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HomeMy WebLinkAbout1200 JohnstonIn Re: Gary A. Johnston 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- 077 -C2 Order No. 1200 5/15/01 5/30/01 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 deemed 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 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. Johnston, 99- 077 -C2 Page 2 I. ALLEGATION: That Gary Johnston, a public official in his capacity as a Supervisor of South Newton Township, Cumberland County, violated Section 3(a)/1103(a) of the Ethics Act (Act 93 of 1998) when he used the authority of his office for the private pecuniary benefit of himself and /or members of his immediate family by using township equipment and manpower to perform personal tasks on property owned by him and /or his family including mowing grass, moving dirt, plowing snow and digging holes; when he used township cellular telephones for his personal use; and when he participated in the hiring of his son for a part -time position with the township. II. FINDINGS: 1. Gary Johnston served as a South Newton Township Supervisor from January 1996 through June 9, 2000. a. Johnston resigned his position as township supervisors effective June 9, 2000. 2. Johnston served as a roadmaster from January 1996 through June 9, 2000. a. All three supervisors served as roadmasters on an as needed basis. b. One supervisor would serve as the roadmaster -in- charge of all road related activities and was known as the head roadmaster. c. Johnston assumed the position of head roadmaster on or about March 12, 1996, following the resignations of the two other members of the board of supervisors. 3. Johnston's duties and responsibilities of roadmaster in charge of all road related activities included: - completing the time sheets; handling the day -to -day operation of the township, including road maintenance, operating equipment and supervising part -time road department employees. determining the need for part -time road department employees and those to be utilized. 4. Johnston performed the roadmaster duties on an as needed" basis. a. Johnston would discuss work projects with the other members of the board of supervisors and determine his work schedule based on these discussions. 5. The South Newton Township Board of Auditors set the head roadmaster salary at $11.00 per hour in 1996. a. The salary was increased to $12.00 per hour in 1997. b. The head roadmaster salary has remained at $12.00 per hour since 1997. c. The other roadmasters are paid $11.00 per hour. 6. South Newton Township did not employ any full -time or part -time road workers Johnston, 99- 077 -C2 Page 3 while Johnston served as roadmaster. 7 When assistance was needed on the roads, the township would draw from a pool of individuals depending upon availability. Workers would be called on to perform the following type of work: Patch and pave roads, cut brush, cleaning ditches and roads Assist with snowplowing Help with spring cleanup Equipment maintenance 8. Johnston, as the headmaster, had the sole responsibility for selecting the part -time road workers. a. Johnston would select part -time employees for regular road related work and the township spring cleanup. 9. The township supervisors organized a spring cleanup in April each year. a. Part -time employees were used in to assist with the cleanup. b. These individuals were drawn from the pool of available workers and from other sources. 10. In April 1996, Johnston hired two of his children, Candace Johnston and Gary Johnston, II, to assist with the annual township spring cleanup. a. Candace Johnston is Johnston's daughter. b. Gary Johnston, II, is Johnston's son. c. No vote of the Board of Supervisors took place authorizing the hirings. 11. Five (5) other individuals were selected by Johnston to work for the township during spring cleanup. a. The seven individuals, including Candace and Gary Johnston, II, were paid at the rate of $9.50 per hour. b. The cleanup occurred from April 22, 1996, through April 25, 1996. 12. Candace Johnston worked 24 hours for the township during spring cleanup in 1996. a. Candace Johnston was paid at the rate of $9.50 per hour. 13. South Newton Township general fund Check #9455 was issued to Candace Johnston on May 14, 1996, in the amount of $154.89. a. Candace Johnston endorsed Check #9455 and cashed it at the Brookside Market in Walnut Bottom, Pennsylvania. 