HomeMy WebLinkAbout907 GindlespergerSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Marvin Gindlesperger: File Docket: 92- 056 -C2
Date Decided: December 7, 1993
Date Mailed: December 10, 1993
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
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 sec3,. 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 agreement 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
§21.29(b).
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. 5409(e).
Gindlesperger, 92- 056 -C2
Page 2
I. ALLEGATION:
That Marvin Gindlesperger, Supervisor for Conemaugh Township,
Somerset County, violated the following provisions of the State
Ethics Act (Act 9 of 1989), when he used his position to receive
compensation in the form of a monthly vehicle allowance for use of
his vehicle by the township road crew; and when he received
insurance for his personal vehicle paid for at township expense
without auditor approval.
Section 3. Restricted Activities.
(a) No public official or public employee
shall engage in conduct that constitutes a
conflict of interest. 65 P.S. 403(a).
II. FINDINGS:
2. Definition.
"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 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 of his immediate family or
a business with which he or a member of his
immediate family is associated. 65 P.S. 402.
1. Marvin Gindlesperger serves as an elected Supervisor for
Conemaugh Township, Somerset County.
a. He has served in this capacity since January 4, 1988.
b. Gindlesperger served as a supervisor /roadmaster from
January 4, 1988, until May 17, 1991.
2. Conemaugh Township Roadmasters were responsible for overseeing
the road department which included six to ten full -time
employees, one maintenance mechanic, and the township's trucks
and equipment.
Gindlesperger, 92- 056 " -C2
Page 3
3. Compensation for the supervisor / roadmaster was set by the
auditors at their Annual Reorganizational Meeting. Auditors
approved compensation in the form of wages and expenses as
follows:
a. January 5, 1988:
"A motion was made to give a 5% increase in salary (to)
the roadmaster(s). It will be increased to $12,004.80
from $11,433.00. The increase will be $571.65 a year,
$47.63 a month. The truck expense will remain the same,
$4200.00, $350.00 a month. The salary (of) the
secretary /treasurer stays at $7_ a year. The
increase to $2,000.00 for meetings will be given to Mr.
Gindlesperger, the new supervisor under Ordinance 576.
Mr. Intihar receives $25.00 per meeting (while), Mr.
Stahl and Mr. Gindlesperger receive $2,000.00 yearly for
meetings."
Present: Ida Firm, Grace Kaltenbaugh, Shirley Kaufman.
b. January 4, 1989:
"The roadmasters requested a 16.66 percent raise which is
$2,000.00 more a year. Several tax payers of
Conemaugh Township who wanted the 16.66% increase
attended the meeting. The increase was turned down. A
motion was made to give an 8.5% increase in salary to the
roadmasters. It will be increased from $12,004.80 to
$13,025.21 a year. The increase will be $1,020.41 a
year. The truck expense will remain the same at $4200.00
a year, $350.00 a month. The secretary /treasurer's
salary will remain at $7800.00 a year. Meetings are
$2,000.00 a year for Marvin Gindlesperger and Loren
Stahl, $25.00 a meeting for William Intihar. (This)
brings (the) total of all salaries to $55,975.63, plus
$7800.00 for (the) secretary."
Present: Ida Firm, Grace Kaltenbaugh, Shirley Kaufman.
c. January 3, 1990:
"A motion was made by the Conemaugh Township Supervisors
to name Marvin Gindlesperger, Loren Stahl and Robert
Barrett as Roadmasters. (A) salary was requested (of)
$16,640.00, two auditors voted for (a) 5% increase
amounting to $651.26, (for a) total (of) $13,676.47.
William Thomas voted nay. The Secretary /treasurer was
requesting $8500.00, he received $7800.00. A $240.00
increase was given. The truck expense will remain at
$4200.00, (a) request was made for $5,000.00. The
Gindlesperger, 92- 056 -C2
Page 4
supervisors will get a Christmas bonus not to exceed
$50.00."
Recommendation: "If wages are to be negotiated next
year, the auditors are to be notified four weeks before
the first Tuesday after the first Monday in 1991."
