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HomeMy WebLinkAbout948 ZimmermanBefore: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Larry Zimmerman File Docket: 94- 037 -C2 Date Decided: 12/15/94 Date Mailed: 12/27/94 James M. Howley, Chair Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger 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 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 not filed and a hearing was deemed waived. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration 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). 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. Zimmerman, 94- 037 -C2 Page 2 I. ALLEGATION: That Larry Zimmerman, a public official /public employee in his capacity as a Supervisor for Conemaugh Township, Cambria County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he participated in decisions of the Board of Supervisors to have the insurance premiums for his personal vehicle paid with Township funds: 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). 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 of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. II. FINDINGS: 1. On July 6, 1994, the Investigative Division of the State Ethics Commission initiated a preliminary inquiry alleging that Respondent, Larry Zimmerman, violated provisions of the Ethics Act. a. The preliminary inquiry was initiated as the result of a sworn Complaint. 2. The Executive Director of the State Ethics Commission authorized commencement of the preliminary inquiry. 3. The preliminary inquiry was completed on or before September Zimmerman, 94- 037 -C2 Page 3 6, 1994, which was within sixty (60) days of the initiation thereof. 4. Upon completion of the preliminary inquiry, the matter was reviewed by the Executive Director of the State Ethics Commission. 5. On September 8, 1994, a letter was forwarded to the Respondent by the Executive Director of the State Ethics Commission informing Respondent of the fact that the Investigative Division of the State Ethics Commission was commencing a full investigation of the matter. a. Said letter outlined the nature and scope of the allegations and further delineated the applicable sections of the Ethics Law in question. b. Said letter was forwarded return receipt requested. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. On October 28, 1994, the Investigative Division of the State Ethics Commission issued the Investigative Complaint and Findings Report to the Respondent and forwarded same to Respondent and Respondent's attorney. a. Said Findings Report was issued within 360 days of the initiation of the full investigation. 8. Larry Zimmerman has served as a Conemaugh Township Supervisor since March 14, 1991. a. Zimmerman has served as a township roadmaster since March 14, 1991. b. Zimmerman was employed by Conemaugh Township as an equipment operator since 1971. 9. Conemaugh Township Roadmasters are responsible for overseeing the road department including six to ten full -time employees, one maintenance mechanic, and the township's trucks and equipment. 10, Compensation for the supervisor /roadmasters was set by the auditors at their Annual Reorganization meetings. Auditors approved compensation in the form of wages and expenses as follows: a. January 8, 1991: Zimmerman, 94- 037 -C2 Page 4 "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." Present: William Thomas, III, Shirley J. Kaufman, Grace Kaltenbaugh. 11. 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 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 #12) . c. The township has no written policy regarding what the vehicle allowance covers. 12. Conemaugh Township did not own any light duty pickup trucks and relied upon the roadmaster's trucks for township business. 13. Township roadmasters, including Zimmerman, received $4,200.00 per year, personal truck allowance as approved by the township auditors. 14. Township auditors discontinued the practice of approving a monthly vehicle allowance as part of their 1992 Reorganizational meeting. 15. Conemaugh Township also paid the insurance on the supervisor / roadmaster's vehicles. This was in addition to the vehicle allowance. a. The auditors had not approved this payment as part of the compensation for supervisors serving in a roadmaster capacity. 16. Supervisors sery in a roadmaster capacity had their personal trucks insured on the township's vehicle policy. a. This practice dates back to at least 1986. Zimmerman, 94- 037 -C2 Page 5 b. Township road department employees were not afforded this benefit. 17. Auditors Annual Reorganizational meetings did action approving the supervisor /roadmaster's included on the township vehicle insurance Finding No. 10) not include an trucks to be policy. (See a. The auditors never approved this insurance roadmaster's compensation. 18. Auditor Grace Kaltenbaugh was not aware that the township paid for the roadmaster's vehicle insurance. as part of the a. She believed that the supervisor /roadmaster should be responsible for their own vehicle insurance coverage. 