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HomeMy WebLinkAbout817 SitekIn Re: Benjamin J. Sitek STATE ETHICS COMMISSION 30$ FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: : Date Decided: . Date Mailed: 91- 007 -C2 December 4, 1291 December 11, 1991 Before: Dennis C. Harrington, James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher Allan M. Kluger The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. 401 et. seq. 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 Order 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. Chair 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, however, 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 S2.38. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. 408(h) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. 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, 65 P.S. 409(e). I. ALLEGATION: That you, a Supervisor for Franklin Township, Erie County, violated the following section of the Public Officials and Employees Ethics Law, when you were compensated as a township roadmaster without being appointed to the position; and when you received compensation not related to the duties of roadmaster or laborer: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. S403(a). ,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. 5402. II. FINDIIIGS : 1. Benjamin Sitek serves as a Township Supervisor, in Franklin Township, Erie County, Pennsylvania. a. He has served in this position since January 1986. b. He has served as a supervisor /employee for Franklin Township since 1986. 2. Reorganizational meeting minutes of the Franklin Township supervisors indicate the following action was taken relative to the hiring of Benjamin Sitek as a road laborer: a. January 6, 1986: Sitek, 91- 007 -C2 Page 3 Motion by Herbert Netzler, seconded by John Sachar, to appoint Benjamin Sitek as Summer Assistant Superintendent. Vote: Netzler, Sachar - Yes Abstained: Sitek Present: Sitek, Netzler and Sachar Motion by Herbert Netzler, seconded by John Sachar, to appoint Benjamin Sitek as equipment operator and laborer. Vote: Netzler, Sachar - Yes Abstained: Sitek b. January 5, 1987: Motion by Benjamin Sitek, seconded by Herbert Netzler, to appoint the following persons as equipment operators: John Sachar, Benjamin Sitek, Herbert Netzler, Paul Pieper, Lawrence Pieper, David Henderson, Ed Warhola, Ron Walter, Jeff Carter, John Bardo, Richard Gould and Robert Lewandowski. Vote: Unanimous Present: Sachar, Sitek and Netzler c. January 4, 1988: Motion by Herbert Netzler, seconded by Wayne Cousin, to appoint as laborers and equipment operators Benjamin Sitek, Wayne Cousin, Jeff Carter, Richard Gould, Paul Pieper, Victor Kalicy, Randy Hammond, Dennis Swift, David Henderson and William Barry. Vote: Unanimous Present: Sitek, Netzler and Cousin d. January 3, 1989: Equipment Operators and Laborers: Motion by Ben Sitek, seconded by Herbert Netzler, to appoint as equipment operator and laborer: Ben Sitek, Wayne Cousin, Jeff Carter, Rick Gould, Paul Pieper, Vic Sitek, 91- 007 -C2 Page 4 Kalicy, Randy Hammond, Dennis Swift, David Henderson, William Barry and Steven Burt. Vote: Unanimous Present: Sitek, Cousin and Netzler e. January 2, 1990: Equipment Operators and Laborers - Herb Netzler moved to appoint Paul Pieper, Jeff Carter, Richard Gould with Dave Henderson, Don Perry and Ray Swift appointed to plow snow when needed. Ben Sitek seconded, motion carried. Present: Netzler, Cousin and Sitek 1) The minutes do not reflect that Sitek was approved by the Board of Supervisors to be employed by the Road Department during 1990. f. January 7, 1991: Ben Sitek moved to appoint David Henderson as Superintendent. David Henderson seconded, motion carried. (One Nay - Herbert Netzler) Equipment Operators and Laborers: Henderson moved to appoint Jeff Carter, Richard Gould, Raymond Swift, Herbert Netzler, David Henderson, Benjamin Sitek, John Conrad, Wayne Cousin, Donald. Perry, John Sachar, Paul Pieper and Lawrence Pieper as equipment operators and laborers. Ben Sitek seconded, motion carried. Present: Henderson, Sitek and Netzler g. January 24, 1991: "After the Pledge of Allegiance ", affirmation of the Organizational