HomeMy WebLinkAbout1086 KannenbergIn Re: Donald Kannenberg
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
Allan M. Kluger
Monsignor Joseph G. Quinn
Boyd E. Wolff
Julius Uehlein
Louis W. Fryman
97- 005 -C2
Order No. 1086
7/23/98
8/7/98
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 §g.ac ., 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.
Kannenberq, 97- 005 -C2
July 27, 1998
Page 2
I. ALLEGATION: That Donald Kannenberg, a public official /public employee
in his capacity as a Supervisor for Apolacon Township, Susquehanna County, violated
Section 3(a) of the State Ethics Act (Act 9 of 1989) when he used the authority of his
office fora private pecuniary benefit by utilizing township equipment and workers
assigned to the township by Federal Emergency Management Agency to complete
work on his private property including, but not limited to demolishing a barn and
cutting and hauling wood to his property.
II. FINDINGS:
1. Donald Kannenberg has served as a supervisor for Apolacon Township,
Susquehanna County since January, 1988.
a. Kannenberg has been appointed Chairman and Vice Chairman of
the Board of Supervisors at various times since serving as a
supervisor.
2. Kannenberg has been employed by the township since January, 1988,
as either a roadmaster or assistant roadmaster.
3. In January, 1996, Apolacon Township experienced significant road
flooding and damage due to severe weather conditions.
a. Flood damage as a result of severe rain and snow pack melt made
roads impassable to school buses, police and emergency vehicles.
4. Susquehanna County was declared a disaster area by Governor Ridge in
January, 1996, as a result of the flooding.
a. The county was also a Presidentially declared disaster area.
b. Apolacon Township was included as part of the disaster area.
5. On February 7, 1996, the United States Department of Labor and
Industry made available $7,000,000 in grant money to 53 counties in the
Commonwealth of Pennsylvania for Disaster Dislocated Workers.
Grant money was made available for the Disaster Dislocated
Worker Project under the Job Training Partnership Act.
The purpose of the project was to assist workers dislocated due
to the devastation caused by the flooding.
Susquehanna County was one of the counties designated to
receive grant funds.
6. The Disaster Dislocated Worker Project was to provide temporary
employment to assist in the flood recovery, and to assist in the
permanent re- employment of the workers.
7. The Disaster Dislocated Worker Project outline described the nature of
the program as follows:
a.
b.
c.
Kannenberg, 97- 005 -C2
July 27, 1998
Page 3
a. To provide temporary jobs to assist in the cleanup, repair and
reconstruction of public and certain private non - profit property.
b. All work must link directly to the January flood disaster -- normal
maintenance work is not eligible.
c. Jobs may include (but are not limited to) clerical, cleaning up
public property (including road and waterway debris), repairing and
rebuilding public roads, lands, buildings, and facilities and providing
necessary public services.
d. Work must be restricted to public property and to the property of
certain private non - profit entities only.
e. Workers must work under the supervision and with personnel of
the applying entity.
f. Workers will be paid and insured (workers compensation) by the
Trehab Center.
g. Initial applications are due ASAP.
8. The Northern Tier Regional Planning and Development Commission
administered the Disaster Dislocated Worker Project for the counties of
Bradford, Sullivan, Susquehanna, Tioga and Wyoming.
a. The Trehab Center was designated to serve as the subcontractor
for the project.
1. The Trehab Center is a community action agency which
assists low income persons with anti - poverty programs.
b. The Trehab Center was responsible for developing and organizing
the project for the five county area.
9. On April 1, 1996, Apolacon Township filed four initial applications for
workers under the Disaster Dislocated Worker Project.
a. Donald Kannenberg was identified as the township contact person.
b. The applications were prepared by Kannenberg.
10. The type of work requested by Kannenberg for Apolacon Township was
as follows:
a. Cutting and removal of trees and brush that had tipped into the
streams and road ditches.
b. Removal of large boulders from roadways when rebuilding flood
damaged roads and ditches.
c. Clerical work which included helping the township secretary with
Pennsylvania Emergency Manage[ment] Agency and Federal
Emergency Management Agency forms, filing and record keeping.
Kannenbera, 97- 005 -C2
July 27, 1998
Page 4
d. Replace head walls lost in the flood, including loading stone from
local quarries.
