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HomeMy WebLinkAbout676 SminkeyMr. Edward G. Sminkey R.D. #24, Box 89 York, PA 17406 Re: 87 -012 -C `■ STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TICE COMMISSION ORDER NO. 676 DATE DECIDED: September 28, 1988 DATE MAILED: October 13, 1988 Dear Mr. Sminkey: 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, Dog Law Enforcement Officer for Hellam Township, 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 submitted to the township false monthly reports of the number of miles driven and the number of stray animals apprehended and turned over to the S.P.C.A., and subsequently received compensation based on those reports. A. Findings: 1. You served as a Dog Law Enforcement Officer, hereinafter DLEO, in Hellam Township, York County, from December 1985 to May 1988. a. You are also self employed as the owner of Dog Kennels within the township. 2. Township records disclosed the following pertinent information: 1.:. Edward Sminkey »age 2 a. January 6, 1986 - Minutes of the meeting of the township supervisors disclosed that supervisor Flaharty moved to appoint Edward Sminkey as DLEO for the township for calendar year 1986 and also to set the fee at $5 per dog. Supervise Peters seconded the motion and it passed unanimously. Thc. minutes contained no additional detail discussion with regard to this position. b. Township employees who used their personal vehicle on official business receive 20t per mile for such use. c. January 5, 1987 - at a meeting of the toemship supervisors, Supervisor Peters moved, seconded by Supervisor Knaub, to appoint Edward Sminkey as DLEO at a salary of $300 per mont?. and to pay 20 per mile for use of his personal vehicle. Mileage is to be paid only until the township purchases a vehicle, as discussed, until a grant is given or denied to the township. Supervisors Knaub and Peters voted yes with Supervisor Flaharty voting no. Motion carried. There was a, great deal of discussion following this appointment. Mrs. Barbara Quickel informed the board that she had a meeting with Police Chief Dupler and none of Mr. Sminkey's records were available in the office at that time. Supervisor Knaub said that Chief Dupler did look into the matter of Mr. Sminkey's billings to the township and found nothing wrong. Supervisor Flaharty expressed his feelings that Mr. Sminkey should not receive a salary but should be paid $5 per dog and 20t per mile. Mr. Bruce Quickel said that he felt the position should be advertised at $5 per dog and 20t a mile. Supervisor Peters said that the Township was fortunate to have Mr.Sminkey and that the need for a DLEO was important because of a recent epidemic of rabies in the County. Mrs. Barbara Quickel said that even if Mr. Sminkey earned $500 a month, this would be satisfactory to her as long as he submitted proof that he earned the money. Supervisor Knaub said that Mr.Sminkey will submit proof of his work. Mr. Lee Carbough asked questions on the status of the Dog Law Grant. He wanted to know whether or not funds would be available at the end of 1987 and he was told by Solicitor Perry that funds would be available for 1987. Hr. Eyster said that without a DLEO to protect the township citizens, potential residents may be discouraged from moving into the township. Eyster stated that Mr. Sminkey should be hired and paid mileage until the grant is approved. Supervisor Flaharty read a prepared statement about an investigation into the DLEO's record keeping. Flaharty questioned why Chief Dupler advised Mr. Sminkey of his Constitutional Rights at a point in the investigation when by Chief Dupler's own admission, he did not even know what to investigate or if a crime had been committed. r°lharty d Mr. Edward Sminkey Page 3 asked why Chief Dupier initiated a criminal investigation when he (Flaharty) merely asked what was the township being billed for. Chief Dupier said that he did not wish to respond to that question. Supervisor Flaharty said that he had discussed the investigation at the meeting on December 4, 1986 before giving the investigation request to Chief Dupier. Supervisors Knaub and Peters stated that they did not authorize an investigation. Supervisor Flaharty asked the other Supervisors if they gave permission to Chief Dupler to send information about the matter to the employees council. Supervisor Peters said that Supervisor Flaharty did not have the right to question other members of the board on anything. Supervisor Knaub told Supervisor Flaharty that he and Mr. Peters never authorized the investigation. Mrs. Edward Sminkey asked Supervisor Flaharty if he would read the results of the investigation that he had received. Supervisor Flaharty refused to do this because he said it was pertinent information from Chief Dupler. d. February 13, 1987 - a position description,. number 87 -100, which sets forth the duties of the township DLEO. The document states that the DLEO shall be a sworn employee, with arrest powers as pertaining to dog laws, and shall be responsible to the Hellam Township Chief of Police. e. Prior to February 1987, there was no position description or personnel file at the township regarding the DLEO. f. Search of Township records disclosed no DLEO work log or monthly billing statements particularly concerning the period December 1985 through September 1986. 