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HomeMy WebLinkAbout1084 DarraghIn Re: Jeffrey Darragh STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 • • • File Docket: X -ref: Date Decided: Date Mailed: 96- 036 -C2 Order No. 1084 7/23/98 8/7/98 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Monsignor Joseph G. Quinn Boyd E. Wolff Julius Uehlein Louis W. Fryman 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 sea., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. 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 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. Darragh, 96- 036 -C2 Page 2 1. ALLEGATION: That Jeffrey Darragh, a public official in his capacity as Councilman for Penn Borough, Westmoreland County, violated Section 3(a) of the Ethics Law when he used the authority of his position for a private pecuniary benefit for himself by submitting hours for compensation which were not worked; obtaining vacation pay which was not approved; and by approving payments to himself for such compensation and pay. II. FINDINGS: 1. Jeffrey Darragh has served as a Council Member for Penn Borough, Westmoreland County, from 1983 through 1995, and since May, 1996. Darragh was first appointed in May 9, 1983, and subsequently elected and served through December, 1995. b. Darragh was appointed to fill a vacant position in May, 1996. 2. Darragh served as Council President during the years 1992, 1993, 1994, and 1995. a. Darragh served on the Health and Sanitation Committee in 1992 and 1993. 3. Penn Borough's Annual Budget during the years that Darragh served as Council President was approximately $105,000.00. 4. Darragh was employed as a road worker for the borough from approximately 1988 through August, 1995, when he resigned. a. As a road worker, Darragh was required to report to the Chairman of the Streets Committee. b. The Road Department consisted of Darragh and one other employee. 5. Penn Borough pay checks were issued to the road employees bi- weekly. a. Each pay check was equal to two weeks pay. b. Employees worked forty hours per week, eight hours per day, Monday through Friday. 6. Darragh was paid hourly, working a forty (40) hour work week, with hourly rates as follows: 1993 - $6.50 1994 - $7.00 1995 - $7.50 a. 7. In 1994, Darragh received sixteen (16) paychecks as follows: Check Number Amount 8324 $424.04 8345 $424.04 8350 $424.04 Description 1st Pay Check -2 Wks end 04/01/94 Pay Check Pay Check Date 04/01/94 04/15/94 04/29/94 Darragh, 96- 036 -C2 Page 3 8366 8375 8392 8394 8399 8404 8422 8435 8441 8459 8460 8466 8476 Check Number 8610 8612 8614 8634 8642 8666 8674 8679 8689 8700 8714 8719 8726 8727 $424.04 $424.04 $424.04 $424.04 $212.02 $424.04 $424.04 $424.04 $424.04 $424.04 $424.04 $424.04 $636.06 8. In 1995, Darragh received fourteen (14) pay checks, as follows: mo t $104.08 $453.40 $453.40 $453.40 $453.40 $453.40 $453.40 $453.40 $453.40 $453.40 $453.40 $453.40 $226.70 Pay Check Pay Check Pay Check 2 Wks Vacation 1 Wk Vacation Pay Check Pay Check Pay Check PC 2 Wks Vacation PC Pay Check 2 Wks Pay Description Pay Check Pay Check - Vacation Pay Check Pay Check Pay Check Pay Check Pay Check Pay Check Pay Check Unknown Pay Check Pay Check Pay Check Pay Check 05/11/94 05/27/94 06/08/94 06/08/94 06/15/94 06/28/94 07/08/94 07/20/94 08/03/94 08/10/94 08/17/94 08/31/94 09/14/94 Date 04/14/95 04/14/95 04/27/95 05/12/95 05/26/95 06/08/95 06/22/95 07/06/95 07/20/95 08/03/95 08/07/95 08/31/95 09/12/95 09/12/95 9. The minutes of council meetings do not include any other action to increase Darragh's pay rate between April 6, 1993, and September, 1995, when Darragh stopped working for the borough. 10. Darragh's pay rate was increased in 1994 and 1995 in the amount of $.50 per hour, each year. a. Darragh received salary increases totaling $500.00 in 1994 ($.50 /hr x 40 hrs x 25 wks) and $448.00 in 1995 ($.50 /hr x 40 hrs x 25 wks). b. Borough minutes and records do not reveal any action by Darragh to recuse or remove himself from the process which led to his receiving the hourly wage increases in 1994 and 1995. 11. Darragh signed all pay checks issued to himself between 1993, 1994 and 1995. 