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HomeMy WebLinkAbout348 PowersMr. Craig Powers, Sr. c/o David P. King, Esquire 201 Beaver Drive Du Bois, PA 15801 Re: No. 82 -120 -C Dear Mr. Powers: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION November 28, 1984 Order No. 348 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, used the township crew to clean up property, owned by your mother, to develop this land for sale and that this is use of your office for confidential information and a violation of Section 3(a) of the Ethics Act. 65 P.S. 403(a). A. Findings: The findings set forth above are incorporated here by reference, in addition to which we also find as follows: 1. You serve as a Supervisor in Sandy Township, hereinafter, the Township, and as such are a public official subject to the Ethics Act. 2. While serving as Township Supervisor you were also appointed and worked as a Roadmaster for the Township as evidenced by the minutes of the Supervisors' reorganization meeting of January 4, 1982. 3. Whether in your capacity as Roadmaster or as Supervisor you admit that in the summer of 1982 you operated a Township bulldozer on the property owned by your mother along South Brady Street in the Township. Mr. Craig Powers, Sr. November 28, 1984 Page 2 a. This property included an older structure which had been abandoned following your mother's death and had been the source of complaints from adjoining property owners as being a health (rodent) hazard. b. The structure was demolished at your behest or to comply with an order of the Township. c. The structure was burned with the assistance of the local volunteer fire company. but the remaining foundation needed to be filled. d. The foundation remaining was filled by use of five Township employees plus yourself and Township equipment (truck and bulldozer) and this project took approximately five (5) hours. e. The fill for this project consisted mainly of dirt /soil collected by the Township from berm grading work being done by the Township near this property on Joe Fender Road, located less than 1/2 mile from this property. f. The Township, when grading berms, typically offers the resulting dirt /soil to any Township resident near the grading site. You admit you directed the dirt /soil from the Joe Fender Road grading site to be dumped and spread to fill the foundation on your (deceased) mother's property and that no other Township residents adjacent to this grading site were asked if they wanted this fill. h. There is no record of the Township receiving payment or reimbursement for the time, equipment and labor it took to transport, dump and level this fill at the property of your (deceased) mother as described above. 9. 4. You have an interest in the estate of your deceased mother in that you are one of her heirs. 5. The process of transporting and dumping dirt and filling at this site, outlined above, cost the Township an estimated $301.75, broken down as follows: a. Five workers at $6.62 per hour times 5 hours $165.50 b. Your wages at $7.25 per hour times 5 hours 36.25 c. Truck to transport fill at $25 per hour times 1 hour 25.00 d. Dozer to level fill at $25 per hour times 3 hours 75.00 Total $301.75 Mr. Craig Powers, Sr. November 28, 1984 Page 3 B. Discussion: As an elected official you are a public official required to observe the Ethics Act. Section 3(a) of the Ethics Act states that: 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 business with which he is associated. 65 P.S. 403(a). In the situation outlined above, you knew the fill /dirt was available, did not advise other adjacent residents and transported this fill to your (deceased) mother's property. You used Township labor and equipment to apply this fill to the property, thereby presumably enhancing its appearance, usefulness and therefore, its value. As a party interested in the estate of your mother, you were benefitting your own interests through this process. As a public official you may not use your office to your own benefit. By using Township equipment and employees to dump and level this fill, which you acquired because no other members of the public who might have conceivably been interested in same (adjacent property owners) were made aware of the availability of this fill, you violated Section 3(a) of the Ethics Act. You must rectify this situation by reimbursing the Township for the amount estimated to be associated with this activity as set forth in No. 5 above. C. Conclusion: Your actions violated Section 3(a) of the Ethics Act. Unless, within 30 days of the date of this Order, we receive the sum of $301.75 by check made payable to the Township, we will, in accordance with Section 7(1 1) and 9(a) of the Ethics Act, 65 P.S. 407(1 i) and 409(a) respectively, refer this matter to the appropriate law enforcement officials and recommend you be prosecuted as set forth in the Ethics Act. Upon receipt of this check we will forward this to Sandy Township as reimbursement for the costs described in No. 5 above. II. Allegation: That you, a township supervisor, agreed and signed checks for retroactive payment to another supervisor as part of an arrangement with the auditors who agreed not to surcharge you and that this is a use of your public office and or confidential information and a violation of Section 3(a) or 3(b) of the Ethics Act 65 P.S. 403(a) and (b) respectively. A. Findings: The findings set forth above are incorporated here by reference, in addition to which we also find as follows: 6. Supervisor James Anderson was elected in 1980 and was, from 1980 - 1983 appointed to serve in various employee capacities for the Township. Mr. Craig Powers, Sr. Page 4 November 28, 1984 7. Various disputes arose over the proper rate of hourly pay and over -time pay to be paid and owing to Supervisor James Anderson after 1980. 