Present: Grace Kaltenbaugh, Shirley Kaufman, William
Thomas, III.
d. January 8, 15:.1:
"The auditors approved (a) salary increase of $600.00,
4.387% for the (supervisor / roadmasters) salary. It will
amount to a total of $14,276.47. There will be no
additional compensation for the truck allowance and no
additional compensation for secretary /treasurer. (The)
motion was made by Grace Kaltenbaugh and seconded by
William Thomas. The auditors declined the roadmaster's
request for a 10% (increase) for (the) truck allowance
and 10% for (the) secretary /treasurer."
"In 1991 the auditors are recommending the formation of
a committee to evaluate the compensation of roadmasters.
This committee is to be organized by the auditors."
Present: William Thomas, III, Shirley J. Kaufman, Grace
Kaltenbaugh.
Notation: To date, no such committee was formed.
4. The township auditors approved a vehicle allowance for the
roadmasters use of a personal vehicle, but did not
specifically define what the allowance was to cover.
a. The auditors intended that the allowance to cover
gasoline, mileage, depreciation, maintenance, and upkeep.
b. The roadmaster's personal vehicles were also to be made
available to road employees for township business.
(Refer to Finding #16).
c. The township has no written policy regarding what the
vehicle allowance covers.
5. Conemaugh Township also paid the insurance on these vehicles.
This was in addition to the vehicle allowance. (Refer to
Finding #22).
a. The auditors had not approved this payment as part of the
supervisor / roadmaster compensation.
Gindlespercrer, 92- 056 -C2
Page 5
6. Township roadmasters, including Gindlesperger, received
$4200.00 per year, personal truck allowance as approved by the
township auditors.
a. Individual payments to Gindlesperger include:
Date Check # Amount
2/1/88 4042 $ 350.00
3/1/88 4098 350.00
4/1/88 4148 350.00
5/2/88 4202 350.00
6/1/88 4261 350.00
7/1/88 4320 350.00
8/1/88 4391 350.00
9/1/88 4449 350.00
10/3/88 4519 350.00
11/2/88 4587 350.00
12/1/88 4657 350.00
12/23/88 4749 $4200.00
1/27/89 4783 $ 350.00
2/24/89 4863 350.00
3/27/89 4929 350.00
4/21/89 5015 350.00
5/19/89 5109 350.00
6/30/89 5168 350.00
7/28/89 5252 350.00
8/25/89 5317 350.00
9/22/89 5386 350.00
10/20/89 5456 350.00
11/17/89 5532 350.00
12/15/89 5618 $4200.00
1/26/90 5706 350.00
2/23/90 5770 350.00
3/23/90 5840 350.00
4/19/90 5935 350.00
5/18/90 6009 350.00
6/29/90 6118 350.00
7/27/90 6193 350.00
8/24/90 6281 350.00
9/21/90 6348 350.00
10/19/90 6404 350.00
11/16/90 6481 350.00
12/28/90 6548 $4200.00
1/25/91 6617 $ 350.00
2/22/91 6656 350.00
3/22/91 6739 350.00
4/19/91 6806 350.00
Gindlesperger, 92- 056 -C2
Page 6
5/31/91 6880 350.00
$1750.00
7. Gindlesperger received monthly truck allowance payments
totaling $14,350.00, between February 1, 1988, and May 31,
1991.
8. The roadmasters vehicles were to be made available to the
road department employees as needed, for township business.
(Refer to Finding #4b).
a. Road employees recall using Gindlesperger's truck on one
or two occasions.
b. Road foreman Dennis Clark believed he used the truck two
to three times a month. Clark was road foreman from May,
1989, through January, 1991.
c. Clark used Gindlesperger's truck only when a township
truck was unavailable.
d. Gindlesperger frequently kept soccer equipment in the
back of his truck. This allowed only room for a tool
box, and small hand tools.
9. Maintenance and upkeep were to be included as part of the
monthly vehicle allowance. (Refer to Finding 4a).
a. This was the responsibility of the vehicle owner, not the
township.
10. In 1990, full -time maintenance employee, Bill Kerr, spent
between one and two hours installing brake shoes on
Gindlesperger's truck.
a. Kerr was directed to do this by Gindlesperger, his
supervisor.
b. Gindlesperger provided the brake shoes.
c. Kerr had no union protection.
d. Kerr was not threatened by Gindlesperger to do the work.
e. Kerr was compensated by the township at a rate of $7.50
per hour at this time.
f. The specific date of the work is not known.