12. Allegations were raised concerning Darragh's receipt of additional pay during his spring /summer roadwork. a. Darragh asserts that such pay was deferred compensation for winter snow plowing he performed for the borough. Darragh, 96- 036 -C2 Page 4 b. Darragh asserts that this deferred compensation was a standard practice of the borough, and had been done for some time. 13. Various borough officials were interviewed concerning the existence of the practice of deferring winter compensation until summertime. a. While there were contradictory recollections on the part of those officials, a number of them did confirm that the borough deferred paying employees for winter snow plowing until the summertime. 14. No borough records could be found to confirm or refute Darragh's assertions about this compensation issue. 15. The McKee Estate is a trust established to assist residents of Penn Borough with medical expenses not covered by insurance. a. The estate is administered by PNC Bank. b. Penn Borough's only obligation in regard to the Estate is to provide an updated list of eligible residents twice a year. 16. In January, 1993, Suzanne Martin was asked by Darragh to update the list of eligible residents for the McKee Estate Trust Fund. a. Martin prepared the list on the computer with information supplied by Darragh. b. Martin claims to have received $50.00 from Darragh when she handed him the completed list. 17. Darragh was paid $100.00 from Penn Borough funds on January 28, 1993, as reimbursement for money he was to have paid to Suzanne Martin to type a list for the McKee Estate. III. DISCUSSION: At all times relevant to this matter, the Respondent, Jeffrey Darragh, hereinafter Darragh, 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, The allegations are that Darragh, as a Councilman for Penn Borough, Westmoreland County, violated Section 3(a) of the Ethics Law when he submitted hours for compensation which were not worked; obtained vacation pay which was not approved; and approved payments to himself for such compensation and pay. 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). 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. Darragh, 96- 036 -C2 Page 5 The term "conflict of interest" is defined under Act 9 of 1989 as follows: 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. Darragh served as a Penn Borough Council Member between 1983 and 1985 and since May 1996. In addition, Darragh was employed as a Borough road worker from 1988 through August, 1995, when he resigned. As a road worker, Darragh was paid for a 40 -hour week at the rate of $6.50 per hour in 1993, $7.00 per hour in 1994, and $7.50 per hour in 1995. As to the raises received by Darragh in 1994 and 1995, the Borough minutes and records do not reflect any action by Darragh to recuse himself from those processes. Darragh also signed all of the paychecks which he received from 1993 through 1995 as a Borough employee. When allegations arose concerning Darragh's receipt of additional compensation for spring /summer road work, Darragh asserted that such pay was deferred from winter snow plowing he had performed for the Borough. Although there were some contradictory recollections, a number of the officials confirmed that the Borough deferred paying employees for winter snow plowing until the summertime. There are no Borough documents available which can resolve this compensation issue. Separate and apart from the above, Darragh had involvement with the McKee Estate Trust Fund, which is designed to assist Penn Borough residents with medical expenses that are not covered by insurance. Penn Borough on a semi- annual basis provides an updated list of eligible residents to the bank which administers the Trust Fund. Darragh asked Suzanne Martin in January, 1993 to update the list of eligible residents for the Trust Fund. After Martin completed the project, she asserts that Darragh gave her $50 for the work. Darragh was paid $100 from Penn Borough funds as reimbursement for the money he paid Martin. Having summarized the above relevant facts, we must now determine whether the actions of Jeffrey Darragh violated Section 3(a) of Act 9 of 1989. In applying the above provisions of Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public Darragh, 96- 036 -C2 Page 6 office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, a member of his immediate family, or a business with which he or a member of his immediate family is associated. The first issue which we will address concerns the increase in Darragh's wages and the action he took regarding the receipt of such increases. There