HomeMy WebLinkAbout1187 JohnsonIn Re: A. T. Johnson
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Louis W. Fryman, Vice Chair
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
Donald M. McCurdy
99- 047 -C2
Order No. 1187
2/26/01
3/12/01
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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11,
Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of
pending matters under Act 93 of 1998.
This adjudication of the State Ethics Commission is issued under Act 9 of 1989 as
codified by 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 Act 9 of 1989 as codified
by Act 93 of 1998. Any person who violates confidentiality of the Ethics Law is guilty of a
misdemeanor and 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.
Johnson, 99- 047 -C2
Page 2
ALLEGATION:
That A. T. Johnson, a public official in his capacity as a Supervisor for Grove
Township, Cameron County, violated Sections 3(a) and 3(f) of Act 9 of 1989 as codified
by Act 93 of 1998, when he participated in actions and decisions of the board of
supervisors resulting in the award of a contract in excess of $500.00 to a vendor who
subcontracted with a business with which he is associated by participating in actions to
award a contract to J. K. Hubler Trucking Company, who subcontracted that work to
Johnson's company; when he participated in approving payments to Hubler; and when he
was compensated for attending meetings related to his duties as township supervisor.
II. FINDINGS:
A. Pleadings
1. On September 1, 1999, a letter was forwarded to A. T. Johnson 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 377 194 644.
b. The domestic return receipt bore the signature of A.T. Johnson, with a
delivery date of September 3, 1999.
2. Johnson's duties as Assistant Roadmaster included the maintenance of township
roads.
3. Johnson is a partner in Johnson Excavating along with his wife, Barbara Johnson.
a. Barbara Johnson reports 90% ownership in Johnson Excavating while A. T.
Johnson reports a 10% interest.
b. Johnson Excavating is not incorporated.
c. Johnson Excavating is operated from the Johnson residence at HCR 1, Box
55, Lick Island Circle, Sinnamahoning, PA.
4. On Statements of Financial Interests filed with the township for the 1997 and 1998
calendar years, Johnson discloses Johnson Excavating as a source of income.
a. Johnson also disclosed a 10% ownership interest in Johnson Excavating.
5. Grove Township has contracted with a third party for heavy equipment rental for
use in repairing and maintaining township roads.
a. The township advertises the contract each December for the following year
in the Cameron County Echo newspaper.
6. In December 1997, the township advertised, in part, for the following in the Echo:
a. A 580 Case backhoe and operator or equivalent and /or a 450 John Deere
dozer and operator or equivalent as needed at various times during 1998.
b. Proposals should be quoted as an hourly rate.
c. The proposals should be submitted to the Board of Supervisors.
Johnson, 99- 047 -C2
Page 3
7 Johnson did not participate in the preparation of the bid specifications, but
participated in authorizing the advertisement.
8. On January 5, 1998, Jerry Hubler, d.b.a. J. K. Hubler Trucking Company,
submitted a bid to the Board of Supervisors for the following on an as- needed
basis:
a. A 450 John Deere dozer with operator for a cost of $45.00 per hour.
b. A 310 John Deere backhoe loader for a cost of $45.00 per hour.
9. During the January 5, 1998, Board of Supervisors meeting, the supervisors voted
to accept Hubler's proposal for heavy equipment with a 3 -0 vote.
a. The bid from Hubler was the only proposal received by the supervisors for
heavy equipment.
b. Johnson participated in board actions to award the contract to Hubler.
c. Hubler had contracted with the township for as needed equipment
rental /road repairs for approximately five years prior.
10. Hubler owns a John Deer loader with backhoe and an inoperable dump truck.
11. The lease agreement specifies that Johnson Excavating will lease to Hubler the
following:
a.
b.
c.
d.
e.
John Deere 450 track loader with backhoe attachment, operator included,
for the sum of $40.00 per hour.
1977 International dump truck, operator included, at $40.00 per hour.
The above described International dump truck in combination with Fruhauf
low boy trailer, operator included, at $50.00 per hour.
The term of the lease shall be from March 1, 1998 through December 31,
1998.
The lease is signed Barbara Johnson and Hubler.
12. Hubler was notified by a township representative of repairs to be made to
township roads in March or April 1998.
a. Johnson participated in the decision to call out Hubler.
13. The decision to utilize the services of the heavy equipment contractor pursuant to
the contract is made by the township supervisors, usually during a regular
meeting.
a. Actions are generally not voted on.
14. On April 14, 1998, April 30, 1998, and May 6, 1998, Johnson operated Hubler's
backhoe /loader for a total of 17.5 hours working on Kephart and Jerry Run Roads
in Grove Township.
15. On or around May 6, 1998, Johnson Excavating billed Hubler for 17.5 hours at
$10.00 per hour for a total of $175.00 for the above mentioned work.
Johnson, 99- 047 -C2
Page 4
a. Johnson billed Hubler for operator hours only.
16. Hubler paid Johnson $175.00 for the above mentioned work with Check No. 7014
dated May 22, 1998.
a. The check was made payable to Johnson.
b. The check was endorsed and cashed by Johnson.
17. Bills are approved for payment at the township supervisors' monthly meetings.
a. The motion at all meetings is to pay all current bills.
b. Current bills include any bills received and payroll from the date of the
previous meeting to the present meeting.
c. The checks are signed by the township secretary and two supervisors at
the meeting.
18. On May 29, 1998, North Star Aggregates, Penfield, PA, gave Grove Township 300
tons of stone free of charge.
a. The stone was originally intended for PennDOT.
b. PennDOT refused the stone due to the quality not meeting PennDOT
specifications.
19. North Star notified Johnson, in his capacity as township supervisor, that it wanted
the stone moved as soon as possible.
a. Johnson contacted Hubler about the stone project after discussions with
the other supervisors during the June 10, 1998, board of supervisors'
meeting.
b. Hubler also discussed with Johnson using Johnson Excavating equipment
for the job.
20. Hubler utilized the services of Johnson Excavating to move the stone from Grove
Township.
a. Johnson provided Hubler with a dump truck and front -end loader.
b. Hubler also used his equipment to move the stone.
21. On June 24, 1998, and June 25, 1998, Grove Township used the stone to
resurface Jerry Run Road.
22. On or about June 25, 1998, Johnson billed Hubler for equipment rental, including
operator, in relation to the Jerry Run Road project.
a. June 24, 1998: One hour @ $50.00
to move equipment $ 50.00
Loading /trucking 2 RC
Truck - 7 hrs @ $40.00 /hr $ 280.00
Loader - 7 hrs @ $40.00 /hr $ 280.00
b. June 25, 1998:
Johnson, 99- 047 -C2
Page 5
Loading /trucking 2 RC
Truck - 7 hrs @ $40.00 /hr
Loader - 7 hrs @ $40.00 /hr
Total
$ 280.00
$ 280.00
$ 1,170.00
23. On July 8, 1998, Hubler billed Grove Township $1,985.00 on Invoice No. 313Afor
work done on June 24, 1998, and June 25, 1998, on Jerry Run Road.
a. The billing included items listed as subcontracted which were completed by
Johnson using his equipment.
