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HomeMy WebLinkAbout797 MorningstarIn re: Raymond D. Morningstar : File Docket: 85233191C . Date Decided: : Date Mailed: 6/10/91 Before: aA 11,S, A -1 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Helena G. Robert W. Dennis C. James M. Daneen E. Austin M. Hughes, Chair Brown, Vice Chair Harrington Howley Reese Lee The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, 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 not filed and a hearing was deemed waived. The record is complete. 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, 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 §2.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) 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). Mr. Raymond D. Morningstar Page 2 , I. ALLEGATION: ADJUDICATION That you, a PennDOT Maintenance Manager for Huntingdon County, violated the following provisions of the State Ethics Act (Act 170 of 1978), when you failed to disclose on your Statement of Financial Interests supplemental income received from your surveying business: II. FINDINGS: 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 and members of his immediate family: (5) The name and address of any person who is the direct or indirect source of income totalling in the aggregate $500.00 or more. However, this provision shall now be construed to require the divulgence of confidential information protected by statute for existent professional codes of ethics. (8) Any office, directorship, or employment of any nature whatsoever in any business entity. (9) Any financial interests in any legal entity engaged in business for profit. 1. Raymond Morningstar is employed as the Assistant County Maintenance Manager, PennDOT Maintenance District, 9 -5, Huntingdon, Pennsylvania. a. He has been employed with PennDOT since 1965. b. Morningstar was previously employed as a County Maintenance Manager. 2. As a County Maintenance Manager, Morningstar was responsible for the development of long range plans and programs for the Highway Maintenance Unit to accomplish normal and emergency highway and bridge maintenance, construction and reconstruction activities. The position also involved the development of short range plans; the review of work schedules; the organization of specialized and general maintenance crews; the control of materials; equipment and supplies; the administration of contracts to accomplish Mr. Raymond D. Morningstar Page 3 maintenance work; and the supervision of garage, office and field activities. 3. Morningstar has had a surveying business for the last 16 years. a. The surveying activities are confined to evenings and Saturdays and generally is related to residential surveying work. b. Morningstar mainly deals with private individuals and local farmers. c. He earns a gross income in excess of $1,000.00 annually from this employment. 4. On February 28, 1975, Raymond Morningstar submitted a request for supplemental employment to PennDOT Bureau of Personnel. a. Morningstar requested outside employment as a self- employed surveyor. b. The type of work described was supervising the running of preliminary and final property lines; setting corners for property surveys; staking -out buildings; setting grades for new homes., garages and barns; and running elevations for contours and topographic surveys. c. The work was to be performed on Saturdays from 6:30 a.m. to 6:00 p.m. d. On March 12, 1975, the Conflict of Interest Committee of PennDOT determined that the outside employment did not conflict with Morningstar's departmental duties and had no objection to him continuing. e. The outside employment was approved subject to conditions: "Your after hours employment is approved under the following conditions. If your after hours employment in any way interferes with your regular work or exhausts you to the point where you cannot function efficiently, or if this work could in any way be construed as a conflict of interest, it will be necessary for you to make an immediate Mr. Raymond D. Morningstar Page 4 decision as to which segment of employment you will choose as a principal job." 5. On August 31, 1984, Management Directive No. 515.18 regarding supplementary employment was issued at the direction of Murray Dickman, Secretary of Administration. a. The new directive stated that Commonwealth employees in departments, boards, commissions and independent agencies under the governor's jurisdiction, and who are affected by the Governor's Code of Conduct and are full -time employees who work outside of the Commonwealth, are required to fill out a new Supplementary Employment Request Form, which was form STD -355. 6. A letter dated February 1, 1985 was attached to all PennDOT employees' pay stubs from the Director of Personnel for PennDOT, Sharon Wright, regarding the new policy of supplemental employment. a. Employees with outside employment were required to complete Form STD -355 and return it to the Bureau of Personnel within (15) days after receipt of the notice. 7. Morningstar completed the STD -355 on May 25, 1990 and submitted it to PennDOT, Bureau of Personnel. a. The form requested supplemental employment approval to operate a small land surveying service out of his home. b. The work was to be performed on Saturdays, eight hours a day. c. On June 14, 1990, the request for supplemental employment was approved. 8. Morningstar filed Statements of Financial Interests as follows: a. Calendar Year Date Filed 1983 04/27/84 1984 05/01/85 1985 04/24/86 1986 05/15/87 1987 04/20/88 Mr. Raymond D. Morningstar Page 5 b. For the item "Direct or Indirect Sources of Income ", income from the survey business was not reported. 9. Morningstar also submitted Code of Conduct Statement of Financial Interests pursuant to Management Directive 205.9, amended, for the calendar years 1983 through 1987. a. The supplemental surveying business was not reported as employment. 10. Morningstar filed a Statement of Financial Interests for the 1988 calendar year on April 11, 1989. Attached to that form was a memo: a. To Whom It May Concern: It was recently pointed out to me that I made an oversight in preparing my Statement of Financial Interest, form SEC -1, and I would like to correct that error at this time. This error was in Section 11 (Direct or Indirect Source of Income), and the second entry should read in cases: Self. In Section 14 (Office or Directorship or Employment in Any Business), should read: Land Measuring /Self Employed. In Section 15 (Financial Interest in Any Legal Entity for Profit), should read respectively: Year Income 1987 $3,424.00 1986 3,310.00 1985 1,112.00 1984 819.00 1983 881.00 1982 890.00 1981 3,401.00 If you have any questions concerning this matter, please feel free to contact me. 11. On March 14, 1990, the Ethics Commission received, through mail correspondence, amended Statements of Financial Mr. Raymond D. Morningstar Page 6 Interests for Raymond Morningstar for the calendar years 1985, 1986 and 1987. The amended statements indicated as follows: a. Calendar Year: 1985 Statement Date: February 23, 1990 Sources of Income: Pennsylvania Department of Transportation /Self Office, Directorship or Employment in Any Business: Land Measuring Financial Interests in Any Legal Entity in Business for Profit: Financial Interests in 1985 - $1,120.00 b. Calendar Year: 1986 Statement Date: February 23, 1990 Sources of Income: Pennsylvania Department of Transportation /Self Office, Directorship or Employment in Any Business: Land Measuring Financial Interests in Any Legal Entity in Business For Profit: Financial Interests. 