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HomeMy WebLinkAbout1191 WilfongIn Re: Larry Wilfong 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- 044 -C2 Order No. 1191 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. 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 waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998.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 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 Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Law 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. Wilfonq, 99- 044 -C2 Page 2 I. ALLEGATION: That Larry Wilfong, a public official, in his capacity as Manager of Marysville Borough, Perry County, violated Section 3(a)/1103(a) of the State Ethics Act (Act 9 of 1989 as codified by Act 93 of 1998) when he used the authority of his office for a private pecuniary benefit for himself and /or members of his immediate family when he utilized borough employees, equipment and materials for his personal purposes, including but not limited to using borough employees and equipment to repair personal vehicles and boats, using borough employees and equipment to perform tasks of a personal nature around his home, including shredding wood, using borough gasoline for his personal purposes, and using a borough vehicle for his personal purposes; and when he used borough facilities for the storage of personal items. II. FINDINGS: 1. Larry Wilfong served as the Marysville Borough Manager from 1974 until May 20, 1999. a. Wilfong was initially hired by the borough on May 15, 1962. b. Wilfong also performed the duties of borough secretary and zoning officer. c. Wilfong had supervisory responsibility over the day to day operations of the borough's sewer and street departments. 2. The Marysville Borough waste water treatment plant has a storage area for equipment and materials. a. This storage area is not available to the general public. b. This storage area was not available to borough employees to store personal items. 3. Between May 1995 and May 1999 Wilfong took it upon himself to use part of the treatment plant for storage of personal items. a. Wilfong did not seek or receive specific council approval to store personal items at the treatment plant. b. Council was unaware that Wilfong was using the storage area. c. Wilfong was using a storage area of approximately 10' x 10'. d. Wilfong was directed to remove the items following his retirement from the borough. e. Wilfong asserts that he donated the items to the borough. 4. Wilfong was storing items such as an old air conditioner, chairs, radios, automotive parts, bicycles, household and personal items. a. Items stored by Wilfong were not needed for normal borough operation. b. Items stored by Wilfong were not utilized in any manner by the borough. 5. Capital Self- Storage, 10 Prospect Drive, Enola, PA 17025 offers enclosed storage Wilfonq, 99- 044 -C2 Page 3 facilities ranging in size from 4' x 4' to 10' x 30'. a. Since 1995 Capital Self- Storage's monthly rate for a 10' x 10' enclosed storage area increased from approximately $67.00 per month to their current rate of $79.50 per month. b. Capital Self- Storage is located approximately two (2) miles from Marysville. 6. Wilfong realized a private pecuniary benefit of at least $3,283.00 by utilizing storage space at the borough's waste water treatment plant between May 1995 and May 1999. a. b. Private pecuniary gain calculated as follows: 49 months at $67.00 per month = $3,283.00 Financial gain per year: 1995: May — December 1996: January — December 1997: January — December 1998: January — December 1999: January — May Eight (8) months Twelve (12) months Twelve (12) months Twelve (12) months Five (5) months Total $ 536.00 $ 804.00 $ 804.00 $ 804.00 $ 335.00 $3,283.00 7 Wilfong asserts his belief he had approval of the Marysville Borough Council to utilize borough facilities for personal storage and feels the storage space actually used was not 10' x 10' in size. 8. Minutes of Marysville Borough Council for its public meeting held November 13, 1978, reflect that council approved use of a portion of the borough maintenance building by Wilfong to store a camper unit as the borough manager was on call 24 hours per day. 9. In relation to the allegation that Wilfong utilized Borough employees for repairs and maintenance on his personal vehicle, information developed indicates as follows: a. Repair of the exhaust system to Wilfong's personal vehicle was documented by receipt from P & R Auto Repair, for which Wilfong personally paid. b. Undercoating and painting of Wilfong's personal vehicle was completed by a private individual and paid for by Wilfong. c. Insufficient information was available to indicate that Borough employees performed repairs to Wilfong's boat and boat trailer. d. Information developed regarding repairs to a clothesline pole, coal bin and gutter on Wilfong's property indicate that any such activities would be de minimis in nature, amounting to less than $50.00. 10. Wilfong asserts that he did not utilize Borough employees, equipment and time for his personal benefit. a. Wilfong has produced receipts to verify the purchase of fuel and repairs completed on his private vehicles. Wilfonq, 99- 044 -C2 Page 4 11. Wilfong realized a total private pecuniary benefit of $3,283.00 as the result of his use of borough property for his personal storage purposes. III. DISCUSSION: At all times relevant to this matter, the Respondent, Larry Wilfong, hereinafter Wilfong, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "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 allegation is that Wilfong, as borough manager, violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of his office for a private pecuniary benefit for himself when he utilized borough employees, equipment and materials for his personal purposes, including but not limited to using borough employees and equipment to repair personal vehicles and boats, using borough employees and equipment to perform tasks of a personal nature around his home, including shredding wood, using borough gasoline for his personal purposes, and using a borough vehicle for his personal purposes; and when he used borough facilities for the storage of personal items. 