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HomeMy WebLinkAbout671 NyeMr. George Nye 603 North 4th Street DuBois, PA 15801 Re: 86 -146 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 171a0 ORDER OF THE COMMISSION ORDER NO. 671 DATE DECIDED: August 18, 1988 DATE MAILED: September 13, 1988 Dear Mr. Nye: 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, Superintendent of the DuBois Area Schools, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain, in that you authorized two school district maintenance employees to paint your personal residence while said employees were on regular working hours for the school district. A. Findings: 1. You have served as Superintendent of the DuBois Area Schools since at least 1978. 2. The DuBois Area School District has a policy of hiring college students for summer work. a. Minutes of the DuBois Area School board meeting of March 25, 1986 disclosed the following hirings: (1) Mrs. Fyda proposed, on recommedation of Don Miller, Maintenance Supervisor, that the Board approve hiring the following college students for summer work. employed last year, Jeff Allshouse, Dave Henninger, Dave Mr. George Nye Page 2 Antonetti, Robert Pyle, salary $4.00 per hour /40 hours per week and new employees, Dan Smyers and Eric Rensel, salary set at $3.75 per hour /40 hours per week. Seconded by Mrs. DeFazio and passed on 9 -0 roll call vote. b. These employees were to perform functions for the school district. 3. On Tt_esday, June 24, 1986, two of the summer employees were observed - painting at your apartment. a. These employees were David Antonetti and David Henninger 4. DuBois Area School District bi- weekly time reports for David Antonetti indicate as follows for the pay period beginning June 1.6, 1986: a. Two time reports were submit':ed covering the same pay period. b. One time sheet approved _,y D. Miller on July 2, 1986 was marked void. c. That report indicated original hours worked as follows :;or the week in question: Date Hours Worked (i3 Monday June 23, 1986 8 (ii) Tuesday June 24, 1986 8 (iii) Wednesday June 25, 1986 8 (iv) Thursday June 26. 1986 8 (v) Friday June 27, 1986 8 _Total for week 40 d. O :Y that report, hours worked on June 24, 1986 through June 27, 1986 were crossed out and the following hours inserted therein: Mr. George Nye Page 3 Date (i) Tuesday June 24, 1986 (ii) Wednesday June 25, 1986 (iii) Thursday June 26, 1986 Hours Worked 3.5 9.5 10.5 (iv) Friday June 27, 1986 8.5 e. - A second time report submitted and approved by D. Miller on July 10, 1986 indicated the following for the week in question. Date Hours Worked (i) Monday June 23, 1986 8 (ii) Tuesday June 24, 1986 3.5 (iii) Wednesday June 25, 1986 11 (iv) Thursday June 26, 1986 9 (v) Friday June 27, 1986 8.5 Total for week 40 f. This report was also marked "as corrected D. Miller, July 10, 1986." 5. DuBois Area School District bi- weekly time reports for David Henninger indicate as follows for the pay period beginning June 16, 1986: a. Two time reports were submitted covering the pay period. b. One time report approved by D. Miller on July 2, 1986 was marked void. c. That report indicated original hours worked as follows for the week in question. Date Hours Worked (i) Monday June 23, 1986 8 (ii) Tuesday June 24, 1986 8 (iii) Wednesday June 25, 1986 8 Mr. George t Perri 4 i° Thursday June 2f, :. ' €' 6 8 „une 27, 1: 6 8 Tota?. :cor -,ree:c 40 ! -1°t report, hours worked on June 24, 1985 throur Jive were crossed ou':. and the following hours nsei:ted n '' sday June 24, 19(' 7 - 'nesday June 25, 1 (iii) Thurrsday June 25, 198 (iv) Friday June 27, 1986 srco*ic t N report marked "as c )erected '&t r JtIy ?J, rr" indi •?s - 3 ,- ) to flowing for the wee: guesti(..:. (i) Monday June 22, ', 9 p 6 ti Tuesday F -r.ne Wednesday June 'Date Date __; Thursday June 26 ) Frir.-y June 27, 198E Twn additional voided time reports for the above identifier'. exployees w. :e also corteined in schoo', district records. e. 'hese reports were approved on July 2, 1 by D. Mi11mr, t same date of approval Ls th- other void--! reports, b. These reports cort; nr - 1 entries Ls t)ilowsl David Antonetti; ' c' rs Worked 3.5 9.5 Total for se=ek 40 r. Hours Worked 8 3.5 9.5 10.5 8.3 Wednesday June 25, 1986 3 (ii) Thursday June 26, 1386 Mr. George Nye Page 5 (iii) Friday June 27, 1986 ,5 Total 4.5 David Henninger: (i) Wednesday June 25, 1986 1.5 (ii) Thursday June 26, 1986 2.5 (iii) Friday June 27, 1986 .5 Total 4.5 c. The 4.5 additional hours identified in the findings above is the same amount of time worked on your property. 7. Records of the DuBois Area School District indicate the following regarding payments to the above employees from the school district. a. Check No. 013749 dated July 11, 1986 for the pay period ending July 11, 1986 (covering week in question) payable to David L. Henninger in the amount of $250.00. b. Check No. 013755 dated July 11, 1986 for the par period ending July 11, 1986 (covering the week in question) payable to David A. Antonetti in the amount of $250.00. 8. The above amounts represent payment for a full 80 hour two -week period. 9. Minutes of the Board of School Directors meeting for July 29, 1986 provide, in relevant part, as follows: a. Upon conclusion of the agenda, Director Darrell Clark distributed an open letter to the Superintendent concerning his observation of summer employees painting at the residence of the superintendent and the altering of time sheets in connection with the incident stating his opinion of the action. 