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HomeMy WebLinkAbout941-2 OesterlingIn Re: Debra Oesterling STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: Date Decided: Date Mailed: 93- 014 -C2 12/7/95 12/15/95 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation, of the State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 g gag. 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 thirty 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 does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within thirty 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). Any person who violates confidentiality of the Ethics Law 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). Confidentiality does not preclude discussing this case with an attorney at law. Oesterling, 93- 014 -C2 Page 2 I. ALLEGATION: That Debra Oesterling, a Supervisor for Centre Township, Butler County, violated provisions of the State Ethics Act (Act 9 of 1989) when she participated in decisions to hire her husband and brother without an open and public process, when she participated in board decisions to hire her father's company, Eagal Coal Company, without an open and public process, when she participated in decisions to approve payments to Eagal Coal Company, and when she signed township payroll documents and checks relating to her brother and husband: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued- at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. §§403(a), (f) . II. FINDINGS: 1. Debra Oesterling has served as an elected Supervisor of Centre Township, Butler County, since January, 1990. Oesterlinq, 93- 014 -C2 Page 3 2. At reorganizational meetings of the Centre Township Supervisors in 1991 Oesterling was appointed to the position of Roadmaster. 3. Raymond Oesterling is Debra Oesterling's husband. a. Raymond Oesterling was employed by Triangle Gas, Butler, PA, through January, 1993. 4. In September, 1991, Centre Township employed Lee McCandless to remove two underground fuel tanks from township property. a. Lee McCandless was a management employee of Triangle Gas at the time. b. Lee McCandless supervised Raymond Oesterling. 5. The September 11, 1991, Board of Supervisor's meeting confirms the following regarding the bid that was awarded to Lee McCandless. Discussion of a letter from Lee McCandless, 117 Sunflower Road, to remove two 1,000 gallon fuel tanks from township property and backfill for a bid of $3,800.00. The township is responsible for removal of contaminated dirt, if any is found. Motion by Mr. Thompson, seconded by Mrs. Oesterling, to accept Mr. McCandless' bid for removal of said tanks and to authorize Mr. Quinlan to advertise for bids to remove contaminated dirt, if any exists, if costs of removal would exceed the authorized bid limit of $10,000.00. Mrs. Oesterling noted she knows Mr. McCandless and her husband may be involved in the removal process. In a roll call vote - Mr. Faust - yes; Mrs. Oesterling - abstained; Mr. Thompson - yes; motion carried. Present: Faust, Oesterling, Thompson. 6. McCandless submitted a bid, dated September 11, 1991, for the removal of the two 1,000 gallon tanks and backfilling, in the amount of $3,800.00. a. McCandless was certified by the State of Pennsylvania to do this type of work, as required by the Department of Environmental Resources regulations. b. McCandless' State Registration number was listed as #002846 -INST. 7. McCandless was notified by letter, dated September 19, 1991, that the Centre Township Supervisors had authorized him to remove the tanks and backfill the area for $3,800.00. 8. Raymond Oesterling assisted Lee McCandless in the removal of the underground tanks from Centre Township property. Oesterling, 93- 014 -C2 Page 4 a. McCandless paid Oesterling approximately $240.00, for operating a backhoe to dig out and then backfill the property. b. Oesterling borrowed the backhoe from the Baxter Trailer Court, owned and operated by Ernest Baxter and his children which included Debra Oesterling. c. The Baxter Trailer Court was not paid a rental fee for the backhoe. 9. On October 24, 1991, Lee McCandless submitted an invoice to the Centre Township Board of Supervisors in the amount of $3,800.00, for the removal of two 1,000 gallon underground tanks. a. Township check #267, dated 11/13/91, was issued to Lee McCandless in that amount. b. Debra Oesterling, Esther So and Larry Thompson signed the front of the check, approving the payment thereof. 