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HomeMy WebLinkAbout995 BartosIn re: Clement V. Bartos STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: File Docket: 90 -008 -C Date Decided: 2/15/96 Date Mailed: 3/1/96 Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the State Ethics Law, Act 170 of 1978, P.L. 883. Written notice of the specific allegation was served at the commencement of the investigation. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §2.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978. 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. Barton, 90 -008 -C Page 2 I. iLLEGATION: Clement V. Bartos violated the Public Official and Employee Ethics Law (Act 170 of 1978) when he used the authority of his position to specify the type of septic system permit to be used by persons seeking permits and subsequently was paid for designing the system to be used. II. FINDINGS: 1. Clement V. Bartos was a licensed Sewage Enforcement Officer (SEO) in the Commonwealth of PA from at least 1986, until his decertification effective June 19, 1990. a. Bartos' SEO Certification number was 00868. 2. Clement Bartos served as a Sewage Enforcement Officer for the following municipalities: a. Derry Township 1986 to 07/03/90 Westmoreland County b. St. Clair Township 01/90 to 06/25/90 Westmoreland County c. Armagh Borough 1987 to 06/19/90 Indiana County d. Blacklick Township 1975 to 02/10/90 Cambria County 3. Sewage Enforcement Officers in the Commonwealth of Pennsylvania are governed by the rules and regulations set forth by the Pennsylvania Department of Environmental Resources (DER) . 4. The Pennsylvania Sewage Facilities Act sets forth parameters for Sewage Enforcement Officers to work within. 5. Bartos, in his official capacity as Sewage Enforcement Officer for Derry Township, St. Clair Township, Armagh Borough and Blacklick Township, was responsible for conducting all necessary tests to determine the type of on -site septic system required for properties within the geographic boundaries of each municipality. a. Septic permits were required to obtain a building permit. 6. Individuals needing a septic permit in any of these municipalities were required to work with Clement Bartos in his official capacity as Sewage Enforcement Officer. Bartos, 90 -008 -C Page 3 7. Bartos, in his official capacity as Sewage Enforcement Officer, issued the following permits for on -site septic systems for properties in Derry Township. Owner Jacob Leighty Craig Palmer Thomas Lutz David Krinock Fred Cook William Woods Allied Reserve Inc. Joseph Bundy Bradley Corbett Randy Daugherty Permit # G -20175 H -19841 G -21412 I -23247 I -23245 I -23246 H -19847 I -29856 I -23241 I -23242 Issued 08/17/88 10/14/88 11/17/88 05/20/89 05/29/89 06/15/89 08/24/89 10/04/89 10/11/89 10/24/89 8. On each of the above cited permits, Bartos required that a pressure dose, elevated sand bed be used. 9. Derry Township charged between $75.00 and $125.00 for septic permits. a. Fees were to cover the expenses of the Sewage Enforcement Officer. 10. On each permit identified in Finding #7, Bartos contracted with the applicants to furnish them with design drawings for elevated sand mound septic systems. 11. David Clem Bartos is the son of Clement V. Bartos. a. David C. Bartos was born on September 6, 1962. b. David C. Bartos turned eighteen on September 6, 1980. c. David C. Bartos was not a minor dependent child of Clement Bartos during the time in question. (09/26/86- 10/24/89). 12. On August 18, 1988, Jacob Leighty issued personal check #2329, in the amount of $75.00, payable to David Bartos for sand mound design drawings required by Clement Bartos as part of Permit #G 20175, he issued on 08/17/88. a. David Bartos and Mary Bartos endorsed the reverse side of the check. b. Bartos did not force or pressure Leighty into purchasing design drawings from him and /or David Bartos. c. Bartos told Leighty that he could design a sand mound system for him. Bartos, 90 -008 -C Page 4 d. Leighty felt that Bartos had a conflict of interest in designing a system he was ultimately going to inspect. e. Bartos directed Leighty to make the $75.00 payment for the drawings to his son. 13. On October 18, 1988, Becky Palmer issued personal check #2276, in the amount of $75.00, payable to Clem Bartos for sand mound design drawings he required as part of Permit #H- 19841, he issued on 10/14/88. 14. On October 30, 1988, Thomas Lutz issued personal check #133, in the amount of $75.00, payable to Clem Bartos for sand mound design drawings he required as part of Permit #G- 21412, he issued on 11/17/88. 