10. The letter provided, in.part„ as follows: a. On June 24, 1986, I personally observed two school district employees painting at your residence at North 4th Street. This action took place during the employee's normal work day and their time cards were made out for a normal eight hour shift. Now, I've received new time sheets that have been changed and are different from the originals made out by the employees. This action and the subsequent attempt to cover K� G orge R 6 �fia r, in my o'i '.i4.., is a flagrant epuse of e h- ;o1 dlst._ . ct policy and state law. 11 'o- aid Miller, Director of the school district's building and ?rounds subm &_ttec. a signed statement to Richard Bailey, )resident of the school board which provided in substance as g. He solicited t employees to determine if anyone was _nterested in painting your apartment after you and he had ,:i scussed the matter. -o boys volunteered. c. Ha released the boys to work on your project on Tuesday, June 24, 1986. d. :1e and Bill Harvey, Maintenance Forman, drove to your house to show the boys what had to be painted. e. Sherwin William Company had delivered the paint to the District's maintenance building and he, in turn. `rotwjht to your apartment. f. You paid for the paint directl He had informed the boys that not worked for the District. h. The -:wo boys worked additional in a full 40 hour week. they could make up r-� : yours hours that week so as rut i. You peid them directly. J. Regarding the multiple time reports, he had request each boy to fill out additional reports because they had aeea Erroneously filed. 17, E ,rd of th.- DuBois Area School District indicates that both bavic Antonetti and David Henninger submitted signed statements to the school board president. a. The statements indicated that they would be pair. $4.00 per hour for working on your apartment and could make up the time lost with the school district later. 13. In response to the allegations )f impropriety you submitted a signed statement to the school board which was contained in the district records. That response, in substance, provided: Mr. George Nye Page 7 a. The contract between DAEA and the school board permitted the association to use school facilities and equipment if not otherwise in use for an established fee. b. This policy applied to you. c. The equipment used for the painting of your apartment included 2 step ladders and a few brushes for 4.5 hours. d. The employees were paid by you on the date of the work. e. You submitted a check as proof of payment for the paint. f. No one was forced to work on your project. 14. Minutes of the DuBois Area School Board of Directors meeting for August 13, 1986 indicated that President Richard Bailey reported he had investigated the matter and the findings were turned over to the district's solicitor for review and recommendation. Bailey indicated that there appeared little wrongdoing but preferred to have the solicitor make a judgement. 15. The maintenance section of the school district keeps a sign -out sheet which is to be completed when a district's employee borrows equipment for personal use. a. This log has no entries for you or for the dates on which equipment was used in connection with the painting of your apartment. 16. Records of Checking Account No. 10 1920 3349 at the Deposit Bank, DuBois, Pennsylvania, in the name of George N. Nye indicate the following: a. Check No. 3349 dated June 24, 1986 in the amount of $22.00 payable to David Antonetti. This check was endorsed by David Antonetti and cashed on June 25, 1986. b. Check No. 3350 dated June 24, 1986 in the amount of $22.00 payable to David Henninger. This check was endorsed by David Henninger and appears to have been deposited in another account on June 24, 1986. c. Check No. 3344 dated July 1, 1986, payable to Sherman Williams in the amount of $36.81. This check was stamped on the reverse side as having been deposited in the Sherwin Williams' bank account at the Union Banking and Trust Company on July 1, 1986 at 10:18 a.m. 17. In addition to the two ladders and brushes, the employees also used a school district van for transportation to your apartment. Mr George Nye F 8 18. ''on.ld Miller, fo:7ier Director of Grounds and Buildings for *he DuBois Area School District stated as follows. a. During 1986, you wanted someone to scope, prime and pillars in the front of your apartment building. b. Thu asked Miller if any of the summer employees would -' it for $4.00 an hour. c. You purchased the paint. d. Two boys volunteered for the job. e. "'ou paid them directly. f. The reason that the time cards reflect changes is because the boys filled them out in the morning before they worked for you and they, therefore, had to correct them. He stated that the changes were made the same day or the next morning. g. 19. Donald Miller further provided a sworn statement indicating: a. He lent the ladders and van to the employees. b. You knew of these arrangements. c. The paint was purchased from Sherwin Williams. d. The paint was picked up with other District supplies e. The paint was delivered by him. f. Xt was a district practice to allow employees ',o use supplies. g The employees were to make up the hours by working i in the day. h. The employees were told to fill out cards as usual. It was not known if the boys would be painting. After they returned from painting, a notation was made on the reverse of the time sheet. 