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HomeMy WebLinkAbout1032 SaugerIn Re: Fred Sauger STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 95- 049 -C2 Date Decided: 11/4/96 Date Mailed: 11/13/96 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Boyd E. Wolff This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 gt seq., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was deemed waived. The record is complete. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date 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). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. 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. Saucagl, 95- 049 -C2 Page 2 I. ALLEGATION: That Fred Sauger, a public official in his capacity as a Supervisor for Cambria Township, Cambria County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by participating in discussions, actions and /or decisions of the Board of Supervisors which benefitted the Colver Power Plant (CPP) at a time when he was acting as a paid consultant to a subcontractor of (CPP) regarding the construction of baseball fields being developed by CPP; and when he directed township employees to work on the ballfield project on township time utilizing township equipment; and when he was compensated by the township for hours worked on the ballfield project as township roadmaster. 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. Fred Sauger has served as a Supervisor of Cambria Township, Cambria County, PA, since 1960. 2. Sauger has been appointed roadmaster for Cambria Township at township reorganization meetings on an annual basis since 1970. a. The township is divided into three geographic areas, for maintenance purposes. b. Sauger was assigned to the Colver area of the township. c. Sauger supervises between two and ten employees, depending on the time of year and road project. Saucer, 95- 049 -C2 Page 3 3. In 1989 Inter - Power /AHG Con Partners began preparation for approvals by the township for a power plant to be located in Cambria Township. 4. The Colver Power Project is a resource recovery facility designed to utilize the bituminous coal refuse left over from decades of coal mining in the region. a. The process produces electrical power which is sold to the Pennsylvania Electrical Company (Penelec). 5. IPAC Limited Partners were listed as follows with the PA State Corporation Bureau: a. Capricorn Power Company, Inc., San Diego, California. b. Inter -Power of Pennsylvania, Inc., Pittsburgh, PA. c. C. E. Colver I, Inc., Baltimore, Maryland 6. According to officials from IPAC, the following partners were also associated with the Colver Power Project in a limited partnership agreement: a. Ahlstrom Development Corporation, Manassas, Virginia b. Inter -Power of Pennsylvania, inc., Pittsburgh, PA. c. Constellation Energy, Inc., Baltimore, Maryland. 7. The following actions have occurred in relation to (PAC's construction of a power plant in Cambria Township. a. May 8, 1989 The township received correspondence from IPAC regarding filing an air quality application. b. June 12, 1989 IPAC sent a letter to the township requesting a zoning change on property where the power plant was to be located. The request for a zoning change by IPAC was forwarded by the supervisors to the Zoning Hearing Board for review and consideration. c. January 8, 1990 IPAC representatives present at supervisors' meeting to discuss a building permit for the power plant. d. December 12, 1990 IPAC application for a five -year tax relief from the Local Economic Revitalization Tax Assistance (LERTA) approved by a unanimous vote of the supervisors. Sauger participated in the vote. (Note: Building permit extensions did not impact or extend LERTA beyond December 12, 1995) e. October 14, 1991 Resolution 286 passed by the Supervisors granting a building permit. Sauger participated in the vote. Sauaer, 95- 049 -C2 Page 4 f. October 26, 1992 Subdivision request of IPAC for the Colver Power Plant approved by the supervisors upon a motion by Sauger. January 11, 1993 IPAC request to extend building permits approved by the supervisors upon a motion by Sauger. h. April 25, 1994 IPAC request to extend building permits approved by the supervisors upon a motion by Sauger. 8. In 1992 the Cambria Township Supervisors discussed with the management of the power plant the possibility of constructing a baseball field in the Colver area of the township. g. a. The supervisors inquired as to whether IPAC would supply resources similar to the other projects. b. IPAC offered to assist in the construction of a ball field. 9. Sauger suggested building the ball field at the site of an old ball field on land owned by the township, based upon a plan prepared by Engineer Brian Kring. 10. IPAC assigned Professional Engineer Maynard John Reed to provide assistance in regard to the construction of the baseball field complex. a. Reed was employed as an independent contractor for IPAC. b. Reed was primarily hired by IPAC to design and construct a truck access road for the power plant. 11. IPAC originally authorized $42,000 to be spent on the Colver ball field project. 