed from said payroll. 19. Minutes of Johnstown City Council meetings confirm the following regarding council's actions following the hiring of Latch III. a. October 24, 1990: (Old Business) Councilman Zucco said he did not like a system where relatives of public employees and public officials get jobs, when lots of people are talking to him about the need for employment. He stated: "I'm not comfortable in hiring relatives and friends in an environment were we are raising taxes and sewage fees." Zucco said the Ethics Commission can give the Council an opinion if it believes there was an inappropriate action or activity in an enterprise like a municipality. Zucco was concerned with the "Restricted Activities" which says: "No public official or public employee shall engage in a conduct that constitutes a conflict of interest. A conflict of interest is defined as use by a public official or a public employee, of the Latch, 90-039-C2 Page 7 authority of his office, that results in either a personal benefit or benefit to a member of the immediate family." Zucco thought that council should ask the Ethics Commission to come in and take a look at the recent hirings and make a determination if in fact the hirings were inappropriate, and if they were, then to render an opinion on a course of action." Zucco's motion to have the President of Council file a complaint and appropriate papers with the Ethics Commission to pursue the question of the recent hirings in the City of Johnstown was seconded by Mr. Wadsworth and approved by the following vote: Yeas: Messrs. Gentile, Malloy, McMillen, Stasko, Stevens, Wadsworth, Dr. Zucco and Mr. Truscello (8) Nays: None (0). Absent: Mr. Zahorchak (1) New Business: Bill 47 of 1990 - Change in the Number of Utility Men in the Bureau of Sewage No. 47 of 1990, presented by Councilman Wadsworth, was read by title by Mr. Truscello as follows: AN ORDINANCE AMENDING ORDINANCE NO. 4507, PASSED FINALLY IN COUNCIL DECEMBER 6, 1989, TITLED: "AN' ORDINANCE FIXING THE SALARIES AND WAGES TO BE PAID ALL APPOINTED OFFICIALS AND EMPLOYEES OF THE BUREAU OF SEWAGE OF THE CITY OF JOHNSTOWN FOR THE CALENDAR YEAR 1990," BY PROVIDING FOR A CHANGE IN THE NUMBER OF UTILITY MEN. Mr. Wadsworth moved to waive the seven day waiting period for consideration of Bill 47 of 1990, since it did not appear on the agenda. The motion was seconded by Mr. Stasko and unanimously approved by the roll call vote of the eight members present. Mr. Wadsworth explained it was the intent of Bill 47 to reduce the number of utility men in the Bureau of Sewage to 10 from 11. He stated: "In my opinion, there was a recent hire that was not necessitated. This is one of the positions that has gone vacant for Latch, 90- 039 -C2 Page 8 most of the year, and it is being plugged in, in the waning hours of the year. I feel that this action is warranted in view of the circumstances." Mr. Wadsworth asked for council's favorable consideration on Bill 47 of 1990. Bill 47 of 1990 was placed on the calendar for final consideration at the November 7, 1990 meeting on motion by Mr. Stasko, seconded by Mr. Malloy, and the following votes: Yeas: Messrs. Gentile, MAlloy, McMillen, Stasko, Stevens, Wadsworth, Dr. Zucco and Mr. Truscello (8) Nays: None (0) Absent: Mr. Zahorchak (1) b. November 7, 1990: Bill 47 of 1990 - Change in the number of utility men in the Bureau of Sewage, Bill 47 of 1990, placed on the calendar October 24, 1990, was read by title by Mr. Truscello as follows: An finally in council December 6, 1989, titled: "An Ordinance fixing the salaries and wages to be paid all appointed officials and employees of the Bureau of Sewage of the City of Johnstown for the calendar year 1990," by providing for a change in the number of utility men. Bill 47 was passed finally on motion by Mr. Wadsworth, seconded by Mr. Stasko, and the following vote: Yeas: Messrs. Gentile, Malloy, McMillen, Stasko. Nays: None. Absent: None. This is Ordinance No.'4550. This ordinance reduced the number of utility men in the Bureau of Sewage from (11) to (10). 20. Mr. Ronald Merriman has held the position of supervisor of the Bureau of Sewage for the City of Johnstown since April 1990. a. He has worked for the City of Johnstown for approximately forty -one years, having started in the Highway Department. b. He participated in the interviews of persons for the position of Utility Person with the Bureau of Sewage. c. On a Friday, Latch called him and said that his Latch, 90- 039 -C2 Page 9 (Latch's) son was going to start working in the Utility position on Monday. d. Latch III was put on the schedule to start the following Monday and was trained the same as everybody else would have been and then assigned to shifts. 