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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.