10. Lee McCandless did not have any conversations or contact with Debra Oesterling in regard to the tanks before they were removed. a. All contact between McCandless and Centre Township was through John White, Road Foreman; Thomas Quinlan, Director of Public Works; and Esther So, Secretary. 11. Centre Township has periodically rented hi -lifts and other equipment from Eagal Coal Company since approximately 1987. a. Oesterling did not become aware of such practice until after she became a Township Supervisor. b. Eagal Coal Company is owned, in part, by Ernest Baxter, Debra Oesterling's father. c. J & A Coal Company is owned, in part, by Eleanor Jean Baxter, Debra Oesterling's mother. 12. Baxter made arrangements with Robert Elliott, a former Centre Township Supervisor and Roadmaster, to rent Eagal Coal's hi- lift to the township on an as needed basis. a. Oesterling did not become aware of such arrangements until after 1990, when she became a Township Supervisor, and she has no knowledge of any such arrangements as they existed prior to 1990. Oesterlinq, 93- 014 -C2 Page 5 b. The arrangement was that Baxter would not charge the township a hauling fee and the township would be billed only for the hours of actual usage of the hi -lift. c. The township would report the hours to Baxter who then would bill the township. d. Baxter rented the hi -lift at a rate of $35.00 per hour. 1) This rate was less than the standard rental fee. 13. These general arrangements were followed from approximately 1987 through 1992. 14. Centre Township rented hi -lifts from Eagal Coal Company in 1991, and J & A Coal Company in 1992. 15. On August 5, 1991, Eagal Coal Company invoiced Centre Township for the rental of a 645 hi -lift, for 30 hours @ $40.00 per hour, total rental $1,200.00. a. Eagal Coal Company address is listed as 430 Jamisonville Road, Butler, PA 16001. b. The residence phone listed on the letterhead is that of Craig Saul, Jr., Debra Oesterling's uncle. c. The 30 hours does not represent one single rental period for the equipment, but rather several individual rentals the arrangements for which were made by Centre Township employees other than Debra Oesterling. 16. Centre Township check #119, dated 08/15/91, in the amount of $1,200.00 was issued to Eagal Coal Company. a. Debra Oesterling's signature is not reflected on the front of the check. 17. No board action was taken to approve the rental of the hi -lift from Eagal Coal Company. a. The Roadmaster and Director of Public Works were authorized to enter into such agreements without prior board action. 18. On November 13, 1992, Eagal Coal Company invoiced Centre Township for the rental of a 645 hi -lift for 81.5 hours @ $35.00 per hour, total rental $2,852.50. a. The invoice stipulated that payment was to be made to J & A Coal Company, 430 Jamisonville Road, Butler, PA 16001. Oesterling, 93- 014 -C2 Page 6 b. The address listed for J & A Coal was the same as that of Eagal Coal Company. c. 81.5 hours does not represent one rental period but rather several individual rentals over a period of time, the arrangements for which were made by Centre Township employees other than Debra Oesterling. 19. Centre Township check #1126, dated 12/09/92, in the amount of $2,852.50 was issued to J & A Coal Company. 20. Check #1080 was the original check issued to J & A Coal in payment of the invoice but was voided because Debra Oesterling had signed the front of the check. a. Oesterling attached a note to the check questioning whether she (Oesterling) should have signed the check. b. The reissued check #1126, does not contain Debra Oesterling's signature. 21. No board action was taken to approve the rental of the hi -lift from J & A Coal Company or Eagal Coal Company. a. The Roadmaster and Director of Public Works are authorized to enter into such agreements without prior board action. 22. Centre Township hires part -time or temporary help in the summer for flagging during paving season. 23. The Roadmaster or Director of Public Works had the authority to hire temporary summer help without board approval. 24. At the May 20, 1992, meeting of the Centre Township Board of Supervisors, Roadmaster Dean Schweinsberg requested part -time employees for flagging during paving. a. No official action was taken or was necessary to authorize the roadmaster to hire part -time help. b. No official action was taken or was necessary to hire any specific individuals for the positions. c. Candidates were to be chosen from applications received. d. The Roadmaster and Director of Public Works were authorized to hire temporary summer help without further board action. 