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