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 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 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. Wilfonq, 99- 044 -C2 Page 6 As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Wilfong served as the Marysville Borough Manager from 1974 until May of 1999. In addition, Wilfong had supervisory responsibilities over the daily operations of the borough's sewer and street departments as well as performed duties of the borough secretary and zoning officer. The borough waste water treatment plant has a storage area for equipment and materials. That storage area is not available to employees for the storage of personal items. Without seeking or receiving council approval, Wilfong, on his own initiative between May 1995 and 1999, stored personal items in an area of the plant that was approximately 10' x 10' in size. Although Wilfong claims that he donated certain items to the borough which were placed in the storage area, he was directed to remove those items following his retirement. The items consisted of household and personal items such as an old air conditioner, chairs, radios, automotive parts, and bicycles. It appears that Wilfong received a pecuniary benefit of $3,283.00 for the storage of his personal items between May 1995 and 1999, which is calculated by using comparable rates for storage in the vicinity. The minutes of the Marysville Borough Council for November 13, 1978, reflect an approval for Wilfong to use a portion of the borough maintenance building to store a camper because Wilfong, as the borough manager, was on 24 -hour call. Wilfong, however, asserts that the approval by council was for his utilization of the facilities for personal storage. Separate and apart from the above, factual issues exist as to the allegation that Wilfong utilized borough employees for the repair or maintenance of his private property: the repair of an exhaust system for his personal vehicle, undercoating and painting of a personal vehicle, repairs to a boat and trailer, and repairs to a clothesline pole, coal bin, and gutter on Wilfong's property. As to the exhaust system and undercoating /painting, Wilfong personally paid for such items. As to the matter of borough employees performing repairs on the boat and trailer, there is insufficient information on that issue. Regarding the other miscellaneous items, such items were less than $50.00 and hence de minimis in nature. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find that Wilfong unintentionally violated Section 3(a)/1103(a) of Ethics Act when he used the authority of his office for a private pecuniary benefit by using borough facilities for storage of personal items; that insufficient evidence exists to prove that Wilfong used the authority of his office for a private pecuniary benefit by using borough employees, equipment, materials and vehicles to perform tasks and services of a personal nature on borough time; and that Wilfong will make payment in the amount of $2,000.00 to the Commonwealth of Pennsylvania within 30 days of issuance of this order. In applying Section 3(a)/1103(a) to the above, there were uses of authority of office on the part of Wilfong. See, Julliante, Order 809. But for the fact that he was the manager for the borough, he would not have been able to store his personal property in the municipal facilities. Such uses of office resulted in a private pecuniary benefit to Wilfong in that he did not have any out of pocket expenses to pay for the storage of his personal property. Hence, the private pecuniary benefit inured directly to Wilfong. Accordingly, Wilfon , 99- 044 -C2 Page 6 Wilfong unintentionally violated Section 1103(a) of the Ethics Act when he used the authority of office for private pecuniary benefit for himself by storing personal property in the borough facilities. See, Bausch, Order 846; Rakowsky, Order 943. As to the allegation regarding the utilization of borough employees, equipment, materials, and vehicles to perform personal services for Wilfong, there is insufficient evidence to support that allegation. Accordingly, Wilfong did not violate Section 1103(a) as to the allegation that he utilized borough employees, equipment, and materials to perform personal services based upon insufficient evidence. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Wilfong is directed to pay $2,000.00 through this Commission to the Commonwealth of Pennsylvania within 30 days of the issuance of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Wilfong, as a Manager of Marysville Borough, is a public official subject to the provisions of Act 9 of 1989, as codified by Act 93 of 1998. 2. Wilfong unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit for himself by storing personal property in the borough facilities. 3. Wilfong did not violate Section 3(a)/1103(a) of the Ethics Act as to the allegation that he utilized borough employees, equipment, and materials to perform personal services based upon insufficient evidence. In Re: Larry Wilfong ORDER NO. 1191 File Docket: 99- 044 -C2 Date Decided: 2/26/01 Date Mailed: 3/12/01 1 Wilfong, as a Manager of Marysville Borough, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit for himself by storing personal property in the borough facilities. 2. Wilfong did not violate Section 3(a)/1103(a) of the Ethics Act as to the utilization of borough employees, equipment, and materials to perform personal services based upon insufficient evidence. 3. Per the Consent Agreement of the parties, Wilfong is directed to pay $2,000.00 through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of issuance of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR