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HomeMy WebLinkAbout956 KneeSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Larry Knee File Docket: 93- 074 -C2 Date Decided: 02/23/95 Date Mailed: 03/10/95 Before: Daneen E. Reese, Chair Roy W. Wilt Austin M. Lee 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 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 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 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. Knee, 93- 074 -C2 Page 2 I. ALLEGATION: That Larry Knee, a public official /public employee, in his capacity as a Supervisor for West Carroll Township, Cambria County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he utilized township equipment for personal purposes; sold township property and retained monies received for his personal use; was compensated by private contractors for work done by the township; and when he used his office to receive compensation not provided for by law for serving as Township Water Line Inspector, a position which was not authorized by the Board of Supervisors. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. 5403(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. Larry Knee served as a Supervisor /Roadmaster for West Carroll Township from 1979 to August 11, 1993. a. Knee served as the Chairman of the Board of Supervisors from 1985 to August 11, 1993. 2. Knee had been employed by the township from 1976 to August 11, 1993, until he resigned effective August il, 1993. Knee, 93- 074 -C2 Page 3 a. Knee was employed as a laborer from 1976 to 1979. b. Knee was employed as a roadmaster from 1979 until August 11, 1993. c. Knee resigned as a supervisor /roadmaster effective August 11, 1993. 3. Knee's duties as a township roadmaster included in part, the operation of township vehicles and equipment. 4. Records of the Pennsylvania Department of Transportation reflect that West Carroll Township owned, among other vehicles, a 1988 GMC truck, license 22873MG, VIN #1GTGK34K7JE524224. 5. Knee, along with other employees, operated the 1988 GMC truck in conjunction with his township employment. a. At the end of the work day the vehicle was parked at the township garage. 6. During hunting season Knee would on occasion take a hunting rifle, bow, and hunting license with him in the township truck. a. Other township employees also put hunting rifles in the township vehicles. b. Knee did not use the township truck specifically and solely to go hunting. 7. When driving to different job sites within the township, Knee and other employees would look for game. a. This occurred when traveling on rural township roads. b. Legal game would be shot if seen. 8. West Carroll Township junked a 1976 GMC truck in June, 1992. a. The truck had been utilized for snow plowing. b. The West Carroll Township employees dismantled the truck because the body had rusted out. i. This was done at the direction of the supervisors who believed the truck wasn't worth repairing. c. The township was going to salvage some parts of the truck. Knee, 93- 074 -C2 Page 4 d. The truck had approximately 60,000 miles registered on the odometer when dismantled. e. There were parts saved from the cubic inch displacement engine. 9. The truck engine did have defects in ticking /tapping and there was burnt engine. truck including a 350 that the valves were oil coming from the 10. The estimated value of the engine was between $300 to $550, if the engine was without defects. a. The engine was known to have an oil leak. b. Knee asserts the engine was valued at between $50.00 and $100.00 11. Knee had owned a 1977 Chevrolet truck. 12. Knee took the engine from the township in his truck and had it installed in his 1977 truck by a Daniel Polites. 13. Knee had the township's engine in his truck for approximately one year. 14. Knee sold the truck to Daniel Polites in 1993 because the engine had exploded. a. Knee sold the truck for $125.00. b. This was the value of the truck with the engine. 15. There is no accurate estimate as to the value of the engine and Larry Knee believed that the engine would never have been used by the Township and discarded. 16. Larry Knee cut down two (2) black cherry trees on a portion of the property at Bakerton Water Reservoir in 1993. a. Knee cut the trees down because he was attempting to put a drain pipe in near the reservoir to alleviate a problem with water on the road. b. This 17. The trees a. Goss was township related work. cut by Knee were given to Mark Goss . used the trees for firewood. 18. West Carroll Township records do not indicate any payment Knee, 93- 074 -C2 Page 5 being made by Goss for the trees. a. Knee did not believe the trees had much value, and rather than pay to have the trees removed, he offered them to Goss. 19. There were eight (8) tree stumps found on the property at the Bakerton Water Reservoir including the two (2) black cherry trees. a. There were an additional four (4) black cherry and two (2) sugar maple trees removed from the reservoir area. 20. Knee asserted he only cut down two trees at the water reservoir and did not receive any money for them. 21. There was no record of Knee selling any lumber to any lumber yards in the vicinity of West Carroll Township. a. There was no evidence that Knee cut down any other trees or received any reimbursement for the trees given to Goss. 22. The West Carroll Township Supervisors are in charge of the township's water system. a. The water authority was dissolved in 1990. b. An Assumption Agreement was approved on January 2, 1990, transferring all assets of the water authority to West Carroll Township. 23. West Carroll Township records confirm a water line was installed for the township in 1990. 24. Records of West Carroll Township indicate the financing for the water line project came from a loan the township received from the Pennsylvania Infrastructure Investment Authority ( Pennvest). 25. At a special meeting of the West Carroll Township Supervisors of May 1, 1990, Ordinance No. 19 was approved regarding a $896,550 loan payment from Pennvest. a. Larry Knee was present at this meeting. 26. West Carroll Township contracted with Kukurin Contracting, Inc., to install the water line. a. The contract was awarded on May 7, 1990. Knee, 93- 074 -C2 Page 6 b. Kukurin was the low bidder. 27. West Carroll Township records indicate the township entered into a contract with Kukurin Contracting Incorporated on September 11, 1990. a. The contract indicated West Carroll Township was entitled to inspect the construction of the water line, but Kukurin Contracting was not responsible for compensating anyone. 28. Larry Knee and West Carroll Township employee Robert Grazier served as water line inspectors. a. In this position, Knee was paid solely by the township and not by Kukurin Contracting, Inc. 29. Township Engineer Robert Dunchock had recommended Knee and Grazier to serve as the. water line inspectors. a. Dunchock indicated he had recommended Knee because he was the township roadmaster in charge of the project, and Grazier because he was in charge of the water department. 30. The duties performed by Larry Knee as water line inspector may /could be determined to be separate from that of roadmaster. 31. Minutes of the West Carroll Township Supervisors meetings do not contain any official action taken by the supervisors authorizing Knee to serve as water line inspector. a. Knee asserts that there were discussions by the board of the need for line inspections. b. Knee believed it was implied by the board that he and Grazier act as line inspectors. 32. The West Carroll Township Supervisors in 1990 included Larry Knee, Thomas Hicks and Eugene Sutter. a. Thomas Hicks recalled the supervisors having a general discussion on authorizing Knee to perform water line inspections. Hicks indicated the duties of roadmaster and water line inspector were separate. b. He was aware that Knee was conducting water line inspections. 33. Minutes of the West Carroll Township Auditor Reorganizational Meetings for 1990 and 1991, confirm the auditors set the rate Knee, 93- 074 -C2 Page 7 of compensation of supervisors employed as roadmasters. January, 1990 Those attending: 2 Auditors, Maria Roadmaster's salary Motion by Maria that Larry, Danny, Seconded by Marcella, all in favor January, 1991 Those attending: 2 Auditors, Maria Roadmaster's Salary Motion by Maria that Larry, Danny, Seconded by Marcella, all in favor 1990 Date 10/02/90 10/03/90 10/04/90 10/05/90 10/08/90 10/09/90 10/10/90 10/12/90 10/15/90 10/16/90 10/17/90 10/18/90 10/19/90 10/22/90 10/24/90 10/25 - 11/07/90 11/08 - 11/21/90 11/22 - 12/04/90 12/04 - 12/19/90 Hours 4.0 3.0 6.0 10.0 7.0 8.0 7.0 5.0 6.0 7.0 7.0 7.0 5.0 7.0 5.0 30.0 30.0 30.0 30.0 Farabaugh, Marcella Jones. Eugene get $6.50 a hour. yes. Farabaugh, Marcella Jones. Eugene get $6.50 a hour. yes. 34. Minutes of the West Carroll Township Auditor meetings do not contain any action regarding any additional compensation to be approved for Knee to conduct water line inspections. 35. Records of West Carroll Township indicate that Knee was compensated at the same hourly rate he received as roadmaster for water line inspections. 36. Records of West Carroll Township indicate the following regarding the number of hours worked on water line inspections by Larry Knee: Knee, 93- 074 -C2 Page 8 1991 Date Meeting Date 11/05/90 11/05/90 12/03/90 12/03/90 01/03/91 01/03/91 07/08/91 08/05/91 08/05/91 09/03/91 09/03/91 1990 Total 06/14/91 06/18/91 06/19/91 06/20 - 06/28/91 07/01- 07/17/91 07/18- 07/31/91 08/01- 08/14/91 08/15- 08/28/91 08/29 - 09/11/91 09/12- 10/31/91 1991 Total Year Pay Rate Hours 4.0 4.0 6.0 18.0 22.0 22.0 28.0 28.0 30.0 42.0 1990 $6.50 214.0 1991 6.50 8810 General 8818 General 8827 General 8853 General 8862 General 8896 General 9099 Unknown 9106 General 9132 General 9139 General 9160 General Fund Fund Fund Fund Fund Fund Fund Fund Fund Fund 214.0 204.0 37. The rate of pay at which Knee was compensated and the total amount paid to him for performing the functions of water line inspector was as follows: Hours Amount 204.0 Check Number Account Amount $ 240.58 262.25 162.05 162.05 163.05 163.05 Unknown (Check missing) 117.00 143.00 143.00 182.00 $1,391.00 1,326.00 $2,717.00 38. Knee maintained his own time sheets and submitted them for payment as did other Township employees - Knee approving same. 39. Minutes of West Carroll Township meetings reflect that Knee participated in board discussions to pay bills which included payments for his water line inspections. Action Voted Voted Voted Voted Voted Voted yes yes yes yes yes yes Voted yes Voted yes Voted yes Absent Absent Knee, 93- 074 -C2 Page 9 09/03/91 9168 General Fund 182.00 Absent 10/07/91 9190 General Fund 195.00 Voted yes 11/04/91 127 Funding 273.00 Voted yes 40. Knee was paid $6.50 per hour for line inspections because he believed these duties were performed under the auspices of being a roadmaster. a. He did not believe an additional rate had to be set. 41. Knee believes that township realized a great savings by him performing the work as opposed to the township contracting with an engineer or inspector whose rates would be considerably higher. 42. Knee performed the work noted on his time sheets. 43. Knee did not intend to violate the State Ethics Law when he served as the township water line inspector. III. DISCUSSION: As a Supervisor for West Carroll Township, Cambria County, Larry Knee, hereinafter Knee, was 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. Knee, 93- 074 -C2 Page 10 The term "conflict of interest" is defined under Act 9 of 1989 in the allegation. The four issues before us are whether Knee violated Section 3(a) of Act 9 of 1989, the conflict provision of the Ethics Law, when he allegedly took and used a Township truck engine for personal use; sold township trees and retained the monies for his personal use; received compensation from a private contractor as to a Township project; and used public office to receive compensation not provided for by law as a Township water line inspector. Factually, Knee served as West Carroll Township Supervisor and roadmaster from 1979 and Chairman from 1985 until his resignation in August 11, 1993. Part of Knee's duties as Township roadmaster included operating Township vehicles and equipment. During hunting season, Knee and other Township employees put hunting rifles or bows with their hunting licenses in the Township trucks. Even though Knee and the other Township employees did not use the Township trucks specifically to go hunting, whenever game was spotted, the Township employees would shoot the game. When Carroll Township junked a rusted out 1976 GMC truck in 1992, some of the parts were salvaged including a 300 cubic inch engine. That engine had mechanical problems in that the valves were tapping and the engine was burning and leaking oil. Knee asserts that since the engine had a value between $50.00 and $100.00, he took and installed the engine in his own 1977 truck. Subsequently when the engine exploded, he sold the truck for $125.00. Knee claims that the engine would never have been used by the Township and would have been discarded. At the Bakerton Reservoir in 1993, Knee cut down two trees on a portion of a property because he was attempting to put in a drain pipe near the Reservoir to alleviate a water problem on the road. Knee gave the trees to Mark Goss for fire wood. Since Knee did not believe the trees had much value, he offered them to Goss rather than pay someone with Township funds to remove the trees. Although there were eight tree stumps found on the property of