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STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Glenn Yarnall File Docket: 95- 020 -C2
. Date Decided: 2/15/96
. Date Mailed: 3/1/96
Before:
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 9 of 1989, P.L. 26, 65 P.S. §401 at seg.
Written notice of the specific allegation(s) was served at the
commencement of the investigation. A Findings Report was issued
and served upon completion of the investigation which constituted
the Complaint by the Investigation Division. An Answer was filed
and a hearing was waived. 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. Reconsideration may be requested
within 30 days of the date of mailing of this Order 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 does not affect the
finality of this adjudication.
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.
Yarnall, 95- 020 -C2
Page 2
I. ALLEGATION:
That Glenn Yarnall, a public official in his capacity as a
Supervisor for New Hanover Township, Montgomery County, violated
sections 3(a), 3 (f) , 5 (b) (5) and 5 (b) (8) of the Public Official and
Employee Ethics Law (Act 9 of 1989), 65 P.S. §§403(a), 403(f),
405(b)(5) and (8), when he used the authority of his office and /or
confidential information obtained therein to obtain a private
pecuniary benefit by participating in discussions and /or decisions
of the New Hanover Township Board of Supervisors which resulted in
the creation of a position in the Department of Public Works and
his subsequent hiring and when such was done without an open and
public process, and when he failed to disclose direct or indirect
sources of income on his Statement of Financial Interests for the
1994 calendar year, and when he failed to disclose a place of
employment on his Statement of Financial Interests for the years
1992 through 1994 inclusive.
II. FINDINGS:
1. Glenn A. Yarnall served as a Supervisor in New Hanover
Township, Montgomery County, from January 1992 until January
31, 1995.
a. Yarnall resigned from this position.
2. New Hanover Township had four other elected Supervisors during
calendar years 1994 -1995: James Taylor, Prosper Guerre -
Challey, Robert Thomas and Gerald Feege.
3. The New Hanover Township Municipal Authority (hereinafter
"Authority ") was established, in part, by New Hanover Township
to "construct, own, and operate facilities within the township
for the collection, transportation, transmission, treatment,
and discharge of sanitary sewer effluent from structures,
residences, businesses, commercial and industrial
activities..."
4. The Authority constructed and operated such facilities within
the township.
5. At various times from the date of initial incorporation
individual members of the Board of Supervisors and the
Municipal Board as a body have considered, contemplated, and
evaluated the practical, administrative, personnel, and
financial benefits which may or may not be realized by
consolidation of the distinct municipal and Authority
corporate bodies.
6. The Board of Supervisors as a body were concerned with regard
to the financial structure of the Authority to the extent it
impacted upon the financial guarantees undertaken by the Board
Yarnell, 95- 020 -C2
Page 3
of Supervisors and the consequences on its resident
constituents as well as objections and complaints that have
been received from residents, builders, developers, planning
consultants, and contractors with regard to the sewer system.
a. The supervisors also were aware of and concerned with the
activities and operations of the municipal sewer system
which had resulted in the issuance of notices of
violation from the Pennsylvania Department of
Environmental Resources (now the Department of
Environmental Protection) and certain litigation
initiated against the Authority claiming trespass and
inverse condemnation arising directly out of and
attributable to the operation of the sewer facilities.
7. The Board of Supervisors individually, and as a body,
questioned the duplication of services, costs and expenses, as
well as, concerns with reference to the financial stability
and status of the Authority, activities and operations of the
Authority which had led to the issuance of notices of
violation and the filing of litigation against the Authority.
a. As a result of that concern the Board of Supervisors
directed that an investigation to be conducted by various
consultants and administrative personnel to determine
whether there were financial, administrative, personnel,
and an economy of benefits to be realized by
consolidation of the respective municipal corporate
bodies.
8. On July 26, 1993, in Resolution No. 25 -93, the New Hanover
Township Board of Supervisors expressed a desire to pursue
acquisition of ownership and operation of the New Hanover
Township Municipal Authority.
a. The Resolution indicated that the consolidation would
result in economic savings as to the operation of the
facility and also to the customers who bore the costs of
operation through the payment of sewer rental fees.
b. The resolution proposed that the township would generate
a bond issue wherein the money raised would go toward
redemption and retirement of the Authority's debt.
c .