15. On May 27, 1989, Fred Cook paid $175.00 cash to Clem Bartos for sand mound design drawings as part of permit #I- 23245, he issued on 05/29/89. a. Bartos provided Cook with a cash receipt dated 05/27/89. 16. On August 7, 1989, David Krinock issued personal check #2086, in the amount of $90.00, payable to Clement Bartos for sand mound design drawings he required as part of Permit #I- 23247, he issued on 05/20/89. a. Krinock's septic system was functioning at the time it had to be checked as part of a pending sale. During the check Bartos determined that a sand mound design was required. b. Krinock was not pressured into utilizing Bartos for the design drawings. 17. On October 20, 1989, William Woods issued personal check #1153, in the amount of $75.00, payable to Clem Bartos for sand mound design drawings he required as part of Permit #I- 23246, he issued on June 15, 1989. a. Bartos did not pressure Woods into utilizing him for the design drawings. b. Bartos advised Woods that his son does design work and could do the plans. c. Woods was pressured into having the plans done somewhere because he had a loan commitment and his builder was awaiting the building permit. Barton, 90 -008 -C Page 5 18. On August 15, 1989, Raymond Rulings, representing Allied Reserve Inc., issued check #118, in the amount of $125.00, payable to Clem Bartos for sand mound design drawings he required as part of Permit #H- 19847, issued on 08/24/89. 19. On October 5, 1989, Joseph Bundy issued personal check #1166, in the amount of $125.00, payable to Clem Bartos for sand mound design drawings required as part of Permit #I- 29866, he issued on 10/04/89. a. Bundy had a problem with water run -off on his property and wanted to install a drainage ditch to rectify it. b. Bartos performed a perk test and determined that an elevated sand mound system would be required to rectify the problem. c. Bartos did not provide any options in terms of people who could design the system. d. Bartos indicated that he would do the design and sold Bundy the plans. e. Bundy was not forced into purchasing the designs from Bartos. f. Bundy felt that the drawings should have been included as part of the permit fee he paid Derry Township. 20. On October 26, 1989, Bradley Corbett issued personal check #118, in the amount of $90.00, payable to Clement Bartos for sand mound design drawings required as part of Permit #I- 23241, he issued on October 11, 1989. a. The reverse side of the check is endorsed by Clement Bartos. b. Bartos determined that an elevated sand mound system was required on Corbett's lot. c. Bartos provided the names of several engineering firms capable of making the design drawings. d. Corbett obtained quotes from $400.00 to $600.00. e. Bartos indicated that his son could do the drawings for approximately $80.00. f. Corbett authorized Bartos to do the drawings because he offered the best price. Bartos, 90 -008 -C Page 6 Corbett did not feel pressured into using Bartos for the design drawings. 21. On December 5, 1989, Robin Daugherty issued personal check #453, in the amount of $125.00, payable to Clem Bartos for sand mound design drawings required as part of Permit #2- 23242, he issued on 10/24/89. g- a. The reverse side of the check was endorsed by Clem Bartos. b. In the memo portion of the check was "sand mound papers ". 22. Bartos received a total of $955.00 for nine (9) sand mound design drawings he prepared for residents of Derry Township, Westmoreland County, while simultaneously serving as its Sewage Enforcement Officer. Source Becky Palmer Thomas Lutz Fred Cook David Krinock William Wood Raymond Hulings Joseph Bundy Bradley Corbett Robin Daugherty Date Amount 10/18/88 $ 75.00 10/30/88 75.00 05/27/89 175.00 08/07/89 90.00 10/20/89 75.00 08/24/89 125.00 10/05/89 125.00 10/26/89 90.00 12/05/89 125.00 955.00 Finding # 13 14 15 16 17 18 19 20 21 23. David Bartos received a financial gain of $75.00 for one (1) sand mound design drawing he sold to Jacob Leighty, a resident of Derry Township, Westmoreland County as arranged by Clem Bartos. (See Finding #11). 24. Bartos, in his capacity of Sewage Enforcement Officer for St. Clair Township, issued Permit #D- 18559, to Todd Huey on August 1, 1989. a. Huey paid a standard fee of $110.00 for the permit. 