24. During the August 12, 1998, Board of Supervisors meeting, Johnson made a
motion to pay the bills, which included Check No. 2083 (from the township Liquid
Fuels Fund) made payable to Hubler for $1,365.00.
a. This was partial payment for Invoice No. 313A.
b. Johnson signed Check No. 2083, in his capacity as township supervisor.
25. Hubler was paid the balance of Invoice No. 313A with Check #2881 (Township
General Fund) dated August 12, 1998, in the amount of $800.00.
a. This also included payment for other invoices.
b. Johnson signed Check #2881, as a township supervisor.
26. On August 20, 1998, Hubler paid Johnson Excavating $1,170.00 with Check
#7208.
a. The check was endorsed for deposit only" by Barbara Johnson.
27. Since assuming office Johnson has been compensated for attending meetings in
his capacity as a township supervisor and as an assistant roadmaster for
performing other duties related to his position of township supervisor.
28. During the January 6, 1997, Reorganization Meeting of the board of supervisors
Johnson participated in actions approving the salary for supervisors working for
the township as follows:
a. Supervisor /Roadmaster: $9.00 /hr
b. Supervisor /Operator: $9.00 /hr
c. Supervisor /Foreman: $9.00 /hr
d. Outside Meeting Wage: $35.00 /meeting
29. Outside meetings included meetings at the solicitor's office with the fire
department, county economic development and emergency management.
30. During the January 5, 1998, Reorganization Meeting the rates for supervisors
compensation was set at the same rates as 1997.
a. The outside meeting pay remained at $35.00 /meeting in both 1998 and
1999.
b. The hourly rate was increased to $9.50 /hour in 1999.
Johnson, 99- 047 -C2
Page 6
c. The rates were submitted to the auditors for approval.
31. The Grove Township Auditors have approved compensation for supervisors as
follows:
a. 01/07/97: $9.00 /hr for supervisors.
b. 01/06/98: $9.25/hr for supervisors acting as roadmasters, equipment
operator, foreman, etc.
c. 01/99: $9.50 /hr for supervisors working in any capacity.
32. The Grove Township Auditors have never approved compensation for supervisors
attending outside meetings.
33. Johnson submits work reports which disclose mileage, hours worked, and work
completed.
a. Other supervisors working for the township submit similar reports.
34. Johnson was also compensated, without auditor approval, for attending various
meetings with other public officers which were related to his position of township
supervisor.
35. Johnson was compensated for attending various meetings as disclosed on work
reports as follows:
a. 1997:
Date Type of Meeting Amount
01/07/97 Economic Development $ 35.00
03/06/97 Emergency Management 35.00
03/25/97 Emergency Management 35.00
05/01/97 Emergency Management 35.00
1997 TOTAL $ 140.00
b. 1998:
c. 1999:
Date Type of Meeting Amount
01/07/98 Meeting with solicitor $ 35.00
04/07/98 Meeting (fire dept.) 35.00
05/20/98 Meeting (fire dept.) 35.00
06/11/98 Meeting (fire dept.) 35.00
09/17/98 Cameron County
Emergency Services 35.00
11/17/98 Cameron County
Emergency Services 35.00
12/17/98 Meeting (dirt road fund) 35.00
1998 TOTAL $ 210.00
Date Type of Meeting Amount
01/11/99 Emporium Meeting dirt roads $ 35.00
Johnson, 99- 047 -C2
Page 7
36. Johnson participated in approving payments and signed checks authorizing
payments for administrative duties and meeting pay.
37. Johnson realized a private pecuniary benefit of $1,215.75 when he submitted
hours for compensation as assistant roadmaster and hours for attending meetings,
and participated in approving payments for those services.
B. Stipulations
38. Susan Hoy is the county maintenance manager for Cameron County. She is the
contact person from PennDOT for Grove Township. Ms. Hoy - -- would testify that
on May 29 1998, Hoy placed an order for approximately 300 tons of stone with
North Star Aggregates, who's [sic] located in Penfield, Pennsylvania. A day or two
after placing the order, North Star Aggregates began delivering stone to a site
located across the street from the Grove Township ball field, on State Route 2001,
2- 0 -0 -1.
The PennDOT foreman at the site refused the first load of stone delivered by
North Star Aggregates due to inferior quality. North Star Aggregates indicated
that they would deliver a second load of stone of better quality and delivered a
second load, which was also refused for inferior quality. After refusing the second
delivery of stone, Hoy contacted another supplier to deliver the stone.
39. Annette, - - -, Buhler, - - -, is a quarry technician with North Star Aggregates. Ms.
Buhler's testimony would be as follows, that North Star Aggregates gave Grove
Township 300 tons of stone on or [about] - -- May 29 - -- 1998.
Annette Buhler would testify that she had a conversation over the telephone with
the Respondent, Mr. Johnson, and that she told Mr. Johnson that the subject
stone had to be moved as soon as possible because PennDOT needed to have
more stone delivered to the same spot in the near future.
C. Testimon
02/09/99 Meeting in Emporium dirt roads $ 35.00
02/25/99 Meeting Cameron County earned $ 35.00
income municipal building - Malizia office
06/99 Meeting Cameron County Emerg. $ 35.00
06/14/99 C.C.C. Meeting Emporium $ 35.00
07/20/99 Meeting in Emporium dirt roads $ 35.00
1999 TOTAL $ 210.00
40. Marion L. Swank was the secretary /treasurer of Grove Township between August
of 1996 and December of 1998.
a. Swank could pay utility bills and payroll without the approval of the
supervisors.
(1) For other bills, Swank would write out the checks and take them to
the monthly meeting to be approved for payment by the supervisors.
b. Township checks required the signatures of Swank and two supervisors.
c. One of Swank's duties was to take the minutes of the board meetings of the
supervisors.
Johnson, 99- 047 -C2
Page 8
d. Since the township did not have large equipment, it would advertise for
bids from contractors to supply such equipment.
(1) Hubler submitted a bid in January of 1998 and received the contract.
e. In spring /summer of 1998, North Star Aggregates offered the township 300
tons of stone which was delivered to and refused by PennDOT.
f. Invoices from Hubler for work done for the township were submitted to the
supervisors and then paid.
g.
The township has three checking accounts to pay bills: general, solid
waste, and state funds.
h. When a supervisor worked as a township employee, he would submit time
sheets from which Swank would total the time worked and write out a
payroll check.
(1) Swank did not question or challenge the submitted time sheets.
Meetings with Senator Slocum, Solicitor Malizia, at a fire hall, at
Gibson /Driftwood municipalities, with the district justice, county assessor or
prothonotary or 911 emergency coordinator were not road related activities.
j. The township made payments to Johnson for all timesheets submitted by
him to the township.
k. Johnson was absent from the July 1998 board meeting.