11. On May 21, 1996, a worksite agreement was entered into by Apolacon
Township and the Trehab Center.
a. The agreement was signed by Donald Kannenberg in his capacity
as an Apolacon Township Supervisor, and Gary Wilcox as the
Project Coordinator for the Trehab Center.
12. The worksite agreement between Apolacon Township and the Trehab
Center placed responsibilities on the township as follows:
a. To provide temporary jobs to assist in the cleanup, repair and
reconstruction of public property and certain private non - profit
property.
b. To ensure that all work links directly to the flood disaster of
January, 1996.
c. To restrict all work to public property or, with prior approval of the
Project Contractor, to the property of certain private non - profit
entities.
d. To ensure that workers work under the supervision and in
conjunction with personnel of the Utilizing Entity.
e. To provide all workers with working conditions which, according
to generally accepted criteria, are safe and sanitary.
f. To provide sufficient meaningful work, whenever possible, to
occupy all workers until released to the Project Contractor.
To ensure the proper use of safety equipment and procedures as
required and as appropriate.
h. To verify the accuracy of the daily time and activity reports of
each worker by signing each such report.
i. To assure that the workers report only time worked and that
workers do not report time for holidays, sick leave, vacation, lunch
or travel to or from the Utilizing Entity. All postings to be located
at Work Bay Garage. Each employee to meet at this location each
day to sign -in and out (Daily Time & Activity Report).
To cooperate with project staff and monitors and to take
corrective action on any deficiency which may be noted.
k. To provide, during inclement weather and as feasible, alternative
work sites and /or activities for workers who are primarily assigned
to outdoor sites.
g.
j.
Kannenberq, 97- 005 -C2
July 27, 1998
Page 5
I. To provide adequate supervision /direction and assurance that all
supervisors are knowledgeable of this program and conditions of
this agreement.
m. To assure that no work activity involves political campaigning or
the influencing of voters.
n. To provide the Project Contractor with maximum advance notice
of anticipated completion of the job and /or release of workers.
o. To notify the Project Contractor of any problem or condition which
may adversely affect the success of the Project.
Assurance of sufficient equipment and materials necessary to
perform the required task (excluding boots, gloves and other safety
equipment to be provided through the Trehab Center).
Assurance of compliance with the Pennsylvania Worker and
Community Right to Know Act.
13. The Trehab Center assigned three employees to Apolacon Township.
P.
q.
a. Tiffany Bacorn
b. Carl Williams
c. Mike Lane
14. These employees were hired on a temporary basis for
approximately six months.
a. Each employee was paid $7.50 per hour and $
travel to the worksite.
positions to last
.26 per mile for
15. Trehab Center Project Coordinator Gary Wilcox visited Apolacon
township once every two weeks to give the Trehab Center employees
their pay checks and to determine if there were any problems.
16. The Trehab employees' main function in Apolacon Township was the
removal of debris from the roadways throughout the township.
17. The Trehab employees were authorized to do rainy day fill in jobs as part
of the agreement between the township and the Trehab Center.
a. The rainy day jobs included working on township equipment or
working on the township building.
b. The employees were not permitted to work on private property
pursuant to the terms of the worksite agreement.
18. During the Apolacon Township Supervisors' meeting of April 9, 1996,
discussions took place regarding the insulation of the township building
which- was built in 1995.
Kannenbera, 97- 005 -C2
July 27, 1998
Page 6
a. The township building was not totally insulated because the
township did not have sufficient funding during the construction
phase.
b. Kannenberg expressed a willingness to donate insulation from his
veal barn to the township building.
1. Kannenberg owned a farm and had a barn destroyed during
the winter of 1994 due to heavy snowfalls.
c. Kannenberg requested to use the employees from the Trehab
Center to pick up the insulation from his barn and install it at the
township building.
19. During the meeting of April 9, 1996, Kannenberg stated that by using
Trehab employees to remove the insulation from his barn, he would save
money by not having to pay someone to haul the insulation to a landfill.
20. Kannenberg never asked representatives of the Trehab Center if it was
permitted to use the Trehab employees to remove the insulation from
Kannenberg's veal barn.
a. Such action would have violated the work site agreement. (See
Finding No. 22(c)).
21. The Trehab employees removed the insulation from Kannenberg's barn
and installed it at the township building from October 2, 1996, through
October 4, 1996.
22. The time sheets submitted by the Trehab employees for the week
September 30, 1996, through October 4, 1996, confirmed hours worked
regarding the insulation project.
