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HomeMy WebLinkAbout1150 CoursSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: James Cours File Docket: 98- 071 -C2 X -ref: Order No. 1150 Date Decided: 4/12/2000 Date Mailed: 4/28/2000 Before: Daneen E. Reese, Chair Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was held. The record is complete. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with the Ethics Act. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Cours, 98- 071 -C2 Page 2 ALLEGATION: That James Cours, a public official, in his capacity as a Supervisor for West Abington Township, Lackawanna County, violated Section 1103(a) of the Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or a member of his immediate family when he participated in actions of the board to hire members of his immediate family for employment with the township; when the contracts were entered into with members of his immediate family in excess of $500.00 without an open and public process; and when he was compensated for hours worked in excess of that approved by the township auditors. II. FINDINGS: A. Pleadings 1. The Investigative Division of the State Ethics Commission received information alleging that James Cours violated provisions of the State Ethics Act (Act 93 of 1998) 2. Upon review of the information, the Investigative Division initiated a preliminary inquiry on December 3, 1998. 3. The preliminary inquiry was completed within sixty days. 4. On January 29, 1999, a letter was forwarded to James Cours by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. Z 015 323 504. b. The domestic return receipt bore the signature of James Cours with a delivery date of February 1, 1999. 5. On October the 1999, State Ethics forwarded to James Cours informing him that the allegations of Director of he the January 29, 1999, letter were being amended. a. Said letter was forwarded by certified mail, no. Z 377 194 652. 6. On May 17, 1999, the Executive Director of the State Ethics Commission filed an application for a ninety day extension of time to complete the investigation. 7. The Commission issued an order on June 1, 1999, granting the 90 day extension. 8. Periodic notice letters were sent to James Cours in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 9. The Investigative Complaint was mailed to the Respondent on October 25, 1999. Cours, 98- 071 -C2 Page 3 10. James Cours has served as a Supervisor for Lackawanna County, West Abington Township since January 1996. a. Mr. Cours served as the Vice Chairman of the board of supervisors in 1997 and 1998. 1 1 . James Cours is a semi - retired accountant and owner of a farm. 12. West Abington Township is a rural township with approximately 5 Yz miles of road to maintain. 13. West Abington Township does not employ any full -time laborers or staff. 14. West Abington Township supervisors perform work for the township as needed. a. No supervisor is designated the Roadmaster at annual reorganization meetings. b. Services performed by the supervisors include labor on roads and repairs to vehicles. 15. West Abington Township owns a limited amount of machinery and equipment to maintain their roads. a. The township owns a grader, stone rake and two dump trucks. b. West Abington Township does not own a tractor, loader or backhoe. 16. West Abington Township rents tractors, loaders and backhoes or contracts with neighboring townships to have the road work performed. a. Between 1994 and 1998 the majority of rentals has been from township supervisors. 17. Clinton Township (neighboring municipality) charges fifty ($50.00) dollars per hour for the use of their equipment with an operator plus a delivery charge of $50.00. Clinton Township does not require a minimum number of rental hours. Clinton Township is not as productive as Cours' John Deere backhoe for which Cours charges $35.00 per hour. 18. Township supervisors who own equipment such as tractors, loaders and backhoes have provided those for use by the township at rental prices less than Clinton Township. a. Supervisors have also sold fuel to the township to operate various pieces of equipment. b. This practice has been in existence since at least 1996. a. b. Cours, 98- 071 -C2 Page 4 19. James Cours has provided labor to West Abington Township from 1996 to 1998. a. Cours has also updated ordinances and worked on township accounts. b. Cours has rented equipment to the township during this period. 