At the January 1998 meeting of the Board of Auditors, the hourly wage for
supervisors acting as roadmaster, equipment operator and foreman was
$9.25 per hour.
(1) The rate for road inspection was $50.00.
(2) Mileage was at $.32 per mile.
m. The contract between the township and Hubler was on an as- needed basis.
n. Swank raised questions about a Hubler invoice to the township which
referenced the use of a subcontractor.
(1) When Swank asked who the contractor was, one supervisor pointed
to Johnson.
(2) Swank questioned Johnson as to whether he had liability insurance.
(a) John responded in the negative and stated he was covered
under Hubler's insurance.
o. Johnson and the other supervisors were paid when they went to another
municipality for emergency management.
(1) The payment was an amount plus mileage.
p. Johnson and the supervisors would be paid for extra meetings of the
township board.
Johnson, 99- 047 -C2
Page 9
The township auditors did not approve any outside meeting pay.
(1) Johnson and the other supervisors charged the township for outside
meetings.
41. Jerry Hubler is a contractor who operates a trucking /excavating business.
a. In early 1998, Hubler submitted the successful bid to do heavy equipment
work for the township.
(1) Hubler does not know in advance how much work he will do for the
township which is on an as- needed basis.
b. In 1998, Johnson ran a backhoe for Hubler on a township job.
c. Johnson did other township work through Hubler in June using his
(Johnson's) own equipment as to gravel dumped by North Star Aggregates.
d. On or about February 28, 1998, Hubler and Johnson entered into an
agreement as to equipment and operators.
(1) Prior to the agreement, Hubler and Johnson had discussions about
Johnson helping with township work.
(2) As to work Johnson performed for Hubler, Johnson invoiced Hubler
and received payment.
e. Hubler had worked with Johnson prior to the township jobs.
f. Hubler and Johnson were involved in township jobs.
42. Karen Hubler is the spouse of Jerry Hubler.
a. Karen Hubler handles the administrative work for the J. K. Hubler Trucking
Company which is owned by her husband.
b. J. K. Hubler Trucking Company was the successful bidder in 1998 and
other years to provide heavy equipment services to the township.
c. Johnson operated equipment for J. K. Hubler Trucking Company for which
he was compensated.
(1) By check dated May 22, 1998, Johnson was paid $175 for work for
J. K. Trucking Company.
(2) Johnson Excavating was paid $1,170 by J. K. Trucking Company for
services provided.
d. In 1998, J. K. Hubler Trucking Company billed the township for services
performed.
(1) The two billings were for $180.00 and $1,985.00, totaling $2,165.00
(2) J. K. Trucking company received payment by two checks of $800.00
and $1,365.00, totaling $2,165.
43. Francis Hardinger is a supervisor in Grove Township.
q.
Johnson, 99- 047 -C2
Page 10
a. As the township roadmaster, Hardinger has the responsibility of taking care
of the roads.
(1) There were assistant roadmasters at certain times.
b. In the summer of 1998, the township received a free pile of stone.
(1) Hardinger and Johnson had a discussion regarding the utilization of
the stone that the township received.
(2) Johnson and Hardinger were involved in moving the stone.
(3) The stone was placed on Jerry Run Road because it was a dirt and
rail road.
(4) Johnson's equipment was used for the project.
(5) Hardinger asked Johnson if his actions as to the project were legal.
(a) Johnson replied that his actions were legal.
(6) Hubler, but not Johnson, presented bills to the township for payment
as to the road stone project.
44. Robert Garman was a supervisor in Grove Township from 1986 to 1996.
a. Garman saw Johnson in May or June of 1998 working on a pile of stone in
Grove Township.
(1) Johnson used his loader to fill up his truck with stone.
(2) Garman took several pictures of the operation.
b. Garman's request to see the Hubler invoice for the stone project was
declined at the township by Johnson.
45. Robert Peno is a supervisor in Grove Township.
a. The township advertises for the provision of heavy equipment services.
(1) Jerry Hubler typically is awarded the contract.
b. In the summer of 1998, the township received a load of stone, free of
charge.
(1) All three supervisors had a discussion about moving the gravel to
Jerry Run Road.
(2) Hubler was involved in the stone project.
(a) Hardinger and Johnson assisted Hubler with the project.
(3) Peno indicated it would be a bad idea to use Johnson because
problems would arise.
(4) Peno only became aware of the contract between Hubler and
Johnson after the completion of the stone hauling project.
Johnson, 99- 047 -C2
Page 11
46. Richard Fuechslin is a special investigator with the State Ethics Commission.
a. Fuechslin is the investigator assigned to the Johnson case.
b. The worksheets of Johnson were reviewed to determine the duties Johnson
performed as an employee of the township.
c. Fuechslin concluded that Johnson should not have received compensation
for certain activities including but not limited to the following, on the basis
that they were supervisor and not assistant road master functions:
(1) Road naming;
(2) Meeting with Senator Slocum;
(3) Meeting with Attorney Malizia, former Grove Township solicitor;
(4) Non -labor duties, such as attending meetings, administrative or
supervisory functions;
(5) Meetings, other than the Grove Township Board of Supervisors; and
(6) Economic development meetings.
d. The review was for the three -year period 1997 through 1999.
47. Paul Malizia is the former solicitor for Grove Township.
a. Malizia was solicitor from January of 1997 through December of 1999.
b. Meetings with Johnson always related to township business.
(1) Discussions concerned items such as legal issues or documents.
c. Johnson inquired of Malizia whether Hubler, who had a township contract,
could use Johnson or his equipment for the work.
(1) Malizia told Johnson he did not have to disclose such an
arrangement based upon Malizia's view that the relationship
between Johnson and Hubler had nothing to do with the township.
(a) Subsequently, after Malizia reviewed the Ethics Act, he
concluded he gave Johnson the wrong advice.
(2) Johnson already engaged in the conduct when he asked Malizia
about such activity.
(a) Johnson noted that questions were being asked about his
own actions.
d. There were no discussions between Johnson and Malizia concerning the
Ethics Act, abstention or voting on bills.
48. Al Johnson is a supervisor with Grove Township.
a. Johnson has been a supervisor in Grove Township since August of 1996.
Johnson, 99- 047 -C2
Page 12
(1) Johnson states that he was assistant roadmaster in 1997.
(2) Johnson has been board chairman since his appointment.
(3) Johnson receives compensation consisting of meeting pay, an
hourly rate plus mileage.
b. Attendance at various non -board meetings would be split up among the
supervisors.
(1) Johnson attended and received compensation for fire department
meetings which were held so that other municipalities would
contribute their fair share.
(2) Johnson was compensated for attending economic development
and emergency management meetings.
c. Johnson has a 10% interest, with a 90% interest by his spouse, in an
excavating business.
d. Hubler was awarded township contracts for road work even before Johnson
became a supervisor.
g.
J.
(1) Johnson has a business relationship with Hubler regarding each
occasionally using the other's equipment.
e. When North Star Aggregate offered the township 300 tons of stone,
Johnson conferred with the other two supervisors.