21. Ronald Manculich is the Director of Community and Economic Development in the City of Johnstown. • a. He also serves as Personnel Director of the City of Johnstown and Code Enforcement Officer of the City of Johnstown. (1). For job positions, his office advertises, sets up postings and conducts interviews. (2). Manculich, Special Programs Officer Ron Andrews and a department director are generally involved in the interviewing process as an interview committee. (a). The interview committee compiles a group of top candidates. (b). Evaluation sheets are used by the interview committee. (c). The pool of candidates is usually referred to three or four top candidates. (3). He does not have the authority to hire. ('4). The Mayor hires all the people in the City of Johnstown. (a). The Mayor does a "standard" which entails a review by the Mayor of the list of applicants. 1. The Mayor could consult with one of more members of the interview committee. 2. The Mayor could look at the interview sheets and applications. 3. The Mayor advises him of hiring so that a letter of hiring could be issued from Manculich's department or the letter could come from the Mayor's secretary. Latch, 90- 039 -C2 Page 10 b. The sewage treatment plant is a separate bureau under the Department of Public Works. c. In 1990, Latch was the Director of Public Works d. Ronald Merriman is the plant manager who is responsible for the daily operation of the sewage plant. e. The Johnstown Sewage Treatment Plant is moving from a primary to a secondary treatment plant with the latter being a complicated process. (1). The Redevelopment Authority had the oversight in transforming the sewage plant from primary to secondary processing. (2). The Redevelopment Authority does not hire anyone in the sewage plant. f. The City of Johnstown changed its mode for hiring whereby a yearly advertisement would appear in the local papers that the City would be accepting applications for all positions. (1). Fire and police positions are handled separately. In the summer of 1990, interviews were conducted for the position of a utility man in the sewage treatment plant. (1). Because of the plant transformation to a secondary facility, skilled people were sought who could be relied upon. h. The job description for a Treatment Plant Operator I, prepared by DCA, defines the position as semi - skilled work as an assistant to a waste water treatment operator. (1). Everything in the job description did not comport with the job description of a utility man. i. There were five or six criteria such as plumbing, electrical, mechanical, masonry, computers, gauges that were general for the position of utility man for a secondary plant operation. j• The interview committee for the utility man position was comprised of Ron Merriman, Ron Andrews and himself. Latch, 90- 039 -C2 Page 11 q. (1). The committee came up with three top candidates which did not include Latch III. (2). Interview forms were used which contain comments as to the applicants by the members of the interview committee. k. Manculich was never notified by the Mayor of the hiring of an individual for the utility man position. 1. He learned on October 5, 1990 that Latch III was filling out the paperwork for employment. m. From his notes of interviews, Manculich selected Mr. Goas as the number one applicant, Mr. Barbarino as number two and Mr. Vrabel as number three. (1). The other members of the interview committee selected the above three individuals as their top three candidates. n. A review of the Latch III application reflects prior work experience as maintenance and security work, building supervisor, bartender. o. Although the Mayor, upon receiving a memo after interviews were conducted, could ask for recommendations as to qualified applicants, that did not happen in the case of hiring the utility man. (1). He gave the Mayor the letter which listed the applicants in alphabetical order. (2). The list contained applicants who would' meet minimum requirements. p. Interviews were conducted for the utility man position due to a vacancy. There is employment of family members in the City of Johnstown. r. The job descriptions prepared by DCA have not been adopted by the City of Johnstown. s. From an approximate 1,000 general applications, 36 were selected which was reduced to 17 or 18 for actual interviews for the utility man position. (1). Latch III would not have been interviewed based upon his application but for the request to Latch, 90- 039 -C2 Page 12 Manculich from Latch to interview his son, Latch III. t. The list of the candidates in alphabetical order does not reflect the top qualified candidates. u. The 1990 city salary ordinance had a manning level which included the vacancy for the utility man. 22. Ronald S. Andrews is employed by the City of Johnstown as a Special Programs Officer in the Department of Community and Economic Development. a. He reviews applications for employment and conducts interviews as to applicants. (1). He determines whether applicants meet minimal qualifications. (2). He