1. Cours has been compensated by the township for operating the rented equipment. 20. James Cours billed the township for hours worked as follows: a. 1996: Pat e Hours Worked 01/17/96 02/04/96 02/06/96 Total 02/23/96 6.0 02/23/96 8.5 Total 14.5 Net 03/25/96 04/04/96 Total Net 03/11/96 03/12/96 03/13/96 03/15/96 03/19/96 03/20/96 03/21/96 03/28/96 03/29/96 04/02/96 Total Net 04/10/96 04/11/96 04/17/96 04/30/96 05/03/96 05/07/96 05/09/96 05/13/96 2.0 2.0 4.0 8.0 4.0 3.5 7.5 3.5 3.0 3.0 2.5 3.0 2.5 3.0 3.0 3.0 2.5 29.0 3.5 3.0 3.0 4.5 3.0 4.0 3.5 4.0 Rate of Pay Duties $ 8.00 /hr $ 8.00 /hr $ 8.00 /hr $ 64.00 $10.00 /hr $10.00 /hr $145.00 $129.84 $10.00 /hr $10.00 /hr $75.00 $67.16 $8.00 /hr $ 8.00 /hr $8.00 /hr $ 8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $232.00 $207.00 $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr $8.00 /hr Update Zoning Ord. Including Discussions W /Lackawanna County Work on Township Roads Work on Township Roads Work on Township Roads Work on Township Roads Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Cours, 98- 071 -C2 Page 5 05/14/96 05/15/96 05/27/96 05/28/96 05/29/96 05/30/96 Total Net 06/06/96 08/20/96 08/22/96 08/23/96 09/05/96 Total Net 3.0 3.5 5.0 4.5 3.0 3.0 50.0 3.0 5.0 2.5 2.5 1.5 14.5 11/29/96 4.0 12/10/96 1.5 12/13/96 3.0 12/27/96 3.0 12/28/96 to 12/31/96 10.0 Total 21.5 Net 11/11/96 11/25/96 Total Net 4.0 2.0 6.0 1996 Total Hours: 151.0 b. 1997: Date Hours Worked 01/10/97 2.0 01/24/97 2.0 02/21/97 2.0 03/07/97 2.0 03/21/97 3.5 04/04/97 2.0 04/18/97 2.0 04/22/97 6.0 04/23/97 6.0 05/05/97 4.5 05/12/97 4.5 05/14/97 6.0 05/16/97 2.0 05/26/97 2.0 Total 46.5 Net $8.00 /hr $8.00 /hr $ 8.00 /hr $ 8.00 /hr $8.00 /hr $8.00 /hr $404.00 $361.71 $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $145.00 $129.81 $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $215.00 $192.53 $8.00 /hr $8.00 /hr $48.00 $42.98 Rate of Pay $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $465.00 $416.41 Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Update Subdivision & Land Dev Ord Cut Brush Cut Brush Pot Holes Pot Holes 2 B Gravel Cinders Cinders Cinders Cinders Repairs to GMC Truck Update Land Development Ordinance Duties Cinder Cinder Cinder Cinder Cinders, Oil Filter Cinder Cinder GMC Body Repairs GMC Body Repairs GMC Body Repairs GMC Body Repairs GMC Body Repairs Cinders Cinders Cours, 98- 071 -C2 Page 6 Expenses: Fiberglass Board Paint Check Total: 06/13/97 2.0 06/27/97 2.0 07/07/97 1.0 07/11/97 2.0 07/16/97 3.0 07/25/97 2.0 08/22/97 2.0 09/05/97 3.0 09/19/97 2.0 10/03/97 2.0 10/17/97 2.0 10/22/97 2.0 10/28/97 8.0 10/29/97 8.0 10/30/97 4.0 10/31/97 9.0 Total 54.0 Net 11/11/97 8.0 11/14/97 6.0 11/20/97 3.0 11/24/97 3.0 11/28/97 3.0 12/12/97 3.0 12/16/97 6.0 12/23/97 3.5 12/26/97 3.0 Total 38.5 Net c. 1998: Date Hours Worked 01/09/98 3.0 01/11/98 3.5 01/23/98 2.0 01/26/98 4.0 02/06/98 2.0 02/20/98 2.0 02/25/98 4.0 03/06/98 2.0 03/10/98 1.5 04/03/98 2.5 04/07/98 3.0 04/13/98 3.0 04/15/98 2.5 04/17/98 3.5 $ 15.00 $ 9.00 $440.41 $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $540.00 $483.57 $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $10.00 /hr $385.00 $344.77 Cinders Cinders PennDOT met Gus Gallo Cinders Potholes Cinders Cinders Cinders Cinders Cinders Cinders Gravel & Pipes Replace Pipes Replace Pipes Replace Pipes Replace Pipes Replace Pipes Haul, Spread Cinders Haul, Spread Cinders Haul, Spread Cinders Haul, Spread Cinders Haul, Spread Cinders GMC Truck Repair Spread Cinders Haul Cinders Rate of Pay Duties $11.00 /hr Cinders $11.00 /hr GMC Repair $11.00 /hr Cinders $11.00 /hr GMC - Brakes $11.00 /hr Cinders $11.00 /hr Cinders $11.00 /hr Cut Trees $11.00 /hr Cinders $11.00 /hr PennDOT $11.00 /hr Cinders $11.00 /hr Repair Fence $11.00 /hr Cut Trees $11.00 /hr Paving Bids $11.00 /hr Cinders, Pave Roads Cours, 98- 071 -C2 Page 7 04/21/98 3.0 04/22/98 3.0 04/23/98 6.0 04/29/98 7.0 Total 56.5 Net 05/08/98 05/13/98 06/07/98 06/22/98 06/23/98 07/10/98 07/11/98 07/15/98 08/07/98 09/18/98 10/02/98 10/12/98 10/27/98 Total Net Check No. 2790 634 637 2845 2846 647 1996 Total 2878 2879 2933 2967 1997 Total 3013 3055 3112 1998 Total 3.0 2.0 3.0 3.0 3.0 2.0 7.0 7.0 7.0 3.0 3.0 5.0 3.0 51 Date 03/05/96 03/05/96 05/07/96 10/01/96 10/01/96 10/01/96 01/06/97 01/06/97 06/03/97 11/07/97 02/03/98 05/05/98 11/29/98 $11.00/hr $11.00 /hr $11.00 /hr $11.00 /hr $621.50 $555.01 $11.00 /hr $11.00 /hr $1 1.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $11.00 /hr $561.00 $500.97 Cut Trees Cut Trees Install Pipes Lower Stanton Twp. Road Orchard Road Stanton Town Road Braco -Truck Road Signs Potholes Paving Paving Spread Modify (350 tons) Spread Modify (325 tons) Cinders, Truck Repair Cinders, Truck Repair Shoulder Work John Sabol, Pipe 21. Payments to James Cours by the township for labor, from 1996 to 1998 made as follows: Invoice Amt. $ 64.00 $ 145.00 $ 75.00 $ 232.00 $ 404.00 $ 145.00 $1,065.00 $ 215.00 $ 48.00 $ 465.00 $ 540.00 $1,268.00 $ 385.00 $ 621.50 $ 561.00 $1,567.50 Purpose Update Zoning Ordinance Road Work Road Work Update Sub. /Land Dev. Ord. Update Sub. /Land Dev. Ord. Road Work Road Work Update Sub. /Land Dev. Ord. Road Wk & Auto Body Rep. Road Work were Road Work, Truck Repair Road Wk, tree rem., auto rep. Road Work, auto repair 22. All funds paid to James Cours for his labor emanated from the West Abington Township General and State Fund Accounts. 23. Payments issued to James Cours were included as part of the supervisor's monthly bill lists. Cours, 98- 071 -C2 Page 8 a. Bill lists are voted on in their entirety by a single motion. 24. James Cours voted during official township supervisor's meetings to approve the bill lists including payments to himself for his labor. 25. Supervisor Cours participated in official actions to approve the following payments to himself for his labor. Check Meeting Official No Amt. Payee Date Action Vote 2790 $ 64.00 James Cours 03/05/96 App. Bills Yes 634 $145.00 James Cours 03/05/96 App. Bills Yes 637 $ 75.00 Jim Cours 09/03/96 App. Bills Yes 2845 $245.00 James Cours 10/01/96 App. Bills Yes 2846 $404.00 James Cours 10/01/96 App. Bills Yes 647 $145.00 James Cours 10/01/96 App. Bills Yes 2878 $215.00 James Cours 01/02/97 App. Bills Yes 2879 $ 48.00 James Cours 01/02/97 App. Bills Yes 2933 $465.00 James Cours 06/03/97 App. Bills Yes 2967 $540.00 James Cours 11/06/97 App. Bills Yes 3055 $621.50 James Cours 05/05/98 App. Bills Yes 3112 $561.00 James Cours 12/01/98 App. Bills Yes 26. West Abington Township Supervisors have historically rented equipment to the township for road maintenance projects. a. The rates charged by supervisors have been Tess than neighboring municipalities or private contractors. The township has had difficulty in the past getting bids from contractors due to the townships generally small road projects. 27. James Cours rented his personal John Deere 410 4x4 tractor /backhoe to West Abington Township from 1996 through 1998 to replace drainage pipes for the township. a. e hour for the l u a of his Abington John Deere 410 Township x4 tractor /backhoe in 1997 and 1998. b. The billing in 1996 was in the name of Cours' wife, Marlene Cours. c. Cours billed in the amount of $35.00 per hour in 1996. b. 1. This rate included $10.00 /hr for an operator. d. Cours billed in his wife's name in 1996 after being advised by former supervisors that he could not lease equipment to the township in his name. e. Cours' wife did not own the equipment leased to the township in her name. Cours, 98- 071 -C2 Page 9 f. 28. The tractor rental was not competitively bid in an open and public process by West Abington Township. a. There was no formal vote of the board to approve Cours renting the tractor to the township. 