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HomeMy WebLinkAbout1057 DeRobertoIn Re: Daniel DeRoberto STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Boyd E. Wolff Julius Uehlein 96- 047 -C2 Order No. 1057 8/14/97 8/26/97 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 el seg., 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 not 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. DeRoberto, 96- 047 -C2 Page 2 I. ALLEGATION: That Daniel DeRoberto, a public official in his capacity as President of Exeter Borough Council, Luzerne County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit of himself by using a borough provided cellular telephone for his personal use since 1994 and when he participated in paying bills for the cellular telephone use; and when he used borough employees and equipment to provide towing services for his work vehicle. 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. Daniel DeRoberto has served as a Councilman for Exeter Borough, Luzerne County, from 1990 to the present. a. DeRoberto has been appointed Council President on an annual basis since 1991. b. DeRoberto has served as the borough's representative to Wyoming Valley Sewer Authority from November, 1994, to the present. c. DeRoberto previously served on Exeter Borough Council from 1985 to 1988. 2. DeRoberto is employed on a full -time basis by Suburban Propane Company as a bulk fuel truck driver. a. DeRoberto has been employed in this capacity during his entire tenure on council. DeRoberto, 96- 047 -C2 Page 3 3. In 1993, the borough authorized the purchase of a cellular telephone for the use of the Borough Streets Commissioner. a. The purchase was approved to increase communications between the Streets Commissioner and the borough road department. b. Council informally approved this use at a work session. 4. Sometime in 1994 all borough trucks were equipped with radios eliminating the need for the use of the cellular telephone. 5. At a work session of borough council in June, 1994, DeRoberto made a request that he, as council president, be given the cellular telephone for use for official borough business. a. DeRoberto advised council that if he had the telephone he would be more accessible for borough business during the workday. b. The majority of council members had no objection to DeRoberto's use of the cellular telephone for official business. c. There was no vote of council authorizing DeRoberto's use of the cellular telephone. • 6. From June of 1994 through June of 1996, DeRoberto used a borough provided cellular telephone for use on borough business. 7. Exeter Borough contracted with Cellular Plus from June 1, 1994, to September 19, 1994, for the use of a cellular telephone. a. The borough's account number was 00030234. b. The assigned telephone number was (717) 954 -5657. 8. On September 19, 1994, the account was changed from Cellular Plus to Wireless One. a. The account number and telephone number remained the same. b. The borough maintained service with Wireless One until May 31, 1995. 9. On June 13, 1995, the borough contracted with Cellular One to provide service for the cellular telephone used by DeRoberto. a. The account number was 200 - 059 -1724. b. The telephone number was listed as (717) 947 -3520. 10. On January 17, 1996, at 2:54 p.m. DeRoberto placed a call from his cellular telephone to the Exeter Borough Street Department at (717) 654 -9010. a. At the time of the call, DeRoberto was working his regular hours as a truck driver for Suburban Propane. DeRoberto, 96- 047 -C2 Page 4 b. The purpose of the call was to request the assistance of Street Department employees to help him move his tanker truck which became stuck on an icy road in Carverton, a nearby municipality. c. At the time of the call, Road Department employees were completing their shift. d. DeRoberto made the call because he was unable to get other emergency road services. 