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HomeMy WebLinkAbout703 ColwellMr. Michael L. Colwell R.D. 1 Gouldsboro, PA 18424 Re: 88 -028 -C Dear Mr. Colwell: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION ORDER NO. 703 DATE DECIDED: April 19, 1989 DATE MAILED: April 28, 1989 The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was not filed and a hearing was deemed waived. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: I. Allegation: That you, Supervisor of Covington Township, Lackawanna County, violated the following provisions of the State Ethics Act (Act 170 of 1978), when in February of 1988, you were paid for hours worked as township roadmaster while also working as a police officer in Moscow Borough: 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. 5403(a). A. Findings: 1. You served as a Township Supervisor in Covington Township, Lackawanna County, Pennsylvania. Mr. Michael LeRoy Colwell Page 2 a. You served in this position from January, 1988 to the present. b. You also served as the appointed township roadmaster. c. You were appointed township roadmaster at the January 19, 1988 reorganizational meeting. d. This was a full -time position paying $7 per hour. 2. You were employed part -time by the Moscow Borough Police Department as a Police Officer. 3. Records of the Moscow Borough Police Department, officers daily report indicate the following regarding your service as a police officer for that Borough between February 1, 1988 and February 5, 1988: a. February 1, 1988: Total hours worked - 4. On duty from 1200 - 0400. b. February 3, 1988: Total hours worked - 4. On duty from 1200 -1600. c. February 5, 1988: Total hours worked - 4. On duty from 1300 -1650. 4. Covington Township work reports for the township Road Department provide the following information regarding the number of hours worked by you during the period February 1, 1988 through February 5, 1988. a. Date Hours Worked February 1, 1988 February 2, 1988 February 3, 1988 February 4, 1988 February 5, 1988 8 hours 8 hours. 8 hours 11 hours 8 hours b. The work report was signed by you as township roadmaster. Mr. Michael LeRoy Colwell Page 3 5. The Covington Township weekly /bi- weekly or semi monthly payroll report for the period January 31, 1988 through and including February 13, 1988 indicate the following regarding hours worked by you during the period February 1, 1988 through and including February 5, 1988. a. Date Hours Worked February 1, 1988 8 hours February 2, 1988 8 hours February 3, 1988 8 hours February 4, 1988 11 hours February 5, 1988 8 hours b. The report indicates that your hourly rate was $7 per hour and $10.50 for overtime. c. This report was signed by you as roadmaster and also signed by you as township supervisor. 6. James Hoover provided the following information in relation to the instant situation: a. He serves as chief of 'police for the borough of Moscow. b. Michael Colwell has worked part -time as a police officer for Moscow Borough. c. Hoover took a winter vacation during the month of February and requested that Colwell assume his position during that time. d. Colwell worked 3 days in the beginning of February and then stopped working for the Borough because of a conflict with his position as supervisor in Covington Township. e. Colwell filed reports for the hours worked during February 1, 3, and 5, 1988. 7. Katherine Tierney provided the following information in relation to the instant situation: a. She serves as Covington Township Secretary and has served in this position for 15 months. Mr. Michael LeRoy Colwell Page 4 b. Michael Colwell serves as a township supervisor as well as the township roadmaster. c. Colwell maintains the daily attendance records for township roadworkers. d. Daily attendance records are thereafter used for the preparation of the township weekly, bi- weekly, or semi- monthly payroll reports. e. Colwell was paid $7 per hour for his work as roadmaster. f. The normal working hours for the township road employees including Colwell is 7:30 a.m. to 4:00 p.m Township reports indicate that Colwell worked 8 hours on February 1, 3, and 5, 1988. 8. John York provided the following information in relation to the instant situation: g. a. York serves as a township supervisor for Covington Township. b. He observed supervisor Michael Colwell wearing a police uniform working in Moscow Borough during the early part of February, 1988. York was on his way home from work during this time and it was between the hours of 3:30 p.m. and 4 p.m. when he observed Colwell in Moscow Borough. c. He did not question Colwell at that time regarding his service as a police officer in Moscow Borough. It was later brought to his attention that Colwell was allegedly working on Covington Township's time during the hours he was serving as a police officer in Moscow Borough in February of 1988. e. You questioned Colwell about the incidents during a personnel meeting in February of 1988 and Colwell explained to you that he had worked a full 8 hours for the township prior to working in Moscow Borough. f. Colwell explained to York that he reported to work early on those days and left early. 9. Mary Swingle provided the following information in relation to the instant situation: Mr. Michael LeRoy Colwell Page 5 a. She serves as a township supervisor for Covington Township. b. She has served in this position since January of 1986. c. Michael Colwell served as the township supervisor and appointed roadmaster. d. The normal working day for the township road crew was 7:30 a.m. to 4:00 p.m. e. Colwell never notified either her or Supervisor John York that he was changing his work schedule. f. During a personnel meeting in February of 1988, Colwell was questioned regarding . his work for Moscow. Borough Police Department during hours when he was supposed to be working for Covington Township. Colwell explained at this time that he had completed his 8 hours at the township prior to traveling to Moscow Borough to work as a police officer. 