29. Cours billed the township as follows for backhoe rental: a. 1996: Date 01/20/96 02/27/96 03/31/96 Backhoe 09/05/96 Backhoe 11/11/96 Backhoe 12/04/96 Backhoe 1996 Total: b. 1997: Date 10/31/97 11/11/97 2. Cours was told by another supervisor that it was legal to rent to the township if he billed in his spouse's name. 1997 Total: c. 1998: Date 04/23/98 Cours billed in his own name in 1997 and 1998. 1998 Total: Cours billed in his wife's name to give the appearance that he was not contracting with the township. Type of Equip. Backhoe Backhoe Type of Equip. Backhoe Pipe Replacement - Stanton Road Type of Equip. Backhoe - Install Pipe Hours 5.0 2.0 7.0 1.0 4.5 5.5 7.5 5.0 12.5 Hours 8.0 6.0 14.0 Hours 5.0 Hourly Rate $35.00 $35.00 $ 35.00 $35.00 $35.00 $35.00 Hourly Rate $25.00 $25.00 Total $175.00 $70.00 $245.00 $35.00 $157.50 $192.50 $262.50 $175.00 $437.50 $875.00 Total $ 200.00 8150.00 8350.00 $350.00 • Hourly Rate Total $ 25.00 $125.00 $125.00 30. Payments were issued to James Cours and Marlene Cours as follows for Cours, 98- 071 -C2 Page 10 tractor /backhoe 1996: Check No. 635 648 654 1996 Total Check No. 3017 1997 Total rental: Date 03/05/96 10/01/96 01/06/97 Date 02/03/98 Amount $245.00 $192.50 $437.50 $875.00 Amount $350.00 $350.00 Purpose Tractor Rental Tractor Rental Tractor Rental Purpose Tractor Check No. Date Amount Purpose 669 05/05/98 $125.00 Tractor Rental 1998 Total $125.00 31. Supervisor Cours participated in official actions to approve the payments to himself and his wife, Marlene Cours. Check Meeting Official No. Amt. Payee Date Action Vote 635 $245.00 Marlene Cours 03/05/96 App. Bills Yes 648 $192.50 Marlene Cours 10/01/96 App. Bills Yes 654 $437.50 Marlene Cours 01/06/97 App. Bills Yes 3017 $350.00 James Cours 02/03/98 App. Bills Yes 669 $125.00 James Cours 05/05/98 App. Bills Yes 32. funds ton T were from the West ownship General and State Fund Accounts. Abington 33. Payments issued to James Cours were included as part of the supervisor's monthly bill lists. 34. James Cours signed the front of each check payable to himself and /or his wife. 35. West Abington Township supervisors have sold gasoline to the township for use in township vehicles. a. The township did not seek quotes or approve this procedure at a public meeting. 36 James Cours sold gasoline and motor oil to West Abington Township from 1996 through 1998. a. Gasoline was sold from a private supply owned by Cours for use in a township 1977 pickup truck. b. The township was billed in the names of both James and Marlene Cours. 37 James Cours billed the township on April 1, 1997, for gasoline and oil sales in the name of Marlene Cours as follows: following Cours, 98- 071 -C2 Page 11 a. 12/28/96 - 30 gallons gas @ $1.19/gal b. 02/97 - 10 gallons gas @ $1.19 /gal. 2 quarts of oil @ $1.09 /qt c. 03/97 - 8 quarts of oil @ $1.09 /qt Total $35.70 $11.90 $ 2.18 _ $ 8.72 $58.50 38. James Cours sold gasoline and motor oil to West Abington Township in 1998. a. James Cours sold forty -five (45) gallons of gasoline to the township at $1.20 per gallon (45 x $1.20 = $56.40). b. James Cours sold one (1) quart of oil to the township for $2.00. c. James Cours' gasoline and oil sales to the township in 1998 totaled $58.40. 39. James Cours billed the township on January 2, 1998, for gasoline and parts for the 1977 GMC Truck owned by the township. Gasoline: 11/28/97 - 22 gallons @ $1.20 per gallon = $26.40 12/16/97 - 25 gallons @ $1.20 per gallon = $30.00 Motor Oil: = $ 2.00 Oil Filter: = $ 6.99 Bracket = $ 3.38 Gas Tank for GMC 12/16/97 = 825.00 Total = $ 93.77 40. Supervisor Cours participated in official actions to approve the following payments to himself and Marlene Cours, including signing checks: Check Meeting Official No. Amt. Payee Date Action Vote 2915 $58.50 Marlene Cours 04/01/97 App. Bills Yes 2966 $ 58.40 James Cours 01/05/98 App. Bills Yes 2996 $93.77 James Cours 01/05/98 App. Bills Yes 41. All funds paid to James Cours for the gasoline and oil were from West Abington Township's General Funds Account. 42. James Cours voted during official township supervisor's meetings to approve the payment to himself for the sales of gasoline and oil to West Abington Township. 