3. Supervisor Robert Flaharty provided copies of billing statements you presented to the township for payment as DLEO for the period December 1985 through September 1986 as follows: BILLING DATE DOGS PICKED UP MILEAGE AMOUNT COMMENT January 6, 1986 4 65 33.00 January 9, 1986 0 48 9.60 January 20, 1986 0 0 37.50 lettering of DLEO truck February 3. 1986 4 149 49.80 March 4, 1986 6 188 67.60 April 1, 1986 10 709 191.50 April 30; 1986 21 752 255.40 June 4, 1986 9 456 136.20 July 3, 1986 9 404 125.80 Mr. Edward Sm .nkey f (Ye 4 August 6, 1986 - 'eptember 3, 1986 Sapte*nber 30, 1986 Totals Records of 1 .ogs that were :'E January Jaauary March 22 Apr:.1 1. April 1, April 21 April 28 May 12, May 27, June 3, June 3, June 7, June 11, June 14, June 25, June 28, July 2, July 2, July 19, 1986 July 19, 1986 July 29, 1986 August 2, 1986 August 2, 1986 August 8, 1986 August 8, 1986 August 11, 1986 August 11, 1986 August 11, 1986 August 11, 1986 August 30, 1986 August 30, 1986 September 2, 1986 September 7, 1986 September 16, 1986 September 16, 1986 September 20, 1986 September 22, 1986 October 14, 1986 Total 8, 1986 15, 1986 , 1986 1986 1986 , 1986 , 1986 1986 1986 1986 1986 1986 1986 1986 1986 1986 1986 1986 7 340 .03.00 14(incl.1 cat) 477 164.40 12 249 109.80 96 3,837 $1,283.60 York County S.P.C.A. indicate the following delivered to the Hellam Township DLEO: DOGS PICKED UP 1 1 2 3 3 3 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Cat 43 Dogs TYPE regarding Mixed Collie Mixed Lab Mixed Afghan /Mixed Terrier 2 Mixed Labs; Mixed Collie Husky Mixed Shep. /Mixed Spanler Two Mixed Shep. Mixed Tera Mixed Lab Mixed Terrier Mixed Terrier Irish Setter Doberman Mixed Collie /Husky Mixed Spaniel Mixed Spepherd Husky Doberman Mixed Lab Mixed Lab Mixed Lab Mixed Lab Cat Mixed Dobie :fixed Shep Mixed lab Mixed lay Mixed lab /Setter Collie /Husky Mixed Spaniel Mixed Collie Samayed Mixed Perk or Niasa nixed Collie lc:aale ixer. Collie Shep Mr. Edward Sminkey Page 5 5. Records provided by you regarding dogs that you delivered to the York County S.P.C.A. as compared to S.P.C.A. delivery records indicate as follows: DATE December 19, 1985 January 8, 1985 March 22, 1986 April 1, 1986 April 21, 1986 April 28, 1986 April 30, 1986 May 12, 1986 May 27, 1986 June 3, 1986 June 3, 1986 June 4, 1986 June June June June June July July July 7, 1986 11, 1986 14, 1986 28, 1986 28, 1986 2, 1986 2, 1986 3, 1986 July 19, 1986 July , 1986 August 2, 1986 August 2, 1986 August 6, 1986 August 8, 1986 August 11, 1986 August 30, 1986 September 2, 1986 September 3, 1986 September 7, 1986 September 16, 1986 September 20, 1986 September 22, 1986 October 14, 1986 MILEAGE S.P.C.A. DELIVERY RECORD 32 32 32 64 (2 trips) No Yes (1 dog) Yes (2 dogs) Yes (4 dogs) Yes (3 dogs) Yes (2 dogs) Billingsheet 192 Trips 32 Yes (1 dog) 32 Yes (1 dog) Yes (1 dog) Yes (1 dog) * Billingsheet- Mileage of $94.41, no explanation. 32 32 32 32 32 * Billingsheet - no explanation. 96 (3 trips) Total Yes (1 Yes (1 Yes (1 Yes (1 Yes (1 Yes (1 Yes (1 404 miles, dog) dog) dog) dog) dog) dog) dog) Yes (2 dogs) Yes (1 dog) Yes (1 dog) Yes (1 dog) Yes (1 dog) *Billing sheet - 340 miles, "only explanation 5 dogs to S.P.C.A. Yes (2 dog) Yes (4 dogs) Yes (1 dog) Yes (1 dog) *Billingsheet - 288 miles to YMCA. Yes (1 dog) Yes (2 dogs) Yes (1 dog) Yes (1 dog) Yes (1 dog) 42 dogs Mr. Edwdrd Sm°.n%e Page 6 claimed DATE December 1, 1985 December 2, 1985 December 31, 1985 January 13, 1986 January 20, 1986 February 4, 1986 February 9, 1986 February 12, 1986 February 18, 1986 February 22, 1986 March 3, 1986 March 10, 1986 March 20, 1986 March 21, 1986 March 21, 1986 March 27, 1986 :Larch 30, 1986 April 1, 1986 April 3, 1986 April 4, 1986 April 4, 1986 April 5, 1986 April 7, 1986 April 9, 1986 April 11, 1986 April 15, 1986 April 16, 1986 April 17, 1986 April 17, 1986 April 19, 1986 April 19, 1986 April 20, 1986 April 23, 1986 April 25, 1986 April 26, 1986 April 28, 1986 April 28, 1986 May 1., 1986 May 1, 1986 May 2, '986 *Billingsheets for October 1st and November 6th contained only the number of dogs picked up or disposed of and mileage claimed for use of his truck. provided by you indicate the following regarding your 6. Records compensation and the services rendered in relation thereto: NO. OF DOGS CHARGE COMMENT 1 5.00 1 5.00 1 5.00 1 5.00 3 15.