(1) All three supervisors agreed to take the stone.
(2) Johnson called North Star Aggregate to inform them that the
township would take the stone.
(3) Johnson offered to "lease" his equipment to Hubler to move the
stone for the township.
(4) Johnson charged Hubler $40.00 per hour and Hubler charged the
township $45.00 per hour.
(a) Johnson operated his own equipment.
f. Johnson admits he participated as to the award of the township contract to
Hubler.
Johnson's agreement with Hubler in February of 1998 predated the stone
removal contract by approximately four months.
h. Johnson admits that with his past business dealings with Hubler, he
(Johnson) expected to have future business dealings with Hubler.
In April of 1998, Hubler did work for the township and utilized Johnson as
an equipment operator on the project.
For the stone removal contract, the township paid Hubler who in turn paid
Johnson for the utilization of his equipment.
Johnson, 99- 047 -C2
Page 13
(1) Johnson stated that he could not directly work for the township and
charge for his equipment.
(2) At the August meeting of the Board of Supervisors, Johnson voted
to approve payment to Hubler.
k. Johnson received compensation from the township for doing various
activities that were encompassed within his function as an elected
supervisor:
(1) Meeting with Solicitor Malizia;
(2) Working with District Justice Al Brown concerning residents who
failed to pay their garbage collection bills;
(3) Interviewing Wanda Springman for the position of township
secretary;
(4) Meeting with CPA Anderson regarding the township books;
(5) Meeting with emergency management in Emporium; and
(6) Meeting with Senator Slocum.
Johnson made the following admission concerning the submission of time
sheets for which he received compensation:
A. Roadmaster is not written on my time sheet. I never wrote one time
sheet out with roadmaster on it.
Q. What were these billings supposed to represent?
A. That was township duties.
Q. And in what capacity were you going to these meetings?
A. As a supervisor.
Q. And as far as the items that we had broken down on Exhibit 33 and
we were saying about a lot of the meetings that you went to,
economic development, emergency management, 911, fire
department meetings, all those, in what capacity were you going to
those meetings?
A. As a supervisor. (Transcript 456, 457).
D. Exhibits
49. ID 1A is a photocopy of a redacted complaint against Johnson received May 27,
1999.
50. ID 1 is a photocopy of a memo dated July 6, 1999 of the Executive Director
initiating a preliminary inquiry as to Johnson.
51. ID 2 is a photocopy of a memo dated September 1, 1999 of the Executive Director
initiating a full investigation as to Johnson.
Johnson, 99- 047 -C2
Page 14
52. ID 3 is a photocopy of a letter dated September 1, 1999 of the Executive Director
advising Johnson of the initiation of an investigation.
53. ID 5 -1 is an Investigation Status Report dated July 17, 2000.
54. ID 5 -2 is an Investigation Status Report dated April 24, 2000.
55. ID 5 -3 is an Investigation Status Report dated February 9, 2000.
56. The Investigative Complaint was issued on February 28, 2000.
57. The Investigative Division timely complied with all timing and notice requirements
imposed by the Ethics Law as to the preliminary inquiry and investigation of
Johnson.
58. Exhibit ID 8 -1 is a photocopy of a bid of J. K. Hubler Trucking dated January 5,
1998 to Grove Township.
a. The bid offers to provide a 450 John Deere Dozer and operator on an as
needed basis for $45.00 per hour.
b. The bid offers to provide a 310 John Deere backhoe /loader for $45.00 per
hour.
59. Exhibit ID 9 is a copy of an invoice #306A dated May 22, 1998 from J. K. Hubler
Trucking to Grove Township.
a. The invoice sought payment of $787.50 for services performed by Johnson
at $45.00 per hour.
(1) Work on Kephart Road on April 14, 1998 totaling $360.00.
(2) Work on Jerry Run Road on April 30, 1998 totaling $157.50.
(3) Work on Jerry Run Road on May 6, 1998 totaling $270.00.
60. Exhibit ID 10 in part is a photocopy of invoice numbers 313A and 316A dated
July 8, 1998 from J. K. Hubler Trucking to Grove Township.
a. Invoice #313A totaled $1,985.
(1) The billing related to services on June 24 -25, 1998 on Jerry Run
Road.
(2) Five of the seven delineated services are listed as
"subcontracted."
b. Invoice #310A totaled $180.00.
(1) The service performed was on April 13, 1998, "Jerry."
61. Exhibit ID 11 consists of a series of checks of Grove Township paid to J. K.
Hubler /Trucking /Excavating and Johnson.
a. Check #2881 dated August 12, 1998 is to J. K. Hubler in the amount of
$800.00.
Johnson, 99- 047 -C2
Page 15
b. Check #2072 dated May 13, 1998 is to J. K. Hubler Trucking in the
amount of $960.00.
c. Check #2080 dated July 8, 1998 to J. K. Hubler Excavating is in the amount
of $787.50.
d. Check #2083 dated August 2, 1998 to J. K. Hubler is in the amount of
$1,365.00.
e. The above four checks were cashed and paid.
62. Exhibit 12 is a photocopy of a document denominated a "Lease."
a. Johnson Excavating is listed as "Lessor" with Jerry Hubler, d.b.a. J. K.
Hubler Trucking, as a "Lessee" from March 11, 1998 to December 31,
1998.
b. The agreement is signed by Jerry Hubler and Barbara Johnson with a date
of February 28, 1998.
c. The "Lessor" agrees to provide the following on an as needed" basis:
John Deer, 450 Track Loader with backhoe attachment, operator included,
for the sum of Forty (40) dollars per hour.
1997 International Dump Truck, Vehicle Code Class 8, VIN 35GHA20388,
operator included, at Forty (40) dollars per hour.
The above described International Dump Truck in combination with
Fruehauf Low Boy Trailer, operator included, at Fifty (50) dollars per hour.
63. ID 14 is a listing of income received by Johnson Excavating for the 1998 Fiscal
year.
a. For May 6, 1998, $175.00 was received from J. K. Hubler Trucking for "Op.
Hubler Hoe, 17.5 hours @ $10.00.
b. For June 24, 1998, $1,170 was received from J. K. Hubler Trucking for
"Move mach $50.00[/], Loader $560.00[/], Truck $560.00."
64. Exhibits ID 18 and 19 are photocopies of checks of J. K. Hubler Trucking, #7014
dated May 22, 1998, in the amount of $175.00 payable to Johnson and #7208
dated August 20, 1998, in the amount of $1,170.00 payable to Johnson
Excavating.
65. Exhibit ID 21 is the minutes of the Grove Township Board of Supervisors for
January 6, 1997.
a. Supervisor Hardinger was appointed roadmaster for the year.
b. The supervisors took the following action inter alia:
Rate of for [sic] supervisors acting as supervisor /roadmaster,
supervisor /operator, road inspection, and payment for privately owned
vehicles for transporting workers and /or tools. Motion by Peno and Second
by Johnson to request the same rates as last year which was:
Supervisor /Roadmaster $9.00 hour, Supervisor /Operator $9.00 per hour,
Supervisor /Foreman $9.00 per hour, Road inspection $50.00 per
Johnson, 99- 047 -C2
Page 16
inspection and Thirty (30) cents per mile, no daily rate, for vehicle use.