offers recommendations for hiring through an interview committee on which he sits. b. The City of Johnstown in 1990 sought to fill a vacancy in the Sewage Treatment Bureau. (1). The Redevelopment Authority played no role in the actual hiring. (2). The position was for a utility man. (3). An applicant was sought who had construction background, mechanical knowledge of pumps, electrical experience, and plumbing experience. (4). Ronald Merriman, the current Superintendent of Sewage, was involved in the interview process. (a). Merriman wanted an applicant with mechanical skills, knowledge of pumps and motors and electrical experience. (b). Merriman was the plant operator. c. Andrews selected about 36 applications from a few hundred for further review for the position. (1). After meeting with Manculich, the prospective applicants were reduced to 17 or 18 in number. (2). Merriman was not involved in the initial screening phase. Latch, 90- 039 -C2. Page 13 j (3) Latch III was not selected by Andrews to be within the group of 36 applicants. (a). The application of Latch III was added to the group by Manculich. (b). Latch III had no construction, mechanical, plumbing, motor or electrical experience. d. During the interview of Latch III, Andrews rated Latch III as fair. (1). Fair meant that Latch III did not have the necessary skills. (2). Fair rating meant that Latch III could learn the job. (3). Other applicants were better qualified than Latch III. e. Mr. Goas was the number one candidate for Andrews. (1). Goas stood out in the interview process. (2). Goas had knowledge of plumbing and worked in the Sewage Works Department while in the Navy. f. Andrews, Merriman and Manculich came up with three top candidates who were Goas, Vrabel, and Barbarino. g. After interviews, Manculich makes a recommendation to the Mayor who does the hiring. h. City Council has never adopted job descriptions for city employees. i. The list of applicants for the utility man position was submitted. (1). The candidates' names were listed in alphabetical order. (2). The name of Latch III was on the list. . For the unrelated positions of Meter person and Attendant, the submitted list, following interviews, listed the applicants in the order of highest to lowest rating. Latch, 90- 039 -C2* Page 14 (1). The top six people were hired for meter persons. 23. Timothy Cragg is Chief Clerk in the Department of Public Works in the City of Johnstown. a. He is under the direct supervision of the department director. b. He became aware that Latch III was hired in early October, 1990. (1). Latch requested Cragg to call his son Latch III to come to City Hall in the afternoon and sign up at the Finance Office. (a). Latch III was signed up on that afternoon. (b). Latch III was appointed to the utility an position in the Sewage Bureau. c. Latch was actively seeking employment for his son in the city. (1). Latch conveyed that his son needed some type of job. (2). Cragg went to the Mayor on behalf of Latch's son but the Mayor did not commit himself. d. Latch III did not meet with the Mayor relative to his employment. (1). Latch advised Cragg that Latch III would report on Tuesday directly to the sewage treatment plant. e. The Mayor advised Cragg during their meeting about Latch III that if something was available, he would try and do what he (the Mayor) could. 24. Edward Wojarnoski is the Controller for the City of Johnstown. a. He has served in this elected position for ten years. b. When a new employee is hired, his office receives a letter from the Mayor or department director. c. He became aware that Latch III was going to be hired as a utility man with the Bureau of Sewage in October 1990 when he received a letter signed by Margaret Scott who was the Sewage Bureau bookkeeper. Latch, 90- 039 -C2. Page 15 d. Wojarnoski had a problem with the Scott letter as to the Latch III employment. (1). Letters to process an employee for payroll purposes are received from directors. (2). It is very uncommon to receive such letters from anyone other than a director. (3). He did not put Latch III on the payroll as a result of the Scott letter. (4). He called Latch to advise that he would need a letter from him as director to process Latch III for the payroll. (5). Wojarnoski received a letter from Latch advising that his son Latch III had been hired in the Public Works Department, Bureau of Sewage as a utility man starting on October 9, 1990. (6). The Latch letter, but not the Scott letter, was sufficient to place Latch III on the payroll. e. After council action to reduce the complement from 11 to 10, Latch III was removed from the payroll. (1). Latch then took action to remove his son Latch III from the payroll. 