Meeting was as followed: Henderson asked if Attorney Schroeck had an affirmation motion ready. None was ready so H. Rubinfield suggest we do everything that was done at the January 7, 1991 meeting ". Roadmaster: "Sitek referred to the January 7th minutes and stated that he wasn't going to reread his statement. Sitek moved to appoint Dave Henderson as roadmaster ". Dave Henderson Sitek, 91- 007 -C2 Page 5 Present: Henderson, Sitek and Netzler 3. Benjamin Sitek's daily time cards indicate that he worked 460.5 hours during 1990. a. Sitek was compensated at a rate of $8.00 per hour. b. W -2 Wage and Tax Records indicate Sitek received $3,794.00 compensation during 1990. 4. Benjamin Sitek's time cards for 1990 indicate the following break down of hours worked and duties performed: Date seconded, motion carried. (One Nay - Herbert Netzler) Equipment Operators and Laborers: "Henderson moved to approve Jeff Carter, Richard Gould, Raymond Swift, Herbert Netzler, David Henderson, Benjamin Sitek, John Conrad, Wayne Cousin, Ronald Barry, John Sachar, Paul Pieper, Lawrence Pieper, Ed Warhola as equipment operators and laborers. Sitek seconded, motion carried ". Hours Road Building Other 1/5/90 3.5 3.5 1/8/90 8 1/11/90 5.5 1/29/90 5 1/31/90 3 2/12/90 4 4 2/13/90 3 3 2/22/90 7 3/14/90 7.5 7.5 3/16/90 8 8 3/20/90 8 3 3/23/90 4 3/19/90 8 8 3/22/90 2 2 3/26/90 7 7 3/28/90 7.5 7.5 8 5 3 5 4 5.5 Surplus 7 Surplus Sitek, 91- 007 -C2 Page 6 Date Hours Road Building Other 3/29/90 8.5 8.5 3/30/90 6 6 9/4/90 3 3 9/5/90 5 5 9/6/90 5 5 9/7/90 7 7 Census 9/9/90 6 6 Census 9/10/90 7 5 2 Census 9/14/90 6.5 6.5 9/17/90 6.5 6.5 9/18/90 6.5 6.5 9/19/90 6.5 6.5 9/20/90 6 6 9/24/90 6.5 6.5 9/25/90 6.5 6.5 9/26/90 4 4 9/27/90 8 8 9/28/90 6 6 10/1/90 3 3 10/8/90 8 8 10/9/90 8 8 10/10/90 7 7 10/11/90 7 7 10/15/90 10 10 10/17/90 8 8 10/18/90 9 9 10/10/90 7.5 7.5 10/22/90 8 8 10/23/90 8 8 10/24/90 8 8 10/31/90 6 6 11/2/90 7 7 11 /5/90 7 7 Sitek, 91-007-C2 Page 7 D to our two d Building , ther 11/6/90 7 7 11/7/90 8 8 11/8/90 4 4 11/12/90 7 7 11/13/90 3 3 11/14/90 8 8 12/3/90 8 8 12/4/90 7 7 12/5/90 7 7 12/6/90 4 4 12/7/90 7.5 7.5 12/12/90 6.5 6.5 12/13/90 7 7 12/14/90 8.5 8.5 12/17/90 6 6 12/18/90 9 9 12/19/90 5 5 12/20/90 11 11 12/21/90 4 4 12/22/90 8.5 8.5 12/27/90 3.5 3.5 ,12/28/90 4 4 12/31/90 4 4 12.5 Surplus TOTALS: 460.5 74.5 358.5 15.0 Census 5. Franklin Township records indicate Sitek received compensation for the following: a. Building Repairs /Renovations - 358.5 Hours b. Conducting a Census Survey - 15 Hours c. Trips to the Surplus Store - 12.5 Hours d. Compensation for the work listed in Finding No. 5 (a, b and c) was at a rate of $8.00 per hour. Sitek, 91- 007 -C2 Page 8 6. Due to an illness, Sitek was unable to do much work on the roads in 1990. 7. Repairs and renovations to the township building included the building of an addition, cement, electrical heating and finishing work. a. All township employees were utilized to some degree on this project. b. The majority of the work was performed by Supervisors Henderson and Sitek. c. Renovations occurred during the months of October, November and December 1990. 8. Township auditors believed that this sort of work should have been handled by the hired township employees on days which the weather did not permit them to be out working on the roads. 9. During November of 1990, full time Road Department employees, Paul Pieper, Jeff Carter and Rick Gould, were laid off to save the township money. While Carter, Gould and Pieper were laid off, Supervisors Henderson and Sitek continued to work renovating the township building. a. Neither Henderson nor Sitek were out performing any physical labor on the roads at this time. 10. Franklin Township daily time sheets indicates Sitek worked on a township census on the following dates: a. September 6,.1990 - 6 Hours b. September 7, 1990 - 7 Hours c. September 10, 1990 - 2 Hours 11. Minutes of the Franklin Township Board of Supervisors indicate the following relative to a census count: a. September 11, 1990: Old Business Census - "Henderson reported that since he was put in charge of the census in January, he hasn't had anything to do with it until the count came back. It has and shows 500 homes, 34 vacants. We show 494 homes and 33 vacants, but the head count is off. Challenges must be made by next Wednesday, September 19 ". Sitek, 91- 007 -C2 Page 9 b. September 27, 1990: "Henderson reported that the Challenge was filed on time. We estimated the head count at 1,510 while the census count was 1,412. We had an 80% return on the survey cards ". 