14. Check #9455 was approved at the May 14, 1996 South Newton Township Board of Supervisors meeting. a. Johnston was present and participated in approving Check #9455. b. Johnston signed the bill list showing he had reviewed the list and approved Johnston, 99- 077 -C2 Page 4 payment of the bills. 15. Gary Johnston, II, was paid for twenty -four (24) hours work during the spring cleanup from April 22, 1996, through April 25, 1996. a. Gary Johnston, II, was issued check number 9454 in an amount of $154.89 on May 14, 1996. b. Gary Johnston participated in approving the payment. 16. Gary Johnston, II, was also hired by Johnston to work as needed for the township in April 1996. a. Prior to March 1996, when Gary Johnston assumed the position of head roadmaster, Gary Johnston, II, had not worked for the township. b. No vote of the Board of Supervisors took place authorizing the hiring of Gary Johnston, II. 17. Gary Johnston, II, was employed as a part -time road department employee on an as needed basis throughout 1996, 1999, and January 2000. a. He did not work for the township in 1997 or 1998. 18. Gary Johnston was the only supervisor /roadmaster to call Gary Johnston, II, in to work for the township between April 1996 and February 2000. 19. Gary Johnston, II's, first day of work for South Newton Township was on April 19, 1996, approximately one month after his father assumed the duties of head roadmaster for South Newton Township. a. Gary Johnston, II, worked four hours with his father on the township trucks on April 19, 1996, and was paid at the rate of $9.50 per hour. b. Gary Johnston, II's wages totaled $38.00 ($9.50 /hr x 4). 20. Gary Johnston, II, was paid a total of $935.75 for work he performed for South Newton Township in 1996, 1999 and 2000. 1996 : $440.92 1999 : 542.54 2000 : 61.75 21. South Newton Township utilizes the PennDOT Municipal Weekly, Bi- Weekly or Semi - Monthly Payroll Report form as their time sheets. a. Payroll reports were completed by Johnston. b. Johnston utilized one payroll report for an entire month, utilizing one "block" to record hours for the two dates in the corresponding heading. c. Hours worked from the 1 to the 15 of the month were marked in black ink; hours worked from the 16 to the 31 were marked in red ink. d. Gary Johnston recorded hours worked by his son and other part -time workers on these sheets. Johnston, 99- 077 -C2 Page 5 22. Johnston regularly participated in approving payments to his son. Those payments are as follows: 1996: Gross Time Period Hrs Ck # Ck Date Net Pav Pav Description 1999: 04/01- 4 9452 05/14/96 $33.65 $38.00 Replaced signs on Maple 04/30/96 Avenue 04/22- 24 9455 05/14/96 154.89 228.00 Spring Cleanup 04/25/96 05/01- 4 9483 06/11/96 33.65 38.00 Cleared trees from highway 05/31/96 High Mountain Road, cleared trees from highway Furnace Hollow Road 07/01- 10 9533 08/13/96 84.12 95.00 Repair tractor, cold patch 07/31/96 High Mountain Road; cleared ditches High Mountain Road; cleared mud from Mountain View Road 08/01- 14 9557 09/10/96 $117.77 133.00 Cleared gutters High 08/31/96 Mountain Road; High Mountain Road, Horse Killer Road; Foreman Mill Road, and Furnace Hollow Road 10/01- 2 9613 11/12/96 16.84 19.00 Posted signs 10/31/96 Nougle /Guishall Road Totals: 58 $440.92 $551.00 01/01- 3 1318 02/09/99 $25.23 $28.50 Plowed and cindered all 1/31/99 township roads Johnston, 99- 077 -C2 Page 6 2000: 03/01- 12 1379 04/13/99 100.95 114.00 Plowed and cindered all 3/31/99 township roads 04/26- 23 1399 05/11/99 193.47 218.50 Spring cleanup 4/30/99 06/01- 15 1464 07/13/99 126.17 142.50 Helped pave with South 6/30/99 Hampton Township, cut berms 09/01- 9/30/99 Total 58 5 1557 10/12/99 42.05 $487.87 47.50 $551.00 Patched and cleaned potholes on Hammond Road and Furnace Hollow Road 01/01- 6.5 1689 02/08/00 $54.67 $61.75 Plowed and cindered all 01/31/00 roads; plowed and cindered Totals 6.5 $54.67 $61.75 a. Johnston was absent when Check #9483 in the amount of $33.65 was approved for payment to Gary Johnston, 11. b. Johnston cast the deciding vote at the July 1999 meeting to approve Check #1464 in the amount of $126.17 payable to Gary Johnston, 11. c. Johnston signed the bill lists showing he had reviewed the list and approved payment of the bills, with the exception of June 1996 (Check #9483). 