HomeMy WebLinkAbout216 CumberledgeMr. Charles Cumberledge
Union Township Supervisor
1719 Hart Street
New Castle, PA 16101
Re: # 82 -94 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
August 19, 1983
Order No. 216
Dear Mr. Cumberledge:
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. The Commission has now completed its
investigation. The individual allegations, conclusions, and findings on which
those conclusions are based are as follows:
I. Allegation: That you, as a township supervisor, approved the use of
township funds to pay for gas bought and billed to the township by persons
having no official connection to the township.
A. Findings:
1. You serve as a Union Township Supervisor and as such are subject to the
requirements of the Ethics Act. You have been a township supervisor since
January, 1973.
2. Union Township purchases unleaded gasoline from Del's Service Station and
is billed periodically for these purchases.
a. Del's Service Station sells gasoline only to those persons having the
approval of the township supervisors.
b. Township supervisors have approved such purchases for the police
cruiser, road vehicles, and the vehicle of the dog enforcement officer.
c. The supervisors have also approved purchases of gasoline by township
employees for personal vehicles when those vehicles are used for township
business.
Charles Cumberledge
August 19, 1983
Page 2
3. Expenditures for unleaded fuel were $1,445.00 in 1979; $1,799.00 in 1980;
$3,296.00 in 1981 and $3,206.00 in 1982.
a. Township employees having approval to purchase unleaded gasoline at
Del's Service Station were the police chief, two patrolmen, and the dog
enforcement officer.
b. The only purchases for gasoline for personal vehicles were three
purchases in April, 1981 by township patrolmen to conduct patrols with their
own vehicles. These purchases and bills were approved by the supervisors and
amounted to approximately $40.00.
4. Union Township maintains a supply of regular gasoline for the purpose of
fueling older township equipment, A log book is maintained which details the
date, amount of gasoline received, vehicle and person operating the vehicle.
5. Only township employees received gasoline from either Del's Service
Station or township supplies (see No. 4 above) during the period from 1980 to
1982.
6. There was no information available for gasoline usage in 1979.
7. During the late fall of 1979, Police Chief Ciamona apprehended Joseph
Gierlach, Jr., son of Township Supervisor Joseph Gierlach, pumping five
gallons of gasoline from township supplies into the personal vehicle of Joseph
Gierlach, Jr. The incident was reported orally to Supervisor Gierlach at
the time of the occurrence and was brought to the attention of all supervisors
at a township meeting in February, 1982. The township was not reimbursed for
this gasoline but took no further action with relation to this incident.
B. Discussion: Section 3(b) of Act 170 states:
No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
The persons for whom you approved the use of personal vehicles were all
township employees and those vehicles were used for township business. In
addition, the bills for gasoline you approved were for the use of those
personal vehicles on township business. There is also no evidence that your
approval of the use of personal vehicles or the payment of gasoline bills was
based on any understanding that your vote /official action or judgment would be
influenced.
Charles Cumberledge
August 19, 1983
Page 3
Although Mr. Gierlach's son was not a township employee and the gas he
took was not for official business, you did not approve this action. There is
no evidence that you personally benefitted from this incident and the
Commission finds no violation of the Ethics Act under the facts found above.
C. Conclusion: You did not violate the Ethics Act when you approved the
use of personal vehicles for township equipment and the subsequent payment of
bills for gasoline purchased for those vehicles when they were used for
township business.
II. Allegation: That you, as a township supervisor, have participated in
decisions that have benefitted your daughter and that this is a violation of
Section 3(a) of the Ethics Act, Act 170 of 1978.
A. Findings:
8. Susan Currie, Secretary /Treasurer for Union Township, is your daughter.
9. Susan Currie is not a minor or dependent child but resides with you.
10. Susan Currie commenced employment with Union Township on May 6, 1974 as a
clerk /typist. She was hired to assist the secretary /treasurer. The hiring
was unanimously approved by the Supervisors. You voted to hire her.
11. No set hiring policy exists in Union Township. Job openings are filled
on the basis of job applications made to the supervisors. The Board of
Supervisors approve all hirings.
12. On July 25, 1978 Susan Currie was appointed Secretary /Treasurer for
Union Township by a unanimous vote. You voted to approve this appointment.
13. At annual reorganization meetings of January 2, 1979, January 7, 1980 and
January 5, 1981, Susan Currie was reappointed secretary /treasurer by unanimous
votes of the supervisors. You voted to approve these re- appointments.