23. Trehab employees completed and signed time sheets while assigned to
Apolacon Township.
a. The time sheets were approved by Donald Kannenberg in his
capacity as township supervisor and Gary Wilcox as the project
coordinator.
24. The Trehab employees were directed to remove the insulation from
Kannenberg's barn and install it at the township building by Donald
Kannenberg.
25. Trehab Center Coordinator Gary Wilcox was notified on October 21,
1996, that Trehab employees were used to remove insulation from
Kannenberg's barn.
a. Wilcox conducted an inquiry to determine the number of hours
Trehab employees were utilized to remove insulation from
Kannenberg's barn.
Kannenberg, 97- 005 -C2
July 27, 1998
Page 7
26. Based on his inquiry, Gary Wilcox determined that Trehab employees
worked sixty (60) hours at removing insulation from Kannenberg's barn
and installing it at the township garage.
a. Wilcox concluded that forty -five (45) of the sixty (60) hours were
used to remove the insulation from Kannenberg's barn.
b. Wilcox determined the remaining fifteen (15) hours used to install
the insulation at the township building was justified under the
terms of the project.
27. On December 6, 1996, Wilcox sent a memorandum to Trehab Center
Executive Director Dennis Phelps, recommending to bill Apolacon
Township for the 45 hours of labor spent in removing and transporting
insulation from Kannenberg's veal barn to the Apolacon Township
Municipal Building.
28. On December 12, 1996, Trehab Center Attorney L. Carter Anderson sent
a letter to Apolacon Township Solicitor Charles Watkins requesting
reimbursement in the amount of $405.51 for the wages paid to the
Trehab Employees for the work that was completed at Kannenberg's
barn.
29. The amount requested for reimbursement by the Trehab Center was
based on the following calculations:
45 hours at $7.50 /hour
FICA at $7.65%
Workers Comp at 12.5%
TOTAL
$337.50
$ 25.82
$ 42.19
$405.51
30. During the Apolacon Township Supervisors Meeting of January 6, 1997,
the supervisors unanimously approved to pay all bills which included a
payment made to the Trehab Center in the amount of $405.51 for work
that was done on Kannenberg's barn.
a. Kannenberg was present for the meeting and participated in the
process to approve the payment of bills.
31. Apolacon Township Supervisors Check No. 1777 was paid to the order
of the Trehab Center on January 7, 1997, in the amount of $405.51 for
reimbursement of the work completed at Kannenberg's barn.
32. During the Apolacon Township Supervisors Meeting for January 6, 1997,
a motion was made by Supervisor Roger Morrison and seconded by
James Homan to give Supervisor Kannenberg until the February 5, 1996,
meeting to reimburse the township $405.51.
a. The motion passed by a 2 to 1 vote with Kannenberg voting "no."
33. Kannenberg refused to reimburse the township for the work that was
completed at his barn and gave the following reasons during the January
6, 1997, meeting:
Kannenbera, 97- 005 -C2
July 27, 1998
Page 8
a. Supervisors were aware they were getting insulation from his barn
as it was discussed at the monthly meetings in February, April and
September.
b. When Gary Wilcox of Trehab interviewed the Trehab workers, they
told him more time was spent at the township building than at his
barn.
34. Prior to the insulation being removed from Mr. Kannenberg's barn,
Apolacon Township had authorized twelve hundred dollars ($1,200.00)
to be expended to insulate the township building.
35. Said insulation was never purchased.
36. Donald Kannenberg donated the insulation from his barn to the township
so that the township did not have to expend money for the purchase of
the said insulation.
37. The township's dump truck was used to transport the insulation from
Kannenberg's barn to the township municipal building.
a. There was approximately three truck Toads of insulation hauled
from the barn to the township building.
b. The distance from Kannenberg's barn to the township building is
1.5 miles.
c. The total amount of time the township truck was used to haul the
insulation was 5 hours.
38. In 1996 the township's burden rate for a dump truck was $44 per hour
plus operator.
39. The costs incurred by the township for the use of township equipment
while removing insulation from Kannenberg's barn was as follows:
a. Dump Truck ($44 per hr) x 5 hours = $220.00
40. Trehab Center employees were utilized to cut the brush and wood along
the sides of the roads.
a. The brush and wood were taken to Kannenberg's farm.
b. The brush was burned because there was a concern with
poisonous leaves.
c. The wood taken to Kannenberg's farm totaled 3 wheel barrel
loads.