43. James Cours signed the front of the check numbers 2915, 2966 and 2996 which included payments for the gasoline and oil. 44. Paul Cours, brother of James Cours, installed brake lines on a 1977 GMC Truck owned by West Abington Township in 1998. a. Paul Cours billed the township a fee of $75.00 labor and $8.00 parts for Cours, 98- 071 -C2 Page 1 2 the auto repair work on a 1997 GMC truck owned by the township. 45. The auto repair work was not competitively bid in an open and public process by West Abington Township. 46. following payments to Paul official actions of including signing check no. 3007 3007f from the 9 township General Fund: Check Meeting Official No. Amt. Payee Date Action Vote Yes 3007 $83.00 Paul Cours 02/03/98 Approved 47. Cours en he was compensated ed for benefit $388.00 xcess of the between ates approved by when the auditors. 48. West Abington Township Supervisors ceased renting equipment to the township following a review and audit of the township Liquid Fuels Fund by the Department of Auditor General in 1997. a. The report questioned equipment rental from the supervisors paid for from the Liquid Fuels Fund. b. The report recommended reimbursing the fund. c. Reimbursement to the Liquid Fuels Fund was made by the township. B. TESTIMONY: 49. Thomas Slater is employed as an investigator for the State Ethics Commission. a. Cours submitted 93 hours for compensation to the Township as to an ordinance update that he performed. 1. Based upon a rate of $8.00 per hour, Cours received $744.00 for the ordinance update. b. The hourly rate of pay for a supervisor /employee in 1996 was $9.00. 1. Cours was compensated for working 58 hours as an equipment operator in 1996 at an hourly rate of $10.00. c. From 1996 through 1998, Cours rented his tractor to the township for a total of $1350.00. d. Cours submitted hours for road work performed in 1996 through 1998 which yielded unauthorized compensation of $388.00 from a higher hourly pay rate than that approved by the Abington Township Auditors. e. Invoices 35.00 in 1996 and d$25 00 rental per hour in 1997 and 1998 hourly rate of $ Cours, 98- 071 -C2 Page 13 1. The $10.00 differential was for an equipment operator. f. West Abington Township Supervisors received $25.00 per month as elected officials. 50. James Cours is a Supervisor for West Abington Township, Lackawanna County. a. West Abington is a small township with one truck and no buildings. b. The Supervisors generally do the repairs in the township. c. When the township rented a backhoe with an operator from Clinton Township at $50.00 per hour, the backhoe was smaller and slower than Cours'. 1. Cours states that he lost money renting his backhoe to the township. d. The Planning Commission asked the township to update or design new ordinances. 1. The other two supervisors asked Cours to prepare a zoning ordinance and land development and subdivision ordinance. 2. Cours prepared both ordinances for $744.00. e. In January of 1996 and 1998, the supervisors sought a $1.00 per hour increase from the auditors as to their employment. f. Cours states that his actions benefitted the township which did not lose any money on these transactions. g. Cours rented his backhoe to the township in his spouse's name following conversations with the other two supervisors that it was legal for a supervisor to rent to a township if done in the spouse's name. h. Cours rented his backhoe to the township as a matter of choice. I. The ordinances were done under the legislative authority of the supervisors. C. DOCUMENTS: 51. ID -3 are certified copies of the West Abington Township Auditor's Minutes for certain meetings. a. On February 1, 1994; January 4, 1995; January 4, 1996; and January 7, 1997, the auditors set the hourly wage for a supervisor as a township employee at $9.00 per hour for that year. 52. R -1 is a copy of the Subdivision and Land Development Ordinance of West Abington Township adopted in December, 1996. Cours, 98- 071 -C2 Page 14 53. R -2 is a copy of the Zoning Ordinance of West Abington Township as revised in May, 1996. III. DISCUSSION: At all times relevant to this matter, the Respondent, James Cours, hereinafter Cours, has been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, as codified by Act 93 of 1998, Chapter 1 1 , 65 Pa.C.S. § 1101, et seq. The issue is whether Cours as a Township Supervisor violated Section 1103(a) as to the allegations that: he participated in actions of the West Abington Township Board to hire members of his immediate family for employment with the township; members of his immediate family received township contracts in excess of $500.00 without an open and public process; and he received compensation for hours worked in excess of that approved by the township auditors. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). The term "conflict of interest" is defined under the Ethics Act as follows: Section 1102. Definitions. "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. §1102. Section 1 103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Cours, 98- 071 -C2 Page 15 Having noted the issues and applicable law, we shall now summarize the relevant facts. Cours has served as a West Abington Township Supervisor since January, 1996. In a private capacity Cours is a semi - retired accountant who owns a farm. Since Abington Township neither employed any full -time laborers or staff nor owned any tractor, loader or back hoe, it rented its equipment from neighboring townships for road work. In addition, the Township utilized the Supervisors to perform road work on an as- needed basis. However, the Supervisors were not officially designated as a Roadmaster or laborers at the January reorganizational meetings. Cours was compensated for working as an employee of the Township. The wages for Township Supervisors working as employees were set by the Auditors for the years 1994 through 1997 at $9.00 per hour. Since Cours charged the Township in some instances at a higher rate per hour than the compensation rate set by the Auditors, Cours received extra compensation in the amount of $388.00. See, Fact Findings 47, 48d. The Township Supervisors routinely rented equipment to the Township to maintain its roads. Such rentals were made without an open and public process. Cours rented his John Deere backhoe to the Township but did so in his spouse's name to give the appearance that he was not involved in the rental agreement. Even though Cours' backhoe was larger and faster than the backhoe which was rented from another municipality at $50.00 with an operator included, Cours charged the Township $25.00 . per hour for the backhoe and $10.00 per hour for the operator for a total of $35.00 per hour. Cours or his spouse received $1350.00 from the rental of the backhoe to the Township. The specifics of the rental of Cours' backhoe to the Township are set forth in Fact Findings 16 -18, 26 -31, 50. Cours was also compensated in the amount of $744.00 for certain administrative work he performed for the Township. Cours submitted a claim based upon 93 hours of work at a rate of $8.00 per hour. Cours' service involved the updating of an ordinance that would be issued by the Board of Supervisors. Such work was not done by Cours as an employee of the Township. Cours as a Supervisor participated in the bill approval process as to the payment to himself for the update as to the ordinance. See, Fact Findings 23 -25. Payments issued to Cours or his spouse for services to the Township were included as part of the monthly bills list voted upon in its entirety by a single motion by the Board. Cours voted to approve the bills list which included payments to himself or his spouse. Cours as a Supervisor also signed the front of some of the checks. Having summarized the above relevant facts, we must now determine whether the actions of Cours violated Sections 1 103(a) of the Ethics Act. The Investigative Division has filed a Brief in which it argues that Cours was knowledgeable about his actions which constitute violations of the Ethics Act as to the backhoe rental, ordinance preparation work, and receipt of unauthorized /excessive compensation. Specifically, as to the backhoe rental, the Investigative Division asserts that Cours' claim that he lost money on the rental is not established and is