The resolution was signed by Supervisor Glenn A. Yarnell
and three other members of the board of supervisors.
9. At the board of supervisors' meeting held on May 23, 1994,
regarding the takeover of the Sewer Authority by the township,
presentations were made by the bond counsel and financial
advisors.
Yarnall, 95- 020 -C2
Page 4
a. The township's bond counsel, Rhoads and Sinon, explained
the takeover pursuant to the Authority's Act, the
authorization to issue bonds to refinance the project and
the appointment of a financing agent. A Resolution and
Escrow Agreement is the mechanism to pay the 1991 bond.
b. A motion to approve Ordinance 94 -3 was made by Taylor and
seconded by Guerre - Challey. Motion carried by a 4 -0 vote
with Supervisor Thomas abstaining. Glenn Yarnall voted
with the majority.
10. A joint meeting of the New Hanover Board of Supervisors and
the New Hanover Township Authority was held on June 13, 1994.
a. The purpose of the meeting was to discuss the defeasance
of the Authority by the township.
b. Special Counsel to the Authority outlined areas and
situations where it would be more advantageous to
continue authority operations.
c. The township solicitor responded that this is a
defeasment of the Authority, it will continue to operate
as an entity.
d. Supervisor Feege stated that the reason for the
defeasance is that this is a part of the operation of the
township, and as such it is no different from other
township departments. The elected officials are held
accountable for the Authority's action.
e. The possibility of a lease -back agreement was discussed
and determined not to be feasible.
f. The board of supervisor agreed to a binding resolution
stating that all of the monies coming in would be used
for Authority business only.
11. In Ordinance No. 94 -03, the township stated its intent to
acquire all of the projects and assets of the New Hanover
Township Authority, including the sewer system.
a. The financing of this project was set forth in this
ordinance to include a refunding project consisting of
advance refunding of the 1991 bond issue.
b. .. The ordinance set forth the mechanics as to how the
township was to acquire all of the projects and assets of
the Authority.
Yarnall, 95- 020 -C2
Page 5
c. The financing of this project was set forth in the
ordinance as a bond issue totaling $1,747,875.
d. The ordinance was unanimously approved by the board of
supervisors.
e. Glenn Yarnall voted to approve the ordinance.
12. A special meeting of the New Hanover Township Board of
Supervisors and the New Hanover Township Authority was held on
June 20, 1994, for the purposes of acting on the township's
plan to assume responsibility of the Authority.
a. The minutes of this supervisors' meeting indicate the
following:
A discussion regarding the function of the Authority
following the defeasance. The supervisors asked that the
Authority function just as it has in the past, except
that monies spent would need to be authorized by the
township. The township will assign projects to the
Authority. Transfer of the permits such as the HPDES
permit and the Highway Occupancy permits will need to be
transferred to the township.
A transition period lasting from the date of the meeting
until September 1, 1994, was set up wherein the
Authority, although part of township operations, would
continue to have its own bank accounts.
b. Supervisor Taylor moved to enact Resolution 28 -94,
seconded by Glenn Yarnall and unanimously approved by a
5 to 0 vote.
13. Resolution 28 -94 provided, in part:
a. The township's desire to make representations and
assurances to the Authority regarding the retirement of
bonds, acquisition of assets and projects and the
assumption of all the Authority's obligations.
b. The township would not dissolve the Authority as a
corporate entity without the Authority's cooperation.
c. The board of supervisors' intention to maintain
reasonable continuity of personnel on the administration
and operation of the Sewer System, which personnel would
.. become employees of the township.
d. The Authority would transfer all assets, including but
not limited to real estate, rights of way, equipment,
Yarnall, 95- 020 -C2
Page 6
vehicles, accounts, funds, claims, contract rights and
permits to the township.
e. The board of supervisors would assign or delegate
projects and /or responsibilities to the Authority from
time to time.
14. The New Hanover Township Authority met on June 20, 1994, in a
special meeting.
a. The meeting occurred immediately after the Board of
Supervisors' meeting.
b. A motion was made by Member Thomas Yuhas to enact
Resolution No. 6 -94 agreeing to the defeasance of the
Authority. Motion seconded by Faust and carried by a 4
to 1 vote.