25. Herbert Pfuhl, Jr. is the Mayor of the City of Johnstown. a. Latch first was employed as the Emergency Management Director for the City of Johnstown and later became Public Works Director. b. The Public Works Department supervises a number of bureaus, including the Sewage Bureau. c. Employees of the sewage treatment plant are hired and employed by the City of Johnstown. d. The Mayor hires all employees of the City of Johnstown. e. Latch approached Pfuhl about hiring his son Latch II1 to a position of employment. (1). When asked by Latch if Pfuhl had objection to his son being considered for a laborer position in the Latch, 90- 039 -C2 Page 16 (2). Pfuhl never took any official action in relation to the application on hiring of Latch III. f. The procedure for hiring is that a panel interviews applicants, sends Pfuhl a list who asks the panel as to preferences. g. Sewage Bureau, Pfuhl responded that Latch III would have to go through the system of filing an application, being interviewed and going through the chain of command. (1). The above procedure was not followed for hiring Latch III. Pfuhl did not give Latch an express authorization to hire Latch III h. Pfuhl learned of Latch III being placed on the payroll on the day Latch III reported for work. (1). He was advised of the Latch III hiring by Albert Grandinetti. (2). Grandinetti advised Pfuhl of the Latch III hiring because it was a very sensitive issue. i. Pfuhl discussed the Latch III hiring with Latch. (1). Pfuhl advised Latch that he (Latch) could not take such action to hire. (2). Pfuhl advised Latch that he ( Pfuhl) had to do the hiring. City Council voted to remove Latch III from the payroll. k. The Mayor of Johnstown may appoint an Acting Mayor. (1). No one has ever had occasion to invoke the power of Acting Mayor. (2). Such power is only invoked during an emergency. 1. When the paper work for Latch III was filled out on October 5, 1990, Pfuhl was out of town. (1). Pfuhl was not in his office from October 4th to October 9th. Latch, 90- 039 -C2 Page 17 m. Pfuhl told Latch the he ( Pfuhl) would have no problem with Latch III working for the city as long as he (Latch III) went through the process. n. Pfuhl asked Latch to remove Latch III from the payroll because Council would request such action. (1). Latch requested that such action to remove Latch III not be taken because Council would vote to keep Latch III. (2). The Solicitor, Manculich and Pfuhl met with Latch and Pfuhl told Latch to remove Latch III. o. There is no written personnel policy approved by city council concerning the hiring or firing of personnel in the City of Johnstown. 26. Albert Grandinetti is the Health Inspector for the City of Johnstown. a. Grandinetti has worked in various other positions during his 28 years of employment with the City. b. Latch approached Grandinetti about getting his son Latch III employed in the sewage plant. c. When Pfuhl, Grandinetti and Latch were together, Latch asked about putting his son, Latch III on the payroll. (1). Pfuhl advised Latch that he must proceed "by the numbers," that is, Latch III must go through. the process of applying and being interviewed. (2). Latch agreed to follow the process for Latch III. d. Both Pfuhl and Grandinetti were surprised at the employment of Latch II1. 27. John H. Williams is the City Clerk for the City of Johnstown. a. As to a personnel policy for the City of Johnstown, some job descriptions were put together but were not adopted by city council. b. A procedure is followed when the city wants to hire people. 28. Ronald Repak is the Director of the Johnstown Redevelopment Latch, 90- 039 -C2. Page 18 Authority. a. Following a DER directive and federal court order, Johnstown entered into an agreement with the Redevelopment Authority concerning reconstructing the sewage plant into a secondary treatment process. b. The Redevelopment Authority has input regarding manning levels at the sewage plant. (1). The project engineer developed job descriptions for the positions. (a). City Council did not approve the job descriptions. c. Appointments to the Redevelopment Authority are made by the Mayor with the advice and consent of the City Council. d. The project engineers and project managers for the secondary treatment have more input as to design and construction but little as to the daily operation. e. He supported additional manning levels proposed by the project engineers for the sewage plant. f. The Redevelopment Authority plays no role in hiring employees for the sewage plant. g. The Redevelopment Authority was involved in the transformation of the sewage treatment plant from a primary to a secondary sewage treatment plant. 29. Margaret Armbruster is the Business Manager for the City of Johnstown. a. She collects monies brought into the Sewage Bureau and deposits them in the Treasurer's office. b. Latch was her supervisor in 1990. c. The plant supervisor was Ronald Merriman. d. She is in charge of payroll for the Sewage Bureau. e. Latch III was already employed when he came to her office to give information for her bookkeeping records. f. When a person is added to the payroll, the Controller Latch, 90- 039 -C2. Page 19 requires that a letter be sent with the payroll stating that the person has been hired. g. Margaret Scott is a bookkeeper in her office. 