41. Kannenberg did not direct the Trehab workers to transport wood to his
farm.
a. The Trehab workers believed they were doing Kannenberg a favor
by giving him the wood.
Kannenberq, 97- 005 -C2
July 27, 1998
Page 9
I11. DISCUSSION:
At all times relevant to this matter, the Respondent, Donald Kannenberg,
hereinafter Kannenberg, 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, gt seq.
The allegations are that Kannenberg, as a Supervisor for Apolacon Township,
Susquehanna County, violated Section 3(a) of the State Ethics Act (Act 9 of 1989)
when he utilized township equipment and workers assigned to the township by Federal
Emergency Management Agency to complete work on his private property including,
but not limited to removing and hauling insulation from a barn and cutting and hauling
wood to his property.
65 P.S. §402.
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, 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:
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.
Kannenberg has served as a Supervisor in Apolacon Township since January
1988 wherein he has also been employed as a roadmaster or assistant roadmaster.
In January, 1996 the Township experienced major road flooding and damage.
Both the Governor and President declared Susquehanna County a disaster area. The
U.S. Department of Labor and Industry then made grant funds available for the
Kannenberq, 97- 005 -C2
July 27, 1998
Page 10
Disaster Dislocated Worker Project ( "Project ") for the purpose of providing temporary
employment to assist in flood recovery as well as in the permanent re- employment of
workers. The Project outlined stringent requirements for receiving grants including a
specific limitation that any work be restricted to public property or certain non - profit
entities. The Norther Tier Regional Planning and Development Commission was
designated to administer the Project for various counties including Susquehanna. The
Trehab Center, a community action agency, was designated to be the local
subcontractor.
On April 1, 1996 Kannenberg prepared and filed on behalf of the Township four
applications for workers under the Project with Kannenberg identified as the Township
contact person. As per the applications, the work requested was listed as the cutting
and removal of trees and brush, the removal of large boulders from roadways, clerical
work regarding the Pennsylvania and Federal Emergency Management Agencies forms,
and replacement of headwalls that were lost in the flood.
On May 21, 1996, the Trehab Center and the Township entered into a worksite
agreement with Kannenberg signing on behalf of the Township. That agreement placed
many responsibilities upon the Township. See, Fact Finding 12. As part of the
agreement, the Trehab Center assigned three employees to Apolacon Township. The
main job function of the three employees was the removal of debris from the Township
roadways. On rainy days, the three employees were authorized to work on Township
equipment or within the Township building; however, the employees were not
permitted to work on private property.
A discussion took place at the April 1996 meeting of the Apolacon Township
Supervisors regarding insulation for the Township building. Since the Township
building was not totally insulated, Kannenberg offered to donate insulation from his
barn which had been destroyed in a 1994 winter storm. Kannenberg requested the use
of the three Project employees to pick up the insulation from his barn for installation
in the Township building, noting that he would save money by not having to pay
someone to haul the insulation to a landfill.
Kannenberg did not inquire of the representatives of the Trehab Center if its
employees were permitted to remove insulation from his barn. Such action was
prohibited as part of the worksite agreement. Kannenberg directed the Trehab
employees to remove the insulation from his barn and install it in the Township
building, which occurred from October 2 through October 4, 1996. A Township dump
truck was used to transport the insulation from Kannenberg's barn to the Township
building. The Trehab employees completed and signed time sheets which were
approved by Kannenberg as the Township Supervisor who coordinated the Project.
After the Trehab Center Coordinator was notified that its employees were used
to remove insulation from Kannenberg's barn, the Coordinator conducted an inquiry
to determine the number of hours that Trehab employees were used. The Trehab
Coordinator determined that the employees were utilized on the insulation project for
60 hours with 45 hours being spent on the removal and transport of the insulation
from Kannenberg's barn and 15 hours on the installation of the insulation in the
Township building. The Trehab Coordinator then sent a memo to the Executive
Director recommending that the Township be billed for the 45 hours of labor spent as
to the removal and transport of the insulation from Kannenberg's barn. A letter was
sent on December 12, 1996 from the Trehab Center's attorney to the Township
Solicitor requesting reimbursement in the amount of $405.51 for wages paid to the
Trehab employees.