Motion carried.
66. Exhibit ID 23 is the minutes of the Grove Township Board of Auditors for January
6, 1998.
a. The Auditors approved the following compensation as to the supervisors:
It was moved by Mae Metzger and seconded by Dorothy Kepler to set the
wages for supervisors acting as Roadmaster, Equipment Operator,
Foreman, etc., at $9.25 per hour. Motion carried.
The rate of pay for road inspections by the supervisors was set at $50.00
per inspection by motion of Alice Shaw and second of Dorothy Kepler.
Motion carried.
Alice Shaw moved to set the mileage allowance at 32 cents per mile for use
of private vehicles to transport tools or personnel for township purposes.
Seconded by Mae Metzger. Motion carried.
67. Exhibit ID 24 is the minutes of Grove Township Board of Supervisors for January
5, 1998.
a. Johnson was appointed Assistant Roadmaster.
b. The supervisors took the following action as to compensation:
Rate for attending outside meetings was set at $35.00 plus mileage.
Supervisor Hardinger made the motion, with Supervisor Peno seconding
the motion, motion carried.
Set Rate which Supervisors must request from Township Auditors:
Supervisor /Roadmaster $ 9.00 per hour
Supervisor /Operator $ 9.00 per hour
Road Inspection $ 50.00 per Inspection
Set rate for privately owned vehicle transporting workers and /or tools:
$.32 per mile
68. Exhibit ID 24 -4 reflects the following action taken by the Board of Supervisors at
the January 1998 monthly meeting:
The Township advertised for proposals for Heavy Equipment. Only one proposal
was received and that was from J. K. Hubler Trucking, Sinnamahoning, PA. Their
bid was $45.00 per hour for equipment /operator on an as needed basis.
Supervisor Peno make the motion to accept the bid with Supervisor Hardinger
seconding the motion, motion carried. The Township Secretary will draw up the
contract to be signed.
a. A discussion ensued about Gibson Township and Driftwood Borough
paying a share of expenses as to fire and ambulance services provided by
Grove Township.
Date
Description of Activity
Hours
@
9.00 /hr
Flat
Rate
Mileage
$.30 /mile
Amount
Listed on
Time
Sheets
Private
pecuniary
Benefit
1997
1/7/97
Economic Development
- --
35.00
3/6/97
Emergency
Management
35.00
35.00
35.00
3/25/97
Emergency
Management
35.00
35.00
35.00
5/1/97
Emergency
Management
35.00
35.00
35.00
6/6/97
Meeting Coudersport
Rep. Jadlowiec
80
- --
59.00
6/10/97
Road Naming
4
- --
36.00
6/12/97
Meeting with Senator
Slocum
2
- --
18.00
Johnson, 99- 047 -C2
Page 17
69. Exhibits 24 -12, 24 -14, and 24 -17 are in part the minutes of the Grove Township
Board of Supervisors for April, May, and June of 1998.
a. Johnson participated in the vote to pay the bills in all three months.
70. Exhibit ID 24 -17 is the minutes of the Grove Township Board of Supervisors for
June 1998.
a. The minutes contain a comment from Johnson that North Star Aggregates
gave the township 300 tons of dirt /gravel free of charge.
71. Exhibit ID 24 -23 is the minutes of the Grove Township Board of Supervisor for
August 12, 1998.
a. Johnson made the motion to pay all the bills presented, second by
Hardinger and motion carried.
72. Exhibit 24 -25 is the minutes of the Grove Township Board of Supervisors for
September 1998.
a. Johnson made the motion to pay all bills, second by Hardinger which
motion carried.
73. Exhibits ID 25, 27 and 29 are in part work report sheets submitted by Johnson for
payment by Grove Township for the years 1997, 1998 and 1999 respectively.
a. Some of the activities performed by Johnson were in the capacity as an
employee of the township to which he received compensation at the rate
approved by the Board of Auditors for that particular year.
b. The following administrative duties performed by Johnson were
encompassed within the function of elected township supervisor for which
Johnson submitted and received additional compensation.
6/16/97
Meeting with Paul
Malizia
1
- --
9.00
6/16/97
Meeting with Dave
Green
4
56
- --
52.80
7/21/97
Meeting at Fire Hall
1.5
- --
13.50
7/21/97
Meet with Paul Malizia
2
- --
18.00
8/1/97
Meeting with Gibson &
Driftwood
1.5
- --
13.50
8/8/97
Meeting with Gibson &
Driftwood
1
- --
9.00
8/26/97
Al Brown
2
18.00
18.00
8/26/97
Court for garbage
general collection; Bruce
Taylor, Tom Sherry,
Wayne Schrinshaw, Sid
Summerson, Sr., Sid
Summerson, Jr.
7.5
67.50
67.50
Johnson, 99- 047 -C2
Page 18
Date
Description of Activity
Hours
@
9.00 /hr
Flat
Rate
Mileage
$.30 /mile
Amount
Listed on
Time
Sheets
Private
Pecuniary
Benefit
9/17/97
Meeting in Driftwood &
Sinna. with Senator
Slocum and DEP
2
- --
18.00
10/14/97
Meeting with Al Brown
on Thompson holding
tank
3.5
52
- --
47.10
12/9/97
Meet with Paul Malizia,
John Reber, Al Brown
3
52
- --
42.60
12/12/97
Al Brown on Thompson,
Dee Navarra, EMA,
Court House,
Thompson, Dave Reed,
Thompson
4
52
- --
51.60
12/12/97
Elk County EMA, Greg
Agosti in
Sinnamahoning
2
8
- --
20.40
Date
Description of Activity
Hours
@
9.25/hr
Flat
Rate
Mileage
$.32 /mile
Amount
Listed on
Time
Sheets
Private
Pecuniary
Benefit
1998
1/7/98
Meeting Paul Malizia
52
35.00
51.64
4/7/98
Meeting Emporium with
Dean Ferngley, Grove,
Gibson, Driftwood, Fire
Dep
- --
35.00
5/5/98
Take Ordinances to
Paul Malizia
2
52
- --
35.14
5/20/98
Meeting with Fire Dep &
Dean Fernsler, Tony
Moscato in Emp
52
- --
51.64
6/11/98
Meeting with Fire Dep &
Dean Fernsler in Emp.,
Tony Moscato
52
- --
51.64
6/18/98
Al Brown Conf CZAY
52
- --
51.64
6/26/98
Meet Paul Malizia, legal
ads Echo Fax to
Bradford Em
2
52
- --
35.14
9/17/98
Cameron Co.