15. In late 1993 or early 1994, while serving as township
supervisor, Glenn Yarnall contacted the Pennsylvania
Department of Community Affairs regarding him doing sewer
work.
a. He was advised that he could not perform work or services
for the municipal authority.
16. In November, 1994, Authority Administrator Lori Pupo resigned.
17. As early as October, 1994, during the township semi - annual
road inspections, the supervisors had discussed the status of
the sewer system.
a. During several Executive Sessions in December, 1994, the
township supervisors discussed the need for personnel to
respond to service requirements for both township
activities as well as the sewer facilities.
b. Glenn Yarnall did participate in discussions regarding
the status of the sewer facilities as well as the
discussion regarding the repair of township roads and
bridges.
18. In January of 1995, the township board of supervisors held an
Executive Session.
a. During said Executive Session the board discussed the
creation of a township Department of Public Works and the
employment of an individual to head said department and
the salary associated therewith.
b. Township Supervisor Gerald Feege invited Yarnall to
consider said position.
Yarnell, 95- 020 -C2
Page 7
c. An initial salary of $30,000 was proposed.
d. Yarnell indicated that he was not interested in the
position at that salary.
19. A review of salaries for such positions in adjacent and nearby
communities was conducted.
a. A salary of $37,500 was proposed for the position.
b. Glenn Yarnell was requested to consider taking the
position at this salary at an Executive Session on
January 8, 1995.
20. A job description was developed for the position filled by
Yarnell which contained the following:
POSITION TITLE: Sewer Department Supervisor
REPORTS TO: Public Works Superintendent
GENERAL DESCRIPTION:
TYPICAL EX. OF WORD:
This job is a wide range of skilled and
semi- skilled general maintenance work,
repair and installation work, using hand
tool, light equipment and heavy
equipment. Work could involve assigning
tasks to subordinates, maintaining
schedules of work to be performed,
accurate record keeping and statistical
tasks.
Supervise operation of sewage treatment
facilities when training requirements are
completed. Maintain collector system.
Service and maintain pump stations.
Develop and carry out program to isolate
any inflow and infiltration problems on
an ongoing basis. Carpentry and
maintenance. Some mechanical work on
trucks and equipment. Welding. Snow
plowing, pot hole patching, tree trimming
and any road department duties as time
permits.
REOUIRED KNOWLEDGE.
SKILLS & ABILITIES: Up to date knowledge of equipment,
materials methods and techniques utilized
in the operation of sewage treatment
facilities. Knowledge of hazards
associated with sewer plant maintenance
and road building maintenance. Ability
to work with township engineer in solving
Yarnall, 95- 020 -C2
Page 8
problems requiring professional
engineering consultations. Ability to
operate heavy equipment. Ability to work
unencumbered in confined spaces without
acrophobic or claustrophobic reactions.
Ability to maintain considerable physical
effort throughout the workday. Ability
to accurately complete reports in a
timely manner.
MINIMUM OUALIFICATIONS: High school graduate or equivalent.
Applicable Sewage Treatment Plant
Operator License within two years of
being hired. Commercial drivers license.
21. The job description was prepared by township manager Anita
Turner.
22. The provision as to obtaining a Sewage Treatment Plant
Operator License within two years was added in consideration
of Yarnall's status as of January, 1995.
23. The Executive Sessions noted above were not open to the
public.
a. The events that occurred during said Executive Sessions
could not be learned from reviewing public documents or
by making inquiry to a publicly available source of
information.
24. Prior to being hired by New Hanover Township, Yarnall was
employed in the building industry and also as a truck driver.
a. He also attended a trade school.
b. He was not licensed to be a sewer plant operator but was
given two years by the township to obtain a
certification.
25. Minutes of the January 23, 1995, meeting of the township
supervisors reflect that the following actions occurred
relative to the creation of a Department of Public Works and
the hiring of Glenn Yarnall:
a. Glenn Yarnall submitted his resignation as a member of
the Board of Supervisors effective January 31, 1995.
James Taylor moved to regretfully accept the resignation,
a seconded by Prosper Guerre - Challey, and unanimously
carried.
Yarnell, 95- 020 -C2
Page 9
b. Guerre - Challey moved to create a Public Works Department
with Raymond Batchelder as Director of Public Works.
Robert Thomas seconded the motion and it unanimously
carried. The Department would oversee roads, bridges,
sewers, parks and recreation maintenance, and could in
the future be involved in water works, sanitation, etc.
c. Robert Thomas moved to hire Yarnell as a Public Works
Department employee in accordance with Resolution 6 -95.
Guerre - Challey seconded the motion and it unanimously
carried. Robert Thomas explained that the township
needed Yarnall's expertise in bridge construction,
equipment operation, and sewer work, and that he and the
other board members looked forward to working with
Yarnell on these projects.
d. Yarnell was present at this meeting and was not reflected
in the minutes as abstaining from voting on Resolution
No. 6 -95.
26. Township Manager, as well as all of the township supervisors
aver that Yarnell did abstain from the vote to create the
Department of Public Works and the hiring of Yarnell.
a. The township secretary avers that she had made a mistake
in not recording Yarnall's abstention.
27. Resolution No. 6 -95, dated January 23, 1995, resolved that
Yarnell be hired as a supervisor in the Public Works
Department as a full -time employee at a salary of $37,500.00
per year.
a. The effective date of Yarnall's hiring was February 1,
1995.
b. The Resolution was signed by Supervisors Feege, Taylor,
Thomas and Guerre - Challey.
c. Glenn Yarnell did not sign the Resolution.
d. There was no signature space on the Resolution for Glenn
Yarnell.
28. Prior to selecting Yarnell for the position, the township did
not advertise an opening for the position of Supervisor in the
newly created Department of Public Works.
29. The-township did not conduct any interviews for the position
of supervisor in the Newly created Department of Public Works.
30. The only person considered by the board for the position was
Glenn Yarnell.
Yarnall, 95- 020 -C2
Page 10
31. Yarnall asserts that he abstained from the vote on the motion
to hire him at the January 23, 1995, meeting.
32. The board of supervisors believed the hiring of Yarnall would
be a long term benefit to the township.
a. Yarnall's knowledge from prior service on the Sewer
Authority could be used to good advantage.
b. Yarnall's hiring would mean less time and expense from a
private contractor.
c. Yarnall previously installed and worked on sewer lines.
d. Yarnall would perform maintenance functions.
33. Payroll records and time sheets confirm the following payments
were made to employee, Glenn A. Yarnall, from February 16,
1995, to September 14, 1995.
DATE OF PAYMENT
02/16/95
03/02/95
03/16/95
03/30/95
04/13/95
04/27/95
05/11/95
05/25/95
06/08/95
06/22/95
07/06/95
07/20/95
08/03/95
08/17/95
08/31/95
09/14/95
TOTAL
34. Statements of Financial Interest for the 1992, 1993 and 1994
calendar years on file in New Hanover Township for Glenn
Yarnall confirm the following:
a. Date Filed:
Street Address:
Telephone:
Public Office:
Occupation:
GROSS NEI
$ 432.72 $ 382.69
$1,496.49 $1,164.80
$1,523.54 $1,184.64
$1,584.39 $1,229.36
$1,469.45 $1,144.94
$1,496.49 $1,164.79
$1,645.24 $1,274.03
$1,442.40 $1,125.07
$1,496.49 $1,164.79
$1,442.40 $1,125.07
$2,253.75 $1,668.18
$1,685.81 $1,303.83
$1,496.49 $1,164.80
$1,442.40 $1,125.06
$1,442.40 $1,125.07
S1.442.40 $1,125.08
23,792.86 $18,472.71
3/4/93
2482 Rhoads Road, Gilbertsville, PA
19525
(215) 326 -0924
New Hanover Township Supervisor
Transportation
Yarnell, 95- 020 -C2
Page 11
Direct or Indirect
Sources of Income: Self - employed
All other marks on this statement were indicated as "None."
b. Date Filed:
Street Address:
Telephone:
Public Office:
Occupation:
All other marks on this
c. Date Filed:
Street Address:
All other marks on this
35. Yarnell did not list income from and employment with Preston
Trucking on his Statements of Financial Interests for calendar
year 1994.