11. The financial gain obtained by Gindlesperger for Kerr's work
was between $7.50, and $15.00.
Gindlesperger, 92- 056 -C2
Page 7
a. No reimbursement was made to the township by
Gindlesperger for Kerr's time.
12. On several occasions, Gindlesperger used the township police
cruiser for township business.
a. The cruiser was used to attend various meetings and to
pick up supplies.
13. On one occasion, Gindlesperger and Dennis Clark took a police
vehicle to Cranberry Township, Butler County, to pick up
equipment parts.
a. Gindlesperger was receiving a truck allowance at this
time. (Refer to Finding 6 and 7).
b. The truck allowance was provided to compensate
Gindlesperger for the use of his truck on township
business.
c. The truck allowance covers gas and vehicle wear.
d. Gindlesperger saved the cost of gas and wear on his
vehicle by using the police vehicle.
14. Gindlesperger's truck was not used for the routine care and
maintenance of township roads. (Refer to Finding #8).
Findings 15 through 24 relate to allegation b. Findings 1 through
14 are incorporated herein by reference.
15. Supervisors serving as roadmasters had their trucks insured on
the township's vehicle policy.
a. This practice dates back to at least 1986.
b. Township road department employees were not afforded this
benefit.
16. Conemaugh Township did not own any light duty pickup trucks
and relied upon the roadmaster's trucks for township
business.
17. The Auditor's Annual Reorganization meetings did not include
any approval for the supervisor / roadmasters trucks to be
covered by the township vehicle insurance policy.
a. The auditors never approved this insurance as part of the
roadmaster's compensation.
18. Auditor Grace Kaltenbaugh was not aware that the township paid
Gindlesperger, 92- 056 -C2
Page 8
for the roadmaster's vehicle insurance.
a. She believed that the supervisor / roadmaster should be
responsible for their own vehicle insurance coverage.
19. Auditor, Shirley Kaufman, did not approve the vehicle
insurance coverage for the supervisor / roadmasters.
a. She felt that there was a problem with the township
paying for the insurance. She based this on the cost
involved with it.
20. Former Auditor William Thomas did not participate in any
auditor actions to approve township paid vehicle insurance
for the supervisor /roadmaster.
a. He had no idea that the township was paying the insurance
on the supervisors /roadmasters's vehicles.
b. He had no knowledge of any auditor approvals being given.
21. Conemaugh Township has vehicle insurance from the Pennsylvania
National Insurance Company, P.O. Box 2361, Harrisburg, PA
17105.
a. Policy #AU90004384 was issued by PA National Insurance
Company for Conemaugh Township.
b. This policy was in effect prior to Gindlesperger becoming
a township supervisor.
c. The annual policy period is from September 1st, through
September 1st of the following year.
d. Wayne Naugle, owner of the Naugle Insurance
Route 219 & 403, Davidsville, PA, is the agent
on this policy.
22. Business records of the Naugle Insurance Company
premiums for Gindlesperger's vehicle as follows:
a. Period: 1/1/88 - 9/1/88
Vehicle - 1988 Ford truck
Premium - $470.00
b. Period: 9/1/88 - 9/1/89
Vehicle - 1988 Ford truck
Premium - $634.00
c. Period: 9/1/89 — 9/1/90
Vehicle - 1988 Ford truck
Company,
of record
indicate
Gindlesperger, 92- 056 -C2
Page 9
Premium - $800.00
d. Period: 9/1/90 - 9/1/91
Vehicle - 1988 Ford truck
Premium - $738.00
This policy was cancelled on June 13, 1991, causing a
refund of $188.00. The net cost of the policy for the
period was reduced to $550.00.
23. Premiums detailed in the previous finding were paid by
township funds.
a. No reimbursement was made to the township by
Gindlesperger for the insurance coverage.
24. Total premiums paid on Gindlesperger's vehicles from January
1, 1988, through June 13, 1991, were $2,454.00.
25. The insurance and vehicle allowance were both discontinued in
1992.