20. Robert Wray, the former business manager for the. DuBois area schools provided the following information in relation to this situation: Mr. George Nye Page 9 a. The original time sheets submitted by the summer employees indicated that they were working for the school at the same time that they were painting your residence. b. You were upset upon learning this. c. You had these employees do this so that they could make extra money after regular working hours. d. _ You ordered the employees to change the time sheets so that - the events were correctly reflected. e. You did not try to conceal anything. f. You did pay the employees for the work completed on your house. 21. Denise DeFazio, a member of the school board indicated that prior to the end of the week of June 23, 1986, she checked the time cards for the employees who had painted your apartment and observed that the cards indicated that both employees had worked 8 hour days for the entire week. 22. William Harvey, Superintendent of Maintenance for the DuBois Area School District stated that he was aware that the time cards for the two employees were entered to show a full eight hour day. a. The time cards had to have been changed at a point in time after they saw them. b. Time cards were approved by Donald Miller at the end of the pay period. c. The District maintained a credit account with Sherwin- Williams for the purchase of supplies. The District received a discount. 23. The manager of the DuBois Sherwin Williams Store advised as follows: a. You had no personal account at the store. b. Only cash sales are rung up on a register tape. c. He advised that the July 1, 1986 check tendered to the store in the amount of $36.81 was for a purchase made on that day. Mr. G':x - rgP Pare 10 d. said that this was not a delayed payment for a prior purchase. The reason he knew this was because the store would have a charge account statement for such a purchase and none existed. e. He also provided a copy of an adding machine tape fo1 July 1, 1986 showing a purchase on that date in the amount of $36.81. 24. The.foregoing confirms that the check indentified in Finding 16(c) was not for the purchase of items used for painting your apartment and was not for the purchase of any items on June 24, 1986 25. The payroll clerk for the school district advised that the pay date for the week in question was July 11, 1986. She further stated that: a. The time cards as changed could not have been the cards used for calculating the pay because the "corrected" cards were marked approved on July 10, 1987 by D. Miller. (S. Findings 4.e. and 5.e.) and this would have been afte checks were printed. b. You did not request or claim any leave from your job June 24, 1986. The date you were supervising the pal .ti .. project. . Helvid Henninger provided the following information regaruin.c a. After a regrest by Donald Miller he aid David . ntonett volunteered to paint at your - .partment. They borrowed two ladders and a van from the school district. c. He believed that they worked on the project for one day. d. You paid him by check the day of the project. e. Don Miller told them to put down their normal eight hours on their time cards because they could not get paid fcr overtime. f. Mr. Miller later came back to them and advised the:., that the office could not accept the ;yards. Mr. George Nye Page 11 g. They worked the extra 4.5 hours for the district but they could not get paid for overtime so the cards had to be adjusted. h. He was not aware of how the paint got to your house. 27. David Antonetti provided the following information in relation to this situation: a. , He worked as a summer employee for the DuBois Area School District in 1986. b. He and Dave Henninger painted at your apartment during the summer of 1986. c. On the day of the project, he reported to work at the school district and was advised by Henninger that they would be working at your apartment. d. , All the brushes, ladders, and paint were taken from school district supplies. They also used the district van. e. They worked for about four hours on the project. f. They were told to fill out their time cards in the normal manner by Don Miller. g. They were assured that they would be paid for a full 40 hour week by the District. h. They were to make up the 4 hours by working in the evenings. i. They worked one or two extra hours but did not make up all of the time even though the time cards indicated that they did. j. The time cards were not changed until some school board members made an issue of the project. k. You paid them directly for the work. 28. You provided the following information in relation to this situation. a. You did not own the apartment building. b. You advised the owner that you could obtain college students to paint. Mr. Gror_ c = Tv-F P .ge 12 Dona zr;4` �f ne ice supervisor arranged to have two part -time summnr eF._Aoy cc do the painting. d. The morning the boys came you were not expecting them. e. Ladders and materials were delivered in school district vehicles. f. You did not arrange to use this material. g. Miller picked up and delivered the paint. h. You did not believe school district paint was