III. DISCUSSION:
Telephone:
Status:
Current Occupation:
Political
Subdivision:
4/8/94
2482 Rhoads Road, Gilbertsville, PA
19525
(610) 326 -0924
New Hanover Township Supervisor
Truck Driver
statement were indicated as "None."
2/17/95
2482 Rhoads Road, Gilbertsville, PA
19525
(215) 326 -0924
Former Public Official
Public Employee
New Hanover Township
statement were indicated as "None."
As a Supervisor for New Hanover Township, Montgomery
County, Glenn Yarnell (Yarnell) is a public official as that term
is defined under Act 9 of 1989. 65 P.S. 5402. As such, his
conduct is subject to the provisions of the Ethics Law and the
restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 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
Yarnall, 95- 020 -C2
Page 12
the effective date of this act if any elements
of the violation occurred prior thereto.
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Section 3(a) of Act 9 of 1989 provides:
65 P.S. §403 (a) .
Section 3. Restricted Activities
(a) No public official or public
employee shall engage 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 or his immediate family or
a business with which he or a member of his
immediate family is associated. 65 P.S. §402.
Section 3(f) of Act 9 of 1989 provides:
Section 3. Restricted activities
(f) No public official or public
employee or his spouse or child or any
business in which the person or his spouse or
child is associated shall enter into any
contract valued at $500 or more with the
governmental body with which the public
Yarnell, 95- 020 -C2
Page 13
65 P.S. 5403(f).
official or public employee is associated or
any subcontract valued at $500 or more with
any person who has been awarded a contract
with the governmental body with which the
public official or public employee is
associated, unless the contract has been
awarded through an open and public process,
including prior public notice and subsequent
public disclosure of all proposals considered
and contracts awarded. In such a case, the
public official or public employee shall not
have any supervisory or overall responsibility
for the implementation or administration of
the contract. Any contract or subcontract
made in violation of this subsection shall be
voidable by a court of competent jurisdiction
if the suit is commenced within 90 days of the
making of the contract or subcontract.
Section 3(f) of Act 9 of 1989 specifically provides in part
that no public official /employee or spouse or child or business
with which he or the spouse or child is associated may enter into
a contract with his governmental body valued at five hundred
dollars or more or any subcontract valued at five hundred dollars
or more with any person who has been awarded a contract with the
governmental body with which the public official /employee is
associated unless the contract is awarded through an open and
public process including prior public notice and subsequent public
disclosure.
Sections 5(b) (5) and 5(b) (8) of Act 9 of 1989 provide:
Section 5. Statement of financial interests
(b) The statement shall include the
following information for the prior calendar
year with regard to the person required to
file the statement.
(5) The name and address of
any direct or indirect source of
income totalling in the aggregate
$1,000 or more. However, this
provision shall not be construed to
require the divulgence of
confidential information protected
by statute or existing professional
codes of ethics or common law
privileges.
Yarnall, 95- 020 -C2
Page 14
65 P.S. §405(b)(5) and (8) .
(8) Any office, directorship,
or employment of any nature
whatsoever in any business entity.
Section 5(b) (5) of Act 9 of 1989 requires that every public
official /employee and candidate list the name and address of any
direct or indirect source of income totalling in the aggregate of
$1,000 or more. Section 5(b)(8) requires the listing of any
office, directorship or employment of any nature whatsoever in any
business entity.
The issues before us are whether Yarnall, as a New Hanover
Township, Montgomery County Supervisor, violated Section 3(a) of
Act 9 of 1989, the conflict provision, Section 3(f), the
contracting provision, or Section 5(b)(5) and 5(b)(8), the
Financial Interests Statements (FIS) disclosure provisions,
regarding the allegation that Yarnall used the authority of office
to obtain a private pecuniary benefit for himself from his
participation in discussions or decisions of the Board which
resulted in the creation and his subsequent hiring to a position in
the Township Department of Public Works which was done without an
open and public process and when Yarnall failed to disclose direct
or indirect sources of income on his FIS for the 1994 calendar year
and finally, when he failed to disclose a place of employment on
his FIS's for the years 1992 through 1994.