Emergency Service,
52
99.00
51.64
Johnson, 99- 047 -C2
Page 19
Johnson, 99- 047 -C2
Page 20
Emporium
1
Date
Description of Activity
Hours
@
9.25/hr
Flat
Rate
Mileage
$.32 /mile
Amount
Listed on
Time
Sheets
Private
Pecuniary
Benefit
11/17/98
C.C. Emergency Service
Meeting in Emporium
52
30.00
51.64
12/17/98
Meeting in Emporium
35.00
51.64
Date
Description of Activity
Hours
@
9.50 /hr
Flat
Rate
Mileage
Amount
Listed on
Sheets
Private
Pecuniary
Benefit
1999
1/11/99
Emporium Meeting, dirt
roads
52
35.00
51.12
1/19/99
To Emporium for parts &
papers from John Reber
54
- --
51.74
1/20/99
Emporium Nate & Smith,
pick up mail
54
- --
51.74
2/8/99
Meeting, Emporium, dirt
roads
54
35.00
51.74
2/9/99
Travel to Emporium
Bank for Audit records
54
- --
16.74
2/11/99
Interview Wanda
Springman
1
9.50
9.50
2/15/99
Drive to Driftwood to fax
to Bradford Era
18
@ $.31
- --
5.58
2/16/99
Emporium Echo, Error in
billing John Reber, Al
Brown, Mail
54
@ $.31
- --
16.74
2/20/99
Del Twp Records to Sec.
Wanda Springman
66
@ $.31
- --
20.46
2/23/99
To Emporium get Twp
records from Nato,
talked to Wanda
Springman
2.5
54
@ $.31
- --
40.49
2/25/99
Meeting Cameron Co.
Earned Income
Municipal Bldg.,
Emporium, Paul Malizia
Office
54
@ $.31
35.00
51.74
3/3/99
Paul Malizia office pick
up print out from Marion
Swank
2
54
35.74
35.74
3/5/99
Trip to Emp Ad in Echo
1.5
54
30.99
30.99
Johnson, 99- 047 -C2
Page 21
Date
Description of Activity
Hours
@
9.50 /hr
Flat
Rate
Mileage
Amount
Listed on
Sheets
Private
Pecuniary
Benefit
4/2/99
Take two papers to CPA
Anderson, Port Allegany
4.5
106
- --
75.61
4/7/99
Emporium meet with
Paul M, check with Al
Brown
3
54
- --
45.24
4/15/99
Take records to Bogart —
talk to Al Brown
1.5
54
- --
30.99
4/27/99
Meeting Cameron
County Emergency
Service
54
- --
51.74
5/5/99
Meeting at Al Brown
Cont for Carry
54
- --
51.74
5/19/99
Meeting Cameron Co.
Emergency
54
- --
51.74
5/26/99
Meeting Sinna. DEP
Kenneth Cooper
- --
35.00
6/ ? ?/99
Meeting Cameron
County Emergency
54
35.00
51.74
6/14/99
C.C.C. Meeting,
Emporium
54
35.00
51.74
6/30/99
Meet with Penn DOT,
Randy Alberts, Benson
Road
25.00
35.00
7/12/99
Meeting Cameron
County Conservation
District
54
- --
51.74
7/20/99
Meet with Paul M
54
- --
51.74
7/22/99
Drought Emergency
Meeting, Emporium
54
- --
51.74
7/26/99
Meet with Andersons
Office on twp records
5
100
- --
78.50
8/23/99
Meeting with Anderson
CPA, pick up records,
del to Wanda
5
100
- --
78.50
10/5/99
Meeting Susan Hoy,
Swank Road, grading
ditch
1.5
10
- --
17.35
10/ ? ?/99
Meeting CCE, Emporium
54
- --
51.74
10/22/99
Al Brown Court for
Robert Losex
54
- --
51.74
Johnson, 99- 047 -C2
Page 22
Johnson, 99- 047 -C2
Page 23
12/1/99
CCE Meeting, Emporium
54
l
51.74
Date
Description of Activity
Hours
@
9.50 /hr
Flat
Rate
Mileage
Amount
Listed on
Sheets
Private
Pecuniary
Benefit
12/11/99
CCE Meeting, Emp fire
hall
54
- --
51.74
Johnson, 99- 047 -C2
Page 24
(1) Johnson received $634.00 for performing the above listed
administrative duties as an elected supervisor in 1997.
(2) Johnson received $466.76 for performing the above listed
administrative duties as an elected supervisor in 1998.
Johnson received $1,451.39 for performing the above listed
administrative duties as an elected supervisor in 1999.
(3)
(4) The total as to (1), (2), and (3) above is $2,552.15.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, A. T. Johnson, hereinafter Johnson,
has been a public official subject to the provisions of the Public Official and Employee Ethics
Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as codified by the Public Official
and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which Acts are
referred to herein as the "Ethics Act."
The allegations are that Johnson, as a Supervisor for Grove Township, violated Sections
3(a)/1103(a) and 3(f)/1103(f) as to participating in the award of a contract in excess of $500.00
to J. K. Hubler Company, which then utilized Johnson on township projects; as to approving
payments to Hubler; and as to receiving compensation for performing duties as a township
supervisor.
Section 3(a)/1103(a) of the Ethics Act provides as follows:
Section 3/1103. Restricted activities
(a) Conflict of interest. - -No public official or public employee
shall engage in conduct that constitutes a conflict of interest.
65 P.S. §403(a)/65 Pa.C.S. §1103(a).
The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows:
Section 2/1102. 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. "Conflict" or "conflict of interest"
does not include an action having a de minimis economic impact or
which affects to the same degree a class consisting of the general
Johnson, 99- 047 -C2
Page 25
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 P.S. §402/65 Pa.C.S. §1102.
Section 3(a)/1103(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.
Section 3(f)/1103(f) provides:
Section 3/1103. Restricted activities
(f) No public official or public employee or his spouse or
child or any business in which the person or his spouse or child is
associated shall enter into any contract valued at $500 or more with
the governmental body with which the public official or public
employee is associated or any subcontract valued at $500 or more
with any person who has been awarded a contract with the
governmental body with which the public official or public employee
is associated, unless the contract has been awarded through an
open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or public
employee shall not have any supervisory or overall responsibility for
the implementation or administration of the contract. Any contract or
subcontract made in violation of this subsection shall be voidable by
a court of competent jurisdiction if the suit is commenced within 90
days of the making of the contract or subcontract.
65 P.S. §403(f)/65 Pa.C.S. §1103(f).
In addition, Section 3(f)/1103(f) specifically provides in part that no public official /public
employee or spouse or child or business with which he or the spouse or child is associated may
enter into a contract with his governmental body valued at five hundred dollars or more or any
subcontract valued at five hundred dollars or more with any person who has been awarded a
contract with the governmental body with which the public official /public employee is associated
unless the contract is awarded through an open and public process including prior public notice
and subsequent public disclosure.
Having noted the issues and applicable law, we shall now summarize the relevant facts.