12. During the spring of 1994, Reed and Sauger met and discussed the ballfield project. a. Reed told Sauger that he was looking for someone with excavation experience, and familiarity with the Colver Ballfield site, to assist with the project. b. Sauger explained that he had worked on various ballfields in Cambria Township since 1960, and that he was familiar with the Colver Ballfield site. c. Sauger also noted that he had in the past volunteered his free time on evenings and weekends to work on the township ballfields, and that he would continue to do so on the Colver Ballfield site. d. Sauger related that the township had provided roadworkers to assist on other ballfield projects within the township, so long as there was no interference with their regular roadwork and other duties. e. Reed indicated that he would provide materials and fill, and assist in the clearing of trees and brush from the area of the ballfield. Sauaer, 95- 049 -C2 Page 5 13. Subsequent to Reed and Sauger's meeting, work activity on the Colver Ballfield increased. a. In April and May, 1994, Sauger erected a snow fence around the field, graded and dragged the infield, as well as performed general clean up and garbage removal. b. This work mostly occurred on weekends with the assistance of the Colver Baseball Association and volunteers. 14. Sauger also used Cambria Township Equipment and Township Roadworkers while working on the Colver Ballfield site. a. Sauger assigned excavation duties to township roadworkers in reference to the Colver Ballfield site, who performed these duties on township time. 1. Sauger and the roadworkers were compensated by the township for the work they performed during normal working hours. 2. Said work was only assigned when it did not interfere with township road priorities and other duties. b. Township heavy equipment was utilized at the Colver Ballfield site. 1. Sauger would operate the township's heavy equipment in the evening and on the weekends. 15. Sauger was not paid by Cambria Township for time spent performing work on the ballfield on evenings and weekends. 16. IPAC provided fill and engineering work in relation to the Colver Ballfield site. 17. Due to the severe weather during the winter of 1994 -1995, the Colver ball field project was not completed. a. Work was not resumed until May 1995. 18. In February 1995, the Colver Power Plant began operations. 19. In February 1995, a group of township residents living near the Colver Power Plant started attending township supervisor's meetings to complain about noise from the power plant. 20. The excessive noise issue was addressed at numerous Cambria Township Supervisor's meetings. a. The Cambria Township Zoning Officer and Zoning Hearing Board members also attended the meetings since the determination of a noise violation fell within the province of the Zoning Hearing Board. b. Sauger participated in the discussion of the noise issue. Sauaer, 95- 049 -C2 Page 6 21. The noise at the Coiver Power Plant was discussed at Board of Supervisors' Meetings on the following dates: a. February 13, 1995 b. February 27, 1995 c. March 13, 1995 d. March 27, 1995 e. April 10, 1995 f. April 24, 1995 g. May 22, 1995 h. June 26, 1995 22. During the meeting of April 24, 1995, the board of supervisors agreed to purchase a decibel meter to record the noise level at the Colver Power Plant. a. The meter was used by the township zoning officer. b. Sauger participated in the action. 23. In May 1995, IPAC stopped operations at the Colver Power Plant in order to install modifications to reduce the amount of noise coming from the plant. a. In late May or early June 1995, the plant was reopened. 24. Decibel testing conducted by the township zoning officer concluded that the noise emanating from the Coiver Power Plant was within levels previously established for other such plants. 25. In the spring of 1995, Reed contacted Sauger and arranged a meeting for April 27, 1995, to discuss the status of the ball field complex. a. The meeting was held at Reed's office. 26. During that time, Reed gave Sauger a check for $1,000.00. a. Reed indicated that the check was for work that Sauger had done as a volunteer on the ballfields on evenings and weekends. b. Check No. 491 from Reed's account, dated April 26, 1995, was made payable to Fred Sauger. c. Sauger accepted the check from Reed. d. Sauger retained the $ 1,000 for his own use. 27. Sauger believed Reed gave him the $1,000 for giving up all of his free time to work on the ball field. a. Sauger said Reed told him he was leaving the area and wanted to make sure the complex was completed. 28. Sauger maintained daily work Togs in reference to his position of supervisor /roadmaster. Sauaer, 95- 049 -C2 Page 7 a. The logs indicate Sauger's work location, type of work and total hours. 