8. At one point after 1980, Supervisor James Anderson threatened to file an action in Court against the Township to recover back -wages allegedly due him for services to the Township but no suit was ever filed. 9. In face of the possibility of this court action, you agreed to meet the demands of Supervisor Anderson to obviate the need and costs of defending this action. 10. There is no evidence that you were offered or accepted anything of value to gain your support or vote for the decision to accept and meet the (back) wage demands of Supervisor Anderson. B. Discussion: Reviewing these actions in light of Section 3(a) of the Ethics Act, as set forth in Part I above, we find no evidence that you used your office for your own personal financial gain. However, we must review your conduct with respect to Section 3(b) of the Ethics Act which states as follows: 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). Under Section 3(b) we find no evidence that the decision made to accomodate the wage and salary demands of Supervisor James Anderson was made or influenced by your acceptance of anything of value. Your part in this decision- making process appears to have been motivated by a desire to minimize the costs of defending such suits and arguments as to these demands and to be unrelated to any benefit for or to you personally. C. Conclusion: The circumstances outlined above and your role in same do not violate Section 3(a) or (b) of the Ethics Act, 65 P.S. 403(a) and (b) respectively. Mr. Craig Powers, Sr. Page 5 November 28, 1984 III. Allegation: That you, a township supervisor, participated in union contract negotiations and agreed to pay increases which directly benefitted you and that this is a use of your public office or confidential information and a violation of Section 3(a) of the Ethics Act. A. Findings: The findings set forth above are incorporated here by reference, in addition to which we also find as follows: 11. As a Supervisor, in 1982 -1983, you acted as a member of the Township's negotiating team in labor- management negotiations with the Township road - workers' union, AFSCME or, the Union. a. The other Supervisors, James Anderson and Lorna Marsh were also members of this team. b. The minutes of the Township Supervisors' meeting of November 11, 1982 reflect that the union /road crew contract was discussed and that wage increases of $1.38 per hour for the first year and $1.00 per hour for the second year were discussed. c. At the December 6, 1982 Supervisors' meeting, as reflected in the minutes of same, you seconded and voted for, Supervisor Anderson's motion to accept the wage increases set forth in (b) above. d. You stated that the Township employees were given substantial wage increases to make the road crew's wages comparable to other municipalities in the area and specifically cited Benzinger Township. e. Mr. Edgar Moore, an AFSCME union representative since 1975, was not included in the final negotiations. He was not invited to any meetings after making an initial proposal. He did not complain about being left out of the negotiations because the wage increases granted the road crew were significant and surprised him. 12. As a Supervisor, serving as a Township employee /Roadmaster, your compensation for such service was subject to the approval of the Township Auditors as provided for in the applicable provisions of the Second Class Township Code, 53 P.S. 65515. 13. It was generally known that the practice of the Township Auditors was to fix the salary of the Township Supervisors who were appointed to work on the roads at an amount somewhat higher than the rate paid to other persons employed on the Township road crew. a. The main reason for this practice was that the auditors considered the Supervisors so serving as "management personnel" and, therefore, in a position of greater responsibility. Mr. Craig Powers, Sr. November 28, 1984 Page 6 b. In 1983, the auditors were are of the fact that negotiations had been completed between the Township and the road -crew union and the auditors set the wages for Supervisors serving as employees, including yourself, at $8.50 /hour which was approximately $.50 an hour more than non - Supervisor road crew members would be earning under the collective bargaining agreement negotiated with and approved by the Township for 1983. c. In 1982, the auditors set the wages of Township Supervisors serving as roadmasters and /or superintendents at $7.25 per hour. B. Discussion: Section 3(a), already cited, is again the Section against which your actions must .be reviewed. The negotiations and contract between the Township and the Union are not subject to our jurisdiction and, therefore, not a part of this. discussion. It would also be inappropriate for us to review the amount of wages and benefits agreed to in the final contract. We are concerned only with whether you used your office or confidential information gained through that office for financial gain. In the 1982 - 1983 negotiations, there were two significant differences from prior contract negotiations: Mr. Edgar Moore, who had participated