12. Franklin Township time cards indicate Sitek was compensated for trips to the Surplus Store on two occasions. a. January 11, 1990 - 5.5 Hours b. February 22, 1990 - 7.0 Hours 13. Franklin Township auditor minutes are unavailable as said records were lost. a. Minutes for 1991 indicate that the rate of compensation for supervisors in 1990 was $8.00 /hour. 14. The lack of reference to Mr. Sitek's appointment in 1990 may be due to clerical error. 15. Statements of Financial Interests on file with Franklin Township include the following filings for Sitek: a. Calendar Year: Not Listed Filed: 3/26/86 on SEC Form 1/87 Position: Franklin Township Supervisor Occupation: Retired Direct /Indirect Sources of Income: Franklin Township All Other Financial Interests: None b. Calendar Year: 1985 Filed: 4/10/86 Position: Franklin Township Supervisor Occupation: Retired Direct /Indirect Sources of Income: Franklin Township Sitek, 91-007-C2 Page 10 All Other Financial Interests: None c. Calendar Year: Not Listed Filed: 3/18/87 on SEC Form 1/89 Direct /Indirect Sources of Income: None A11 Other Financial Interests: None d. Calendar Year: 1987 Filed: 4/8/88 Position: Franklin Township Supervisor Occupation: Retired Direct /Indirect Sources of Income: Franklin Township All Other Financial Interests: None e. Calendar Year: Unlisted Filed: 3/28/89 Position: Franklin Township Supervisor All Categories of Financial Interests: None f. Calendar Year: Not Listed Filed: March 13, 1990 on SEC Form 1/90 Position: Franklin Township Supervisor Occupation: Retired All Sources of Financial Interest: None g. Calendar Year: Not Listed Filed: 1/23/91 on SEC Form 1/90 Position: Franklin Township Supervisor Occupation: Retired All Categories of Financial Interests: None Sitek, 91- 007 -C2 Page 11 III. pISCtJSSION: h. Calendar Year: 1991 Filed: 3/6/91 on SEC Form 1/87 Position: Candidate Franklin Township Supervisor Occupation: Retired All Categories of Financial Interests: None As a Supervisor for Franklin Township, Erie County, Benjamin J. Sitek, hereinafter Sitek, is a public official as that term is defined under Act 9 of 1989. 65 P.S. 402. 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 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. Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not 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 Sitek, 91- 007 -C2 Page 12 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. The issue before us in this case is whether Sitek violated Section 3(a) of the Ethics Law regarding his receipt of compensation as a roadmaster without being appointed to that position and also his receipt of compensation for performing duties that did not relate to the position of roadmaster or laborer. Sitek has served as a Township Supervisor and as a Township employee since January 1986. The reorganizational minutes for the Franklin Township Supervisors reflect the following action for the years 1986 through 1991: on January 6, 1986, Sitek abstained from two motions which appointed him as summer assistant superintendent and as equipment operator and laborer; on January 5, 1987, Sitek made and voted in favor of a successful motion to appoint himself and others as equipment operators; on January 4, 1988, Sitek voted in favor of a successful motion which appointed himself and others as laborers and equipment operators; on January 3, 1989, Sitek made and voted in favor of a successful motion to appoint himself and others as equipment operators and laborers; on January 2, 1990, Sitek seconded and voted in favor of a successful motion to appoint others, not including himself, for road work positions; on January 7, 1991, Sitek seconded and voted in favor of a successful motion to appoint himself and others to the positions of equipment operators and laborers, and on January 24, 1991, Sitek seconded and voted