Johnson has served as a Supervisor and Board Chairman of the Supervisors in Grove
Township since August of 1996. In addition, he served as assistant roadmaster in 1998. In a
private capacity, Johnson has a 10% ownership in Johnson Excavating and Trucking with the
remaining 90% interest held by his spouse.
Since Grove Township does not have heavy equipment for roadwork, it annually
advertises for bids from contractors to provide such services on an as needed basis. In 1998,
as in several other years, Jerry Hubler of J. K. Hubler Trucking received the contract from the
township to provide such heavy equipment services. Johnson participated in the process as to
the award of the contract to Hubler who has an ongoing business relationship with Johnson
which predates Johnson's appointment to the township board of supervisors. Although Johnson
and Hubler have a verbal agreement regarding the utilization of each other's equipment, they
Johnson, 99- 047 -C2
Page 26
entered into an agreement in February of 1998 which is labeled as a "lease" wherein Johnson
agreed to provide certain equipment to Hubler at a given hourly rate or at a higher hourly rate if
an operator would be supplied.
In the spring of 1998, the township supervisors requested Hubler to do roadwork in the
township. Hubler utilized Johnson to operate Hubler's equipment. Johnson worked 17.5 hours
on the project. Hubler received $787.50 for the work. Hubler then paid Johnson $175.00.
In the spring or summer of 1998, a local quarry supplied gravel to PennDOT which
rejected the gravel because of its high dirt content. The quarry then offered to give the gravel to
the township free of charge. Johnson discussed the offer with the other supervisors and they all
agreed to take the gravel. Hubler was contacted to take the gravel from the dumpsite for
spreading on Jerry Run Road, a dirt road within the township. Since Hubler's truck was
inoperable, Johnson utilized his equipment for the project. Hubler was charged by Johnson at
the rate of $40.00 per hour for the use of his equipment. Hubler in turn charged the township at
the rate of $45.00 per hour. After the project was completed, Hubler billed the township in the
amount of $1,985.00. Johnson participated in the vote to approve bills which included the
invoice from Hubler. After Hubler received payment from the township, he in turn paid Johnson
$1,170.00. Johnson received a total of $1,345.00 for working on the two township projects.
Separate and apart from the above, Johnson performed various duties for the township
and then submitted time sheets for payment. Johnson received payment after processing by the
secretary /treasurer. The compensation was set through action taken by the township board of
supervisors at the January reorganizational meetings. Typically, the supervisors would set an
hourly rate for working, a flat fee for meeting pay plus mileage as well as certain other items
such as road inspections. Following the reorganizational meetings of the supervisors, the
township board of auditors would have its own meeting wherein they would approve certain pay
for the supervisors working as township employees. Typically, the board of auditors would
merely approve the compensation for the supervisors as township employees at a certain hourly
rate plus mileage under certain circumstances. The auditors never approved "outside" meeting
pay for the supervisors.
A review of the time sheets that Johnson submitted in the years 1997 through 1999 reflect
that, in some instances, Johnson submitted certain hours for activities he performed as an
employee of the township. In other instances, Johnson submitted either hours worked or a flat
meeting rate and /or mileage for various administrative duties he performed as a supervisor,
such as meeting with the solicitor, other municipalities, economic development or emergency
management, the district justice for collection of debts owed to the township, a state
representative or senator, as well as other persons or entities. Johnson readily admits that he
performed such duties in his capacity as an elected supervisor. See, Fact Finding 47.1.
Parenthetically, Johnson's time sheets are lacking in that it is difficult to discern in many
instances, particularly where several activities are listed on one timesheet, as to the exact
nature of the activity, the billing (hourly or flat "outside meeting" rate) and the attribution of
mileage.
The Investigative Division avers that the compensation received by Johnson for "outside
meetings" totaled $560.00 for the years 1997 through 1999 which Johnson admits in his answer.
See, Fact Finding 35. In combining the above compensation with the other pay Johnson
received that was calculated at an hourly rate, the total is $1,215.75. See, Fact Finding 37. The
foregoing does not include the compensation Johnson received for his work on the township
road projects.
The Investigative Division in its brief seeks violations plus a payback based upon the
following arguments: Johnson had a reasonable expectation that Hubler would receive township
work and utilize Johnson or his equipment on the projects; the "Lease" between Johnson and
Hubler ensured Hubler's use of Johnson's equipment; Johnson participated in the township
board action to approve payment to Hubler as to a township project wherein Hubler used
Johnson, 99- 047 -C2
Page 27
Johnson or his equipment; Johnson's employment duties with the township did not encompass
meetings with the solicitor, district justice or other government officials; Johnson obtained
compensation as a township employee for attending meetings which related to the office of
elected supervisor; and Johnson as a supervisor improperly received compensation under the
semblance of employment for performing administrative supervisory duties. The Investigative
Division advocates for a total payback of $6,595.75 plus interest and costs based upon the
following calculation: restitution plus a treble penalty as to the township road project ($1,345.00
+ $4,035.00 = $5,380.00); and $1,215.75 for the payment of administrative duties which yields a
total of $6,595.75 ($5,380.00 + $1,215.75).
Johnson in his brief profers the following arguments: Johnson had no willful intent to
violate the Ethics Act; Johnson acted reasonably and in good faith as permitted both by the
Ethics Act and Second Class Township Code; Johnson contracted with Hubler for several years
which had no connection with the township; Johnson consulted with the township solicitor about
Johnson leasing his equipment to Hubler for the township stone project; Johnson participated as
to the bill approval process to Hubler but provided only one of the two required signatures on the
checks; Johnson received extra /outside meeting pay just as the other supervisors did; and
Johnson received compensation as an assistant roadmasterfor performing administrative, labor,
equipment operator or foreman duties. While conceding that he received $1,345.00 from the
township road projects and $1,215.75 from the meeting pay and administrative duties, Johnson
argues that he did not violate the Ethics Act through his actions.
Having summarized the above relevant facts and the positions of the parties, we must
now determine whether the actions of Johnson violated either of the two Sections of the Ethics
Act that are before us, Sections 3(a)/1103(a) and 3(f)/1103(f) of Act 9 of 1989 as codified by Act
93 of 1998.
In applying Section 3(a)/1103(a) of the Ethics Act to the above, the record reflects that
Johnson participated in actions of the supervisors to utilize Hubler for the two road projects.
Johnson also participated in the approval of Hubler's invoice for the Jerry Run project. Johnson
as a supervisor also cosigned some of the township checks payable to Hubler. But for the fact
that Johnson is a Supervisor, he would not have been in a position to take such actions. Such
actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office
on the part of Johnson resulted in pecuniary benefits to him consisting of the financial gain he
received via Hubler in providing road related services to the township. Lastly, the private
pecuniary benefits inured to Johnson. Accordingly, Johnson violated Section 3(a)/1103(a) of the
Ethics Act when he used the authority of office to obtain private pecuniary benefits when he
participated in actions to utilize Hubler for township road projects and when Hubler in turn used
Johnson on those projects. In addition, Johnson violated Section 3(a)/1103(a) of the Ethics Act
when he participated in an action of the board of supervisors to pay an invoice of J. K. Hubler
Trucking for a township project at Jerry Run Road for which Hubler utilized Johnson and his
equipment.
