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HomeMy WebLinkAbout488 CumberledgeMr. Charles Cumherledge 1719 Hart Street New Castle, PA 16101 Re: 85- 027 -C Dear Mr. Cumberledge: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION May 2, 1986 Order No. 488 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 Supervisor in Union Township, Lawrence County, violated Section 3(a) of the Ethics Act which prohibits a public official from using his office to obtain financial gain other than compensation provided by law by receiving compensation for working for the township from approximately May 19, 1984, to the end of 1984, when neither the supervisors nor the auditors had given the proper approval for your appointment or your compensation. A. Findings: 1. You served as a Union Township Supervisor from 1972 until December 31, 1985. As an appointed and then elected official, you were subject to the provisions of the Ethics Act. 2. Township auditors took the following actions relating to pay for supervisors working for the township: a. January 28, 1984: Supervisors /Roadmasters to he paid $4.75 per with overtime pay of $7.13 per hour after 48 hours in one week; $4.75 per hour for supervisors working on the road. On February 2.2, 1984, Supervisors Cooper and Cumherledge notified the auditors they were not satisfied with the rate of $4.75 per hour for the roadmaster /superintendent position. h. March 13, 1984: The wage rate for roadmaster was changed to $7.21 per hour and insurance henefits for the roadmaster hut not his family were approved. Mr. Charles Cumberledge Page 2 May 2, 1986 3. According to township payroll and tax records you were paid the following wages as a road worker: a. Pay period Pay period Pay period Pay period Pay period ending 7/6/84 - endi ng 7/20/84 ending 8/3/84 - endi ng 8/17/84 ending 8/28/84 36 hours, amount earned $171.00 - 29 hours, amount earned $137.75 32 hours, amount earned $152.00 - 23 hours, amount earned $109.25 - 18 hours, amount earned $85.50 b. You were paid at the $4.75 rate approved by the auditors for supervisors doing road work for all of the above pay periods. 4. Minutes of the township supervisors meetings for the months of May, June, July and August of 1984 contain no approval of your employment by the supervisors. 5. On June 26, 1984, Ralph Nuzzo was selected to fill the supervisor's vacancy caused by the demise of Supervisor Benjamin Cooper. 6. On August 21, 1984, Supervisor Ralph Nuzzo made a motion to appoint you road superintendent. You seconded the motion, Supervisor Fee abstained. 7. The township and payroll records show that you were paid as road superintendent for the following periods: Pay period ending 8/31/84 - Pay period ending 9/14/84 - Pay period ending 9/28/84 - Pay period ending 10/12/84 Pay period ending 10/26/84 Pay period ending 11/9/84 - Pay period ending 11/20/84 Period ending 12/20, 1984 - 63 1/2 hours, amount earned, $457.83 84 hours, amount earned, $605.64 80 hours, amount earned, $576.80 - 81 hours, amount earned, $584.01 - 80 1/2 hours, amount earned, $580.41 64 hours, amount earned, $461.44 - 72 hours, amount earned, $519.12 59 1/2 hours, amount earned, $429.00 8. In addition during 1984, the records show that you took and were paid for 40 hours of vacation time between Novemher 26 and November 30, 1984. For this vacation time you were paid $288.40. 9. Based on the auditors approval, you would have earned 14 hours of vacation because you worked as a road superintendent in 19 of the 52 weeks. B. Discussion: As an elected township supervisor, you are a public official as tl term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the Act. See Sowers, 80 -050; King, 86 -025. Mr. Charles Cumberledge Page 3 May 2, 19R6 Generally, the Ethics Act provides as follows: 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). Within this provision of law, a public official may not use his public position or any confidential information obtained in that position in order to secure a financial gain for himself other than the compensation provided for by law. In the instant situation, you took over the position of township road worker and received compensation for services rendered therein during the period of time from July, 1984, to the end of August, 1984. During this period of time you were not officially appointed or employed by the majority of the township supervisors to operate in this capacity. Generally, our reading of the Second Class Township Code indicates that while a township supervisor may be employed by the township i n the capacity of roadmaster, there must be some affirmative action by the township board of supervisors in selecting the individuals who serve in this capacity. See 53 P.S. §65514; §65516. Generally, a single township supervisor, acting alone, may not commit the township to certain obligations. See e.g. Western Wheeled Scrapper Company v. Butler Township, 24 Pa. Super. 477, (1904). The supervisors, however, do have the obligation of ensuring that the work of the township is completed and have the further authority of ensuring that the township roads and facilities are maintained. In the instant situation, while you did not obtain your appointment as township road worker, during the aforementioned time period, through the township board of supervisors, your work during this period without such appointment, was a result of the death of the current roadmaster. You served without appointment in this position from July 6, until August 28. In light of the emergency situation and in light of the short term i n which you served without such appointment, we do not believe that your actions rose to a level that would violate the State Ethics Act. On August 21, 1984, you were appointed as the official road superintendent. The motion was made by Supervisor Nuzzo and you seconded the motion. The third supervisor abstained. And as a result, you were a participant in your own appointment to that position. This Commission has recently ruled that a member of a board of township supervisors, in a township of the second class, may not participate or vote to appoint him or herself as a township employee if the supervisor will be serving in a position for which compensation is traditionally awarded by the board of township auditors. We have ruled that such actions, by a public official, would be in violation of Section 3(a) of the State Ethics Act. See King, 85 - 025. Our review of this Mr. Charles Cumberledge Page 4 may 2, 1986 situation indicates that it is in accord with the facts that we outlined in the King Opinion and our analysis set forth in that opinion is applicable here. As a result, we do believe that there was a violation of the State Ethics Act when you voted to appoint yourself as the township roadmaster. We do note, however, that our opinion in King, and our analysis of this particular issue was only recently issued and your actions in this respect took place i n 1984 and we believe that our opinion in Ki ng should be applied in a prospective manner only. Thus, while your actions would not have been in accord with the State Ethics Act pursuant to our prior decision, we do not believe that we should take any further action in this matter. C. Conclusion: We do not believe that you violated the State Ethics Act when you worked for a period of two moths as the township roadmaster without being appointed by the board of supervisors to serve in this position in light of the fact that your service in this capacity was due to the death of the then serving roadmaster. While we do believe that your voting to appoint yourself to the position of township roadmaster and receiving compensation in that position would be a violation of the State Ethics Act as set forth in our most recent opinion in King, we do not believe that any further action should be taken in this matter in that we have decided to apply that opinion in a prospective fashion and your vote to appoint yourself as roadmaster predated that opinion. 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). By the Commission, SZY. eQ antle G. Sieber Pancoast Chai rman