30. Ronald Merriman is the Supervisor of the sewage treatment plant for the City of Johnstown. a. He worked under Latch who was the General Superintendent of Public Works. b. Bill Bundy was in charge of the sewage treatment plant at the time of the incident. c. Merriman worked in the Office of Public Safety Building. d. The roster at the sewer plant was 11 men with one vacancy but Merriman believed he needed six additional men. e. He along with Manculich and Andrews interviewed 17 applicants for the utility man position. f. Merriman interviewed Latch III. (1). He believed Latch III was qualified for the job. g. When Latch III was hired, he was under Merriman's supervision. (1). Latch III had the ability to perform the type of work that was required. h. As to the Sewage Bureau, Marge Armbruster was the Manager for office and money functions while Merriman ran the maintenance. i. The best qualified candidate was sought for the utility man position. (1). A utility man was sought to handle the situation of a secondary treatment plant. (2). The applicant Vrabel was given a very good overall rating by Merriman. (3). The applicant Barbarino was given a very good /outstanding overall rating by Merriman. (4). The applicant Goas was given a very, very Latch, 90- 039 -C2' Page 20 outstanding overall rating by Merriman. (5). Merriman selected Goas as top candidate, Barbarino as second choice and Vrabel as his third choice. According to Merriman's notes, Latch III was not the best qualified applicant. k. The Mayor did not have to take the top candidate for a position. 31. Latch is the former Public Works Director for the City of Johnstown a. He oversaw the Bureau of Parking, Sewage and Highways. (1). The bureau supervisors were under Latch who in turn had responsibility over the bureau personnel. b. He would meet with his bureau chiefs and estimate a budget but salary ordinances would be completed by Council. c. The complement for the Sewage Bureau was 11 but there were vacancies through death and retirement. (1). Manculich as personnel director was asked to advertise for the vacancy. d. In spring, 1990, Latch had discussions with the Mayor concerning the hiring of his son, Latch III. (1). The Mayor said he had no problem with Latch III applying for the vacancy. (2). Grandinetti was present at the discussions. e. An advertisement was placed in the newspaper for accepting applications for the utility man vacancy. (1). Manculich and Merriman were on the interview committee. (2). Manculich agreed to Latch's request that he (Manculich) would accept Latch's son's application. f. In the fall of 1990, Latch asked the Mayor if there was any problem in hiring his son Latch III. Latch,s -C2. Page Z III 7 0N- (1). The Mayor had no problem with the hiring. (2). Grandinetti was present during the conversation. Latch III was put on the payroll on October 9, 1990. Mayor Pfuhl did not complain about Latch III working until a problem arose with Council. (1). Council made an issue as to relatives and friends of the Mayor being hired. Council reduced the manning level from 11 to 10 which caused the removal of Latch III. If Latch III had not been hired, someone else would have been employed for the position. In 1991, City Council raised the manning level to 11 and some other person, not Latch III, was hired for that position. Mayor Pfuhl advised Latch that when a new budget went through, his son Latch III could be put back on the Sewage Bureau payroll. Latch concluded from his conversation with the Mayor that he had authority to place his son, Latch III on the payroll. (1). Latch put in process the hiring of his son Latch III with the perceived authorization of the Mayor. � - Ln,ctor of Public Works for the City of Johnstown, Joseph Latch,:;: :e Latch, was a public employee as that term is define it 9 of 1989. 65 P.S. 402. As such, his conduct is subjact he provisions of the Ethics Law and the restrictions thereas ap ?licable to (him). y, it is noted that Section 9 of Act 9 of June 26, 1989 provibm part, as follows: This amendatory act shall not apply to olations committed prior to the effective date this act, and causes of action initiated for .ch violations shall be governed by the prior :w, which is continued in effect for that purpose Latch, 90- 039 -C2. Page 22 65 P.S. 5402. as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. The issue before us is whether Latch violated Section 3(a) of Act 9 of 1989 quoted above as to his actions in the hiring of his son for a utility man position in the Bureau of Sewage in the Department of Public Works of the City of Johnstown. In Johnstown, a