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 2 10.00 1 5.00 5.00 1 5.00 2 10.00 2 10.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 2 10.00 2 10.00 2 10.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 5.00 1 5.00 1 5 0C dog picked up dog picked up owner identified owner identified owner identified dog picked up dog picked up dog picked up dog picked up dog picked up dog picked up L'og picked up dogs picked up cog picked up dog picked up dogs picked up owner identified 1 dog No pick up 1 dog No pick up 1 dog No pick up 1 dog No pick up issued warning picked up cat No pick up noted No pick up noted No pick up noted No pick up noted No pick up noted No pick up noted dog picked up No pick up noted No pick up noted No pick up noted No pick up noted No pick up noted No pick up noted No pick up noted cwn e. identified tae - dN noted noted noted noted Mr. Edward Sminkey Page 7 May 10, 1986 May 11, 1986 May 14, 1986 May 17, 1986 June 1, 1986 June 2, 1986 June 5, 1986 June , 1986 June 12, 1986 June 18, 1986 June 21, 1986 June 28, 1986 June 30, 1986 July 11, 1986 July 15, 1986 July 19, 1986 July 23, 1986 July 28, 1986 August 7, 1986 August 8, 1986 August 8, 1986 August 8, 1986 August 11, 1986 August 21, 1986 August 25, 1986 August 30, 1986 October 3, 1986 7. The above records apprehending 42 dogs. a. This figure basically coincides with the number of dogs that your records show being delivered to the York County, S.P.C.A. b. York County S.P.C.A. records show delivery of one more dog then noted above. 1 5.00 1 5.00 1 5.00 1 5.00 2 10.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 3 15.00 1 10.00 1 5.00 1 5.00 2 10.00 1 5.00 2 10.00 3 15.00 1 5.00 1 5.00 1 5.00 1 5.00 1 5.00 dog picked up owner identified owner identified dog picked up dogs picked up dog picked up No dog picked up dog picked up dog picked up owner identified No dog picked up dog in custody dog picked up dogs picked up owner identified dog picked up cat picked up dog picked up dog picked up dogs picked up dogs picked up dog picked up dog picked up cat picked up No pick up noted Dog picked up indicate that you charged the township $210 c. You also apprehended 3 cats and 1 dead dog. 8. The above records indicate that you charged the Township $55 for apprehending 11 dogs that were not delivered to the York County S.P.C.A. a. The owners of these dogs were found and the dogs were delivered thereto. 9. The above records indicate that you charged the township $115 when no dogs were apprehended. for Mr. Edward Sminke Page 8 a. The char in 2.8 situations were the result of respo-ding to calls or the 911 emergency line. b. The charges in 4 situations were not related to 9a. . b. • 10. Your records indicate 14 occasions when you received calls JL 911 emergency line but for which the township was not charged. 11. Supervisor Robert Flaharty advised that when you were hired as DLEO you were to receive $5 for each dog picked up ari also 20 a mi ,e for the use of your personal vehicle in picking up the dogs. a. It was Mr. Flaharty's understanding you were only authorised to pick up a dog when the dog was confined or tied. b. He was disturbed in the differences in the numbe of cogs picked up by you a'd in fact that a lesser number were turned into the local S.P.C.A. facility. He stated that you were required to make a report of the dogs you picked up but you were not required to identify the owners of these dogs unless there was a second pickup required. d. Mr_. Flaharty related that you were not required 1 3 kelp starting and ending daily mileage on the use of your personal vehicle when performing your duties as D,EO e. Mr. Flaharty was concerned that you were making unneces.ary trips to the local S.P.C.A. facility and he stated hic belief that such trips should not be made unless dogs .are being dropped off by you. f. Flaharty stated that there was no employee file mair,ta:ned on you nor was there any personnel evaluations for the position of DLEO by township officials during the period of January 1986 through October 1986. g. Flaharty stated that the requirements of the position were never specified in township minutes. 