25. Jay Baxter was hired as a temporary employee on June 1, 1992, to work with the road department. Oesterlinq, 93- 014 -C2 Page 7 a. Jay Baxter is the brother of Debra Oesterling. b. Jay Baxter was a college student at the time. c. Baxter worked from June 1 through August 28, 1992. 26. An Application for Employment for E. Jay Baxter, on file with Centre Township, is dated 04/27/92. 27. Time sheets on file with Centre Township reflect the following hours of E. Jay Baxter in 1992. Regular Overtime Time Period Hours Hours Rate 5/31 - 6/13/92 58 9 $ 6.80 /hr 6/14- 6/27/92 72.5 0 10.20 /hr OT 6/28 - 7/11/92 65 7/12- 7/25/92 80 2 7/26 - 8/8/92 80 2 8 /10- 8/22/92 72 0 8/24/- 9/5/92 24 0 28. The Municipal Weekly, Bi- Weekly, or Semi- Monthly Payroll Reports used by Centre Township provide for signatures of the Supervisors. a. All three Supervisors, Faust, Schweinsberg and Oesterling, signed all of the Payroll Reports reflecting hours worked by Jay Baxter in 1992. b. Payroll Reports were submitted to the supervisors for their review and signature only after the payroll had been paid. c. All three supervisors must sign the payroll reports. 29. The following payroll checks (net) were issued to Jay Baxter in 1992. Check # Date Amount 3547 06/15/92 $396.84 3565 06/29/92 401.54 3593 07/13/92 365.54 3609 07/27/92 450.52 3634 08/10/92 454.51 3651 08/24/92 401.29 3675 09/08/92 143.43 Oesterling, 93- 014 -C2 Page 8 30. In 1992, payroll checks were issued and signed by township clerk, Donna Campbell. a. Supervisors did not sign payroll checks. 31. Jay Baxter was paid (gross) as a temporary road employee during the summer of 1992, a total of $3,202.80 consisting of: 451.5 reg. hours @ $6.80 /hr = $3,070.20. 13.0 overtime hours @ $10.20 /hr = $132.60. 32. Jay Baxter was rehired as a temporary road employee during the summer of 1993. a. Baxter worked from June 23 through August 12, 1993. 33. No board action is reflected in regard to the hiring of Jay Baxter in 1993. a. The Roadmaster or Director of Public Works had the authority to hire part -time help without any board action. 34. Time sheets on file with Centre Township reflect the following hours of Jay Baxter in 1993. Time Period 6/23- 7/10 -93 7/11- 7/24/93 7/25 - 8/7/93 8/8- 8/14/93 Regular Overtime Hours Hours 111.5 16 80.0 - 80.0 15.5 40.0 4.0 Rate $ 6.80 /hr. 10.20 /hr.OT 35. Centre Township utilized a form of time sheet in 1993, different from that used in 1992. a. A time sheet was made out for each employee. b. Each individual entered his or her own hours on the time sheets. 36. A computerized sheet was prepared for each pay period (two weeks) showing the check number, date, social security number, employee name, and check amount. The supervisor's names were listed at the bottom with space for their signature. a. Debra Oesterling signed four pays issued to Jay Baxter by signing the check printout. 37. The following payroll checks were issued to Jay Baxter in 1993: Oesterlinc, 93- 014 -C2 Page 9 Check # Date Amo unt 4057 07/13/93 $ 547.20 4060 07/13/93 185.33 4069 07/27/93 427.40 4085 08/10/93 543.45 4096 08/24/93 257.70 38. In 1993, payroll checks were signed by two supervisors and the Township Manager, Vincent Burns. a. Debra Oesterling signed four of the five checks issued to Jay Baxter in 1993. b. Oesterling did not sign check #4096, dated 08/24/93, in the amount of $257.70. 39. Jay Baxter was paid as a temporary road employee during the summer of 1993, a total of $2,480.30 consisting. of: 311.5 regular hours @ $6.80 /hr. = $2,118.20 35.5 overtime hours ® $10.20 /hr. = $ 362.10 40. At the November 13, 1991, Centre Township Supervisor's meeting, the supervisors authorized the advertisement for resumes for the road department. a. The township would only accept resumes by mail. b. Phone calls could not be accepted and applications were not available at the township office. c. Debra Oesterling voted in favor of the motion. 41. Notices were posted on bulletin boards inside and outside the township building. a. No advertisement was placed in local newspapers. 42. Of the resumes received, several on file are undated. a. At least two of the resumes were received after the November 13, 1991, meeting. b. Raymond Oesterling's application was not among them. c. Raymond Oesterling's resume was already on file with the Township office because he had applied for employment with the Township before. d. Records included resumes from individuals with experience operating heavy equipment. Oesterling, 93- 014 -C2 Page 10 43. In 1988, Centre Township enacted a process of testing applicants for positions with the road department. a. The test included operating various pieces of equipment utilized by the township. 