23. At the January 12, 1999 Board of Supervisors meeting, Gary Johnston's daughter, Candace Johnston Wolfe was appointed to the position of township auditor for 1999, along with Beverly Rosenberry. a. The motion, made by Ronald Smith and seconded by Thomas Bixler, passed unanimously. b. Johnston participated in the vote to appoint his daughter to the position of auditor. c. The position was not publicly advertised. 24. Candace Johnston Wolfe was paid $133.00 as compensation for performing the duties as a township auditor. 25. South Newton Township Check #1387 dated 4/13/99 in the amount of $117.77 was issued to Candace (Johnston) Wolfe for work she performed as an auditor in March 1999. Johnston, 99- 077 -C2 Page 7 a. Check #1387 was endorsed by Candace L. Wolfe. b. Check #1373 for $11.38, and Check #1570 for $4.96 were issued to Wolfe as mileage reimbursement. 26. Johnston participated in approving payment of Check #1387 payable to Candace (Johnston) Wolfe at the April 13, 1999 meeting of the Board of Supervisors. 27. In May 1997, the township began paying Hope Maxine Johnston, Johnston's wife, for cleaning the township building. a. Hope Maxine Johnston continued cleaning the township building until December 1999. 28. No board action was taken to approve Hope Johnston cleaning the township building. a. The board of supervisors was unable to locate someone to clean the building. b. Johnston offered to ask his wife to clean the building. 29. Johnston regularly participated in approving payments to Hope Johnston for cleaning the township building, in 1997, 1998, and 1999 as follows: Check Date Check No. Check Amt. Johnston's Action 05/13/97 9824 $26.57 Voted 06/10/97 9860 $26.57 Voted 07/08/97 9914 $26.57 Deciding Vote 11/11/97 10026 $26.57 Voted 01/13/98 10105 $26.57 Voted 03/10/98 10158 $53.13 Voted 06/09/98 1050 $26.56 Absent 10/13/98 1183 $26.56 Voted 02/09/99 1320 $30.99 Voted 03/09/99 1342 $12.14 Voted 05/11/99 1401 $26.56 Voted 09/14/99 1521 $26.56 Voted /Motioned 11/09/99 1592 $26.56 Voted a. Johnston was absent from the 6/9/98 meeting when Check #1050 was approved in the amount of $26.56. b. Johnston cast the deciding vote to approve the bill list which included payment of Check #9914 in the amount of $26.57. c. Johnston made the motion to approve the bill list which included payment of Check #1521 in the amount of $26.56. 30. South Newton Township issued payments to Hope Johnston totaling $420.00 between May 1997 and December 1999. 1997 - $120.00 1998 - $150.00 1999 - $150.00 $420.00 - Total Johnston, 99- 077 -C2 Page 8 31. Prior to 1998, Johnston subdivided land behind his own home on Furnace Hollow Road in South Newton Township. a. One parcel each was given to two of Johnston's children, and a fourth parcel was sold off. b. A lane 1,000 feet in length was built by Gary Johnston to access the four land parcels. 32. In 1998, Gary Johnston, II, built a house on the parcel of land given to him by his father. a. Gary Johnston, II, must utilize the lane to access his house. 1. A driveway 200 feet in length extends from the lane to his home. b. None of the other parcels have been developed. c. The lane is not a dedicated township street. 33. In July 1998 Gary Johnston, in his capacity as a township supervisor, purchased street signs for the private lane on his property. a. Johnston utilized township funds for this purchase. 34. In July 1998, Gary Johnston obtained a price quote from Chemung Supply Corporation for road signs and other related items. a. A list of all roads in the township, which included the names of all township roads (17), state roads (5), and secondary roads (6), was provided. 1) Secondary roads are private roads not adopted as township roads for maintenance purposes. b. Next to each road name Johnston identified the number of signs to include in the price quote. 1) Twenty -seven signs were identified. c. Two Johnston Drive signs were ordered by Johnston. 35. South Newton Township General Fund Check #1130, dated 8/11/98, was issued to Chemung Supply Corporation in the amount of $542.11. a. Check #1130 was in payment of Invoice #5307200 -IN and Invoice #5306306. 36. Chemung Supply Corporation Invoice #5307200 -IN in the amount of $464.61 included, among other items, 27 street name signs. a. The cost for the street name signs was $14.49 each. b. Two Johnston Drive signs were ordered at a total cost of $28.98. c. A stop sign was also installed on Johnston Drive. 37. Johnston participated in approving the bill list for payment at the August 11, 1998 Johnston, 99- 077 -C2 Page 9 Board of Supervisors meeting, which included payment of Check #1130 to Chemung Supply Corporation. 