11. Joseph Venetz, Streets Commissioner, took the call from DeRoberto. a. Venetz directed two employees, Michael Stoss and Ray Vincent, to take the borough truck, which was loaded with salt and ashes and provide assistance to DeRoberto. b. The situation was considered an emergency due to the vehicle's location on an icy hill. 12. Stoss and Vincent took approximately one hour to provide assistance to DeRoberto which included putting cinders /salt under the vehicles tires. a. This occurred after the conclusion of their work shifts. b. Both Stoss and Vincent were paid overtime wages for this time. 13. Exeter Borough Time Sheets for the period January 14, 1996, through January 20, 1996, confirm that employees Michael Stoss and Ray Vincent claimed overtime hours on January 17, 1996. a. Stoss claimed one (1) additional hour. b. Vincent claimed two (2) additional hours. 14. The time sheet reflects an entry of "snow" in the column for Wednesday, January 17, 1996. 15. Stoss and Vincent are paid hourly wages as follows: a. Stoss: $7.28 per hour b. Vincent: $6.76 per hour c. They are both paid time and one -half for overtime hours. 16. DeRoberto realized a gain of $31.20 as a result of the labor of Stoss and Vincent to assist DeRoberto in moving his vehicle. a. Stoss: One hour at $10.92 per hour. b. Vincent: Two hours at $10.14 per hour. DeRoberto, 96- 047 -C2 Page 5 17. Exeter Borough does not have a policy relating to the use of borough equipment to assist private citizens. a. Borough council members did not oppose borough employees and equipment being used to assist DeRoberto. 18. Daniel DeRoberto utilized the borough provided cellular telephone to make personal calls to the following numbers: a. Suburban Fuel: (717) 654 -4624 and (717) 654 -4625 J. b. DeRoberto's Residence: c. Employer of DeRoberto's Spouse: d. Daniel DeRoberto, Jr. (Son): e. Joseph Calabro: f. Joseph Cella: g. Ronald Rome: h. Thomas DeRoberto (Brother): i. Lispi Towing Service: Suburban Fuel Answering Service: k. Thomas Durkin: I. Wagner Fuel: m. Unlisted Exeter Number: 19. Personal calls were made by DeRoberto as follows: a. Suburban Fuel: (717) 654 -4624 and (717) 654 -4625 10 calls from 10/29/94 to 12/08/94 21 calls from 01/01/95 to 12/30/95 59 calls from 01/01/95 to 06/13/96 TOTAL b. Joseph Calabro - (717) 693 -4472 213 Anthracite Avenue West Pittston, PA 16 calls from 10/08/94 to 05/12/96 = $ 6.78 c. Joseph Cella - (717) 655 -4279 509 Delaware Avenue (717) 655 -9033 (717) 654 -8652 (717) 693 -5835 (717) 693 -4472 (717) 655 -4279 (717) 655 -6354 (717) 655 -5049 (717) 822 -0995 (717) 883 -6186 or 800- 541 -5337 (717) 654 -8886 (717) 655 -0813 (717) 693 -1447 $ 3.00 $ 14.75 • $ 86.96 • $104.71 DeRoberto, 96- 047 -C2 Page 6 West Pittston, PA 8 calls from 08/24/94 to 06/02/96 = $ 3.16 d. Ronald Rome - (717) 655 -6354 1011 Wyoming Avenue Exeter, PA 15 calls from 10/03/94 to 04/13/96 = $ 7.88 e. Thomas DeRoberto - (717) 655 -5049 102 Jean Street Exeter, PA 16 calls from 08/11/94 to 06/22/95 = $ 4.75 f. Lispi Towing Service (717) 822 -0995 4 calls from 12/10/94 to 02/24/95 = $ 1.86 Suburban Propane Answering Service (717) 883 -6186 and 800 - 541 -5337 5 calls from 10/08/94 to 11/07/96 = $ 4.43 h. Thom Durken (717) 654 -8886 4 calls from 04/01/95 to 01/05/96 = $ 4.40 i. Daniel DeRoberto's Home (717) 655 -9033 73 calls from 07/31/94 to 12/31/94 = $ 17.33 61 calls from 01/01/95 to 12/30/95 = $ 25.61 22 calls from 01/01/96 to 05/22/96 = $ 13.70 TOTAL = $ 56.64 J• Employer of DeRoberto's spouse (717) 654 -8652 16 calls from 06/16/94 to 05/17/96 = $ 7.06 k. Daniel DeRoberto, Jr. (717) 693 -5835 17 calls from 09/19/94 to 05/09/96 = $ 9.38 I. Wagner Fuel Company (717) 655 -0813 10 calls from 01/20/96 to 01/21/96 = $ 6.80 DeRoberto, 96- 047 -C2 Page 7 m. Unlisted Exeter Telephone Number (717) 693 -1447 2 calls on 11/07/95 and 05/20/96 TOTAL TO ALL NUMBERS 20. DeRoberto utilized the borough provided cellular telephone to place $225.65 in personal calls. 21. As a councilman, DeRoberto participated in payment of cellular telephone bills, which included the calls of a personal nature. (See Findings No. 18 and 19). a. DeRoberto regularly voted with the majority of council to approve bill listings which included cellular telephone bills. b. Bill listings were approved unanimously. 