19. 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. 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 /roadmaster'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 Zimmerman becoming a township supervisor /roadmaster. 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. 22. Business records of the Naugle Insurance Company indicate Zimmerman, 94- 037 -C2 Page 6 premiums for a. Period: Vehicle: Premium: b. Period: Vehicle: Premium: a. Meeting Date 05/09/91 05/09/91 07/11/91 09/12/91 10/11/91 11/14/91 Check # 6802 6843 6942 7117 7228 7268 Zimmerman's vehicle as follows: 03/20/91- 09/01/91 1990 Ford F250 truck $95.00 09/01/91- 09/01/92 1990 Ford F250 truck $847.00 23. Zimmerman's coverage was terminated effective January 8, 1992. As a result, the township received a refund of $551.00 on his policy. 24. Insurance premiums detailed in Finding #22 township funds. 25. Premium payments to the Naugle Insurance Agency were as part of the monthly bill lists. Bill lists are voted on in their entirety. 04/15/91 05/09/91 06/15/91 09/03/91 10/11/91 11/07/91 $ 95.00 459.00 135.00 12,528.00 25,633.16 16,403.28 were paid with included b. Bill lists are generally passed unanimously. c. Bill lists are provided to the supervisors the evening of meeting action is going to be taken on them. 26. Larry Zimmerman, in his capacity as township supervisor, participated in the following board action to approve payments to the Naugle Insurance Company while receiving township paid insurance coverage: Official Check Date Amount Action Motion vote Motion vote Second vote Second vote Second vote Second vote 27. Zimmerman participated in Board action authorizing payment totaling $55,253.44, to the Naugle Insurance Agency while he was receiving township paid vehicle insurance. (See Finding #26) . 28. Zimmerman received a financial gain of $391.00 for township paid vehicle insurance between March 20, 1991, and January 8, 1992. (See Findings #22, 23). Zimmerman, 94- 037 -C2 Page 7 29. Zimmerman reimbursed Conemaugh Township $391.00 on September 23, 1994, for the township paid vehicle insurance he received as detailed in Finding #21. a. Zimmerman voluntarily made restitution for the township. 30. Zimmerman 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 longstanding township practice. III. DISCUSSION: As a Conemaugh Township Supervisor, Larry Zimmerman, hereinafter Zimmerman, 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. 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 Zimmerman violated Section 3(a) of Act 9 of 1989 as to the allegation that he used his position to have the township pay the insurance on his personal vehicle. Factually, Zimmerman has served as an elected supervisor in Conemaugh Township from March 14, 1991 and as a township employee equipment operator since 1971. The compensation for Zimmerman and the other supervisors as working township employees was set by the township auditors at their annual reorganizational meetings. Zimmerman, 94- 037 -C2 Page 8 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 roadmasters 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 Zimmerman's personal vehicle between March 20, 1991 and January 8, 1992 in the amount of $391.00. In applying the provisions of Section 3(a) of Act 9 to the question of whether Zimmerman improperly accepted compensation as roadmaster in the form of township paid insurance on his personal vehicle, the disposition of the matter turns upon whether Zimmerman received a 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 Zimmerman received compensation which was a private pecuniary benefit, we are confronted with Zimmerman'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 through the use of authority of office in violation of Section 3(a) of Act 9 of 1989. See, Juliante, Order 809. The power of this Commission to impose restitution is explicitly Zimmerman, 94- 037 -C2 Page 9 provided for in the Ethics Law. 65 P.S. §407(13). In this case, restitution in the amount of $391.00 is warranted based upon the receipt by Zimmerman of the personal vehicle insurance at township expense which was not approved by the township auditors. We do take administrative notice that Zimmerman has already repaid the $391.00 to Connemaugh Township. Accordingly, we will take no further action and close the file in this case. IV. CONCLUSIONS OF LAW: 1. Larry Zimmerman, as a Conemaugh Township Supervisor, is a public official subject to the provisions of Act 9 of 1989. 2. Zimmerman 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 Zimmerman amounted to $391.00. In Re: Larry Zimmerman . File Docket: 94- 037 -C2 Date Decided: 12/15/94 Date Mailed: 12/27/94 ORDER NO. 948 1. Larry Zimmerman, as a Conemaugh Township Supervisor, 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. 2. The private pecuniary benefit received by Zimmerman amounted to $391.00. 3. Since Zimmerman has already repaid the $391.00 to Conemaugh Township, we will take no further action and close the file in this case. BY THE COMMISSION, JAMES M. HOWLEY,