HomeMy WebLinkAbout216-R 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
July 2 1985
Order No. 216 -R
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, 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.
Mr. Charles Cumberledge
Page 2
July 2 1985
c. The supervisors have also approved purchases of gasoline by township
employees for personal vehicles when those vehicles are used for township
business.
3. Expenditures for unleaded fuel were $1,445 in 1979; $1,799 in 1980; $3,296
in 1981 and $3,206 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 law
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.
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 and took no further action with relation to this incident.
8. Discussion: Section 3(b) of Act 170 states:
Section 3. Restricted activities.
(b) 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).
Mr. Charles Cumberledge July 2 1985
Page 3
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 the understanding that your vote /official action or judgment would be
i nfluenced.
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 presented to the supervisors. The Board of
Supervisors approve all hi ri ngs.
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, seconded by Supervisor
Gierlach, that Supervisor Gierlach be named secretary /treasurer. Motion
carried by a 2 to 1 vote. You opposed the motion.
Mr. Charles Cumberledge
Page 4
July 2, 1985
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, 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.
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 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 or $13,041; November 16, 1982 of $14,084; and November 16, 1983 of
$15,211.
Mr. Charles Cumberledge July 2, 1985
Page 5
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.
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
per meeting for attendance at township meetings. Currie received $465 in
1980; $405 in 1981; and $360 in 1982. The practice of paying the
secretary /treasurer for attending township meetings was established prior to
Susan Currie's appointment as secretary /treasurer.
22. On August 19, 1983, the Commission issued Order No. 216.
23. On September 7, 1983, you requested that the Commission reconsider its
Order specifically regarding Allegation II and the conclusion relating
thereto.
24. This request specifically sets forth the following as the basis for said
request.
A. The Order attempts to judge future conduct as opposed to past
conduct.
R. The Order attempts to improperly restrict Mr. Cumberledge's ability
to function as a township supervisor.
Pr. Charles Cumberledge
Page 6
C. The Order attempts to broaden the Restricted Activities Section of
the Ethics Act by citing the Purpose Section of the Act.
25. The Commission granted your request for reconsideration on January 6,
1984.
26. Additional testimony and evidence was received by the Commission
thereafter.
A. The language negotiated in the Collective Bargaining agreement
according job protection to Susan Currie (Finding 19(a), supra), was
recommended by a union representative.
B. Said language was not proposed by any township official.
B. Discussion: As set forth in our original order Section 1 of Act 170
provides:
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
candidates 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:
(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 business with which
he is associated. 65 P.S. 403(a).
Section 3(d) of Act 170 states:
(d) Other areas of possible conflict shall be addressed by
the commission pursuant to paragraph (9) of section 7.
65 P.S. 403(d).
July 2 1985
Mr. Charles Cumberledge
Page 7
July 2, 1985
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 areas of 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 consideration, 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.
You have questioned the Commission's use of Section 1 of the Ethics Act
and argue that the Commission has expanded the purview of the Restricted
Activities Section of the Act, ie, Section 4. We have not, to date, employed
Section 1 of the Act as a provision of law that creates a restricted activity.
To the contrary, if we had so treated Section 1, our Conclusion in the
original Order would have resulted in a finding that you had violated the act.
We, however, found no such violation.
Mr. Charles Cumberledge July 2, 1985
Page 8
You indicate that the Commission's finding that your activity created the
appearance of a conflict of interest is an attempt to regulate future conduct.
The Ethics Commission has the power and authority to address other areas of
possible conflict. Section 403(d). Such areas of conflict can only be
defined by reviewing the purpose of the act as set forth in Section 1. The
Commission also has the express authority to issue advisory opinions upon
request and it may also issue said opinions where no such request is received.
65 P.S. §407(9)(i)- (iii).
A review of these provisions of the Ethics Act and a review generally of
judicial precedent and the rules of Statutory Construction lead us to conclude
that our original interpretation of the Act was correct.
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. We note that you did not recommend the language contained
in the collective bargaining agreement. While this is so, we do believe that
abstention would still be required. We have concluded, in other matters, that
an official should not vote on any matter that directly benefits a child or
spouse. See Krier, 84 -002. 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.
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
Mr. Charles Cumberledge
Page 9
appearance of a conflict with the public trust. You may participate in all
activities relating to your duty as a Supervisor, including votes on
collective bargaining agreements, negotiations to reach these agreements, and
discussions to establish Township policies and positions. However, you are
required to abstain from taking any official action, including voting,
negotiating, and discussions, that would affect your daughter in a manner
different than the other persons in the bargaining unit or which give benefits
uniquely to her.
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 3 business days after service.
JJC /na
By t e Commissi.n
[1/
Dr. Leon L. Haley
Vice- Chairman
July 2, 1.985