44. Raymond Oesterling had applied for and been tested for a job with the Centre Township Road Department in the Spring of 1988. a. The job was offered to another individual. 45. In August, 1992, Raymond Oesterling was hired as a part -time employee for the Centre Township Road Department. a. Centre Township employees were considered part -time if they did not receive any benefits other than their wage. b. Raymond Oesterling is the husband of Supervisor, Debra Oesterling. 46. Township records confirm that no official action was taken by the board of supervisors in regard to the initial hiring of Raymond Oesterling in August, 1992. a. The Roadmaster and Director of Public Works were authorized to hire part -time help without board action. b. The Oesterling hiring was necessitated due to the road department losing three employees: 1) John White, Working Foreman, who resigned at the end of July, 1992. 2) Robert Elliott who went on disability due to an eye problem. 3) Neil Hutchinson who took an extended leave because of a death in the family. 47. Raymond Oesterling began working for the Centre Township Road Department on August 10, 1992. 48. Township policy was to pay part -time employees an operator's wage if they were qualified to operate equipment, and if they were performing that type of work as opposed to that of laborer. a. Oesterling was paid an operator's rate, $11.86 /hr ($17.79 /hr -O.T. rate). Oesterlina, 93- 014 -C2 Page 11 b. Oesterling held a CDL License and was qualified to operate heavy equipment. 49. Centre Township records include an undated Application for Employment for Raymond L. Oesterling. a. A resume was attached. b. A Waiver attached to the application, was signed and dated, 08/01/92, by Raymond Oesterling. c. Debra Oesterling filled out the application signed by Raymond Oesterling. 50. Minutes of the October 21, 1992, Supervisor's meeting reflect board action to hire Raymond Oesterling as a permanent employee on condition of a ninety day probationary period. The minutes reflect the following: Discussion to hire a road department employee. Motion by Mr. Schweinsberg, seconded by Mr. Faust, to hire Raymond L. Oesterling as a full -time road department operator. Mr. Oesterling will have a three month probationary period, as this is customary township policy. Mr. Faust and Mr. Schweinsberg in favor, Mrs. Oesterling abstained, noting Raymond Oesterling is her husband. Motion carried. Present: Faust, Schweinsberg, Oesterling. 51. At the February 9, 1993, Supervisor's meeting a motion to make Raymond Oesterling a permanent employee at the end of his probationary period was defeated. The motion is as follows: a. Motion by Mr. Schweinsberg, seconded by Mr. Faust, for the sake of discussion, to make Raymond Oesterling a permanent employee. In the discussion that followed, Mr. Faust said that because of the situation and in talking with certain people in the township, he changed his mind in voting to make Raymond Oesterling a permanent employee. Roll call vote as follows: Mr. Schweinsberg - yes; Mr. Faust - no; Mrs. Oesterling, abstained. 52. In early February, 1993, a township road employee, Robert Elliott, who had been on disability returned to work. a. Raymond Oesterling was furloughed on February 9, 1993 when Robert Elliott returned to work. Oesterling, 93- 014 -C2 Page 12 b. When Elliott retired on April 21, 1993, Oesterling was brought back on a part -time basis effective April 19, 1993. 1) Oesterling was advised to return to work by Roadmaster Dean Schweinsberg. 2) He did not receive any benefits. 53. The January 3, 1994, reorganization meeting of the Centre Township Supervisors contained the following statement of Schweinsberg as to the history behind the hiring of Raymond Oesterling. AFFIRMATION OF OTHER TOWNSHIP EMPLOYEES: Schweinsberg identified the following township employees. Carl Shook, Raymond Oesterling, Charles Moorhead, Neil Hutchinson, Tom Smith and Robert Zurzolo. Schweinsberg stated since Cipolla is new to the board, he would like to explain the events which led to the hiring of Raymond Oesterling. In July, 1992, a road department employee resigned from his position. Additionally, an employee was unable to work because of an eye injury and another was off due to a family member death, all during a busy summer work schedule. Schweinsberg conferred with former Supervisor Faust, who agreed that Oesterling should be offered employment. In October, 1992, Faust voted favorable [sic] to hire Oesterling as a full -time employee. Former Township Secretary stated a 90 -day probationary period should be imposed. Schweinsberg thought a 90 day probationary period was customary in Centre Township. In January, 1993, a majority vote was not received to grant permanent status to Oesterling. Oesterling was retained as a temporary employee with no benefits. Upon return of the employee with the eye injury, Oesterling was laid -off. Four to six weeks later the employee with the eye injury resigned. Schweinsberg believes Oesterling was discriminated against because, as he has since learned, the customary probationary period is 60 days. Furthermore, Schweinsberg feels Oesterling has been an asset to the township. Cipolla stated that he has attended Supervisor's meeting for the past year and believes that because his wife is a township supervisor, he was not granted permanent full -time status. 54. At the January 3, 1994, reorganization meeting, Raymond Oesterling was hired by a 2 to 0 vote as a permanent employee. a. Debra Oesterling abstained stating that the employee was her husband. 55. Debra Oesterling submitted a written Disclosure Statement regarding her abstention on the vote to make Raymond Oesterling, 93- 014 -C2 Page 13 Oesterling a full -time permanent employee. The statement was as follows: "On January 3, 1994, I abstained from voting on the hiring of Ray Oesterling due to the fact that he is my husband. I also abstained from voting on all benefits offered by the township because of my husband's employment." 56. Time sheets on file with Centre Township reflect the following hours of Raymond Oesterling in 1992. Time Period Regular Hours Overtime Hours 08/22/92 80 0 09/05/92 80 0 09/19/92 72.5 0 10/03/92 80 0 10/17/92 80 4 10/31/92 80 0 11/15/92 80 4 11/28/92 80 0 12/12/92 80 39 12/28/92 80 8 57. Debra Oesterling signed eight of the ten time sheets containing Raymond Oesterling's hours in 1992. 58. The following payroll checks were issued to Raymond Oesterling in 1992. Check # Date Amount 3650 08/24/92 $ 731.68 3673 09/08/92 731.68 3686 09/21/92 662.96 3711 10/05/92 731.68 3724 10/19/92 785.66 3743 11/02/92 731.68 3755 11/16/92 785.66 3769 11/30/92 731.68 3787 12/14/92 1,223.71 3800 12/30/92 836.64 59. In 1992, payroll checks were not signed by the supervisors. (Reference Finding #30). 60. In 1992, Raymond Oesterling was paid as a road department employee a total of $10,377.50 consisting of: 792.5 regular hours @ $11.86 /hr. = $9,399.05 55.0 overtime hours @ $17.79/hr. = $ 978.45 Oesterling, 93- 014 -C2 Page 14 61. Time sheets on file with Centre Township reflect the following hours of Raymond Oesterling in 1993. Time Period Ending Regular Overtime Hours Hours 01/10/93 72.0 4.0 01/23/93 80.0 12.5 02/07/93 80.0 6.0 02/20/93 16.0 03/06/93 9.5 04/06/93 - 04/20/93 12.0 05/04/93 80.0 05/18/93 80.0 06/01/93 80.0 4.0 06/15/93 76.5 - 06/29/93 80.0 4.0 07/13/93 72.0 07/27/93 80.0 08/10/93 80.0 3.0 08/24/93 70.0 8.0 09/07/93 77.5 - 09/21/93 72.0 1.0 10/05/93 80.0 10/19/93 80.0 11/02/93 80.0 - 11/16/93 80.0 14.0 11/30/93 64.0 12/14/93 80.0 4.0 12/28/93 80.0 13.5 1/1/94 48.0 11.0 Check # Date Amount 3933 03/09/93 $ 64.60 3944 03/23/93 280.57 3970 04/20/93 100.83 3992 05/04/93 707.11 4004 05/18/93 707.11 4014 06/01/93 759.35 4030 06/15/93 676.66 4040 06/29/93 759.35 Rate $11.86 /hr. $17.79 /hr. -O.T. 62. Debra Oesterling signed twenty -one of the twenty -five time sheets reflecting Raymond Oesterling's hours in 1993. (Reference Finding #35, 36). 63. The following payroll checks were issued to Raymond Oesterling in 1993: Oesterlinq, 93- 014 -C2 Page 15 4054 07/13/93 637.48 4066 07/27/93 707.11 4082 08/10/93 909.51 4093 08/24/93 724.52 4108 09/07/93 685.35 4118 09/21/93 576.53 4133 10/05/93 776.76 4144 10/19/93 707.11 4154 11/02/93 707.11 4166 11/16/93 864.92 64. Debra Oesterling signed fifteen of the twenty checks issued to Raymond Oesterling in 1993. (Reference Finding #37). a. Oesterling did not sign check numbers 3933, 3944, 4093, 4108, 4144. 65. Raymond Oesterling was paid as a road employee in 1993 a total of $21,786.82 consisting of: 1,709.5 regular hours @ $11.86 /hr. = $20,274.67 85.0 overtime hours @ $17.79/hr = 1,512.15 66. Debra Oesterling was not aware that her actions may violate the provisions of the Ethics Law. a. Any such violations were inadvertent. 67. The actions by Oesterling in relation to signing payroll checks and time sheets were not determinative and were done in conjunction with the approval of other members of the Board of Supervisors. III. DISCUSSION: As a Supervisor for Centre Township, Butler County, .Debra Oesterling, hereinafter Oesterling, is a public official as that term is defined under Act 9 of 1989. 65 P.S. §402. As such, her conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to her. 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 Oesterling, 93- 014 -C2 Page 16 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. 65 P.S. §402. In addition, Section 3(f) of Act 9 of 1989 specifically provides in part that no public official /employee or spouse or child or business with which he or the spouse or child is associated may enter into a contract with his governmental body valued at five hundred dollars or more or any subcontract valued at five hundred dollars or more with any person who has been awarded a contract with the governmental body with which the public official /employee is associated unless the contract is awarded through an open and public process including prior public notice and subsequent public disclosure. The issues before us are whether Oesterling violated Section 3(a) of Act 9 of 1989 (conflict provision) or Section 3(f) (contracting provision ) as to these allegations: participation in decisions to hire her spouse and brother without an open and public process; participation in board decisions to hire her father's Oesterling, 93- 014 -C2 Page 17 company, Eagal Coal Company, without an open and public process; participation in decisions to approve payments to Eagal Coal Company; and the signing of township payroll documents and checks relating to her brother and husband. The record reflects that Oesterling has served as a Centre Township Supervisor since January, 1990, and as a roadmaster in 1991. Since 1987, the Township has periodically rented high lifts and other equipment from Eagal Coal Company which is owned in part by Ernest Baxter, Oesterling's father. Oesterling was unaware of such arrangements until after 1990 when she became a Township Supervisor. On August 5, 1981, Eagal Coal Company invoiced the Township for use of a high lift for thirty hours at the rate of $40.00 per hour, for a total rental of $1,200.00. Centre Township issued payment to Eagal Coal Company without any signature of Oesterling. There was no board action to approve the rental of the high lift from Eagal Coal Company in that the roadmaster and director of public works were authorized to enter such arrangements without board action. On November 13, 1992 the Eagal Coal Company invoiced the Township for the rental of a high lift for 81.5 hours at $35.00 an hour for a total of $2852.50. The invoice stipulated that payment was to be made to J&A Coal Company. Centre Township made payment to J&A Coal Company which is owned in part by Oesterling's mother and which is listed at the same address as Eagal Coal Company. Although Oesterling was a co- signatory of the check, a note was attached by her questioning whether she should have signed the check. Thereafter, the check was voided and a new check was issued which did not contain her signature. No board action was taken to approve the rental from J&A Coal Company. Turning to the matter of the part -time or temporary employees of Centre Township, the hiring was done by the roadmaster or director of public works without board approval. On June 1, 1992, Oesterling's brother, Jay Baxter, was hired as a temporary employee by the road department. At the time Baxter was a college student who worked from June 1, 1992 through August 28, 1992. Payroll reports were signed by all three supervisors, as required, after the payroll was paid. The checks were issued and signed by the township clerk without the signatures of the supervisors. Baxter was rehired as a temporary road employee during the summer of 1993 from June 23rd through August 12th. No board action was taken regarding the rehiring of Baxter. In 1993, Centre Township changed its payroll processing whereby a form of time sheet was used, with each employee entering his or her hours. A computerized sheet was generated for each pay period delineating certain payroll information as well as the issuance date and amount of the checks. The computerized sheet contained a space at the Oesterling, 93- 014 -C2 Page 18 