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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,