25. Bartos required a sand mound design system be utilized. a. Part III Plot Plan identified. "Pressure dose design submitted to township and DER." 26. On August 7, 1989, Crystal J. Huey issued personal check #355, in the amount of $110.00, payable to Clem Bartos for sand mound design drawings required by Bartos as part of Permit #D- 18559, he issued on 08/01/89. Bartos, 90 -008 -C Page 7 27. Bartos received a payment of $110.00 for one (1) sand mound design drawing he sold to a St. Clair Township resident, Todd Huey, while simultaneously serving as the Township Sewage Enforcement Officer. 28. Bartos, in his official capacity as Sewage Enforcement Officer, for Armagh Borough, issued Septic Permit #F- 13807, to Forrest J. Mack on September 3, 1987. a. Mack paid a standard application fee totaling $200.00. 29. No other septic permits were issued in Armagh Borough between 1987 and June, 1990. 30. Permit #F- 13807, issued to Mack contains the following writing in the portion of the application designated Part III Plot Plan "System Designed by David Bartos Sewage Enforcement Officer Plans available to applicant and DER." 31. On June 30, 1987, Forrest J. Mack issued personal check #366, in the amount of $75.00, payable to David Bartos for sand mound design drawings utilized as part of application #F- 13807. 32. David Bartos received a financial gain of $75.00 for one (1) sand mound design drawing he did in Armagh Borough while his father, Clement Bartos, served as the Borough's Sewage Enforcement Officer. 33. Bartos, in his capacity as Sewage Enforcement Office, issued to following permits for on -site septic systems for properties in Blacklick Township: Owner Michael Knapic Thomas G. Roles Mark A. Skubik David Diviney Jack Keilman, Jr. Permit # D -19486 D -19488 D -19487 D -19496 D -19500 Issued 09/26/86 08/01/87 05/09/89 09/19/89 09/25/89 34. On each of the above cited permits, Bartos required a pressure dose, elevated sand bed be used. 35. Blacklick Township charged applicants a standard fee of $110.00 for septic permits. a. .' Fees were to cover the cost of the Sewage Enforcement Officer. b. Applicants would initially pay the $100.00 to the township who would compensate Bartos as SEO. $artos, 90 -008 -C Page 8 36. On each of the permits identified in Finding #33, Bartos contracted with applicants to furnish them with design drawings for elevated sand mound septic systems. 37. On September 9, 1986, Michael Knapic issued personal check #2869, in the amount of $90.00, to Clem Bartos for sand mound design drawings required by Bartos as part of Permit #D- 19486, he issued on 09/26/86. a. Clem Bartos endorsed the reverse side of this check. b. Knapic was not pressured into using Bartos for the design drawings. c. Bartos advised Knapic that he could do the drawings for approximately $100.00 or Knapic could have an engineer do them for roughly $200.00. d. Knapic had Bartos do the drawings based on his price and the probability of their acceptance by Bartos. 38. On August 14, 1987, Thomas Roles issued personal check #1246, in the amount of $75.00, payable to David Bartos for sand mound design drawings required by Clem Bartos as part of Permit #D- 19488, he issued on 08/01/87. a. Bartos told Roles that he could have the system plans drawn up for approximately $100.00. b. Roles was not advised that he could have had someone else design the system. c. Roles was under the impression that the systems design was one of the functions of the Sewage Enforcement Officer. d. Roles felt that Bartos omitted information about securing another system designer for self - serving reasons. 39. April 26, 1989, Mark A. Skubik issued personal check #352, in the amount of $75.00, payable to David Bartos for sand mound design drawings required by Bartos as part of Permit #D- 19487, he issued May 9, 1989. a. Skubik had septic design plans he made himself. These did not meet with Bartos' approval. b. Bartos advised Skubik that he had someone who could draw up better plans than Skubik's. c. Skubik authorized Bartos to have new drawings done. $artos, 90 -008 -C Page 9 d. Skubik did not believe there was any discernable difference between his initial drawings and the ones done by David Bartos which Clem Bartos approved. e. Bartos directed Skubik to make his payment out to David Bartos. 40. On October 6, 1989, David Diviney issued personal check #0298, in the amount of $75.00, payable to C. V. Bartos for sand mound design drawings Bartos required as part of Permit #D- 19496, issued on September 19, 1989. a. The reverse side of the check is endorsed by C. V. Bartos. b. Bartos evaluated the property and decided a sand mound system would be required. c. Diviney contacted several people unsuccessfully attempting to get design drawing. d. Diviney received quotes of upwards of $200.00 which Diviney felt was too expensive. e. Diviney contacted Bartos several times attempting to get someone who could do the drawings. f. After several contacts, Bartos indicated that he could get someone to do the drawing. Diviney paid Bartos $75.00 after Bartos furnished him with design drawing which Bartos approved. h. Diviney did not feel any of Bartos' conduct was inappropriate. 