irrelevant. Further, the rental of the backhoe to the Township was in excess of $500.00 and not Cours, 98- 071 -C2 Page 16 awarded through an open and public process. Concerning the ordinance drafting, the Investigative Division cites Section 607(1) of the Second Class Township Code, 53 Pa.C.S. §6507(1), for the proposition that such is an administrative function which is solely within the ambit of a supervisor as an elected official. Regarding Cours' hourly rate of pay, the Investigative Division argues that at times Cours received compensation as a Township employee at a rate which was $1.00 per hour more than approved by the Board of Auditors. Finally, the Investigative Division advocates for violations of Section 1103(a) of the Ethics Act based upon Cours' action as a Supervisor in voting to approve payments to himself and signing the front of checks in payment to himself and his spouse. Restitution of $2,482.00 is sought by the Investigative Division based upon $1,350.00 for the backhoe rental, $744.00 for the ordinance work, and $388.00 of excess compensation from the higher rate of pay than that approved by the Auditors. Cours has not filed a brief. Cours, while conceding at the hearing that he may have technically violated the Ethics Act, argues that there should be no restitution on the theory that the rental rate for his backhoe was so low as to constitute a loss to him and the ordinance update if done by a professional would have cost thousands of dollars. In applying Section 1103(a) of the Ethics Act to the above, the record reflects that Cours participated in the bill approval process and signed some of the Township checks, as a Supervisor, which were payable to himself or his spouse for providing services to the Township. But for the fact that Cours is a Supervisor, he would not have been in a position to do the hourly work as a Township employee, work on the ordinance update and lease his backhoe to the Township. Such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office on the part of Cours resulted in pecuniary benefits to him or his spouse consisting of the financial gain for providing the services to the Township. The pecuniary benefits were private because there is no provision in the Second Class Township Code which allows a supervisor to participate as to the approval of payments to himself for providing private services to the Township. See, Hessinger, Order 931, affirmed in part, R.H. and T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. Ct. 1996). Lastly, the private pecuniary benefits inured to Cours or his spouse, who is a member of his immediate family as that term is defined in the Ethics Act. Accordingly, Cours violated Section 1 103(a) of the Ethics Act when he used the authority of office to obtain a private pecuniary benefit when he participated in actions of the Board to pay himself or his spouse for contract services provided to the Township. Such services included both the backhoe and ordinance update work. Under the same analysis, we find a violation of Section 1103(a) of the Ethics Act by Cours as to his receipt of unauthorized compensation which was based upon an hourly rate of pay in excess of that approved by the Township Board of Auditors. We find no violation as to the allegation regarding actions by Cours as to hiring members of his immediate family for employment with the Township. Although Cours' brother Paul did repair work on a Township vehicle which totaled $83.00, there is no showing that Cours used the authority of office to hire his brother. Accordingly, we find no violation of Section 1103(a) of the Ethics Act as to the particular allegation, based upon a lack of evidence. Having reviewed the record before us, it is clear that Cours in this case was not Cours, 98- 071 -C2 Page 17 motivated by financial gain but rather by a desire to assist the Township as to what needed to be done. Nevertheless, there are legal restrictions, the Ethics Act, which must be followed. Two restrictions under the Ethics Act as to township supervisors are that their flat rate of pay as township employees is limited to the hourly