22. DeRoberto voted to approve bill listings during council meetings on the following dates: 1994 June 7, 1994 July 5, 1994 August 9, 1994 September 7, 1994 October 4, 1994 November 1, 1994 December 6, 1994 February 7, 1995 March 7, 1995 April 4, 1995 May 2, 1995 June 4, 1996 23. In his capacity as Council President, DeRoberto signed borough checks, which included payments made for cellular telephone service. Check Check Date Number 07/14/94 5437 08/31/94 5567 09/16/94 5620 10/19/94 5704 11/10/94 5742 12/16/94 5817 1995 Amount of Check $ 41.90 $ 55.35 $ 43.30 $ 95.50 $1 13.96 $147.53 01/16/95 5837 $107.44 $ 7.80 = $225.65 June 6, 1995 July 3, 1996 August 1, 1995 September 5, 1995 October 3, 1995 November 14, 1995 December 5, 1995 February 6, 1996 March 3, 1996 April 2, 1996 May 7, 1996 July 2, 1996 Cellular Phone Provider Cellular Plus Cellular Plus Cellular Plus Cellular Plus Cellular Plus Cellular Plus Wireless One DeRoberto, 96- 047 -C2 Page 8 02/17/95 5954 03/15/95 5975 04/19/95 6080 05/19/95 6218 06/19/95 6279 07/07/95 6299 07/18/95 6342 08/02/95 6376 08/17/95 6412 09/14/95 6450 09/15/95 6488 10/19/95 6565 11/29/95 6610 1996 01/17/96 6732 02/13/95 1047 03/07/96 1106 04/04/96 1 118 05/02/95 1 167 06/12/96 1251 07/10/96 1331 $110.77 $119.28 $125.18 $180.28 $164.82 $131.62 $101.76 $ 76.68 $ 68.66 $ 76.68 $ 66.41 $ 49.89 $155.26 $293.93 $ 74.95 $272.63 $291.51 $109.76 $158.68 $1 17.50 Wireless One Wireless One Wireless One Wireless One Wireless One Cellular One Wireless One Cellular One Wireless One Cellular One Wireless One Wireless One Cellular One Cellular One Cellular One Cellular One Cellular One Cellular One Cellular One Cellular One 24. DeRoberto received a private pecuniary benefit as follows: a. $ 31.20 - Use of borough employees. (Finding No. 25). b. $225.65 - Personal use of cellular telephone. $256.85 - TOTAL 25. DeRoberto voluntarily agreed to repay the borough for employee wages and personal telephone calls. 1I1. DISCUSSION: At all times relevant to this matter, the Respondent, Daniel DeRoberto, hereinafter DeRoberto, 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, at seq. The issue before us is whether DeRoberto, as President of Exeter Borough Council, Luzerne County, violated Section 3(a) of Ethics Law (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit of himself by using a borough provided cellular telephone for his personal use and when he used borough employees and equipment to provide towing services for his work vehicle. 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" is defined under Act 9 of 1989 as follows: DeRoberto, 96- 047 -C2 Page 9 65 P.S. §402. 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. DeRoberto has served as an Exeter Borough Councilman since 1990 and as Council President since 1991. In a private capacity, he is employed by Suburban Propane Company as a truck driver. In June, 1994, DeRoberto as Council President requested that he be given a cellular telephone for official Borough business use so that he would be more accessible. Although the majority of Council Members had no objection to DeRoberto's use of a cellular phone for official business, there was no authorization by a Council vote. The Borough then provided DeRoberto a cellular phone which he used from January, 1994 through January, 1996. On January 17, 1996, DeRoberto used the Borough- provided cellular phone to contact the Borough Street Department. While DeRoberto was working privately as a truck driver, his truck became stuck on an icy road. Since DeRoberto was unable to get other emergency road services, he contacted the Street Department employees to help him move his truck. Two Borough employees who were completing their shift took the Borough truck to the site. The situation was considered an emergency given the truck's location on an icy hill. The Borough employees were paid for a total of three hours at a rate of time and one -half for the overtime. The financial gain realized by DeRoberto as a result of the labor of the two Borough employees in freeing his vehicle was $31.20. DeRoberto also utilized the Borough - provided cellular phone to make numerous personal calls. Such calls were made to DeRoberto's business, to his family and to other persons. The specifics as to the utilization of the Borough cellular phone by DeRoberto for non - official business is outlined in Fact Findings 18, 19. The financial gain realized by DeRoberto for the non - official use of the Borough - provided cellular phone totaled $225.65. DeRoberto participated in the unanimous action of Borough Council to approve bill listings which include the payment for the Borough - provided cellular telephone for DeRoberto, 96- 047 -C2 Page 10 himself. In addition, DeRoberto as Council President signed Borough checks which included payments for the cellular telephone