vacancy occurred in 1990 in the sewage treatment plant which was under the supervision of the Director of Public Works for the City. Around that time, the sewage treatment plant was under a directive by the Department of Environmental Resources and Order of Court to convert from a basic primary sewage treatment plant to an upgraded secondary sewage treatment plant which required extensive modifications to be made subject to the oversight by the Latch, 90- 039 -C2 Page 23 redevelopment authority. Because of the conversion of the sewage treatment plant to a secondary treatment facility, it was necessary for the city to obtain a utility man with a higher level of skills to work within the plant. After the City of Johnstown advertised in a local paper for applications to fill the vacancy, several hundred applications were received. Following an initial review, the number of applications were narrowed down through the initial screening process to approximately thirty six applications. Through a second screening process, the thirty six applications were further reduced to approximately seventeen or eighteen applications for interviews. The interviews were conducted by an interview committee consisting of Robert Manculich, the Director of Community and Economic Development, Ronald Andrews, the Special Programs Officer in the Department of Community and Economic Development and by Ronald Merriman who is the supervisor of the sewage treatment plant. One of the applicants for the position' of a utility man in the sewage treatment plant was Joseph Latch III (Latch III) who is the son of Joseph R. Latch, Jr. (Latch) who was the Director of Public Works for the City of Johnstown at that time. Both Manculich and Andrews indicated that Latch III was not one of the applicants who would have been interviewed but for the intercession on the part of Latch, who specifically requested Manculich to give his son an interview. Although the interview committee was looking for applicants with skills in the area of plumbing, electrical, mechanical, masonry, computers and gauges for a utility man position as to the secondary plant operation, the prior work experience of Latch III consisted of maintenance and security work, a building supervisor and bartender. Following the completion of the interview process, the interview committee selected three top candidates who were Messrs. Goas, Barbarino and Vrabel in that respective order. However, the list which was submitted to Mayor Pfuhl who was the sole hiring authority for the City of Johnstown contained a list of candidates submitted in alphabetical order who were considered as qualified by the interview committee. The list included in part Goas, Barbarino, Vrabel as well as Latch III. In October 1990, Edward Wojarnoski, who is Controllerior the City of Johnstown, received a letter from a Margaret Scott, the Sewage Bureau bookkeeper, advising that Latch III was hired as a utility man for that bureau. Wojarnoski did not accept the letter because letters placing employees on the payroll with rare exception came from directors. Wojarnoski did not place Latch III on the payroll and advised Latch that he needed a letter to the effect from Latch himself to process Latch III for the payroll. Following receipt of that letter from Latch advising that Latch III had been hired in the Public Works Department, Bureau of Sewage as a utilityzaan starting on Latch, 90- 039 -C2. Page 24 October 9, 1990, Wojarnoski processed the paperwork for Latch III. When the City Council of Johnstown learned that Latch III was on the payroll, Council took action to reduce the compliment of employees in the sewage treatment plant from eleven to ten, which had the effect of requiring Latch to remove Latch III from the payroll. In order to determine whether there was a violation of Section 3(a) of Act 9 of 1989 in this case, our inquiry must focus upon whether there was a use of authority on the part of Latch regarding the hiring of his son Latch III. It is clear that there was a private pecuniary benefit in this case to Latch III through his employment as utility man in the sewage treatment bureau. The term "immediate family" is defined under the Ethics Law as follows: Section 2. Definitions "Immediate family." A parent, spouse, child, brother or sister. 