rate set by the auditors. Second, township supervisors cannot be paid as township employees for performing duties that are encompassed within the functions of supervisors as elected officials. Here, the Auditors set the hourly rate at $9.00; Cours as a Township employee could not receive compensation at a higher hourly rate. Second, as to the ordinance drafting, this is a duty of the supervisors as elected officials and not as township employees. Consequently, Cours could not receive any additional compensation for performing that administrative function. As the Commonwealth Court noted in R.H. and T.W. v. State Ethics Commission, supra: T.W. maintains that he is entitled to hourly wages for performing these duties. He notes that the recent growth of the Township led to a substantial increase in demands upon the Township government and that the Supervisors have assumed responsibility for meeting much of this burden. With this argument, T.W. implies that, because the rise in activity forced him to work in excess of the stated duties of Township Supervisors, he was properly compensated for such actions with an hourly wage. We sympathize with T.W.; however, there is no question that the duties at issue were supervisory in nature. The supervisory salary was statutorily set and encompassed all of the ensuing administrative functions. Thus, T.W. violated the 1978 Act when, in addition to his Supervisor's compensation, he received hourly wages as an employee for performing administrative duties. Id. at 1011 Section 1107(13) of the Ethics Acts, 65 Pa.C.S. §1107(13), empowers this Commission to impose restitution in instances where a public official /public employee has obtained a financial gain. Accordingly, Cours is directed within thirty (30) days of the date of mailing of this Order to make payment to West Abington Township through this Commission in the amount of One Thousand One Hundred Thirty Two Dollars ($1,132.00). The foregoing is based upon $388.00 (Fact Finding 47) plus $744.00 (Fact Finding 44(a)1). Compliance will result in the closing of this case with no further action. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. James Cours, as a Supervisor in West Abington Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Cours violated Section 1103(a) of the State Ethics Act when he used the authority of his office for a private pecuniary benefit for himself and his spouse by participating in actions of the Board to pay himself and his spouse for Cours, 98- 071 -C2 Page 18 contract services, including backhoe work and an ordinance update, which were provided to the Township. 3. Cours violated Section 1103(a) of the Ethics Act when he received compensation at an hourly rate higher than that approved by the Township Board of Auditors. 4. Cours did not violate Section 1103(a) of the Ethics Act as to the repair of a Township vehicle done by his brother, based upon a lack of evidence. In Re: James Cours ORDER NO. 1150 File Docket: 98- 071 -C2 Date Decided: 4/12/2000 Date Mailed: 4/28/2000 1. James Cours, as a Supervisor in West Abington Township, violated Section 1 103(a) of the State Ethics Act when he used the authority of his office for a private pecuniary benefit for himself and his spouse by participating in actions of the Board to pay himself and his spouse for contract services, including backhoe work and an ordinance update, which were provided to the Township. 2 Cours violated Section 1103(a) of the Ethics Act when he received compensation at an hourly rate higher than that approved by the Township Board of Auditors. 3. Cours did not violated Section 1 103(a) of the Ethics Act as to the repair of a Township vehicle done by his brother, based upon a lack of evidence. 4. Cours is directed within thirty (30) days of the date of the mailing of this Order to forward payment to West Abington Township through this Commission in the amount of One Thousand One Hundred Thirty Two Dollars ($1,132.00). a. Compliance will result in the closing of this case with no further action. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, efO DANEEN E. REESE, CHAIR