used. i. The employees were not on school district time because you insisted that they make up the four (4) hours. Yor were not aware, at first, that the time cards were in error. You insisted on revising the cards. �. You mailed a check to the paint store or you gave it to 'filler to deliver on July 1, 1986. m. You were assured that the paint used was not from the school district. n. You were assured that the four hours would be made up. o. You assume that the time was made up. 3. Discussion: As a superintendent of the DuBois Area School £strict, you are a public official subject to the provisions of the State Ethics Act. 65 P.S. Section 402; 51 Pa. Code Section 1.1, Nve Order 437 -R. Section 3(a) of the Ethics Act provides: 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). Mr. George Nye Page 13 The above quoted provision of law specifically provides, in part, that a public official may not use public office to obtain a financial gain for himself other than compensation provided for by law. In the instant matter, the allegation relates to a charge that you used your public office whereby you had your personal residence painted by two college students who were employed during the summer by the School District. A number of questions arise in this respect. The source of payment to the students for their work; the funds used to purchase the paint, the ownership and use of the ladders, van and paint brushes for the painting project and the time when the painting occurred. As to the payment of these employees, although it appears that the time sheets originally listed them as working on school matters for a full day when they were, in fact, painting your residence, corrections were made on those time sheets to reflect the actual amount of time they expended on school projects during that day. Further, you stated that you paid the students for their services and this is verified by your bank account which reflects that one student deposited his check on the day of the painting while the other student endorsed and cashed his check on the following day. Having established that you paid for their painting services, the matter of the use of school equipment must be considered. Since it appears that it was the policy of the school district to allow employees to borrow equipment for personal use, the use by the students of the ladder, paint brushes, and van would not transgress the provisions of Section 3(a) of the Ethics Act. Turning to the matter of the purchase of the paint, your claim that it was purchased on your behalf and paid on July 1, 1986 is contradicted by the manager of the Sherwin Williams store who states that the July 1, 1986 check was not for a prior puchase (of paint). It is noted that Donald Miller, the School District Director of Buildings and Grounds, stated the Sherwin Williams delivered the paint to the District and he took the paint to your apartment. Since, the evidence does not establish who paid for the paint, no violation of the Ethics Act can be found based upon the insufficiency of the evidence. Although the evidence does not establish a violation of Section 3(a) of the Ethics Act under these facts and circumstances, this Commission must comment upon your conduct. Although the school district allowed employees to borrow equipment for personal use, a sign out sheet had to be maintained., the sheet does not reflect any entry for your use of this equipment consisting of the van, ladders or paint brushes. Further, it is noted that when you supervised these two summer employees, such work was done during working hours and it does not appear that you took any personal or vacation time to supervise their painting. Finally, there is the matter of the paint itself, your statement that you mailed a check to the paint store on Mr. Geor Page 14 July 1, 1986 for i s contradicted A. fir the ^na. r of the paint store who advises th tt t.1 check was not for a pri. z; ?urchase of paint. Your actions in this case, at best, can be described as careless zrd at worst as violative of the spirit of the Ethics Act. The 'reamble of the Ethics Act, after reciting its purpose which is to strengthen the faith and confidence of the people in their government, st that public officials and employees should act in a fashion so that their interests do not create a conflict nor the appearance of a conflict -with the public trust. Although this Commission does not finrl a violation of Section 3(a) of the Ethics Act based upon an insufficiency of evidence, it is disconcerting to note your apparent insensitive conduct in your position as a superintendent of a public school. C. Conclusion: 1. As DuBois Area School District Superintendent, you are a public official, subject to the provisions of the State Ethis Act. Based upon an insufficiency of evidence, you did not violate Section 3(a) of the Ethics Act regarding the authorization of school district summer employees to paint your personal residence during working hours. 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 Cars after service (defined as mailing) unless you file documentation y1':11 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 this order, may violate this confidentiality by reiesi :ig,,, 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 nut more than one year or both, se"` 65 P.S. 409(e). By the Commission, Joseph W. Marshall IA: Chairman