38. On at least four occasions between January 1999 and January 2000, Johnston used the township trucks to plow snow from the lane to his son's house. a. Johnston used either the township one -ton or ten -ton truck, with plow. b. It would take Johnston approximately one (1) hour to plow the 1,000 foot lane and the 200 feet of driveway leading to his son's home. 39. The dates when Johnston plowed his son's driveway were also dates when Johnston called his son to work for the township. a. No other part -time workers were called out to work by Gary Johnston on those dates. b. Gary Johnston, II, assisted Johnston with snowplowing by riding in the truck with him. 40. Johnston maintains that he plowed his son's driveway so that his son could get out to help him with the snowplowing. 41. No other secondary /private roads were maintained or plowed by the township. 42. The cost of hiring a contractor to plow Johnston Drive and Gary Johnston, II's, driveway with a pickup truck with plow is $57.00 per hour, with a minimum cost of $52.00. 43. Gary Johnston plowed his son's driveway on the following dates: 01/03/99 03/06/99 01/25/00 01/30/00 44. Gary Johnston was compensated as a South Newton Township Roadmaster for time he spent plowing his son's drive. a. It took approximately one (1) hour to plow the 1,000 foot lane and 200 foot driveway. b. Gary Johnston's rate of pay was $12.00 /hour in 1999 and 2000. c. Gary Johnston was paid $48.00 ($12.00 /hr x 4 hours) by the township for plowing his son's driveway. 45. Johnston utilized township equipment to make improvements on his son's property and Johnston Drive during the time period after his appointment as township supervisor from 1996 through June 9, 2000. 46. Johnston used the township tractor with mower attachment to cut weeds around his son's newly built house and on Johnston Drive in the fall of 1998. a. Johnston drove the tractor across privately owned property, from the township building to his son's house. Johnston, 99- 077 -C2 Page 10 b. Johnston cut the brush around his son's house then on Johnston Drive. c. Johnston spent at least two hours utilizing the township tractor to cut brush. 47. The cost of renting a tractor with mower attachment similar to the township tractor used by Johnston to cut weeds around his son's house and on Johnston Lane is $30.00 per hour. 48. In 1998 Johnston used the township backhoe and green dump truck to divide a dirt pile left from the digging of the drive back to Johnston's son's house. a. Johnston operated both the backhoe and truck for approximately one (1) hour each. b. The equipment was used around the time that footers for Johnston's son's house were being installed in the late spring or early summer of 1998. c. The work was done between 8:00 a.m. and 12:00 noon on a weekday. d. The large pile of dirt left along the drive to the house was divided into three piles for the remaining three property owners and dumped on their lots. 49. The cost of renting a backhoe and ten -ton, single -axle truck similar to the township backhoe and truck used by Johnston to move the dirt pile is as follows: Backhoe rental - $53.00 per hour Single -axle, ten -ton truck - $44.00 per hour 50. Johnston utilized the township backhoe to close a cable trench leading to his son's house in the late summer of 1998. a. The work was done on a weekday between 8:00 a.m. and 5:00 p.m. b. Johnston utilized the township backhoe for approximately two hours. 51. During the summer of 1996 Johnston utilized the township tractor and bucket attachment to repair his son's race cars. a. Johnston's son owned two Monte Carlos which he used for racing. b. The bucket attachment was used to lift engines in /out of the vehicles. c. Johnston operated the equipment. d. Each engine took approximately one hour to install /remove. 52. The cost of renting a tractor with bucket similar to the township tractor used by Johnston to remove /install engines in his son's race car is $30.00 per hour. a. The rental would have cost Johnston at least $60.00, if paying privately. 53. On September 1, 1998, Johnston directed Thomas Coons to work on his son's property while being paid by the township. a. Coons was directed by Johnston to hand dig a portion of a trench to an electrical junction box. Johnston, 99- 077 -C2 Page 11 1) Coons spent approximately one hour and thirty minutes digging the trench. b. Coons was also directed by Johnston to move furniture items from Johnston's own house to his son's. 1) Coons spent approximately one hour moving furniture for Johnston. 