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,