29. Fred Sauger's work logs as township roadmaster confirm the following dates and hours worked on the Colver ball field: a. 1994 Date 06/07/94 06/08/94 07/29/94 08/11/94 09/02/94 09/29/94 09/30/94 10/07/94 10/10/94 10/11/94 10/12/94 10/13/94 10/14/94 10/17/94 10/18/94 10/19/94 10/20/94 10/21/94 10/25/94 10/26/94 10/27/94 10/28/94 11/01/94 11/08/94 b. 1995 D ate 05/09/95 06/20/95 08/03/95 Type of Work Installed no dumping signs With Bechtel Const. on improvements Graded road -ball field Removed snow fence & poles - Colver Ball Field Excavated roadway for baseball field Graded Stone -ball field road Colver Ball Field 3 Colver Ball Field burned trash Burn brush and haul debris Grade ballpark Ball field grade road & level fill 8 Colver Ballpark grade road & level fill for field 8 Colver Ballpark grade rock on road leveled fill for field Graded fill at Colver Ball Field 4 Colver Ball field hauled debris, burned trees, and graded field Colver Ballpark tailgated 2B on roadway and graded fill Graded fill for ball field Graded fill for ball field & rock for road Leveled fill for ball field Graded stone on road - graded fill for new ball field Graded fill for field Graded and pushed fill (hi -lift) for field Tailgated clean 2B on ball field road Hauled stone on ball field road TOTAL HOURS Type of Work Hauled fill from 422 shed to Colver Balifieid Graded stone, cut grass & cleaned up field Widen road and fill with rock TOTAL HOURS ' /2 Hours 10 10 8 8 8 8 '/2 + 4 hrs sick 8 8 8 8 '/2 + 3 Hours 8 8 24 %2 sick 8 8 8 8 %2 8 8' 8 8 8 _a_ 184 [sic] c. Sauger was on Workmen's Compensation from August 4, 1995, to November 27, 1995. d. Sauger did not submit hours to the township during that period. 30. Sauger was compensated as follows by Cambria Township for hours worked on the Colver Baseball Field project. Saucer, 95- 049 -C2 Page 8 Year Total Hours Hourly Wage Gross Pay 1994 189 (sic] $ 11.96 $ 2, 260.44 1995 24 $ 12.50 $ 300.00 Total: 213 $2,560.44 31. Following the meeting with Reed on April 27, 1995, Sauger continued using roadworkers to work on the Colver Baseball Field. a. Sauger, in his capacity as Supervisor and Roadmaster, directed road workers to work on the ball field. b. Individuals assigned to the township were for community service projects and were also assigned to the ballfield project. c. This occurred periodically from May 1995, through August 1995. 32. Cambria Township roadworkers work logs confirm that township roadworkers continued to work on township time on the Colver Baseball Field project. 33. Cambria Township Supervisors have utilized township roadworkers to maintain other parks /baseball fields located in the township. a. The supervisors believe that the work on the Colver Ball Field is similar to work performed on the other fields. 34. During the August 28, 1995, Board of Supervisors Meeting, the Township Solicitor noted for the record that the supervisors were aware that Fred Sauger was using township equipment to fix a recreation area, i.e. baseball field in Colver, and that this is being done by him and employees on their own time. a. This statement was made following an executive session with the supervisors, including Fred Sauger. b. Township employees were paid for work done on the Colver baseball field. c. Fred Sauger was compensated by the township for his work on the ballfield until going on workmen's compensation on August 4, 1995. 35. Within Cambria Township there were two power plants which were constructed after 1985, not affiliated with IPAC. a. Both of the plants received L.E.A.R.T.A. assistance through the township. b. Both of the plants were involved with public service projects with the township. c. The township would provide equipment and labor for the projects. d. None of the Cambria Township Supervisors received any compensation from the other two power plants for work done on the other fields. Sauger, 95- 049 -C2 Page 9 36. Sauger personally expended the following funds as part of the time he spent on the Colver Ballfield site as a volunteer: Diesel Fuel for Grader: 2 Cans of Krylon Marking Paint: 3 Rolls of Surveyor Ribbon: TOTAL 37. Sauger paid the following taxes on the $1,000.00 received from John Reed: Federal Income Taxes: State Taxes: Local Taxes: TOTAL $1,000.00 - $ 136.86 - $ 158.00 $ 705.14 a. The form was filed on February 23, 1996. $ 20.64 $ 14.72 $ 1.50 $136.86 $120.00 $ 28.00 $ 10,00 $158.00 38. Fred Sauger violated the State Ethics Act when he received compensation from the IPAC consulting engineer for work performed on the Colver Ballfield project during the time period when he was employed and compensated by the township for similar services, and when he subsequently continued to be involved in the Colver Ballfield project in an official capacity. 