12. Supervisors Rnaub and Peters advised that during late 1985 the township had to face the problem of many dogs running loose particularly in rural areas where they would damage properties. T'L� incidents of rabies surfaced and many township residents were apprehensive about the situation. a. They advised that you were arpointed DLEO and that you would receive $5 per dog picked up and 20? per mile for the nse of your personal truck. Mr. Edward Sminkey Page 9 b. They stated that you were authorized to receive mileage when you were requested to respond to a dog call and where no dog was ever picked up. c. They stated that you were never authorized to charge the township $5 per dog when in fact no dog was picked up. d. They stated that no changes were made under the original agreement with you until February 1987 when you received a $300 monthly salary plus 20 per mile for use of your personal vehicle. e. They stated that sometime during 1986, Supervisor Flaharty requested Police Chief Dupler to investigate the billings you were presenting to the township. f. They advised that the township investigation disclosed no wrongdoing on your part. g. They stated that you were saving the township money by using your own dog kennels to house pickups at no cost to the township. h. The supervisors had many discussions regarding situations when the DLEO could charge the $5.00 pick up fee. i. The minutes of the meetings would not reflect these discussions. j. The DLEO had many situations where he would ask for a decision as to whether he could charge the $5.00 fee. k. The $5.00 fee was appropriate in any situation where the DLEO had a report of a dog and a person present could verify his actions. 1. The DLEO was not authorized to charge the $5.00 fee where he proceeded to a call and no person and /or dog was observed if he saw the dog, the complainant or the owner the fee was appropriate. 13. Police Chief Dupler advised that you worked alone during the period December 1985 through 1986 as DLEO. He explained that he was assigned as your work Supervisor in February 1987. a. Mr. Dupler advised that during the period December 1985 through 1986, the Township had a very loose policy with regard to the DLEO position. 0 Eleard £minkey LJaqe 10 b. He asserted that mL-3y people from the general York area would rid themselves of undesired dogs by just driving to rural Hellam Township and letting the dogs run. He advz.rge of several incidents where the clothing of Township Policemen were torn by dogs because there was no experienced DLEO present. c Mr. Dupler related that there was very little information in the township supervisor's minutes with regard to this position. Also, he stated that there was no job description prepared and no written policy to provide guidance to the incumbent. d. Mr. Dupler related that the pay procedures for you would involve you presenting a billing statement to the township secretary /treasurer and then you would be paid $5 per dog picked up plus 20 mileage for the use of your personal vehicle. e Kr. Dupler advised that during the fall of 1986, he was requested by Supervisor Flaharty to conduct an investigation of the number of dogs you were billing to the Township. Dupler stated that at this time, he was not asked to investigate the amount of personal mileage you were claiming for the use of your personal vehicle. i. Dupler advised that his investigation disclosed that you had accounted for all dogs that were picked up or handled by you from December 1985 to the fall of 1986. 2.r. Dupler continued that during early 1986, there was a controversy as to the interpretation of whether mileage could be claimed by you when you answered a dog call nd in fact no dog was ever located. Supervisors Peters and Knaub believed you should charge for such mileage and Supervisor Flaharty opposed this viewpoint. 14. You provided the following information in relation to the instant investigation: g • a. You were hired as Township DLEO in December 1985 and agreed to receive $5 a dog when a dog was picked up handled, returned to an owner, taken to your kennels and then returned to an owner, or when you traveled to the S.P.C.A. kennels to pick up a dog that you had previously delivered there and then returned this dog to an owner. b. You also agreed to accept 20?. per mile for the use of ,. our personal truck on township business as D::JEO. Mr. Edward Sminkey Page 11 c. You asserted that many times you would have to drive to a rural location on three, four or five occasions to locate the dog that had been reported to you. d. The township solicitor advised you to contact two supervisors when you needed a decision concerning a specific situation. e. Your wife made many of the entries in your log because calls wc':?d be received at your home while you were working. f. You were authorized, in certain situations to charge $5.00 including the following: (1) A 911 call is received, you proceed to