Kannenberg, 97- 005 -C2
July 27, 1998
Page 11
At a Supervisors' Meeting in January 1997, a motion passed unanimously, with
Kannenberg's participation, to approve all bills which included the payment to the
Trehab Center in the amount of $405.51 for the work on Kannenberg's barn. At that
meeting, a motion was made for Kannenberg to reimburse the Township in the amount
of $405.51 which motion passed 2 -0 with Kannenberg voting no. In refusing to
reimburse the Township for the work that was done in removing the insulation,
Kannenberg stated that the Supervisors knew that they were getting the insulation
from his barn and that the Trehab workers indicated to him that more time was spent
at the Township building than at the barn.
The Township Board had previously authorized $1200 to insulate the Township
building but the insulation was never purchased. Kannenberg donated the insulation
from his barn so that the Township would not have expend money for the purchase
of insulation.
Lastly, the Trehab Center employees were utilized to cut brush and wood along
the sides of roads. Both the brush and wood were taken to Kannenberg's farm where
the brush was burned because of the concern that it contained poisonous leaves. In
addition, three wheelbarrow Toads of wood were taken to Kannenberg's farm.
Kannenberg did not direct the Trehab workers to transport the wood to his farm. The
Trehab workers believed they were doing Kannenberg a favor by giving him the wood.
Having summarized the above relevant facts, we must now determine whether
the actions of Kannenberg violated Section 3(a) of Act 9 of 1989.
Section 3(a) of the Ethics Law prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public
official /public employee himself, any member of his immediate family, or a business
with which he or a member of his immediate family is associated.
In applying the provisions of Section 3(a) to the stipulated facts, it is clear that
there was a use of authority of office on the part of Kannenberg. As a Supervisor
Kannenberg directed the three Trehab employees to go to his farm and remove the
insulation from his barn. In addition, a Township dump truck was used to haul the
insulation away from Kannenberg's barn. Such actions were uses of authority of
office. See, Juliante, Order 809; 65 P.S. 402. The uses of office resulted in a private
pecuniary benefit which consisted of the financial gain received by Kannenberg in not
incurring any expenses in removing the insulation from his barn. Lastly, the private
pecuniary benefit inured to Kannenberg himself. A technical violation of Section 3(a)
of Act 9 of 1989 occurred when Kannenberg used Township equipment and Trehab
employees to remove insulation from his barn. Runtas, Order 1071.
We do not find a violation of Section 3(a) of Act 9 of 1989 when the Township
workers delivered wood to Kannenberg's property. Such action occurred without the
knowledge or direction of Kannenberg. Hence, there was no use of authority of office.
Without such use of authority of office, there was no violation of the Ethics Law. See,
McGuire and Marchitello v. SEC, 657 A.2d 1346 (1995).
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, the parties stipulated to a payment of
$405.51. Therefore, Kannenberg is directed to pay the amount of $405.51 through
Kannenberq, 97- 005 -C2
July 27, 1998
Page 12
this Commission to the Commonwealth of Pennsylvania within 30 days of the mailing
date 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, 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. Kannenberg, as a Supervisor for Apolacon Township, Susquehanna
County, is a public official subject to the provisions of Act 9 of 1989.
2. Kannenberg technically violated Section 3(a) when he used township
equipment and workers provided to Apolacon Township under the
Disaster Dislocated Worker Project to remove insulation from his barn for
which the township was assessed $405.51.
3. Kannenberg did not violate Section 3(a) when township workers delivered
wood to Kannenberg's property without his knowledge or direction.
In Re: Donald Kannenberg
ORDER NO. 1086
File Docket: 97- 005 -C2
Date Decided: 7/23/98
Date Mailed: 8/7/98
1. Kannenberg, as a Supervisor for Apolacon Township, Susquehanna
County, technically violated Section 3(a) when he used township
equipment and workers provided to Apolacon Township under the
Disaster Dislocated Worker Project to remove insulation from his barn for
which the township was assessed $405.51.
2. Kannenberg did not violate Section 3(a) when township workers delivered
wood to Kannenberg's property without his knowledge or direction.
3. As per the consent agreement of the parties, Kannenberg is directed to
pay the amount of $405.51 through this Commission to the
Commonwealth of Pennsylvania within 30 days of the mailing date 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,
cOkItwu6 & 4J
DANEEN E. REESE, CHAIR