was a use of authority of office by Darragh as to his participation in the process which raised his salary as a road worker by $.50 per hour in 1994 and 1995. In this regard the Borough records do not indicate any action by Darragh to recuse himself from the processes. Darragh also signed all checks he received as a Borough employee. The use of authority of office resulted in a private pecuniary benefit consisting of the $.50 per hour raises in those two years. Lastly, the private pecuniary benefit inured to Darragh in his capacity as a road worker employed by the Borough. Given the above and other circumstances in this case as reflected in the stipulation of findings, we find a technical violation when Darragh used the authority of office by not abstaining from Borough Council actions regarding wage increases of $.50 per hour in the years 1994 and 1995 and by taking action to receive such increases. O'Donnell, Order 1044. Turning to the issue of the compensation and vacation pay received by Darragh, we find no violation of Section 3(a) of Act 9 of 1989. Darragh asserts that the compensation was deferred from winter snow plowing he had performed for the Borough. Despite some contradictory recollections, a number of Borough officials recalled that the Borough deferred paying employees for winter snow plowing until summertime. Based upon the facts before us, there is not clear and convincing proof for the finding of a violation. Accordingly, Darragh did not violate Section 3(a) of Act 9 of 1989 regarding the compensation and vacation pay issues based upon an insufficiency of evidence. See, Latch, Order 823. As to the matter of the McKee Estate Trust Fund, the issue is whether Darragh obtained a financial gain of $50. Martin claims she was paid $50.00 by Darragh for updating the eligibility list for the Trust Fund. Darragh was reimbursed $100.00 from the Borough for his payment to Martin. Therefore, at most, Darragh may have received $50.00 as to this particular transaction. There is an exclusion from the definition of conflict as to matters that are de minimis. See, ' Schweinsberg, Order 900. Based upon our review of the record in this case, we find no violation as to Darragh's actions which have at most a de minimis economic impact. Per the negotiated agreement of the parties, Darragh is directed to make payment to Penn Borough through this Commission in the total amount of $250.00 within 30 days of the mailing of this Order. 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, 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. Darragh, 96- 036 -C2 Page 7 IV. CONCLUSIONS OF LAW: 1. Jeffrey Darragh, as a Councilman for Penn Borough in Westmoreland County, is a public official subject to the provisions of Act 9 of 1989. 2. A technical violation of Section 3(a) of the Ethics Law occurred when Darragh did not abstain from actions relating to wage increases of $.50 per hour received by Darragh as a road employee in the years 1994 and 1995 and when Darragh took action to receive such increases. 3. Darragh did not violate Section 3(a) of the Ethics Law relating to the sum of $50.00 that is unaccounted for concerning the McKee Estate Trust Fund, as such is de minimis. 4. Darragh did not violate Section 3(a) of the Ethics Law regarding issues of compensation and vacation pay received by him based upon an insufficiency of evidence. In Re: Darragh File Docket: 96- 036 -C2 Date Decided: 7/23/98 Date Mailed: 8/7/98 ORDER NO. 1084 1. Jeffrey Darragh, as a Councilman for Penn Borough in Westmoreland County technically violated Section 3(a) of the Ethics Law when he did not abstain from actions relating to wage increases of $.50 per hour received by Darragh as a road employee in the years 1994 and 1995 and when Darragh took action to receive such increases. 2. Darragh did not violate Section 3(a) of the Ethics Law relating to the sum of $50.00 that is unaccounted for concerning the McKee Estate Trust Fund, as such is de minimis. 3. Darragh did not violate Section 3(a) of the Ethics Law regarding issues of compensation and vacation pay received by him based upon an insufficiency of evidence. 4. As per the Consent Agreement, Darragh is directed to make payment of $250.00 through this Commission to Penn Borough within 30 days of the issuance of this Order. 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, 66 J DANEEN E. REESE, CHAIR