14. On January 4, 1982 a motion by Supervisor Fee was seconded by Supervisor
Gierlach that Supervisor Gierlach be named secretary /treasurer. Motion
carried by a 2 to 1 vote. You opposed the motion.
15. At township meeting of January 9, 1982 you made a motion which was
seconded by Supervisor Gierlach to accept Gierlach's letter of resignation
from the Secretary - Treasurer's position dated January 7, 1982. You made a
motion which was seconded by Gierlach to appoint Susan Currie
secretary /treasurer, this motion carried by unanimous vote.
16. On March 11, 1980, you voted to compensate the township
secretary /treasurer (Susan Currie) for 15 miles per day at the rate of $.17
per mile retroactive to the beginning of the year for use of her personal
vehicle.
Charles Cumberledge
August 19, 1983
Page 4
17. On September 21, 1982, you seconded a motion authorizing mileage
reimbursement to Susan Currie as secretary /treasurer at the rate established
on March 11, 1980 for the period from January, 1982 through September, 1982.
Effective October 1, 1982 the rate was to be increased to $.225 per mile.
This motion passed by a 2 to 1 vote.
a. The township secretary /treasurer, Susan Currie, received $418.00 in
1980, $548.25 in 1981, and $432.60 in 1982.
b. There is no report showing the purpose and destination of her travel.
c. The 1981 township auditors' report included a recommendation to have
"a log turned in by all township employees using their personal cars for
township business. This log would show the date travelled, the amount of
mileage travelled, and the reason for the trip."
d. The auditors also recommended that payment be made at 20¢ per mile.
e. Neither recommendation has been considered by the supervisors.
18. You represented Union Township during labor negotiations in 1979 and 1981
that affected the salary and fringe benefits received by your daughter, Susan
Currie. You signed and approved the contracts of 1979 and 1981. The
negotiating committee for the township employees consisted of Thomas Mills,
Susan Currie and Liz Long, AFSCME representative.
19. During negotiations for the contract effective November 16, 1981, you
participated in negotiations and approved a labor contract that resulted in:
a. Article I, Section 2, stating the position held by Susan Currie will
remain in the bargaining unit for the duration of her employment in this
position with the township. This protects Susan Currie's job until November
16, 1985.
b. A salary schedule for Susan Currie with salaries commencing on November
16, 1981 of $13,041; November 16, 1982 of $14,084; and November 16, 1983 of
$15,211.
c. In their 1981 audit report, the auditors questioned the salary of the
secretary /treasurer noting that it and other township employees' salaries were
much higher than those in surrounding townships.
d. The auditors also recommended that one secretarial position could handle
the current workload.
e. The supervisors did not act on these recommendations.
Charles Cumberledge
August 19, 1983
Page 5
20. In a February 3, 1982 letter to the Honorable Thomas Fee, Attorney
Robert W. Zech, Jr. of the Pennsylvania Legislative Reference Bureau wrote,
"The position of secretary-treasurer is, at most, a management position, or,
at the least, a position of a confidential employee, which or who would be
prohibited by the express terms of Act 195 (Public Employees Relations Act)
from being a member of the bargaining unit."
a. There is no evidence that at any time you were aware of this letter.
b. During the 1981 audit, the auditors also questioned the validity of the
secretary treasurer's position being covered by the union contract.
c. There is no evidence that the supervisors attempted to determine which
positions should be in the bargaining unit before, during, or after the
negotiations.
d. The supervisors took no action on the auditors' recommendation contained
in their 1981 audit report.
21. You participated in approving payment to Susan Currie at the rate of
$15.00 per meeting for attendance at township meetings. Currie received
$465.00 in 1980; $405.00 in 1981; and $360.00 in 1982. The practice of paying
the secretary /treasurer for attending township meetings was established prior
to Susan Currie's appointment as secretary /treasurer.
B. Discussion: Section 1 of Act 170 states:
The Legislature hereby declares that public office is a
public trust and that any effort to realize personal
financial gain through public office other than
compensation provided by law is a violation of that trust.
In order to strengthen the faith and confidence of the
people of the State in their government, the Legislature
further declares that the people have a right to be
assured that the financial interests of holders of or
candicates for public office present neither a conflict
nor the appearance of a conflict with the public trust.
Because public confidence in government can best be
sustained by assuring the people of the impartiality and
honesty of public officials, this act shall be liberally
construed to promote complete disclosure. 65 P.S. 401.