39. Fred Sauger received a financial gain of $705.14, which is calculated as follows: received from IPAC personal expenditure (See Finding 36) taxes (See Finding 37) Total Financial Gain 40. Statements of Financial Interests for the 1995 calendar year on file with Cambria Township for Fred Sauger confirm that Sauger disclosed income from John M. Reed. III. DISCUSSION: At all times relevant to this matter, the Respondent, Fred Sauger, hereinafter Sauger, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, gI seq. The issue before us is whether Sauger, as a Supervisor for Cambria Township, Cambria County, violated Section 3(a) of the Ethics Law (Act 9 of 1989) as to the allegation that he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by participating in actions of the Board of Supervisors which benefitted the Colver Power Plant (CPP) at a time when he was acting as a paid consultant to a subcontractor of (CPP) regarding the construction of baseball fields being developed by CPP; and when he directed township employees to work on the ballfield project on township time utilizing township equipment; and when he was compensated by the township for hours worked on the ballfield project as township roadmaster. Sauger, 95- 049 -C2 Page 10 Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" as defined under Act 9 of 1989 is quoted above. Having noted the issue and applicable law, we shall now summarize the salient facts. Sauger has been a Supervisor in Cambria Township, Cambria County, since 1960 and Roadmaster since 1970. The Inter - Power /AHG Con Partners (IPAC) in 1989 began the process to obtain approval for a power plant in the Township which would generate electricity by burning coal refuse left from old mining operations. IPAC submitted various proposals and applications to the Township which are detailed in Fact Finding 7. Sauger, as a Supervisor, participated in the actions of the Township Board as to IPAC matters. In 1992, the Cambria Township Supervisors discussed with IPAC management the possible construction of a baseball field and IPAC offered its assistance. Sauger suggested building the ballfield on an old ballfield which was situate on land owned by the Township. Since the ballfield was located in the Colver area of the Township which was assigned to Sauger as Roadmaster, he supervised between two and ten employees to work in that area. IPA authorized an expenditure of $42,000 for the baseball field project and assigned an engineer, John Reed, who was employed as an independent contractor, to provide assistance in the construction of the baseball field complex. When Reed and Sauger discussed the ballfield project in 1994, Reed advised Sauger that he was looking for someone with excavation experience and familiarity with the Colver ballfield site to assist with the project. Sauger responded that he had worked on various ballfields, he had a familiarity with the Colver ballfield site, he volunteered his free time in the past to work on Township ballfields on evenings and weekends, and the Township provided roadworkers to assist on ballfield projects as long as there was no interference with their regular roadwork. Reed advised that he would provide both materials and fill to assist in the clearing of trees and brush from the ballfield area. After that discussion, the work activity on the Colver ballfield increased. Sauger used Cambria Township equipment and roadworkers to work on the Colver ballfield site. The excavation duties assigned by Sauger to Township workers on the ballfield were performed while on Township time during normal working hours. Assignments were made so as not to interfere with Township road priorities and other duties. Sauger and the roadworkers were compensated by the Township for the work they performed at the Colver ballfield. Sauger used Township heavy equipment on evenings and weekends at the Colver ballfield site but was not paid by the Township for performing such work. IPA provided fill and engineering work for the Colver ballfield site. In February, 1995 when the Colver Power Plant began operations, Township residents living near the plant complained about noise emanating from the plant. The excessive noise issue was addressed at several Township Supervisor meetings. Fact Finding 21. At a Township meeting on April 24, 1995, the Board agreed to purchase a decibel meter to record the noise level at the Colver Power Plant. Sauger participated in the discussions as to the plant noise level problem and also as to the Sauger, 95- 049 -C2 Page 11 purchase of the decibel meter. IPA stopped plant operations in May, 1995 in order to install modifications to reduce the amount of noise emanating from the plant. When the plant was reopened, the decibel testing conducted by the Township Zoning Officer established that the noise from the plant was within levels of similar type plants. In spring, 1995, Reed contacted Sauger to arrange a meeting as to the status of the ballfield complex. At that meeting, Reed advised that he was leaving the area and gave Sauger a check for $ 1,000. Reed indicated that the check was for the work that Sauger had done as a volunteer on the ballfield on evenings and weekends. Sauger accepted the check and retained the $ 1,000 for his own use. Sauger believed that Reed gave him the money because he gave up all of his free time to work on the ballfield. The net gain that Sauger received as to the payment from Reed for his work on the Colver baseball field project amount to $705.14 (Fact Findings 36, 37, 39). As a Township Roadmaster, Sauger maintained daily work Togs in reference to his position. Fact Finding 29 delineates the dates and hours worked by Sauger on the Colver ballfield. Sauger received a total in gross pay from the Township of $2,560.44 for the years 1994 and 1995 as to the work he performed on the baseball field project. Following the meeting with Reed, Sauger continued