The Findings reflect that Yarnall served as a Supervisor from
January 1992 until his resignation on January 31, 1995. New
Hanover Township had a five member Board of Supervisors as well as
a Municipal Authority (Authority). The Authority was established
to own, operate and maintain a sewage facility system within the
Township.
Consideration was given to merging the Authority into the
Township because such integration would have practical,
administrative, personnel and financial advantages. The
Supervisors had concerns regarding Authority operations: the
financial structure of the Authority which impacted upon financial
guarantees undertaken by the Board of Supervisors; objections and
complaints as to the sewer system; the activities and operations of
the Authority which resulted in the issuance of a notice of
violation by DER (now DEP) and certain litigation; and the
duplication of services, costs, and expenses.
The_, Board of Supervisors authorized a study to determine
whether there would be financial, administrative, personnel, and
economic benefits in consolidating the Authority into the Township.
Thereafter, on July 26, 1993, the Township Board adopted Resolution
25 -93 which was a statement of intent to pursue the acquisition of
ownership and operation of the Authority. Following certain
Yarnall, 95- 020 -C2
Page 15
presentations regarding the integration of the Authority on May 23,
1994 and a joint meeting between the Township and Authority Boards,
Ordinance 94 -03 was enacted which stated the Township's intent to
acquire all of the projects and assets of the Authority. On June
20, 1994, a special meeting between the Township and Authority
Boards occurred for the purpose of implementing the Township's plan
to assimilate the Authority. At that time, the Township Board
enacted Resolution 28 -94 which set forth certain parameters as to
the integration of the Authority. Lastly, Resolution 6 -94 was
passed which reflected an agreement as to the defeasance of the
Authority. Yarnall was an active participant as to the merger of
the Authority into the Township.
Yarnall contacted the Department of Community Affairs (DCA) in
late 1993 or early 1994 regarding the propriety of his doing sewer
work. DCA advised that he could not perform work or services for
the Authority. In November of 1994 when the Authority
Administrator resigned, the Township Board, with Yarnall
participating, had discussions regarding the sewer facilities and
the need to have personnel for sewer service requirements. In a
January 1995 Township Board Executive Session, discussions were
made regarding the creation of the Department of Public Works, the
employment of an individual to head that department and his salary.
Although a Supervisor invited Yarnall to consider the position
at a $30,000 salary, Yarnall responded that he was not interested
in the position at that salary. After a review was made of
comparable salaries in nearby communities, a salary of $37,500 was
proposed. Yarnall was asked to consider taking the position at the
higher salary.
A job description for Sewer Department Supervisor was prepared
which provided a generalized job description, examples of work, and
required knowledge, skills and abilities. A provision was inserted
in the job description that the employee would have to obtain a
Sewage Treatment Plan Operators license within two years of hiring
since Yarnall did not have an Operators License at that time.
At a January 23, 1995 Board of Supervisors meeting, Yarnall
submitted his resignation effective January 31, 1995. Thereafter,
a motion was made to hire Yarnall in the Public Works Department.
Although Yarnall was present at the meeting and was not reflected
in the minutes as abstaining, the Township Manager, the Supervisors
and Secretary stated that Yarnall abstained with the minutes being
in error. Yarnall was hired at a yearly salary of $37,500
effective February 1, 1995. The Township did not advertise for
that position nor conduct any interviews. Thus, the only person
considered by the Board was Yarnall. It was the consensus of the
Board of Supervisors that Yarnall's employment would be beneficial
to the Township given his knowledge from prior service on the
Authority, his salary would be less expensive than a private
Yarnall, 95- 020 -C2
Page 16
contractor, his prior work in installing and working on sewer lines
and his performance of maintenance functions.
As to the matters of Yarnall's FIS's, the record reflects that
Yarnall did not list income and employment as to Preston Trucking
on his FIS for the 1994 calendar year. As to Yarnall's place of
employment for the calendar years 1992 and 1993, we note that in
both of these years he listed his occupation as "transportation" or
"truck driver" with a source of income as "self employed" for the
1992 calendar year FIS.