41. On September 12, 1989, Jack Keilman, Jr., issued personal check #0452, in the amount of $75.00, payable to Clem Bartos for sand mound design drawings as part of Permit #D- 19500, he issued on September 25, 1989. g • a. The reverse side of the check is endorsed by Clem Barton. 42. Bartos received payments totaling $240.00 for three (3) sand mound design drawings he sold to residents of Blacklick Township, Cambria County while simultaneously serving as its Sewage Enforcement Officer. Bartos, 90 -008 -C Page 10 a. Individual payments: Source a. Individual Payments: Municipality Municipality Date Amount Finding # Michael Knapic 09/09/86 $ 90.00 39 David Diviney 10/06/89 75.00 40 Jack Keilman 09/12/89 75.00 41 43. David Bartos received payments totaling $150.00 for two (2) sand mound design drawings he sold to residents of Blacklick Township, Cambria County, as arranged by Clem Bartos. Source Date Amount Finding # Thomas Roles 08/14/87 $ 75.00 38 Mark Skubik 04/26/89 75.00 39 44. Clement Bartos received total payments of $1,305.00, for the sale of thirteen (13) sand mound design drawings to residents of Derry Township and St. Clair Township, Westmoreland County; Armagh Borough, Indiana County; and Blacklick Township, Cambria County, while simultaneously serving as their appointed Sewage Enforcement Officer. Derry Twp. 1 $ 75.00 St. Clair Twp. 0 0.00 Armagh Borough 1 75.00 Blacklick Twp. 2 150.00 Permits Financial Gain Findings Derry Twp. 9 $955.00 22 St. Clair Twp. 1 110.00 27 Armagh Borough 0 0.00 28 Blacklick Twp. 3 240.00 42 45. David Bartos received total payments of $300.00, for the sale of four (4) sand mound design drawings to residents of Derry Township and St. Clair Township, Westmoreland County; Armagh Borough, Indiana County and Blacklick Township, Cambria County, while Clement Bartos served as their Sewage Enforcement Officer. Permits Financial Gain Findings 23 32 43 46. Clement Bartos' license as a Sewage Enforcement Officer was revoked by the Department of Environmental Resources in June, 1990. a. The reason given for the revocation was for violating provisions of the Pennsylvania's Sewage Facilities Act. Bps,, 90 -008 -C Page 11 47. By way of certified correspondence dated June 19, 1990, from DER's Bureau of Water Quality Management, 121 South Highland Avenue, Pittsburgh, PA 15206 -3988, Bartos was advised of the basis for his decertification. a. DER's letter to Bartos reflects that he was decertified for violating DER's Title XXV Rules and Regulations, Subchapter C, Section 72.41, paragraph f, which states "a sewage enforcement officer may not plan, design, construct, sell, or install an individual or community on -lot sewage system within the geographic boundaries of the sewage enforcement officer's authority as specified by the local agency." b. As part of the decertification letter, DER cited a departmental letter dated 01/28/88, and training meetings held on 03/18/87, 10/13/88, and 11/01/88, at which Bartos was advised of the "requirements of rules and regulation section 72.41, regarding the powers and duties of sewage enforcement officers. Specific reference was made to the requirement that the sewage enforcement officer may not issue a permit where the S.E.O. or a relative of the S.E.O. has a financial interest." c. DER cited seventeen instances occurring between September 26, 1986, and October 24, 1989, when Bartos "(a) charged and accepted a fee which was not prescribed by the local agency's adopted fee schedule or rendered in accordance with the local agency's adopted fee schedule; (b) sold individual on -lot system designs within the geographic boundaries of his authority as sewage enforcement officer and (c) issued said permits for individual on -lot systems in which his son, David Bartos, who provided the system designs had a financial interest." 