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HomeMy WebLinkAbout1120 ShemanskyIn Re: Frank Shemansky 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 Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 98- 024 -C2 Order No. 1120 2/26/99 3/10/99 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 sue., 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. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and 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 the Ethics Act. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $ 1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Shemanskv, 98- 024 -C2 Page 2 ALLEGATION: That Frank Shemansky, a public official /public employee, in County, his capacity as a Supervisor for West Pike Township, Washington Y, violated Section 3(a) of the Ethics Law (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit by using township employees, equipment and materials to complete repairs around his home, including but not limited to building a retaining wall and landscaping. 11. FINDINGS: 1. Frank Shemansky has served as a West Pike Run Township Supervisor since 1988. a. Shemansky has been appointed a full -time roadmaster annually since 1988. 2. In 1995, Supervisors Frank Shemansky and Stephen Hajdu served as fult time roadmasters. a. The regular work hours for Shemansky and the roadcrew are from 6:00 a.m. to 2:00 p.m. daily. 3. In 1995, the township road crew consisted of the roadmasters and one road worker, George Shemansky. a. George Shemansky is the cousin of Frank Shemansky. b. George Shemansky has been employed by the township for approximately fourteen years. 4. As a supervisor / roadmaster, Frank Shemansky supervises and directs the work performed by George Shemansky. 5. In August 1995 Frank Shemansky began installing a retaining wall along the driveway of his personal residence located at 45 Walkertown Hill Road in West Pike Run Township, Washington County, Pennsylvania. a. Walkertown Hill Road is also known as Township Route (TR) 390. b. The assistance of George Shemansky in these projects at Frank Shemansky's home, was provided at least partly in George Shemansky's official capacity as a West Pike Township employee, and at least partly on township time. c. Stones used by Shemansky to construct the wall were obtained from the township, and building were stored there as part of a bridge in the township that was dismantled by PennDOT, and was not destroyed for any particular purpose, being available to the township residents upon request [sic). d. George Shemansky hauled two stones to Frank Shemansky's property with the township backhoe. e. The remaining stone was hauled by Frank Shemansky on his own time, using another backhoe. Shemansky, 98- 024 -C2 Page 3 6. Frank Shemansky diverted dirt to his residence using one of two township trucks after he began working on the retaining wall. a. The dirt was obtained from the township roads while the township road crew was berming the roads, and was directed to Frank Shemansky's property, rather than being dumped in another location, as is customary practice in West Pike Township. 7. George Shemansky spent an undetermined amount of hours while on township time assisting Frank Shemansky as follows: a. Hauling two stones from the township building to Frank Shemansky's property. 8. West Pike Run Township utilizes the PennDOT Municipal Weekly, Bi- Weekly or Semi - Monthly Payroll Reports to record the hours of the road worker and roadmasters. a. The number of hours worked are recorded by Stephen Hajdu. b. Leave time is recorded separately and is not reflected on the payroll reports. c. "All Township Roads" is recorded in the area on the payroll report set aside for description of work performed. 9. Descriptions of the work performed daily by the road crew are recorded separately by Stephen Hajdu. a. Description of daily work recorded do not reflect the work done by George Shemansky on Frank Shemansky's retaining wall. 10. The cost of renting a dumptruck similar to the township truck by Frank Shemansky to haul fill material to his property is $25.00 /hour. 11. The township backhoe was used by Frank Shemansky while engaged in hauling stone and loading fill material on township trucks. 12. The cost of renting a backhoe similar to the one used on the work on Shemansky's property is $150.00 /day. 13. Bills for the month of August 1995, including payroll, were approved at the September 1995 regular meeting of the Township Board of Supervisors. a. The meeting was held September 11, 1995. b. The vote to approve payment of the bills was 2/0, with Supervisor Walter Sepic absent. c. The payroll for August was included with the bills, and reflected the hours of Frank Shemansky and George Shemansky spent working on Frank Shemansky's retaining wall. d. Frank Shemansky participated in the action to approve bills and payroll. Shemanskv, 98- 024-C2 Page 4 14. Frank Shemansky received a financial gain when he used township equipment and employees, and was paid by the township himself, while working on his personal property installing a retaining wall and engaged in other landscaping work. III. DISCUSSION: At all times relevant to this matter, the Respondent, Frank Shemansky, hereinafter Shemansky, has been a public official subject to the provisions of the Public Official and Employee Ethics Act ("Ethics Act "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, el seq. /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, It seq. The allegation is that Shemansky, as a Supervisor for West Pike Township, Washington County, violated Section 1103(a) of the Ethics Act when he used Township employees, equipment and materials to complete repairs around his home, including but not limited to building a retaining wall and landscaping. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). Pursuant to Section 1103(a) of the Ethics Act, 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 the Ethics Act as follows: Section 1102. 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. The term 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 Pa.C.S. §1102. Section 1103(a) of the Ethics Act 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. Shemanskv, 98- 024 -C2 Page 5 Having noted the issues and applicable law, we shall now summarize the relevant facts. Shemansky has served as a West Pike Township Supervisor and full -time Roadmaster since 1988. The Township road crew consists of two full -time roadmasters and one road worker, George Shemansky ( "George "), the cousin of Shemansky. As a Supervisor /Roadmaster, Shemansky supervisors and directs the work performed by George. In August, 1995 Shemansky began installing a retaining wall along the driveway of his personal residence. George assisted Shemansky in the project at his residence, partly in the capacity as a Township employee and on Township time. George hauled stones to Shemansky's property with the Township's backhoe. Other stone was hauled by Shemansky on his own time using another backhoe. In addition, dirt that was obtained from Township roads when the road crew cleaned the berm was diverted and directed to Shemansky's property rather than being dumped in the usual Township location. Although the road crew was required to fill out daily work sheets, the work done by George on Shemansky's retaining wall was not reported. In September, 1995 the Township Board of Supervisors approved bills for the month of August, 1995, which included payroll for both Shemansky and George as to time spent working on Shemansky's retaining wall. Shemansky participated in the action to approve the bills and payroll. Shemansky received a private pecuniary benefit when he used Township equipment and employees, including himself, to work on his personal property to install a retaining wall and perform other landscaping work. Having summarized the above relevant facts, we must now determine whether the actions of Shemansky violated Section 1103(a) of the Ethics Act. In applying Section 1 103(a) of the Ethics Act to the instant matter, there was a use of authority of office on the part of Shemansky. But for the fact that Shemansky was a Supervisor, he could not have used Township equipment and employees, including himself, to work on his retaining wall and landscaping at his home during Township working hours. Such actions constitute uses of authority of office. Juliante, Order 809. The uses of authority of office resulted in a private pecuniary benefit to Shemansky. The private pecuniary benefit consisted of the out -of- pocket expenses that Shemansky saved by not having to hire employees or rent equipment to do the work on his property. Lastly, the private pecuniary benefit inured to Shemansky himself. Shemansky violated Sectin 1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit to himself by utilizing equipment and employees, including himself, to build a retaining wall and do landscaping at his personal property. Our decision in this matter is consistent with our prior precedent. We have held that public officials /employees cannot use government offices, equipment, personnel for their own private activities, business activities, or campaign re- election activities. See, Lucchino, Order 1031; Rakowsky, Order 943. Shemansky is reminded that public office is a public trust and that in the future he may not use government equipment, personnel, or supplies for his own personal purposes. Shemanskv, 98- 024 -C2 Page 6 The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding a violation of Section 1103(a) when Shemansky used Township employees and equipment to assist in work on his private property; and a payment of $750 by Shemansky through this Commission to West Pike Township. Accordingly, Shemansky is directed to make the payment of $750. in a timely manner to West Pike Township. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Frank Shemansky, as a Supervisor for West Pike Township, Washington County, is a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Shemansky violated Section 1103(a) of the Ethics Act when he used Township employees and equipment to assist in work at his private property. In Re: Frank Shemansky File Docket: 98- 024 -C2 Date Decided: 2/26/99 Date Mailed: 3/10/99 ORDER NO. 1120 1. Frank Shemansky, as a Supervisor for West Pike Township, Washington County, violated Section 1103(a) of the Ethics Act when he used Township employees and equipment to assist in work at his private property. 2. As per the Consent Agreement of the parties, Shemansky is directed to make payment in the amount of $750 in a timely manner through this Commission to West Pike Township. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, cYaAismJ6 � DANEEN E. REESE, CHAIR