In applying the provisions of the Ethics Law to the instant
matter, we find no violation of Section 3(a) of Act 9 of 1989. In
order to establish a Section 3(a) violation, there must be a use of
authority of office. As to the action of the Township Board in
acquiring the Authority and related matters, Yarnall's
participation was nondescript. As to voting on the position and
his employment, Yarnall abstained as to such action. In this
regard, although the minutes do not reflect Yarnall as abstaining,
the Township Manager and Supervisors all state that Yarnall
abstained. Further, the Township Secretary states that she made a
mistake in not recording Yarnall's abstention. Accordingly, a
review of the particular facts of this case reflect that there was
no use of authority of office on the part of Yarnall. Without such
use of authority of office, there was no violation of Section 3(a)
of Act 9 of 1989 regarding Yarnall's employment in the Township
Public Works Department.
As to Section 3(f) of Act 9 of 1989, we find a technical
violation regarding Yarnall's employment in the Public Works
Department. Section 3(f) requires that whenever a public
official /employee contracts with his governmental body, there must
be an open and public process including prior notice and subsequent
disclosure if the contract is $500 or more. That did not occur in
this case. The position in question had an annual salary of
$37,500 which exceeded the $500 contracting threshold of Section
3(f) of Act 9 of 1989. The Township did not advertise for bids for
that position as to which no interviews were conducted.
Accordingly, a technical violation of Section 3(f) occurred as to
the employment of Yarnall to the Public Works Department position
which contract exceeded $500 but was not awarded through an open
and public process.
As to the FIS matters, we find a technical violation of
Sections 5(b) (5) and 5(b) (8) regarding Yarnall's failure to list
$1,000 from Preston Trucking and his employment on his 1994
calendar year FIS. We find no violation as to Section 5(b)(8)
regarding the 1992 and 1993 calendar year FIS's based upon our
review of the Stipulation of Findings submitted by the parties. We
do take administrative notice that Yarnall has filed an amended FIS
for the 1994 calendar year. Accordingly, no further action will be
taken in this case which is closed.
Yarnall, 95- 020 -C2
Page 17
The parties have filed a 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. Glenn Yarnall, as a Supervisor in New Hanover Township,
Montgomery County, was a public official subject to the
provisions of Act 9 of 1989.
2. Yarnall did not violate Section 3(a) of Act 9 of 1989
regarding the creation of a position and his employment with
the Public Works Department in that there is insufficient
evidence to establish participation in the discussions by
Yarnall who abstained as to the vote.
3. A technical violation of Section 3(f) of Act 9 of 1989
occurred as to the contracting to hire Yarnall to a position
of employment in the Public Works Department which contract
was in excess of $500 and not awarded through an open and
public process.
4. A technical violation of Sections 5(b) (5) and 5(b) (8) of the
Ethics Law occurred when Yarnall failed to list his income in
excess of $1,000 from Preston Trucking and his employment on
his 1994 calendar year Financial Interests Statement.
5. No violation
regarding the
employment as
calendar years
of Sections 5(b) (5) and 5(b) (8) occurred
failure of Yarnall to disclose a place of
to Financial Interests Statements for the
1992 and 1993 .
In Re: Glenn Yarnall
1. Glenn Yarnall, as a Supervisor in New Hanover Township,
Montgomery County, did not violate Section 3(a) of Act 9 of
1989 regarding the creation of a position and his employment
with the Public Works Department in that there is insufficient
evidence to establish participation in the discussions by
Yarnall who abstained as to the vote.
2. A technical violation of Section 3(f) of Act 9 of 1989
occurred as to the contracting to hire Yarnall to a position
of employment in the Public Works Department which contract
was in excess of $500 and not awarded through an open and
public process.
3. A technical violation of Sections 5(b)(5) and 5(b)(8) of the
Ethics Law occurred when Yarnall failed to list his income in
excess of $1,000 from Preston Trucking and his employment on
his 1994 calendar year Financial Interests Statement.
4. No violation
regarding the
employment as
calendar years
File Docket: 95- 020 -C2
Date Decided: 2/15/96
Date Mailed: 3/1/96
ORDER NO. 996
of Sections 5(b) (5) and 5(1) (8) occurred
failure of Yarnall to disclose a place of
to Financial Interests Statements for the
1992 and 1993.
5. No further action will be taken in this case which is closed.
HY THE COMMISSION,
624 &.J
DANEEN E. REESE, CHAIR