1986 - $3,310.00 c. Calendar Year: Mr. Raymond D. Morningstar Page 7 1987 Statement Date: February 23, 1990 Sources of Income: Pennsylvania Department of Transportation /Self Office, Directorship or Employment in Any Business: Land Measuring Financial Interests in Any Legal Entity ip Business For Profit: Financial Interests in 1987 - $3,424.00 12. Morningstar provided a statement to the State Ethics Commission investigators. a. The first mistake he made, concerning not listing the income he made as a surveyor on his Statements of Financial Interests, occurred back in 1979. III. DISCUSSION: b. His supervisor at the time, Jim Anderson, never instructed him to list the income he made as a surveyor. c. PennDOT has always been aware of his outside employment. Raymond Morningstar, hereinafter Morningstar, as an Assistant County Maintenance Manager for PennDot is a "public employee" as that term is defined under the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1; Fact Finding 2. 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 5 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 Mr. Raymond D. Morningstar Page 8 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 October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. In the instant matter we must determine whether Morningstar violated Section 5(b)(5), (8) and (9) of the Ethics Act quoted above, which requires a public official /employee to include the name and address of any person who is the direct or indirect source of income totalling $500 in aggregate or more, any office, directorship or employment in any business entity and lastly, any financial interest in any legal entity engaged in business for profit. Factually, in addition to his Commonwealth employment, Morningstar also had a surveying business for the last 16 years. Morningstar performed the surveying activities during weekends and evenings for private individuals and local farmers. The income to Morningstar from his private business activities exceeded $500 for each of the years 1981 through 1987. On February 28, 1975 Morningstar submitted a request for supplemental employment to the PennDot Bureau of Personnel which granted his request with the proviso that the outside employment could not interfere with his regular work or affect his work efficiency. Thereafter, on August 31, 1984, Management Directive No. 515.18 from the Office of Secretary of Administration required that employees who had outside work were required to complete a STD -355 Form. By letter dated February 1, 1985 the Personnel Director of PennDot attached to all employees' pay stubs a requirement that they complete the form STD -355 and return it to the Personnel Bureau within 15 days. Morningstar did not complete the STD -355 until May 25, 1990. Morningstar filed Statements of Financial Interests (FIS) for the calendar years 1983 through 1987 but did not list the income from his surveying business on any of his statements. Thereafter, on Morningstar's 1988 calendar year FIS, he did list "self" as a source of income, land measuring as an office, directorship or employment in any business and the amounts he earned from 1981 through 1987 in Section 15 of the FIS dealing with financial interests in any legal entity for profit. In Mr. Raymond D. Morningstar Page 9 addition, Morningstar made a notation on the FIS that he failed to include such information in prior statements do to a "oversight" that he wished to "correct - -- at this time." On March 14, 1990, Morningstar filed three amended FIS's for the calendar years 1985, 1986 and 1987 wherein he listed, in part, sources of income as "self ", office, directorship or employment in any business as land measuring and specific dollar amounts under the category of financial interests in any legal entity in business for profit. In applying the above quoted provisions of Sections 5(b)(5), (8) and (9) of the Ethics Act to the above facts, we find that Morningstar violated that section of the Ethics Act regarding the FIS's that he filed for the years 1981 through 1987. In each of those years Morningstar had income from his surveying business in excess of $500 yet failed to report, or timely report, such financial interests as a direct or indirect source of income, as an office, directorship or employment in any business and a financial interest in any legal entity in business for profit. Although Morningstar filed amended FIS's for the calendar years 1985 through 1987, he failed to do so for the calendar years 1981 through 1984. In light of the above, Morningstar is directed within 30 days of the issuance of this Order to file amended FIS's for the calendar years 1981 through 1984. Failure to comply with the foregoing will result in the referral of this matter to the appropriate law enforcement authority. SV. CONCLUSIONS OF LAW: 1. Raymond Morningstar as an Assistant County Maintenance Manager for PennDot is a public employee subject to the provisions of the Ethics Act. 2. Morningstar violated Section 5(b)(5), (8) and (9) of the Ethics Act by failing to timely report his surveying business under the categories of direct or indirect source of income; office, directorship or employment in any business entity and any financial interests in any legal entity engaged in business for profit. In re: Raymond D. Morningstar : File Docket: 89 -037 -C : Date Decided: 5/23/91 : Date Mailed: 6/10/91 ORDER No. 797 1. Raymond Morningstar as Assistant County Maintenance Manager in PennDot violated Section 5(b)(5), (8) and (9) of the Ethics Act by failing to timely report his surveying business under the categories of direct or indirect source of income; office, directorship or employment in any business entity and any financial interests in any legal entity engaged in business for profit. 2. Morningstar is directed within 30 days of the issuance of this order to file amended Financial Interests Statements for the calendar years 1981 through 1984 which will lists his surveying business as a direct or indirect source of income; the office, directorship or employment in any business entity and the financial interests in any legal entity engaged in business for profit. 3. Failure to comply with the provisions of numbered paragraph two will result the referral of this matter to the appropriate law enforcement authority. BY THE COMMISSION, . )9 ;). HELENA G. HO , CHAIR