Section 3(a) of Act 170 states:
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 business with which
he is associated. 65 P.S. 403(a).
Charles Cumberledge
August 19, 1983
Page 6
Section 3(d) of Act 170 states:
Other areas of possible conflict shall be addressed by the
Commission pursuant to paragraph (9) of Section 7.
65 P.S. 403(d).
The Ethics Act defines immediate family as "a spouse residing in the
person's household and minor dependent children. While your daughter resides
in your household, she is neither minor nor dependent. Your participation
in the appointment, re- appointment, and various union negotiation decisions
did benefit your daughter but because she is neither minor nor dependent there
is no basis to find a violation of Section 3(a).
The Commission must also consider other areas4of conflict which might
arise from your position as a supervisor and your natural, private concern for
your family. As a township supervisor, you are obligated to make decisions
for the benefit of the public based solely on the needs of the township and
within the governing laws, regulations and ordinances. While your daughter
has worked for the wages and benefits she has received and we have no role in
determining whether the work is necessary or the compensation appropriate, it
is clear that when you decide on compensation for your daughter and the
security of her job, you are placing yourself in a position of having a
potential conflict of interest. The adverse nature of these interests is
clearly demonstrated by the fact that your daughter and you are formally on
opposite sides of the management -labor issues to be resolved during the
negotiations conducted within the applicable labor laws. In addition,
although you do not receive direct financial benefit, the public would
perceive that additional compensation to your daughter - especially one who
lives with you - is indirect personal financial gain. While we are troubled
by these circumstances, they are not sufficient to find a violation of the
Ethics Act.
In addition to the above considerations, the Commission has the
responsibility to review these actions in light of Section 1 of the Act which
requires that public officials, public employees and candidates avoid both a
conflict and the appearance of a conflict with the public trust.
The Commission has already ruled that the appearance of a conflict of
interest exists when a public official participates in actions which benefit
family members other than those defined as "immediate family" in Act 170.
See Leete, 82 -005.
The appearance of a conflict can be avoided in a number of ways such as
abstention by the official or employee involved or the establishment of
uniform standards and criteria which remove subjective considerations from
individual cases. You participated in official township decisions which gave
your daughter job tenure, salary increases, additional compensation for
attending meetings, and personal car mileage. Except for the payment of extra
compensation for attending meetings which was a practice established prior to
your daughter's appointment as secretary /treasurer, no standards or criteria
were used in any of the decisions.
Charles Cumberledge
August 19, 1983
Page 7
In the case of the inclusion of your daughter's position in the
bargaining unit, the Pennsylvania Labor Relations Board was available as an
objective party to give you guidance. You did not take this opportunity. In
addition, the 1981 Auditors' Report raised this question and pointed out that
surrounding townships could be used as a standard for setting the salaries of
the secretary /treasurer and other employees. They added, if used, the
statistics would show that the salary you agreed to for your daughter was not
in line with those of surrounding areas. While we emphasize that we are not
questioning the supervisors' right and responsibility to determine staffing
needs and compensation, we have the obligation to consider these actions in
accordance with applicable Sections of the Ethics Act. In this case, your
actions created the appearance of a conflict of interest when you participated
in decisions which individually benefitted your daughter. We urge you and the
other supervisors to seek the guidance of the Pennsylvania Labor Relations
Board to resolve the question of the inclusion of your daughter's position in
the bargaining unit and to establish standard hiring and salary
determination practices which would remove the appearance of a conflict.
C. Conclusion: There is no evidence to find a violation of Section 3(a) or
3(d) of the Act. However, your continued and frequent participation in
official decisions which favorably benefit your daughter creates the
appearance of a conflict with the public trust and, in the future, you must
remove this appearance by abstaining from participation in any township
decisions affecting your daughter.
Our files in this case will remain confidential in accordance with
Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final
and will be made available as a public document 15 days after service
unless you file documentation with the Commission which justifies
reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code
2.38. During this 15 -day period, no one, including the Respondent unless he
waives his right to challenge thisUrder, may violate this confidentiality by
releasing, discussing or circulating this Order.
Any person who violates the confidentiality of a Commission proceeding
is guilty of a misdemeanor and shall be fined not more than $1000 or
imprisoned for not more than one year or both, see 65 P.S. 409(e).
PJS /jc
By the Commission,
aul J!Amith
Chairman