the reservoir which included the two that Knee cut, Knee asserts that he did not cut down any of the other trees and did not receive any money for the two trees that he gave to Goss. The record reflects that there is no evidence to show that Knee received any money for the trees given to Goss. After the Water Authority in the Township was dissolved in 1990, the Township Supervisors took over control of the Township's water system. When the installation of a water line in the Township was contemplated, financing was obtained from the Pennsylvania Infrastructure Investment Authority (PennVEST). Thereafter, the Township contracted with Kukurin Contracting Inc., the low bidder, to install the water line. Since the contract Knee, 93- 074 -C2 Page 11 provided that the Township was entitled to inspect the construction of the water line which was not Kukurin's responsibility, Knee and other township employees served as water line inspectors as per a recommendation of the Township Engineer. Knee, as a water line inspector, was paid by the Township and not by Kukurin Contracting Inc. Although no official action was taken by the supervisors to authorize Knee to serve as a water line inspector, Knee believed that he received an implied authorization by the Board. Although the Township Auditors did have January reorganizational meetings in 1990 and 1991 and set the compensation for the roadmasters, no such additional compensation was approved for Knee as to water line inspections. Knee performed the inspections and received the same hourly rate as he did for roadmaster work. The hours worked by Knee for the water line inspections and the compensation he received totaled $2,717.00. Fact Findings 36 and 37. The minutes of the meetings of the Township Board of Supervisors reflect that Knee also participated in the Board decisions to pay the bills which included the payments of his water line inspection work. In taking such action, Knee did not believe that he violated the Ethics Law and believed that the Township realized a savings by him performing the work rather than having the Township contract with an Engineer or inspector whose rates would be higher. In applying the provisions of Section 3(a) of Act 9 of 1989 to the above four issues, we find no violation as to the first issue regarding the utilization of the salvaged Township truck engine by Knee. From the record before us, it appears that the value of the truck engine was nil or had a very small value which would be de minimis under the Ethics Law. In either event, we do not see a private pecuniary benefit and therefore conclude that no violation occurred as to that issue. Schweinsberq, Order 900. As to the second allegation of selling Township trees and retaining monies for personal use, we find no violation of the Ethics Law. The record reflects that although Knee did cut down two Township trees, he gave those trees to a third party; there is no evidence of record to indicate that Knee received any money for those trees. In fact, Knee asserts that he saved money for the Township which would have had to pay for hauling the trees away. Since the evidence does not show any private pecuniary benefit on the part of Knee as to the cutting of the Township trees, we find no violation. Piccolo, Order 735. The third allegation in the case concerns the charge that Knee received compensation from private contractors for work done by the Township. This allegation relates to inspections as to the Township water line which was installed by Kukurin Contracting Inc. Since the facts of record establish that the Township and not Kukurin paid Knee and the other Township employee for the Knee, 93- 074 -C2 Page 12 inspections, we find no violation on this issue for the reason that Knee did not receive any compensation from Kukurin. The last allegation in this case involves the propriety of Knee receiving compensation when he served as a township water line inspector. The Second Class Township Code provides that township supervisors shall receive specified compensation as elected officials. 53 P.S. §65515. _ The Second Class Township Code delineates when supervisors may receive compensation other than as set forth above. Generally, a township supervisor may be employed by the township as a roadmaster, laborer, or secretary /treasurer. 53 P.S. §65410. The compensation to be paid to supervisors working in such positions is to be fixed by the township board of auditors. 