in favor of a successful motion to appoint himself and others as equipment operators and laborers in the township. During the 1990 calendar year, the time cards for Sitek reflect that he worked 358.5 hours on building repairs and renovations, 15 hours doing census survey work and 12.5 hours as to trips to the surplus store. The minutes of the Franklin Township Auditors, with the exception of the 1991 year which reflect an approval of a compensation rate for supervisors in 1990 at $8.00 per hour, are unavailable in that those records are lost. In addition, the record reflects that the omission of Sitek's appointment in 1990 may have been due to a clerical error (Fact Finding 14). Sitek, 91- 007 -C2 Page 13 Finally, we note as to the Financial Interests Statements (FIS) on file by Sitek at the township, several of the forms do not list the particular calendar year for which the form is filed and several forms do not list Franklin Township as a source of income for Sitek. In applying the provisions of Section 3(a) of Act 9 of 1989 to the allegation, we find that Sitek was appointed to a road position for every year from 1986 through 1991 with the exception of 1990. As to the 1990 calendar year, it is clear that such omission in the minutes was a clerical error and, hence, we find as a matter of fact that Sitek was likewise appointed to a road position for that year. Accordingly, as to the portion of the allegation that Sitek violated Section 3(a) by being compensated as a township roadmaster without being appointed to that position, we find no violation based upon the above. Turning to the portion of the allegation that Sitek received compensation not related to the duties of roadmaster or laborer, we do note that in addition to performing building and road repairs and other activities, Sitek also performed 15 hours of work conducting a census survey. Since the particular activity of conducting a census survey does not relate to the position of an employee /supervisor but is part of the administrative duties of an elected supervisor, we find a technical violation as to Sitek's activities of conducting the census survey. However, given the totality of the facts and circumstances in this case, we will take no further action. As to Sitek's FIS's, in light of the above deficiencies, we direct Sitek within thirty (30) days of issuance of this Order to correct the deficiencies by amending his FIS's to designate specific calendar years as well as listing Franklin Township as a source of income where he failed to do so. Failure to correct the FIS deficiencies within thirty (30) days of issuance of this Order will result in the referral of this matter for an FIS enforcement action. IV. CONCLUSIONS OF LAW: 1. Benjamin Sitek, as a Franklin Township Supervisor, is a public official subject to the provisions of Act 9 of 1989. 2. Sitek did not violate Section 3(a) of Act 9 of 1989 by receiving compensation as a township roadmaster since he was appointed to a road position for the calendar years 1986 through 1991. 3. A technical violation occurred when Sitek received compensation for conducting a census survey which did not relate to his duties as an employee /supervisor. In Re: Benjamin J. Sitek : File Docket: 91- 007 -C2 : Date Decided: December 4,1991 : Date Mailed: December 11,1991 ORDER No. 817 1. Benjamin Sitek, as a Franklin Township Supervisor, did not violate Section 3(a) of Act 9 of 1989 for receiving compensation as a township supervisor since he was appointed to a road position for the calendar years 1986 through 1991. 2. A technical violation occurred when Sitek received compensation for conducting a census survey which did not relate to his duties as an employee /supervisor. 3. Sitek is directed within thirty (30) days of issuance of this Order to file amended Financial Interests Statements with Franklin Township to correct the following deficiencies: a. To include the calendar year for which the FIS's are being filed. b. To list Franklin Township as a source of income. 4. Failure by Sitek to comply with the provisions of paragraph 3 will result in the referral of this matter for an FIS enforcement action. BY TIj COMMISSION, DENNIS C. HARRINGTO , CHAIR