48. DER specifically cited the following seventeen permits Bartos and /or his son did the design work on in violation of Title XXV, Subchapter C, Section 72.41. Applicant Michael Knapic Thomas Rules Forrest Mack Jacob Leighty Craig Palmer Thomas Lutz Mark Skubik David Krinock Fred Cook William Woods Todd Huey Permit # D -19486 D -19488 F -13807 G -20175 H -19841 G -21412 D -19487 I -23247 I -23245 I -23246 D -18559 Issued 09/26/86 08/01/87 09/03/87 08/17/88 10/14/88 11/17/88 05/09/89 05/20/89 05/29/89 06/15/89 08/01/89 Municipality Blacklick Twp. Blacklick Twp. Armagh Borough Derry Twp. Derry Twp. Derry Twp. Blacklick Twp. Derry Twp. Derry Twp. Derry Twp. St. Clair Twp. Bartos, 90 -008 -C Page 12 Applicant Allied Reserve Inc. David Diviney Jack Keilman Joseph Bundy Bradley Corbett Randy Daugherty III DISCUSSION: 65 P.S. §403(a). Permit # H -19847 D -19496 D -19500 I -29856 I -23241 I -23242 Issued 08/24/89 09/19/89 09/25/89 10/04/89 10/11/89 10/24/89 Municipality Derry Twp. Blacklick Twp. Blacklick Twp. Derry Twp. Derry Twp. Derry Twp. As a Sewage Enforcement Officer for Derry Township, St. Clair Township, Blacklick Township and Armagh Borough, Clement V. Bartos, hereinafter Bartos, was a public official as that term is defined in the Ethics Act, 65 P.S. §402; 51 Pa. Code §1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, provides, in part, as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto. Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Section 3(a) of Act 170 of 1978 provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for Bartos, 90 -008 -C Page 13 himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Moak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988), allocatur denied, 520 Pa. 609, 553 A.2d 971 (1988). The issue before us is whether Bartos, as a Sewage Enforcement Officer, violated Act 170 of 1978 regarding the allegation that he was paid for designing septic systems he recommended in his official capacity. Bartos was a licensed Sewage Enforcement Officer (SEO) in the Commonwealth from approximately 1986 until June of 1990. The Pennsylvania Sewage Facilities Act sets forth the work parameters for SEO's whose conduct is also governed by the rules and regulations of the former Department of Environmental Resources (DER). During the relevant time periods, Bartos served as SEO in the following municipalities: Derry Township, Westmoreland County; St. Clair Township, Westmoreland County; Armagh Borough, Indiana County; and Blacklick Township, Cambria County. As SEO in each of those municipalities, Bartos was responsible for conducting all necessary tests to determine the types of on -site septic system required for properties. Consequently, individuals needing a septic permit in any of the above municipalities were required to work with Bartos in his official capacity as SEO. In Derry Township, Bartos as SEO issued permits to the ten individuals listed in Fact Finding 7. Bartos determined that each permit had to be a pressure dose, elevated sand mound system. Derry Township charged between $75 to $125 for the septic permits which covered the expenses of the SEO. As to each of the ten individuals, Bartos contracted in a private capacity with the individuals to furnish them with design drawings for the elevated sand mound septic systems. Fact Finding 10. Nine of the ten individuals paid Bartos a fee for a system design. Fact Finding 22. The remaining individual from that group made payment to David Clem Bartos, Bartos's son. Fact Finding 23. David Bartos, who turned 18 on September 6, 1980, was not a minor dependent child of Bartos. Fact Finding 11. None of the ten individuals were forced or felt pressured into purchasing design drawings from Bartos. Turning to Clair Township, Bartos, as SEO, issued one permit for a sand mound design system for which he received a standard fee. In addition, Bartos received a payment for a sand mound design drawing he sold to the individual who received the permit. Fact Findings 24 -27. Bartos, 90 -008 -C Page 14 As to Armagh Borough, SEO Bartos issued one permit for which he received the standard application fee of $200. Fact Finding 28. The system was designed by David Bartos who received a payment of $75 for the sand mound design drawing. Fact Findings 30, 31. Finally, in Blacklick Township, SEO Bartos issued septic system permits to the five individuals listed in Fact Finding 33 for pressure dose, elevated sand mound systems for which he received a standard fee of $110 for each permit. Bartos also contracted with those individuals to supply design drawings for the elevated sand mound septic systems. Fact Finding 36. Payments for the design drawings were either made to Bartos or his son, David. The three individuals from whom Bartos received payments for designing the system are set forth in Fact Finding 