service. Of the total financial gain of $256.85 DeRoberto received as to his utilization of Borough employees and the Borough cellular telephone for non - official purposes, he voluntarily agreed to repay the Borough for the employee wages and personal telephone calls. Having summarized the above relevant facts, we must now determine whether the actions of DeRoberto 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 /public 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 the use of the Borough employees by DeRoberto to assist him as to his business vehicle, such action by DeRoberto was a use of authority of office on his part. But for the fact that he was a Council Member, DeRoberto could not direct the two Borough employees to assist him when his private business truck became stuck on the ice. That use of authority of office resulted in a pecuniary benefit to DeRoberto to the extent that he did not have any out -of- pocket expenses to extricate his business vehicle on the icy road. The pecuniary benefit was private because there is no provision in law which authorizes a Borough Councilman to use Borough employees for private business purposes or personal purposes. Lastly, the private pecuniary benefit enured to DeRoberto himself. Such action constituted a violation of Section 3(a) of Act 9 of 1989. Rakowsky, Order No. 744. We also find a violation of Section 3(a) of Act 9 of 1989 regarding the use of the Borough - provided cellular phone by DeRoberto for non - Borough matters. There was a use of authority of office on the part of DeRoberto in this case by requesting Council to provide him with the Borough -paid cellular phone. In addition, there was a use of authority of office by DeRoberto in participating in approving the bill lists which included the cellular phone payments as well as signing the checks payable to the cellular telephone service. The use of authority of office on the part of DeRoberto resulted in a pecuniary benefit to him consisting of the cellular telephone service which he used for private purposes at Borough expense. The pecuniary benefit was private because there is no provision in law which authorizes the use of a government -paid cellular telephone for non - official uses. The private pecuniary benefit enured once again to DeRoberto. Hence, DeRoberto violated Section 3(a) of Act 9 of 1989 when he used the Borough -paid cellular telephone for business or private uses. See, Hafer, Opinion No. 90 -013. The private pecuniary benefit received by DeRoberto as to the use of Borough employees was $31.20 and as to the use of the cellular telephone was $225.65, thereby making a total financial gain of $256.85. 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 /public employee has obtained a financial gain in violation of the Ethics Law. In this case, since it has been determined that the financial gain amounted to $256.85, restitution of $256.85 by DeRoberto is warranted. Therefore, DeRoberto is directed to make payment of $256.85 in a timely DeRoberto, 96- 047 -C2 Page 11 manner through this Commission to Exeter Borough. We note that DeRoberto has voluntarily agreed to make repayment to the Borough. 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, we note that 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. Daniel DeRoberto, as President of Exeter Borough Council, Luzerne County, is a public official subject to the provisions of Act 9 of 1989. 2. DeRoberto violated Section 3(a) when he used Borough employees to provide towing or assistance for his private work vehicle. 3. DeRoberto violated Section 3(a) when he used a Borough provided cellular telephone for personal purposes. In Re: Daniel DeRoberto ORDER NO. 1057 File Docket: 96- 047 -C2 Date Decided: 8/14/97 Date Mailed: 8/26/97 1. Daniel DeRoberto, as President of Exeter Borough Council, Luzerne County, violated Section 3(a) when he used Borough employees to provide towing or assistance for his private work vehicle. 2. DeRoberto violated Section 3(a) when he used a Borough provided cellular telephone for personal purposes. 3. As per the Consent Agreement of the parties, DeRoberto is directed to make payment of $256.85 in a timely manner through this Commission to Exeter Borough. 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. BY THE COMMISSION, eitti.w6 &L./ DANEEN E. REESE, CHAIR