bottom for the signatures of the supervisors. Oesterling signed four pays issued to Jay Baxter by signing the check printout. A fifth check dated August 24, 1993 to Jay Baxter was not signed by Oesterling. At a November 13, 1991 meeting, the Centre Township Supervisors authorized advertisement for the acceptance of resumes for employment positions with the road department. At least two resumes were received. Raymond Oesterling's application was not among them in that his application was already on file at the Township office. In August, 1992, Raymond Oesterling was hired as a part -time employee for Centre Township. No official action was taken by the Board of Supervisors regarding the initial hiring of Oesterling. Raymond Oesterling was hired because the working road foreman resigned, a second employee went on disability and a third employee took extended leave because of a death in his family. At an October 21, 1992 meeting of the supervisors, consideration was given to hiring Raymond Oesterling as a permanent employee after a ninety day probationary period. The motion carried with Oesterling abstaining. At the February 9, 1993 meeting, a motion to make Raymond Oesterling a permanent employee did not pass because of a tie vote, as to which Oesterling abstained. Thereafter, at a January 3, 1994 meeting, Raymond Oesterling was hired by two votes with Oesterling abstaining. In the proceedings Oesterling not only abstained, but she also submitted the necessary written disclosure statements, indicating that she abstained because these matters involved the employment status of her spouse. Oesterling signed most of the time sheets for Raymond Oesterling for 1992 -1993. Fact Findings 57, 62. Oesterling also signed most of the payroll checks issued to Raymond Oesterling in 1993. Fact Finding 64. However, Oesterling's actions in signing the payroll checks and time sheets were not determinative and were done with the approval of and in conjunction with the other members of the Board. Fact Finding 67. In applying the allegation and the provisions of Sections 3(a) and 3(f) to the facts before us, we find: no violation in relation to Oesterling's alleged participation in decisions to hire her husband, a business with which her husband was associated, and brother without an open and public process; no violation in relation to Oesterling's alleged participation in board decisions to hire her father's company, Eagal Coal Company, without an open and public process; no violation in relation to Oesterling's alleged participation in decisions to approve payments to Eagal Coal Company; and a technical violation in relation to Oesterling's signing of township payroll documents and checks relating to her brother and husband. Oesterling, 93- 014 -C2 Page 19 First, as for the decisions to hire Oesterling's spouse, Oesterling abstained in all instances and made the necessary disclosures, so that there was no violation of Section 3(a). See, Latch, Order 823. As for Section 3(f), the contract for employment was for more than $500.00. However, in November, 1991, the Board did authorize the advertisement for resumes for the road department, and under the totality of the circumstances, we find no violation of Section 3(f) as to the hiring of Oesterling's husband. As for Oesterling's brother, the hiring was done by the roadmaster or director of public works, without any action on the part of the board. Oesterling did not take any action regarding the hiring of her brother, and so did not violate Section 3(a). Mizak, Order 878. As for the contracting aspect of the hiring, there was no violation of Section 3(f) because the restrictions apply to the public official, spouse, child or business with which the public official, spouse or child is associated -- they do not apply to a brother. See, Taylor, Order 906. Turning to the second part of the allegation, regarding Oesterling's alleged participation in hiring Eagal Coal Company without an open and public process, there was no violation of Section 3(a) because factually, Oesterling did not participate in the hiring of Eagal Coal Company. Furthermore, there was no violation of Section 3(f) because its restrictions, as noted above, would not apply to a business owned by Oesterling's father. The third part of the allegation relates to the alleged participation by Oesterling in approving payments to Eagal Coal Company. We find no violation of Section 3(a) because factually, Oesterling did not approve any payments to the Eagal Coal