54. Johnston was present on September 1, 1998, and participated in digging the trench, running line, and moving furniture on his son's property and /or for his son's benefit. a. Johnston worked approximately 2.5 hours on his son's property. 55. South Newton Township Payroll Reports for the time period 9/1- 9/30/98 reflect that Johnston and Coons were paid eight hours each for September 1, 1998. a. Johnston and Coons spent approximately two hours and thirty minutes (2.5 hours) performing work on the property of Gary Johnston, II. b. The remaining 5.5 hours were spent performing township related work. 56. Johnston and /or his son received a benefit of $53.75 when he and Thomas Coons were paid by the township for work on his son's property and /or for his son's benefit. a. Johnston was paid at the rate of $12.00 per hour x 2.5 hours = $30.00. b. Coons was paid at the rate of $9.50 per hour x 2.5 hours - $23.75. 57. In January 2000, Supervisor Thomas Bixler was appointed the road foreman. a. Johnston and Ron Bouch were appointed roadmasters. b. Bixler assumed the duties and position of head roadmaster previously performed by Gary Johnston. 58. Bixler directed Johnston not to plow Johnston Drive after Bixler learned that Johnston had used the township snowplow to plow the drive for his son earlier on January 25, 2000. a. Johnston disregarded Bixler's direction and plowed the drive again on January 30, 2000. b. Plowing Johnston Drive only benefited Gary Johnston, II. 59. Gary Johnston and /or members of his immediate family received a private pecuniary benefit when Johnston used township equipment and employees on his personal property. a. Equipment: 1. Use of township truck to snowplow lane and driveway on four (4) occasions: 4 hr x 4 = 4 hour @ $57.00 per hour = $228.00. (Finding No. 44 -49) 2. Use of township tractor with mower attachment (See Finding No. 52- 53): 2 hours @ $30.00 per hour = $60.00 Johnston, 99- 077 -C2 Page 12 3. Use of township backhoe to move dirt and dig trench (See Finding No. 54 -56): 3 hours @ $53.00 per hour = $159.00 4. Use of township truck to move dirt (See Finding No. 54): Minimum of 1 hour @ $44.00 per hour = $44.00 5. Engine removal and installation with township tractor with bucket attachment: 1 hour each x 2 = 2 hours @ $30.00 per hour = $60.00 Total Equipment: $550.00 b. Manpower: 1. Gary Johnston: Snowplowing: 4 hours @ $12.00/hr = $48.00 Labor 09/01/98: 2.5 hours @ $12.00 /hr = $30.00 2. Thomas Coons: Labor 09/01/98: 2.5 hours @ $9.50 /hr = $23.75 Total Manpower: $101.75 Total Manpower and Equipment: $651.75 60. Johnston used his public position to obtain employment for members of his immediate family: a. Gary Johnston, 11: $1,045.21 Labor 1996, 1999, 2000 b. Candace Johnston -Wolfe 1996 Spring Cleanup and $154.89 as Auditor $133.00 Total $287.89 c. Hope Johnston $420.00 Building Maintenance Total $1,753.10 61. South Newton Township contracted with Cellular One for cellular telephone and pager service. a. The Cellular telephone service was obtained in November 1994. b. The pager service was obtained in December 1998. 62. Johnston made the arrangements for the pager service, which was incorporated into the existing billing for the cellular telephone service. a. Pager service was obtained for both Johnston and Supervisor Thomas Bixler. Johnston, 99- 077 -C2 Page 13 b. Supervisor Ronald Smith had a pager through his full -time employment. 63. Johnston was assigned pager telephone number 717/262 -6612. a. The pager was provided to Johnston for use on official township business. 64. Johnston travels on occasion to Sullivan County where he has family and hunts. 65. Cellular One provided a basic coverage area for pager service which included the Harrisburg area south to Washington, D.C. a. This coverage area was included in the Annual Paging and /or Premium Annual Paging packages. 