65 P.S. §402. Since Latch III is the son of Latch, it is clear that there is a private pecuniary benefit to a member of Latch's immediate family in this case. As noted, the only question remaining is whether there was the use of authority of office by Latch. In the City of Johnstown, the office of Mayor is the hiring authority, and hence, no one other than the Mayor can hire or fire. It is the contention of Latch that he did not violate Section 3(a) of Act 9 of 1989 in this case because he argues he was acting at the direction of the Mayor. Thus, Latch does not question that he initiated the process and placed his son on the payroll as a utility man in the sewage treatment bureau but asserts that such action was taken at the express authorization and direction of the'Mayor. If the Mayor did authorize such action whereby the Mayor hired Latch III and directed Latch to implement the process, then clearly there would be no use of the authority of office on the part of Latch. However, if the Mayor did not authorize the hiring of Latch III, then Latch did use the authority of office by acting on his own to place his son in a compensated position in the sewage treatment plant. Mayor Pfuhl did discuss with Latch the possibility of employment by the City of Johnstown as to his son. Latch had discussed the matter with Pfuhl on two occasions and Mayor Pfuhl had indicated to him that there was no problem with hiring his son to that position. However, Pfuhl indicated that Latch III would be treated like any other applicant and would have to go through the process. Although Pfuhl did advise Latch that Latch III could apply, Pfuhl did not hire Latch III. Albert Grandinetti, the Health Inspector for the City of Johnstown, was privy to the conversation between Pfuhl and Latch and Latch, 90- 039 -C2 Page 25 confirmed that as to the Latch III application, Pfuhl merely advised Latch that his son would have to proceed "by the numbers" which meant that he (Latch III) had to go through the process of applying and being interviewed. Hence, it is clear that Mayor Pfuhl, who was the only person in the City of Johnstown that could hire and fire, did not hire but may have authorized Latch to place Latch III on the payroll as an employee in the sewage treatment plant. Latch III was placed on the payroll and received compensation after Latch as the Public Works Director took action to place his son on the payroll. Our difficulty in disposing of the issue before us is assigning a meaning to the phraseology used by the Mayor in his conversation with Latch concerning employment for his son. The language used by the Mayor is equally capable of two different interpretations. The direction by the Mayor that Latch's son had to go through the system could mean that Latch III had to go through the process of filing an application followed by an interview before he would be hired; alternatively, the direction could also mean that Latch III had to go through the system of applying followed by an interview just like ,all the other applicants. It is clear from the testimony that the interpretation ascribed to the conversation by the Mayor was the latter interpretation although Latch understood the conversation to mean that the Mayor was giving him a directive based upon the former interpretation. Accordingly, after reviewing these facts and circumstances in their totality and acknowledging that we find both the Mayor and Latch (as well as Grandinetti), the three parties to the crucial conversation, to be credible, we are constrained to conclude that there is not clear and convincing evidence to sustain a violation in this case. We must conclude that there was not a use of authority of office on the part of Latch. Since the requisite element of a Section 3(a) violation is not present in this case, we find no violation of Section 3(a) of Act 9 of 1989 as to the hiring of Latch III to a compensated position as a utility man in the Sewage Treatment Bureau. IV. CONCLUSIONS OF LAW: 1. Joseph R. Latch, Jr., as Director of Public Works for the City of Johnstown, was a public employee subject to the provisions of Act 9 of 1989. 2. Latch did not violate Section 3(a) of Act 9 of 1989 in that there is not clear and convincing proof that Latch, Jr. used the authority of office to obtain a private pecuniary benefit for a member of his immediate family when he acted �•a Latch, 90- 039 -C2 . Page 26 to place his son in a compensated position of employment as a utility man in the sewage treatment plant in the Sewage Bureau, Department of Public Works, City of Johnstown. In Re: Joseph Latch Jr. File Docket: 90- 039 -C2 . Date Decided: December 5. 1991 . Date Mailed: norpmtipT t 1 1 CM ORDER No. _023 1. Joseph R. Latch, Jr., as the Public Works Director for the City of Johnstown did not violate Section 3(a) of Act 9 of 1989 in that there is not clear and convincing proof that Latch, Jr. used the authority of office to obtain a private pecuniary benefit for a member of his immediate family when he acted to place his son in a compensated position of employment as a utility man in the sewage treatment plant in the Sewage Bureau, Department of Public Works, City of Johnstown. BY THE COMMISSION, James M. H•M'". Ice Chair Commissioner Austin M. Lee did not participate in this matter because he acted as single presiding officer and recused himself pursuant to 51 Pa. CodeS2.34 (d) Commissioner Dennis C. Harrington, Chair and Commissioner Roy W. Wilt dissent.