Our decision as to the Section 3(a)/1103(a) violation of the Ethics Act follows the decision
of Commonwealth Court in Snyder v. SEC, 686 A.2d 843 (Pa. Commw. 1996). In the cited case,
Commonwealth Court affirmed a decision of this Commission, finding a violation by a township
supervisor who participated in matters involving a business with which he is associated that had
matters pending before the township. Commonwealth Court held that a public official should not
participate in matters with which he has a personal interest and further noted that that prohibition
applies even if the public official would not be the deciding vote as to those matters as to which
he had a conflict:
We are likewise unconvinced by the fact that Snyder's vote was never
controlling or necessary for a quorum. Snyder violated the Ethics Law by
discussing and voting on issues in which he had a private pecuniary interest, not
by affecting the outcome of those votes. Similarly, it is irrelevant whether Snyder
improperly used his influence as a Supervisor to gain the Colonial Commons and
Blue Meadow contracts; Snyder may have been able to obtain the jobs even if he
Johnson, 99- 047 -C2
Page 28
were not a Supervisor, but as a Supervisor, he should not have considered and
voted on issues involving his personal business dealings.
Id. at 849.
Just as in the Snyder case, Johnson should not have participated in matters involving
Hubler, given Johnson's personal interest (business dealings) with Hubler. Johnson readily
admitted that with his past business dealings with Hubler, he expected to have future business
dealings as well. See, Fact Finding 48.h. Hence, Johnson knew that any action he took as a
supervisor regarding a township project for Hubler could generate work and a pecuniary benefit
for Johnson himself. This is exactly what happened in this case.
As to Section 3(f)/1103(f), we note that the contract awarded to J. K. Hubler by the
township was done through an open and public process. In addition, there was the so called
lease or subcontract between J. K. Hubler and Johnson. In Sayers, Order 1075, we held that
when a municipal contract is awarded through a public bid process, there is no requirement that
a subcontract also be bid. Accordingly, we find that Johnson did not violate Section 3(f)/1103(f)
of the Ethics Act as to the annual township contract for township road services, which contract
was awarded to J. K. Hubler Trucking through an open and public process.
Turning to the administrative duties performed by Johnson, such actions are
encompassed within the role of a supervisor as an elected official. Johnson could not, but did
receive additional compensation for performing administrative functions. Consequently,
Johnson violated Section 3(a)/1103(a) of the Ethics Act when he received compensation for
performing administrative functions encompassed within the duties of an elected township
supervisor.
As the Commonwealth Court noted in R.H. and T.W. v. State Ethics Commission, 673
A.2d 1004 (Pa. Commw. 1996):
T.W. maintains that he is entitled to hourly wages for
performing these [administrative] 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.
We shall now address the arguments that Johnson makes in his defense. As to the
assertion that Johnson had no willful intent to violate the Ethics Act, the matter of intent is not a
prerequisite to finding a violation. See, Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct.
432, 531 A.2d 536 (1987). The claim that the contracting between Johnson and Hubler had no
connection to the township was analyzed and rejected above. As to Johnson consulting with the
township solicitor, such cannot negate a violation but only the imposition of a treble penalty under
certain conditions. We will not impose a treble penalty in this case. Regarding the assertion that
Johnson was only one of two supervisors who cosigned checks, such was a use of authority of office.
The argument that the other supervisors also received outside meeting pay merely suggests that
others may have violated the Ethics Act; such actions do not accord a defense for Johnson. Finally,
Johnson, 99- 047 -C2
Page 29
as to the compensation Johnson received for performing administrative and labor duties, he was
entitled to receive compensation for performing labor as an employee but not for performing
administrative functions which were within the functions of an elected township supervisor.
Section 407(13)/1107(13) of the Ethics Act empowers this Commission to impose
restitution in instances where a public official /public employee has obtained a financial gain in
violation of the Ethics Act. Restitution is warranted in this case. Accordingly, Johnson is
directed within thirty (30) days of the date of mailing of this Order to make payment to Grove
Township through this Commission in the amount of $2,560.75. Non - compliance will result in
the institution of an order enforcement action.
Parenthetically, our computation of the gain received by Johnson totaled $3,897.15:
$1,345.00 for working on the two township road projects and $2,552.15 for performing
administrative duties. See, Fact Finding 73. Such calculation was difficult given the problems
with legibility, the grouping of multiple tasks on many timesheets and correlation problems
between the timesheets and the checks issued to Johnson as compensation for such duties.
Given that the figure of $1,215.75 for administrative duties was the amount averred by the
Investigative Division in its Complaint and admitted by Johnson in his Answer as well as in his
Brief, we shall use that figure which is lower than our computation.
IV. CONCLUSIONS OF LAW:
1. A. T. Johnson, as a Supervisor in Grove Township, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Johnson violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions of
the supervisors to utilize J. K. Hubler Trucking for township projects when he had a
business relationship with Hubler and Hubler utilized Johnson or his equipment on the
township projects.
3. Johnson violated Section 3(a)/1103(a) of the Ethics Act when he participated in an action
of the board of supervisors to pay an invoice of J. K. Hubler Trucking for a township
project at Jerry Run Road for which Hubler utilized Johnson and his equipment.
4. Johnson did not violate Section 3(f)/1103(f) of the Ethics Act as to the annual township
contract for township road services, which contract was awarded to J. K. Hubler Trucking
through an open and public process.
5. Johnson violated Section 3(a)/1103(a) of the Ethics Act when he received compensation
for performing administrative functions encompassed within the duties of an elected
township supervisor.
In Re: A. T. Johnson
ORDER NO. 1187
File Docket: 99- 047 -C2
Date Decided: 2/26/01
Date Mailed: 3/12/01
1 A. T. Johnson, as a Supervisor in Grove Township, violated Section 3(a)/1103(a) of
the Ethics Act when he participated in actions of the supervisors to utilize J. K.
Hubler Trucking for township projects when he had a business relationship with
Hubler and Hubler utilized Johnson or his equipment on the township projects.
2. Johnson violated Section 3(a)/1103(a) of the Ethics Act when he participated in an
action of the board of supervisors to pay an invoice of J. K. Hubler Trucking for a
township project at Jerry Run Road for which Hubler utilized Johnson and his
equipment.
3. Johnson did not violate Section 3(f)/1103(f) of the Ethics Act as to the annual
township contract for township road services, which contract was awarded to J. K.
Hubler Trucking through an open and public process.
4. Johnson violated Section 3(a)/1103(a) of the Ethics Act when he received
compensation for performing administrative functions encompassed within the
duties of an elected township supervisor.
5. Johnson is directed within thirty (30) days of the date of mailing of this Order to
make payment to Grove Township through this Commission in the amount of
$2,560.75.
a. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
DANEEN E. REESE, CHAIR