HomeMy WebLinkAbout764 Nearingin re: Neil Nearing
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG. PENNSYLVANIA 17120
Fide Docket:
Date Decided:
Date Mailed:
87 -031 -C
October 4, 1990
October 29, 1990
Before: Robert W: Brown, Vice
G. Sieber Pancoast
Dennis C. Harrington
James M Howley
DaneexE . Reese
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 Wet
issued.and. upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was filed and a hearing was 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.
Chair
This adjudication is final and will be made available as a public
document fifteen flays 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 of affect the,..finality of this
adjudication A reconsideration request must`be received.athfs
Commission within fifteen days of issuanOe and must include a. d
explanation of the reasons`as to why.. reconsideration should begfanted
in conformity with 51 Pa. Code §2.38.
. r c
The files in this case will,,.remain confidential in acc .. dance
with Section 8(a) of ,the Ethics ,Fiat, 65 P T ;$ . 408(a) during the
day period and no one. unless the right to challenge this Ofder is
waived, may violate confidentiality by releasing, discussing of
circulating this Orde. ' gowever, confi4entiality does riot pred1ude
discussing this case;with . an, - attorney at„rlaw.
Any person who violates confidentiality ofthe Ethics Act is
guilty of a misdemeanor subject to a fine of not fttore than $1,000 or
imprisonment for not_moEg than one year, SS MI 409(e).
I. Allegation: That you, a Hamilton Township, McKean County
Supervisor violated the following provisions of the State Ethics Act,
(Act 170 of 1978), when you voted to hire your wife as township
sewage permit officer and building inspector; hired your minor and
dependent son to mow grass for the township; worked on your personal
heavy equipment on township time and in the town garage; and used
your position as township supervisor to obtain excavation work to
install septic system g.
Section 3._ Restricted Activities.
(a) No public official or public employee
shall use his public office or any confidential
information received through his holding public
office to obtain financial gain other than
'compensation provided by law for himself, a member
Of his immediate family, or a busi.rtess with which
he is associated: 65 P.S. §403(a).
II.
�i4clid%�ig�a
1.
You ser`ve'd as a Township Supervisor in Hamilton Township,
McKean County. Pennsylwanid.
a.
You also
township
ADJUDICATION
served as ai assistant laborer for the
and as the toivfiship roadnaster.
2. Minutes of the llaniiltoh Township Board Of Supervisor meeting
indicate the following':
a. April 2; 1985° -
roadinaster Jeff
April 1, 1985.
*ere being made
It ii aiiiiounced that assistant
I asabAc a *As terminated effeetzve
pplicatibi i to fill this vacdz cy►
availsbie at this tiM ;
b. May I, 1985 - Thd 8uperviiOrs dhnouncki thattiiey
have reviewed the job applicatibns for the
position Of assi§t &ht labordr to 6e toad tef:
Motion by Bud Rich to hire Neil Ne4rinq for fill
this position. Motion secori& d fly Nefi itdarihd.
Jde Kasaback dis$efits. Motion carried;
empibynient effectiFe May 16; 1985.
c. January 6, 1986 - Mbtion made ] -dud Rich seconded
by ikom Pierotti that as a result of the retirement
of Martin Carlson as roeftaster that Neil Nearing
should be apgeinted to this position. You were
present at this Mbdting.
d. Octobef• 7; 1986 - Tom Pierotti nominated Barb
Nearing to position of Building Permit Offi Or for
Hamilton Township. Neil bearing seconded thW
Mr. Neil Nearing
Page 2
7. Hamilton Township payroll
payments made to your son
motion. Tom Pierotti also made the motion to
raise the permit fee to $20.00. Neil Nearing
seconded this motion also. Township Supervisor
Bud Rich was absent during this meeting.
e. January 5, 1987 - Tom Pierotti made a motion to
hire Barbara Nearing to the position of Building
Permit Officer. Bud Rich seconded the motion.
You were present at this meeting.
3. Barbara Nearing is your spouse and resides in your
household.
4. Records of Hamilton Township indicate
to Barbara Nearing by the township:
DATE
August 16 - August 31,.1987
July 1 - July 15, 1987
November 30, 1986
June 2, 1987
March 31, 1987
November 4, 1987
December 1, 1987
AMOUNT
$ 80.00 (4 permits)
$ 60.00
$125.00
$ 30.86
$ 20.00
$ 53.79
$ 17.93
5. You signed the township biweekly, payroll reports through
which approval for payments to your wife were authorized.
6. During the summers of 1985 through 1987 you hired your son,
Ira Nearing to mow lawns at the township buildings.
a. Your son was a minor dependent residing in your
household.
b. The employment of Ira Nearing was concurred
in and approved by all supervisors.
Pay - Period
May i 16 - May : 31, 1985
July 16 31, 1985
August 16 - 31, 1985
September .16 , - 30, 1985
October,•16 - 31, 1985
July 17 July 15, 1987
July 16 - August 31, 1987
June 2, 1986
July 1, 1986
July 31, 1986
November 2, 1986
the following
records indicate the following,
for mowing township lawns:
Amo
$ 90
$180-00
$ 90.00
$ 60.00
$ 15.00
$ 45.00
$ 90.00
$ 60.00
$ 75.00
$ 60.00
$105.00
payments
Mr. Neil Nearing
Page 3
June 2, 1987 $ 44,31
July 7, 1987 $ 40.33
8. Records of Hamilton Township indicate that you signed the
biweekly payroll reports whereby payments to your son were
approved by the Township Board of Supervisors.