the location where a loose dog is reported but when you arrive the dog is back in the owners house. (2) A 911 call is received reporting that someone has apprehended a dog. When you arrive, the dog is gone. A 911 call is received reporting a pack of dogs. You chase these dogs but cannot apprehend them. g. You considered a 911 call as one which you were required to answer. h. You admitted that you never kept a mileage log when on township business but used your knowledge of the area and mile distances to determine the amount of mileage you would claim. i• You advised that when Police Chief Dupler investigated the number of dogs you were claiming for payment, he found no wrong doing on your part. You related that Supervisors Peters and Knaub believed that you should charge mileage to the township when you could not locate a dog after being called out while Supervisor Flaharty opposed this viewpoint. k. You stated that you would have been willing to allow any interested party to review your work log as DLEO but that no one other than Chief Dupler or the State Ethics Commission requested such a review. 1. The work log explained the charges you presented to the township in your monthly billing statements. J (3) Mr. Edward Sminkey Page 12 m. You stated that you were unsure as to whether or not you were required to file a Statement of Financial Interest with the State Ethics Commission. You were advised by Solicitor John Countess to complete a statement and then retail,. it with your personal records. You believe that Solicitor Countess received advice from someone at the Commission Office, and handled the question whether or not you should file a statement in this manner. B. Discussion: As the Dog Law Enforcement Officer for Hellam Township, you are a "public employee" as that term is defined in the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, your conduct subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. 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 cf his immediate family, or a business with which ::Le is associated. 65 P.S. Code §403(a). Section 3(a) of the Ethics Act quoted above specifically provides in part that a public employee may not use public office to obtain a financial gain other than compensation provided for by law for himself. In the instant matter, the allegation relates to a charge that you, as DLEO, submitted false reports both in terms of the number of stray animals apprehended and number of miles driven so as to obtain a financial gain other than that to which you were entitled by law. When you were appointed to the above position on January 6, 1986, the minutes of the township meeting merely reflect that you were appointed to the position at a salary of $5.00 per dog with mileage for your personal vehicle at .20 per mile. During the course: of your activity as a dog catcher in 1986, the evidence establishes that you charged $55 for eleven dogs that were not delivered to the York County S.P.C.A. and that you charged $115 in mileage expenses for dogs that were not apprehended. In this regard, it is noted that Supervisor Flaharty has stated that you were only to receive $5.00 for each dog picked up and that you were to get .20 per mile for picking up dogs. Contrariwise, Supervisors Knaub and Peters stated that you could receive $5.00 if there was merely a report of a dog which could be verified and you could obtain mileage in response to a dog call regardless of whether a dog was picked up. Mr. Edward Sminkey Page 13 The situation seems to exist in this case that the township was lax in terms of delineating the exact parameters by which you could charge a $5.00 fee and receive mileage. Further, the supervisors do not agree as to what circumstances you could charge the $5.00 fee and mileage. The township solicitor gave you advice to contact the supervisors when you needed a decision in a given situation and it appears that you took his advice by asking in "many situations" whether you could charge the $5.00 fee. Under these facts and circumstances, the Commission finds that there is insufficient evidence that you violated Section 3(a) of the Ethics Act. C. Conclusion and Order: 1. As a Dog Law Enforcement Officer for Hellam Township you are a public employee subject to the provisions of the Ethics Act. 2. Based upon an insufficiency of evidence, you did not violate Section 3(a) of the Ethics Act regarding the submission of your monthly reports concerning the number of animals apprehended and your mileage. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. S408(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. S409(e). By the Commission, 1))4apts Joseph W. Marshall, III Chairman