26. Marvin Gindlesperger did not intend to violate the provisions
of the Ethics Law through the receipt of township funded
insurance on his personal vehicle.
a. Said insurance was provided as part of a long standing
township practice.
III. DISCUSSION:
As a Conemaugh Township Supervisor, Marvin Gindlesperger,
hereinafter Gindlesperger, is a public official as that term is
defined under Act 9 of 1989. 65 P.S. §402. As such, his conduct
is subject to the provisions of the Ethics Law and the restrictions
therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 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.
Gindlesperger, 92- 056 -C2
Page 10
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 issue before uG is whether Gindlesperger violated Section
3(a) of Act 9 of 1989 as to the allegation that he used his
position to receive compensation in the form of . a monthly vehicle
allowance and secondly that he received township paid insurance on
his personal vehicle without auditor approval.
Factually, Gindlesperger has served as an elected supervisor
in Conemaugh Township from January 4, 1988 and as a roadmaster from
that date until May 17, 1991. The compensation for Gindlesperger
and the other supervisors as working township employees was set by
the township auditors at their annual reorganizational meetings.
At the January 5, 1988 auditor reorganizational meeting, the
compensation of the supervisors as roadmasters was increased to a
fixed yearly amount with a set yearly truck allowance also being
provided . The auditors at their January 4, 1989 reorganizational
meeting increased the yearly salary for the supervisor /roadmasters
but retained the existing vehicle allowance with no increase.
At the January 3, 1990 auditor reorganizational meeting,
compensation for the supervisor / roadmasters was set at a fixed
amount, a truck allowance was approved and a Christmas bonus was
authorized. At the January 8, 1991 reorganizational meeting, the
township auditors raised the compensation for the working
supervisors but declined to increase the truck allowance.
Although the township auditors approved a vehicle allowance,
the auditors did not specifically define what the vehicle allowance
encompassed. It appears from the record that the auditors intended
to have the allowance cover gasoline, mileage, depreciation,
maintenance and upkeep but not insurance. The township had no
written policy regarding the meaning of a vehicle allowance.
Gindlesperger as well as the other roadmasters did receive the
yearly allowance for the use of their personal trucks by township
employees. The truck allowance compensated the roadmasters who
made their personal vehicles available to township employees for
township business.
As to the matter of supervisors having the insurance on their
personal vehicles paid at township expense, the township road
department employees did not have such a benefit. The practice of
the township paying for the supervisors' personal vehicle insurance
Gindlesperaer, 92- 056 -C2
Page 11
dated back to 1986. The supervisors allowed the township employees
to utilize their trucks which were of a light duty since the
township did not own such light duty trucks. -
A review of the annual reorganizational meeting of the
auditors reflect that the auditors never approved vehicle insurance
as part of the roadmasters' compensation. In particular Auditor
Kaltenbaugh was not aware that the township was paying for the
roadmasters vehicle insurance. Likewise, Auditor Kaufman did not
approve vehicle insurance coverage since she believed there was a
problem with the township paying for such insurance based on cost
considerations. Former township Auditor Thomas did not participate
in any auditor action to approve township paid vehicle insurance
for the working supervisors. The record does reflect that the
township paid premiums on Gindlesperger's personal vehicle from
January 1, 1988 through June 13, 1991 in the amount of $2,454.00.
The insurance and vehicle allowance were both discontinued in 1992.
The personal vehicle insurance which was paid by Gindlesperger
at township expense covered a period which predated Act 9. It
appears that the insurance premiums which were paid by the township
from the effective date of a policy, after the operative date of
Act 9, amounted to $1,350.00.
In applying the provisions of Section 3(a) of Act 9 to the
question of whether Gindlesperger improperly accepted compensation
as roadmaster in the form of township paid insurance on his
personal vehicle and in the form of a personal vehicle allowance,
the disposition of the matter turns upon whether Gindlesperger
received a financial gain or private pecuniary benefit which was
not authorized in law. Johnson, Order 895.
- A second class township supervisor may not receive
compensation as a working or employee supervisor relative to
performing duties which are encompassed within the office of
elected supervisor. Henderson, Order No. 818; Detisch, Order No.