10. Records of Covington Township contain a tape of a meeting on February 8, 1988. The content of that tape indicates as follows: a. Individuals present were identified as Supervisor Mary Swingle, John York, Michael Colwell, Township Solicitor Donna DeVita and township secretary Kate Tierney. b. York and DeVita questioned Colwell about his work schedule in Moscow Borough. c. Colwell explained to him that he normally works every other Saturday for the Borough. He further stated that he usually appeared at the Borough at 1 p.m. in order to work as a police officer. Colwell indicated that he had already worked eight hours at the township prior to reporting to the borough for the police work on the days noted. He believed the crew worked from 5 a.m. to 1 p.m. during those days due to an ice storm. d. During this meeting, Supervisor York advised Colwell that his hours were 7:30 a.m. to 4 p.m. and Colwell responded that these hours were never specified for the roadmaster before. e. Colwell continued to insist that he had worked a full 8 hours for the township prior to reporting to the Borough. 11. You provided the following information in relation to the instant situation: Mr. Michael LeRoy Colwell Page 6 a. You were elected to the position of township supervisor for Covington Township in November of 1987 and took office in January of 1988. b. In January of 1988 you were appointed to the position of township roadmaster. c. Your fixed salary in that position was $7 per hour. d. Normal working hours for the roadmaster and township road workers are 7:30 a.m. to 4 p.m. but the roadmaster can determine what hours they will work in order to get the road work completed. e. You were never informed that you were required to tell anyone in advance that you were changing your hours. f. - You changed your hours on February 1, 3, and 5 of 1988. g. You came to work at 5 a.m. on those days so that you could leave early and go to work as a police officer in Moscow Borough. h. No other employees came to work at 5 a.m on those days. i. Other employees arrived at 7:30 You worked from February 1, and Moscow Borough. could verify that you were there when they a.m. 5 a.m to 12 noon at the township on then worked from 12 noon to 4 p.m. at k. On February 3, you worked from 5 a.m. to 12 noon and worked from 12 noon to 4 p.m. at Moscow Borough. On February 5, you worked from 5 a.m. to 1 p.m. at the township and on that day you worked from 1 p.m. to 4:50 p.m. at Moscow Borough. 1. Records of Moscow Borough will verify the time that you were on duty at that location. m. You only worked 7 hours on February 1 and on February 3 at the township but listed eight hours on your time sheets. You corrected this deficiency by listing 7 hours worked from the time sheets for February 8 and 10th although you actually worked 8 hours on those days. 12. Covington Township's weekly, bi- weekly or semi - monthly payroll reports indicate the following regarding the hours that you worked on February 8 and 10, 1988. Mr. Michael LeRoy Colwell Page 7 a. Date Hours worked February 8, 1988 7 hours February 10, 1988 7 hours B. Discussion: As a supervisor in Covington Township, Lackawanna County, you are a "public official" as that term is defined under the Ethics Act. 65 P.S. 402; 51 Pa. Code Section 1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act quoted above specifically provides in part, that a public official may not use public office to obtain a financial gain for himself other than compensation provided by law. This Commission has found violations of the Ethics Act in instances where public officials /employees receive compensation for services performed in their public positions while simultaneously receiving compensation for working during the same hours in some other employment position. Cohen, Order 610 -R. Forbes, Order 681. In the instant matter, you served as an elected township supervisor and an appointed roadmaster in Covington Township. You also served as a part -time police officer in Moscow Borough. Both your work reports and the payroll reports of Covington Township reflect that you worked full eight hours shifts on February 1, 3, and 5, 1988. Records of Moscow Borough reflect that you were on duty as a police officer as follows: from noon to 4 p.m. on the first two dates and from 1 p.m. to 5 p.m. on the 3rd date. Katherine Tierney who is township secretary indicated that you maintained the daily attendance records for township road workers and that the normal working hours for employees are 7:30 a.m. to 4 p.m. In addition, supervisors John York and Mary Swingle questioned you regarding your working for the Moscow Borough Police Department when you were supposed to be working for the township. You responded that you reported to work early on those days and left early. You assert that on the three days in question, you came to work at the township at 5 a.m. and left at noontime to go to work for the Moscow Borough. You further state that for February 1 and 3 you only worked 7 hours and incorrectly listed 8 hours on your time sheets which you corrected by listing 7 working hours for February 8 and 10, when you worked 8 hours on those two latter dates. The resolution of the issue as to whether you violated the Ethics Act by receiving pay from two jobs during the same working hours turns upon a question of factual proof. Although the records of the Moscow Borough Police Department reflect the times when you were on duty in Mr. Michael LeRoy Colwell Page 8 that job, the records at the township merely reflect the number of hours that you worked on the given days in question. Since you have asserted that you worked a 5 a.m. to noon shift at the township and there is no testimony from any witnesses or any other evidence which would contradict your statement, this Commission is unable to find a violation of Section 3(a) of the Ethics Act based upon an insufficiency of evidence. C. Conclusion and Order: 1. As a township supervisor in Covington Township, you are a public official subject to the provisions of the Ethics Act. 2. The evidence is insufficient to establish that you violated Section 3(a) of the Ethics Act on certain days when you were paid for hours worked as a township roadmaster when you also worked part -time as a police officer in Moscow Borough. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending action on your request by the Commission. A request for reconsideration, however, does not affect the finality of this Order. A reconsideration request must be received at this Commission within fifteen days of issuance and must include ..a detailed explanation of your reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one, including yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. Any person who violates 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, 65 P.S. 409(e). elena G. Hughes Chair