using Township roadworkers to work on the Colver baseball field project between May and August of 1995. The work Togs of the Township roadworkers confirm their continued work on the ballfield project on Township time but this was consistent with the Township practice of utilizing Township roadworkers to maintain other parks /baseball fields located in the Township. At a August 28, 1995 meeting of the Board of Supervisors, the Solicitor noted for the record that the Supervisors were aware that Sauger was using Township equipment to fix a recreation area which was being done by Sauger and employees on their own time. However, as noted above, both the Township employees and Sauger were compensated for their work on the Colver baseball field. After 1985, two other power plants, which were not affiliated with IPA, were constructed in the Township and received LEARTA assistance through the Township. Further, both plants were involved with public service projects in the Township which provided equipment and labor for the projects. None of the Cambria Township Supervisors received any compensation from the other two power plants for work done on other fields. Having summarized the above relevant facts, we must now determine whether the actions of Sauger violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. As to our analysis in this case, we need not proceed any further in light of the Stipulation of the parties in Fact Finding 38 which states: Fred Sauger violated the State Ethics Act when he received compensation from the IPA consulting engineer for work performed on the Colver Ballfield project during the time period when he was employed and compensated by the township for similar services, and when he Sauaer, 95- 049 -C2 Page 12 subsequently continued to be involved in the Colver Ballfield project in an official capacity. Accordingly, based upon the Stipulation of the parties, we find that Sauger violated Section 3(a) of the Ethics Law (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated by participating in actions of the Board of Supervisors which benefitted the Colver Power Plant (CPP) at a time when he was acting as a paid consultant to a subcontractor of (CPP) regarding the construction of baseball fields being developed by CPP; and when he directed township employees to work on the ballfield project on township time utilizing township equipment; and when he was compensated by the township for hours worked on the ballfield project as township roadmaster. Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /employee has obtained a financial gain in violation of the Ethics Law. In this case, the parties through a Consent Agreement have determined that Sauger make a payment of $705.14. Therefore, Sauger is directed to pay $705.14 commencing within thirty (30) days of the issuance of this Order through this Commission to Cambria Township to be paid in eleven monthly installments of $58.76 followed by a final payment of $58.78. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. Lastly, as noted above, the parties have filed a Stipulation of Findings and Consent Agreement which sets forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Fred Sauger, as a Supervisor for Cambria Township, Cambria County, is a public official subject to the provisions of Act 9 of 1989. 2. Fred Sauger violated Section 3(a) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he was associated by participating in actions of the Board of Supervisors which affected the Colver Power Plant (CPP) at a time when he was acting as a paid consultant to a subcontractor of CPP regarding the construction of baseball fields being developed by CPP; and when he directed township employees to work on the ballfield project on township time utilizing township equipmeht; and when he was compensated by the township for hours worked on the ballfield project as township roadmaster. In Re: Fred Sauger ORDER NO. 1032 File Docket: 95- 049 -C2 Date Decided: 11/4/96 Date Mailed: 11/13/96 1. Fred Sauger, as a Supervisor for Cambria Township, Cambria County, violated Section 3(a) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he was associated by participating in actions of the Board of Supervisors which affected the Colver Power Plant (CPP) at a time when he was acting as a paid consultant to a subcontractor of CPP regarding the construction of baseball fields being developed by CPP; and when he directed township employees to work on the ballfield project on township time utilizing township equipment; and when he was compensated by the township for hours worked on the ballfield project as township roadmaster. 2. Pursuant to the Consent Agreement of the parties, Sauger is directed to pay $705.14 to Cambria Township through this Commission commencing within thirty (30) days of the issuance of this Order in monthly payments of $58.76 for eleven months followed by a final payment of $58.78. a. Compliance with the above will result in the closing of this case with no further action. b. Non - compliance with the above will result in the institution of an order enforcement action. BY THE COMMISSION, OMUSA06 ad° J DANEEN E. REESE, CHAIR