HomeMy WebLinkAbout908 BarrettSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG. PENNSYLVANIA 17120
In Re: Robert E. Barrett File Docket: 92- 057 -C2
Date Decided: December 7, 1993
Date Mailed: December 10, 1993
Betc.re: 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 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 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
§21.29(b).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. 5408(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).
Barrett, 92- 057 -C2
Page 2
I. ALLEGATION:
That Robert E. Barrett, a former 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.
II. FINDINGS:
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).
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. Robert E. Barrett served as an elected Supervisor for
Conemaugh Township, Somerset County, from January 2, 1990,
until March 14, 1991.
a. Barrett served as a roadmaster from January 2, 1990,
until March 14, 1991.
b. Barrett resigned to become an appointed Somerset County
Commissioner.
c. Barrett resigned his roadmaster position at the same time
Barrett, 92- 057 -C2
Page 3
he resigned as a township supervisor.
2. Conemaugh Township Roadmasters were responsible for overseeing
the road department including six to ten full -time employees,
one maintenance mechanic, and the township's trucks and
equipment.
3. Compensation for the supervisor /roadm tors was
meetings. tors the
auditors at their Annual Reorganization
approved compensat in the form of wages and expenses as
follows:
a. January 3, 1990:
"A motion was made by 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.
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
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,
b. January 8, 1991:
"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 The auditors William
for a . 10 % (increase) for declined
(the) the
request
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.
Barrett, 92- 057 -C2
Page 4
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 vehicle allowance was to cover.
a. The auditors intended that the allowance to cover
gasoline, mileage, depreciation, maintenance and upkeep.
b. The roadmaste personal vehicles were also to be made
available to road employees for township business.
(Refer to Finding #17).
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.
a. The auditors had not approved this payment as part of the
supervisor /roadmaster compensation.
6. Township roadmasters, including Barrett, receive $4,200.00 per
year, personal truck allowance as approved by the township
. auditors.
a. Individual payments to Barrett include:
Date Check # Amount
1/26/90 5705 $ 350.00
2/23/90 5769 350.00
3/23/90 5839 350.00
4/19/90 5934 350.00
5/18/90 6008 350.00
6/29/90 6117 350.00
7/27/90 6192 350.00
8/24/90 6280 350.00
9/21/90 6347 350.00
10/19/90 6403 350.00
11/16/90 6480 350.00
12/28/90 6547 350.00
$4200.00
1/25/91 6616 $ 350.00
2/22/91 6655 350.00
3/22/91 6738 350.00
$1050.00
7. Barrett received monthly truck allowance payments totaling
$5,250.00, between January 26, 1990, and March 22, 1991.
Barrett, 92- 057 -C2
Page 5
8. Barrett resigned his roadmaster position effective March 14,
1991, but received his
to truck
a lance for the entire month of
March, 1991. (Refer
a. Township check #6738, dated March 22, 19 91, in the amount
of $350.00 was made payable to Barrett.
b. Barrett was entitled to receive a vehicle allowance for
fourteen days in March, 1991.
c. The daily vehicle allowance rate equals $11.29.
9. The roadmaster's vehicles were to be made available to the
road department employees as needed, for township business.
(Refer to Finding #4).
a. Road employees never used Barrett's truck on township
business.
b. Road Foreman Dennis Clark recalled using Barrett's truck
on one occasion.
10. Barrett's truck he was not township uroadsfor(Refer to Finding #9)and
maintenance of
Findings 11 through 20 relate to allegation b. Findings 1 through
10 are incorporated herein by reference.
11. 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.
12. Conemaugh Township did not own any light duty pickup trucks
and relied upon the roadmasters trucks for township business.
13. Auditors Annual Reorganizational meetings did not include an
action approving the supervisor /roadmaster's trucks to be
included on the township vehicle insurance policy.
a. The auditors never approved this insurance as part of the
roadmasters compensation.
14. Auditor Grace Kaltenbaugh was not aware that the township paid
for the roadmasters' vehicle insurance.
a. She believed that the supervisor / roadmaster should be
responsible for their own vehicle insurance coverage.