9. You did work on some of your personal excavating equipment
at the Township Building:
a. This work was conducted at night after normal working
hours.
b. No township employees were utilized to conduct this
work.
c. This was done because you were working on a township
project free of charge and used your equipment to do
so. You were preparing your equipment for this
project.
d. the excavating equipment was your bulldozer which blew
a clutch while being used free of charge for township
work. The bulldozer was in the immediate vicinity of
the township garage and was taken there for repairs so
that it could once again be used on the township
project.
10. You are engaged in excavating and welding work as N.A.
Nearing, Ludlow, PA.
11. You have performed excavations for individuals who were
installing sewage systems in Hamilton Township.
12. Township approval was necessary prior to the installation of
these : systems.
13. The Township Sewage Enforcement Officer, Lou Auchmoody was
responsible for inspecting proposed sewage /septic locations
and approving requests therefor.
a. During the course of performing these functions he
would recommend to the individuals who were seeking to
install said systems the name of several individuals
who could perform these services.
b. Auchmoody as part of this process would include your
name as one of the recommended contractors.
Mr. Neil Nearing
Page 4
14. There is no evidence that the Township Board of Supervisors
as-an entity or you individually approved individual
applications for the installation of sewage disposal
systems.
III. Discussion:
a public official
P.S. S402; 51 Pa.
provisions of the
applicable to him.
As a Hamilton Township Supervisor, Neil Nearing is
as that term is defined under the Ethics Act. 65
Code S1.1. As such, his conduct is subject to the
Ethics Act and the restrictions therein are
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
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.
Under Section 3(a), quoted above, this Commission has determined
that use of office by a public official to obtain a financial gain for
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): Hoak /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
interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19,
540 A.2d 1374 (1988). Likewise, a public official /employee may not
use the status or position of public office for his own personal
advantage; Huff, Opinion 84 -015.
The allegation before us in this case is whether Nearing violated
Section 3(a) of the Ethics Act as to the hiring of his spouse as
township sewage permit officer and building - inspector and his minor
Mr. Neil Nearing
Page 5
dependent son to mow grass for the township and secondly whether he
violated Section 3(a) as to the allegation that he repaired his
personal heavy equipment on township time in the township garage and
that he used his office to obtain excavation work to install septic
systems.
The minutes of the Hamilton Township Board of Supervisors, reflect
that on October 7, 1986, Nearing seconded motions to hire his wife
Barbara as the building permit officer and to raise the permit fee.
In addition, Nearing was present at the January 5, 1987 meeting
wherein his spouse was reappointed as building permit officer.
Nearing also signed the township bi- weekly payroll reports which
included the payments for his wife Barbara. Nearing also hired his
minor dependent son Ira to mow grass for the township during the
summers of 1985 through 1987. The bi- weekly payroll reports for Ira
were also signed by Nearing.
As to the allegations of the repair of Nearing's personal
equipment at the township garage on township time, the facts reflect
that Nearing was donating the use of his equipment for a township
project. When a clutch failed while working on the township project,
repairs were necessitated so that work could continue on the project.
Finally, as to the alleged use of office to obtain excavation work to
install septic systems, no evidence has been found to support that
charge. Accbrdingly, we find no violation of Section 3(a) as to the
allegations of the repair of the personal equipment or the obtaining
of excavation work.
We do however find a violation of Section 3(a) as to the
allegation concerning the hiring by Nearing of his son and his use of
office to hire his wife. Nearing did use office to obtain a financial
gain for a member of his immediate family which is compensation other
than provided for by law. In particular, his seconding or voting in
favor of motions is clearly a use of office. The same is true
regarding the hiring of his son to mow grass for the township in the
summer. Such use of office resulted in a financial gain which
consisted of the salaries his spouse and son received. Finally, the
financial gain is other than compensation provided for by law because
there is no provision in the Second Class Township Code which
authorizes a township supervisor to vote for the appointment of a
member of his immediate family to a position of employment with the
township.
However, given all the circumstances in this case, we will take no
further action. Nearing is advised to use caution in making certain
that a clear delineation exists between his public position and
private role of excavator so that no conflicts arise as to matters
that come before him.
Mr_ Neil Nearing
Page 6
IV. Conclusions of Law:
1. Neil Nearing as a supervisor in Hamilton Township is a public
official subject to the provisions of the Ethics Act.
2. Neil Nearing violated: Section 3(a) of the _Ethics Act when he used
office to hire his spouse as township building permit officer or
signed: township bi- weekly payroll reports for approval of payments for
his wife.
3. Neil Nearing violated Section 3(a) of the Ethics Act when he hired
his minor dependent son to mow grass for the township.
4. Neil Nearing did not violate Section 3(a) of the Ethics act
regarding the repair of his personal heavy equipment on township time
in the township garage.
5. Neil Nearing did not violate Section 3(a) of the Ethics Act as to
the charge that he used public office to obtain excavation work to
install septic systems.
In re: Neil Nearing
1. Neil Nearing as a Hamilton Township Supervisor violated
Section 3(a) of the Ethics Act when he used office to hire
his spouse as township building permit officer or signed
township bi- weekly payroll reports for approval of payments
for his wife.
• Neil Nearing violated Section 3(a) of the Ethics Act when he
hired his minor dependent son to mow grass for the,township.
• Neil Nearing did not violate Section 3(a) of the Ethics Act
regarding the repair of his personal heavy equipment on
township time in the township garage.
Neil Nearing; did -;not violate Section 3(a) of the .Ethics Act
as charge that he used public office to obtain
excavation work to install septic systems.
Given the totality -of the fact s and - circumstances, this
Commission will take no further action in.this :case.
: File Docket: 87 -031 -C
. Date Decided: October 4, 1990
: Date Mailed: October 29, 1999
ORDER No. 764
BY THE COMMISSION,
V
ROBERT W. BROW& VICE' CHAIR
c.