as the Union representative in negotiations since 1975, was not invited to participate after he made the initial proposal and, during these negotiations, you were aware of the auditors' standard practice of setting wages of a Township Supervisor employed as Roadmaster on the road crew higher than other workers on the crew and would have realized that the wage rate you agreed to for the Union would serve as a base for your wage rate. Nonetheless, the fact remains that as a Supervisor you must be involved in Township decisions and negotiations with Township workers and the Township Code allows you to be appointed and operate as a roadmaster. In these circumstances you are by law, required and allowed to wear two hats as employer - negotiator and employee. This is an inherent dilemma which cannot be avoided if you are to fulfill your role as a Supervisor. Under these circumstances, we cannot conclude that your actions violated Section 3(a) of the Ethics Act, especially where the actions of the auditors in setting your salary as Township Roadmaster were apparently independently taken, even if made with reference to the road crew contract. Conclusion: Under these circumstances your conduct did not violate Section 3(a) of the Ethics Act. IV. Allegation: That you have had township employees cut and haul firewood to your residence and that this is a use of public office or confidential information and thus a violation of Section 3(a) of the Ethics Act 65 P.S. 403(a). Mr. Craig Powers, Sr. Page 7 November 28, 1984 A. Findings: The findings set forth above are incorporated here by reference, in addition to which we also find as follows: 14. During 1981, Township road crews cleared rights -of -way on Kiwanis Trail and Platt Road. a. Property owners on both affected roads had stated that the wood cut should be divided equally among the Township workers. b. This statement by the property owners was generally known. 15. You received some of the wood (approximately 2 - 3 truck loads) and it was delivered to your home with Township trucks operated by Township employees. a. You admit receiving the wood and having it hauled to your residence with Township equipment operated by Township employees. b. Any of the men could have and some did receive some of the wood. c. On some evenings during the progress of the clearing, you hauled some wood from this site in your private truck using your own labor. B. Discussion: The above actions allegedly violate Section 3(a) of the Ethics Act, cited fully previously. We find no violation of Section 3(a) under these facts and circumstances. While you admitted receiving some of the wood, it was generally known that this wood was available to the employees of the Township. Although Township equipment and employees were used to haul the wood to your residence, there is insufficient evidence to find a violation of Section 3(a) because the availability of the wood was generally known and the disposition of this wood appears to have been approved by the Township Supervisors as best for the Township. Under these circumstances, we find no violation of Section 3(a) of Ethics Act because of insufficient evidence that you used your office or confidential information for personal financial gain. C. Conclusion: We find no violation of Section 3(a) under the above circumstances and will take no further action on this allegation. V. Allegation: That you used a township truck for transportation to hunt and that this is a use of public office and or confidential information and thus a violation of Section 3(a). A. Findings: The findings set forth above are incorporated here by reference, in addition to which we also find as follows: 16. There is no evidence that you used Township equipment for transportation for hunting. Mr. Craig Powers, Sr. Page 8 B. Discussion: The prohibitions of Section 3(a) have been stated previously and apply also to this allegation. While you used a Township truck for transportation to and from work on occasion, we find insufficient evidence that you used Township equipment for transportation for hunting or other personal purposes and, therefore, find no violation of Section 3(a). We would, however, recommend that steps be taken to adopt and implement adequate recordation procedures regarding the use of township vehicles, so that any confusion or public concern that they are being put to private use may be allayed. C. Conclusion: Having found insufficient evidence that you used Township equipment for transportation for hunting, we find no violation of Section 3(a) of the Ethics Act and will take no further action. 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 (defined as mailing) 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 this Order, 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 $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). SSC /na By th- . mi sion r Conner Ch • rman November 28, 1984 Ms. Lorna M. Marsh Secretary- Treasurer Sandy Township P. 0. Box 267 DuBois, PA 15801 Dear Ms. Marsh: EMS / j c Fn n STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 December 21, 1984 A check in the amount of $301.75 for deposit to Sandy Township is enclosed. This reimbursement to the Township was made by Supervisor Craig Powers in accordance with Order No. 348 issued to him by the State Ethics Commission. A copy of that Order is attached. This letter will be part of the public record of this case. Sincerely, Edwar .,,e Seladones Executive Director