53 P.S. § §65515, 65531, 65540. Township supervisors may not receive any other compensation except as provided above. In Colter v. Warminister Township, 8 Pa. Commw Ct. 163, 302 A.2d 859 (1973), the Commonwealth Court of Pennsylvania held that a second class township supervisor may not appoint himself to positions other than those set forth in the Township Code (roadmaster, laborer, or secretary /treasurer), and receive compensation therefore. See also, Conard v. Exeter Township, 27 D &C.3d 253 (Berks 1983). It is clear, therefore, that the duties for which a township supervisors may be compensated are strictly regulated by the Second Class Township Code, and when performing in the positions set forth in the Code, the supervisor's compensation must be specifically set forth by the township board of auditors. In this case, it is clear that Knee could not serve in the position of a water line inspector in that such was not one of the enumerated working positions under the Second Class Township Code as to which a supervisor may be an employee. The record reflects that Knee did not advocate for himself being appointed to that position; the Township Engineer recommended that Knee do such work. Therefore, in this case, the use of authority of office by Knee consisted of his submission of time sheets and voting to pay the water line inspections for himself. As to such action we find a technical violation of Section 3(a) of Act 9 of 1989. See Brink, Order 953. Although the facts of record establish that Knee received $2,717.00 for performing water line inspection work, the parties in this case, the Investigative Division and the Respondent, have submitted a Consent Agreement to resolve this particular technical violation with a payment of restitution in the amount of $2,000.00. Since we believe that the consent agreement constitutes a fair and appropriate disposition of the case considering the totality of the facts and circumstances, we approve the consent agreement and on that basis direct Knee to make restitution through this Commission to West Carroll Township in the amount of $2,000.00 in a timely Knee, 93- 074 -C2 Page 13 fashion. Compliance by Knee will result in the closing of this matter with no further action. Failure to comply will result in the institution of an order enforcement action by this Commission. IV. CONCLUSIONS OF LAW: 1. Larry Knee as a West Carroll Township Supervisor in Cambria County was a public official subject to the provisions of Act 9 of 1989. 2. Knee did not violate Section 3(a) of Act 9 of 1989 regarding the utilization in his own truck of a Township vehicle engine which had a de minimis or nil value. 3. Knee did not violate Section 3(a) of Act 9 of 1989 regarding cutting down and giving two trees to a third party in that Knee received no private pecuniary benefit. 4. Knee did not violate Section 3(a) of Act 9 of 1989 regarding compensation from a private contractor as to work done by the Township in that the compensation received by Knee was from the Township. 5. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Knee received a private pecuniary benefit for performing work as a township water line inspector which position was not one of the enumerated working positions for employed township supervisors. In Re: Larry Knee File Docket: 93- 074 -C2 Date Decided: 02/23/95 Date Mailed: 03/10/95 ORDER NO. 956 1. Larry Knee as a West Carroll Township Supervisor in Cambria County did not violate Section 3(a) of Act 9 of 1989 regarding the utilization in his own truck of a Township vehicle engine which had a de minimis or nil value. 2. Knee did not violate Section 3(a) of Act 9 of 1989 regarding cutting down and giving two trees to a third party in that Knee received no private pecuniary benefit. 3. Knee did not violate Section 3(a) of Act 9 of 1989 regarding compensation from a private contractor as to work done by the Township in that the compensation received by Knee was from the Township. 4. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Knee received a private pecuniary benefit for performing work as a township water line inspector which position was not one of the enumerated working positions for township supervisors. 5. Knee is ordered to make restitution in the amount of $2,000.00 in a timely manner through this Commission to West Carroll Township, Cambria County. a. Compliance by Knee will result in the closing of this case with no further action. b. Failure to make restitution in a timely manner will result in a directive of this Commission to institute an order enforcement action. BY THE COMMISSION, 06 a ku R A DANEEN E. REESE, CHAIR