Barrett, 92- 057 -C2
Page 6
15. Auditor, Shirley Kaufman, did not approve 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.
16. Former Auditor William Thomas did not participate in any
auditor actions to approve township paid vehicle insurance
for the supervisor
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.
17. 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 Barrett 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 Company,
Route 219 & 403, Davidsville, PA, is the agent of record
on this policy.
18. Business records of the Naugle Insurance Company indicate
premiums for Barrett's vehicle as follows:
a. Period: 2/15/90 - 9/1/90
Vehicle - 1990 Chevrolet S -10
Premium - $357.00
b. Period: 9/1/90 - 9/1/91
Vehicle - 1990 Chevrolet S -10
Premium - $635.00
A refund of $285.00 was credited effective March 20,
1991, due to Barrett's resignation as a roadmaster. Net
premium paid for the period was reduced to $350.00.
19. Premiums detailed in the previous finding were paid with
township funds.
a. No reimbursement was made to the township by Barrett for
Barrett, 92- 057 -C2
Page 7
the insurance coverage.
20. Total premiums paid on Barrett's vehicle from February 15,
1990, through March 20, 1991, for $707.00.
21. The insurance and vehicle allowance were both discontinued in
1992.
22. Robert Barrett did not intend to violate the provisions of the
Ethics Law through - he 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, Robert E. Barrett,
hereinafter Barrett, 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.
In=itially, 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.
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 us is whether Barrett 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.
Barrett, 92- 057 -C2
Page 8
Factually, Barrett served as an elected supervisor and
roadmaster in Conemaugh Township from January 2, 1990 through March
14, 1991. The compensation for Barrett and the other supervisors
as working township employees was set by the township auditors at
their annual reorganizational meetings.
At the January 3, 1990 auditor reorganizational meeting,
compensation for Supervisors Gindlesperger, Stahl and Barrett was
set at a fixed amount, a truck allowance was approved and a
Christmas bonus was .uthorized. 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.
Barrett 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
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 actions to approve township paid vehicle insurance
for the working supervisors. The record does reflect that the
township paid premiums on Barrett's personal vehicle from February
15, 1990 through March 20, 1991 in the amount of $707.00. The
insurance and vehicle allowance were both discontinued in 1992.
In applying the provisions of Section 3(a) of Act 9 to the
question of whether Barrett improperly accepted compensation as
roadmaster in the form of township paid insurance on his personal
Barrett, 92- 057 -C2
Page 9
vehicle and in the form of a personal vehicle allowance, the
disposition of the matter turns upon whether Barrett 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 Barrett received
compensation which was a private pecuniary benefit, we are
confronted with Barrett's receipt of township paid insurance on his
personal vehicle which was not approved by the Conemaugh Township
Board of Auditors. The receipt of that financial gain constituted
a private pecuniary benefit. The record reflects that the township
paid insurance premiums totaling $707.00. Therefore, based upon
the facts of record, the receipt by Barrett of the 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 Barrett 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 Barrett since the compensation was approved by the
township auditors.
The power of this Commission to impose restitution is
explicitly provided for in the Ethics Law. 65 P.S. 5407(13). In
this case, restitution in the amount of $707.00 is warranted based
upon the receipt by Barrett of the personal vehicle insurance at
township expense which was not approved by the township auditors.
IV. CONCLUSIONS OF LAW:
1. Robert E. Barrett, as a Conemaugh Township Supervisor, was a
Barrett, 92- 057 -C2
Page 10
public official subject to the provisions of Act 9
2. Barrett did not violate either Section 3(a) of Act
regarding the receipt as a working supervisor of
allowance which was approved by the township
auditors.
3. Barrett 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.
4. The private pecuniary benefit received by Barrett amounted to
$707.00.
of 1989.
9 of 1989
a vehicle
board of
In Re: Robert E. Barrett
ORDER NO. 908
File Docket: 92- 057 -C2
Date Decided: December 7, 1993
Date Mailed: December 10, 1993
1. Robert E. Barrett, 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. Barrett 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 Barrett amounted to
$707.00.
4. Barrett is ordered to timely submit checks or payments in the
amount of $707.00 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 M. HOWLEY,