813; Wilmont, Order No. 788. We have held that a public official
as an elected township supervisor is limited to receiving only that
compensation -which is allowed by law. That same public official as
an employee- supervisor may receive compensation provided that the
rate is set by the township board of auditors and that the duties
are related -to that particular position of employment. Conversely,
the compensation received as a working supervisor may not be for
duties which are encompassed within the function of an elected
township supervisor as per the limitation of Section 515 of the
Second Class Township Code.
In resolving the allegation of whether Gindlesperger received
compensation which was a private pecuniary benefit, we are
confronted with Gindlesperger's receipt of township paid insurance
on his personal vehicle which was not approved by the Conemaugh
Gindlespercer, 92- 056 -C2
Page 12
Township Board of Auditors. The receipt of that financial gain
constituted a private pecuniary benefit.
Since the allegation in this case is limited to Act 9 of 1989,
we must confine our inquiry to the private pecuniary benefit which
Gindlesperger received relative to an application of Act 9. The
record reflects that, after the effective date of Act 9 of 1989,
the township paid insurance premiums totaling $1,350.00 for the
1989/90 and 1990/91 policies. Therefore, based upon the facts of
record, the receipt by Gindlesperger of that private pecuniary
benefit through the use of authority of office constituted a
violation of Section 3(a) of Act 9 of 1989. See, Juliante, Order
809.
Regarding the allegation that Gindlesperger received
compensation in the form of a monthly vehicle allowance, we find no
violation of Section 3(a) of Act 9. It is clear that the township
auditors approved a vehicle allowance for the working supervisors.
Although it is uncertain from the record as to what the vehicle
allowance encompassed, it is clear that the requisite auditor
approval was obtained. The vehicle allowance was not a private
pecuniary benefit to Gindlesperger since the compensation was
approved by the township auditors.
Parenthetically, we note that Gindlesperger did receive a
private pecuniary benefit amounting to between $7.50 and $15.00
when a township- employee installed brake shoes on Gindlesperger's
truck. However, since this activity was not part of the
allegation, we need not consider the matter which in any event
appears to be of a de minimis nature. See, Budai, Order 899.
The power of this Commission to impose restitution is
explicitly provided for in the Ethics Law. 65 P.S. S407(13). In
this case, restitution in the amount of $1,350.00 is warranted
based upon the receipt by Gindlesperger of the personal vehicle
insurance at township expense which was not approved by the
township auditors.
IV. CONCLUSIONS OF LAW:
1. Marvin Gindlesperger, as a Conemaugh Township Supervisor, is
a public official subject to the provisions of Act 9 of 1989.
2. Gindlesperger did not violate either Section 3(a) of Act 9 of
1989 regarding the receipt as a working supervisor of a
vehicle allowance which was approved by the township board of
auditors.
3. Gindlesperger violated Section 3(a) of Act 9 of 1989 by using
the authority of office to obtain a private pecuniary benefit
Gindlesperger, 92- 056 -C2
Page 13
for himself consisting of the receipt township paid personal
vehicle insurance which was not approved by the township board
of auditors.
4. The private pecuniary benefit received by Gindlesperger
amounted to $1,350.00.
In Re: Marvin Gindlesperger: File Docket: 92- 056 -C2
Date Decided: December 7, 1993
Date Mailed: Decetber 10, 1993
ORDER NO. 907
1. Marvin Gindlesperger, as a Conemaugh Township Supervisor, did
not violate Section 3(a) of Act 9 of 1989 regarding the
receipt as a working supervisor of a vehicle allowance which
was approved by the township board of auditors.
2. Gindlesperger violated Section 3(a) of Act 9 of 1989 by using
the authority of office to obtain a private pecuniary benefit
for himself consisting of the receipt township paid personal
vehicle insurance which was not approved by the township board
of auditors.
3. The private pecuniary benefit received by Gindlesperger
amounted to $1,350.00.
4. Gindlesperger is ordered to timely submit checks or payments
in the amount of $1,350.00 through this Commission payable to
the order of Conemaugh Township.
5. Failure to comply with the provision of Paragraph 4 will
result in the initiation of an order enforcement action.
BY THE COMMISSION,
JAMES X. HOWLS , IR