42. The record does not reflect any instance where an applicant was pressured into using Bartos for the design drawings. A recapitulation of all of the private fees that Bartos received for preparing the sand mound design drawings for the individuals who obtained septic permits from the municipalities in which Bartos served as SEO are listed in Fact Finding 44. The total amount of payments received by Bartos for these private services amounted to $1,305. In June 1990, Bartos's Commonwealth SEO license was revoked by DER due to violations of the Pennsylvania Sewage Facilities Act. Fact Finding 46. In particular, the specifics given by DER as to Bartos's decertification were as follows: DER regulations which prohibit an SEO from planning, designing, constructing or selling to an individual or community, a system within the boundaries wherein he serves as SEO; DER departmental letters and training meetings where Bartos was advised of the requirements that SEO's could not issue permits in cases where the SEO or a relative of the SEO has a financial interest; and lastly, the 17 instances where Bartos as SEO issued permits to individuals for on- lot systems in which he or his son provided system designs for fees. The 17 permits in question as to which Bartos and /or his son did design work are set forth in Fact Finding 48. In applying the provisions of Section 3(a) of Act 170 of 1978 to the instant matter, we find a violation by Bartos as to the payments he received for designing septic systems he recommended in his official capacity as SEO for Derry Township, St. Clair Township and Blacklick Township. Section 3(a) of Act 170 of 1978 prohibits the use of office to obtain a financial gain other than compensation provided for by law. In this instance, the compensation that Bartos received was other than provided for by law. Under Pennsylvania law and DER regulations, an SEO is precluded from receiving a financial gain from planning, designing or constructing an on -lot sewage system within the geographic boundaries where he is SEO. This is precisely what Bartos did in the 13 instances listed in Fact Finding 44. Bartos took such action even though he was advised by DER departmental letters and training meetings that he could not engage in such conduct. Accordingly, Bartos violated Section 3(a) of Act 170 of 1978 for receiving such financial gain which was compensation other than provided for by law. Bartos, 90 -008 -C Page 15 We do not find a violation as to the payments received by Bartos's son David for the reason that David Bartos was not a member of Bartos's immediate family. Immediate family is defined under Act 170 of 1978 to include only the public official /employee's spouse or minor dependent child. David Bartos was not a member of Bartos's immediate family because he was over 18 years of age and not a minor dependent. We do not impose restitution in this case since it is has been judicially determined that this Commission does not have the power under Act 170 of 1978 to impose such restitution. See, Rebottini et al v. $EC, _ Pa. Commw. Ct. , 634 A.2d 743 (1993), allocatur denied at 581 M.D. Allocatur Docket, 1993 on December 15, 1994. However, we do have the power under Act 170 of 1978 to refer matters to law enforcement agencies. In this case we believe that such a referral is warranted in that Bartos designed and was paid fees for designing septic systems in municipalities where he was SEO despite DER letters and training meetings wherein he was advised that such action was impermissible. Accordingly, this matter will be referred to the appropriate law enforcement agency to determine if further action is warranted. IV. CONCLUSIONS OF LAW: 1. Clement V. Bartos, as Sewage Enforcement Officer for Derry Township, St. Clair Township, Blacklick Township, and Armagh Borough, was a public official subject to the provisions of Act 170 of 1978. 2. Bartos violated Section 3(a) of Act 170 of 1978 when he was paid for designing septic systems he recommended in his official capacity. In re: Clement V. Bartos File Docket: 90 -008 -C . Date Decided: 2/15/96 . Date Mailed: 3/1/96 1. Clement V. Bartos, as Sewage Enforcement Officer for Derry Township, St. Clair Township and Blacklick Township violated Section 3(a) of Act 170 of 1978 when he was paid for designing septic systems he recommended in his official capacity. 2. This matter will be referred to the appropriate law enforcement agency to determine if further action is warranted. ORDER NO. 995 BY THE COMMISSION, 4 1u4u 6 � DANEEN E. REESE, CHAIR