Company. Turning to the fourth and final part of the allegation, pertaining to Oesterling's signing of township payroll documents and checks relating to her brother and husband, we find a technical violation of Section 3(a). The finding of a technical violation of Section 3(a) under these circumstances is in accord with our prior precedent. See, e.g., Perino, Order No. 980. We note that in this case, Oesterling's actions in signing payroll checks and time sheets were not determinative and were done with the approval of and in conjunction with the other members of the Board. The parties in this case have entered into a consent agreement for a technical violation of Section 3(a) as to Oesterling's signing of township payroll documents and checks relating to her brother and husband, and no violation as to the rest of the allegation. We believe that the consent agreement is the proper disposition for this case based upon our review of this case and given the totality of facts and circumstances. In reviewing the record of this case, it is clear that Oesterling was careful and observant in her actions. Oesterling Oesterling, 93- 014 -C2 Page 20 abstained in actions involving family members and further made disclosure as to the reasons for her abstention. It is therefore clear to us that there was no intention on the part of Oesterling to violate the Ethics Law, and we have found no violation as to these allegations aside from the one technical violation regarding the signing of township payroll documents and checks relating to Oesterling's brother and husband. Based upon the totality of facts and circumstances, this Commission will take no further action in this case. IV. CONCLUSIONS OF LAW: 1. Debra Oesterling, as a Supervisor for Centre Township, Butler County, is a public official subject to the provisions of Act 9 of 1989. 2. Oesterling did not violate Section 3(a) of Act 9 of 1989 regarding the hiring of her husband or brother in that Oesterling did not participate as to such hirings. 3. Oesterling did not violate Section 3(f) of Act 9 of 1989 regarding the hiring of her husband or brother. 4. Oesterling did not violate Section 3(a) of Act 9 of 1989 regarding the hiring of her father's company, Eagal Coal Company, in that Oesterling did not participate in the process. 5. Oesterling did not violate Section 3(f) of Act 9 of 1989 regarding the contract between the Township and her father's company, Eagal Coal Company, in that Section 3(f) of Act 9 of 1989 does not apply to a business owned by a parent of the public official. 6. Oesterling did not violate.Section 3(a) of Act 9 of 1989 regarding approving payments to Eagal Coal Company in that Oesterling took no action as to approving such payments. 7. A technical violation of Section 3(a) of Act 9 of 1989 occurred regarding Oesterling's signing of township payroll documents and checks relating to her brother and husband, where Oesterling so acted with the approval of and in conjunction with the other members of the Board of Supervisors. In Re: Debra Oesterling File Docket: 93- 014 -C2 Date Decided: 12/7/95 Date Mailed: 12/15/95 ORDER NO. 941 -2 1. Debra Oesterling, as a Supervisor for Centre Township, Butler County, did not violate Section 3(a) of Act 9 of 1989 regarding the hiring of her husband or brother in that Oesterling did not participate as to such hirings. 2. Oesterling did not violate Section 3(f) of Act 9 of 1989 regarding the hiring of her husband or brother. 3. Oesterling did not violate Section 3(a) of Act 9 of 1989 regarding the hiring of her father's company, Eagal Coal Company, in that Oesterling did not participate in the process. 4. Oesterling did not violate Section 3(f) of Act 9 of 1989 regarding the contract between the Township and her father's company, Eagal Coal Company, in that Section 3(f) of Act 9 of 1989 does not apply to a business owned by a parent of the public official. 5. Oesterling did not violate Section 3(a) of Act 9 of 1989 regarding approving payments to Eagal Coal Company in that Oesterling took no action as to approving such payments. 6. A technical violation of Section 3(a) of Act 9 of 1989 occurred regarding Oesterling's signing of township payroll documents and checks relating to her brother and husband, where Oesterling so acted with the approval of and in conjunction with the other members of the Board of Supervisors. 7. Based upon the totality of facts and circumstances this Commission will take no further action. BY THE COMMISSION, c DANEEN E. REESE, CHAIR