66. In addition to the basic coverage area, Johnston chose an additional coverage plan which encompassed Sullivan County, referred to as Annual Northern Tier. a. The Annual Northern Tier package included areas of Pennsylvania north to New York and east to New Jersey. b. The cost of the Annual Northern Tier coverage was $48.00 per year. 67. In January 1999, South Newton Township was billed a total of $405.60 for the Cellular One pager service which included the following: Premium Annual Paging @ 83.40 per pager Annual Paging @ 95.40 per pager Annual Northern Tier @ 24.00 per pager a. The $405.60 was an annual charge for the pager service. b. An additional $3.95 Guarantee Plus Monthly Fee was paid by the township. 68. No records are available as to the use of the pager, number 717/262 -6612, assigned to Johnston. 69. Records of use of the township paid cellular telephone did not show personal use of the service by Johnston. 70. Johnston attended the Pennsylvania Association of Township Supervisors Annual Convention (PSATS) held April 27 -30, 1997, in Hershey, Pennsylvania. a. Supervisors Richard Coy and Ronald Smith also attended. b. Supervisors Coy and Smith commuted daily to the convention site. 71. As indicated by the Delegate and Registration Form for Gary Johnston, Johnston was pre- registered for the convention at a cost of $215.00. Delegate Registration (prior to 1/31) - $ 80.00 Guest Registration - $ 45.00 Room Deposit Fee - $ 90.00 Total: $215.00 a. Registration fees for Richard Coy and Ronald Smith were limited to the $80.00 delegate registration fee. Johnston, 99- 077 -C2 Page 14 72. South Newton Township issued Check #9708, dated 1/22/97, to PSATS in the amount of $330.00, for the registration of all three township supervisors attending the convention. $80.00 delegate registration fee (x3) = $240.00 $90.00 room deposit fee (x1) = 90.00 Total: $330.00 a. The guest registration fee of $45.00 for Johnston's wife was not paid by the township. 73. Johnston submitted the Delegate's Official Attendance Certification Form and Expense Report on or about May 5, 1997, in the amount of $619.17. Mileage 161 miles @ 31.5c per mile = $ 50.72 Meals = 89.60 Lodging 3 nights @ 78.44 per night = 235.32 Wages 28 hrs @ 12.00 per hour (less deductions) = 243.54 Total: $619.17 74. South Newton Township issued Check #9825 dated May 13, 1997, in the amount of $619.17, to Johnston for reimbursement of expenses and wages while attending the 1997 PSATS convention. 75. Along with his expense report, Johnston submitted a hotel invoice and credit card receipt from the Wyndham Garden Hotel, 765 Eisenhower Boulevard, Harrisburg, PA. 76. The total amount to Johnston for the three nights as reflected on both the hotel invoice and MasterCard receipt was $145.32, after the $90.00 deposit prepaid by the township was deducted. 74.00 per night x 3 nights $222.00 4.44 per night tax x 3 nights + 13.32 235.32 Less 90.00 prepaid deposit - 90.00 Total: $145.32 77. The hotel invoice reflects the amount of $235.32 handwritten below the line showing the amount charged to Johnston's credit ($145.32). 78. Johnston's expense report for the lodging costs does not reflect the $90.00 room deposit prepaid by the township. 79. Johnston submitted for reimbursement of expenses and was paid by the township in excess of the amount incurred, totaling $90.00. 80. The total amount of money paid by the township as a pecuniary benefit for Gary Johnston and /or members of his immediate family as a result of the use of his public position is as follows: a. Use of Equipment: $ 550.00 b. Use of Township Labor: $ 101.75 c. Hiring of Son: $1,045.21 Johnston, 99- 077 -C2 Page 15 d. Hiring of Daughter: $ 287.89 e. Hiring of Spouse: $ 420.00 f. Convention Expense: $ 90.00 g. Street Signs: $ 28.98 TOTAL $2,523.83 81. Johnston stated that at no time did he willfully or intentionally act to violate the provisions of the State Ethics Act or Public Official and Employee Ethics Law. 82. Johnston stated that he believed his actions at all times were reasonable, in good faith and permitted by the State Ethics Act or Public Official and Employee Ethics Law and in line with prior practice of township officials. 83. Johnston stated that his actions in utilizing his son, daughter and wife to perform township work was only when necessary, the billed work was actually performed and the hiring generally done with the full knowledge, approval and support of the other township supervisors. III. DISCUSSION: At all times relevant to this matter, the Respondent, Gary Johnston, hereinafter Johnston, 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 Johnston violated Section 3(a)/1103(a) of the Ethics Act when he used township equipment and manpower to perform personal tasks on property owned by him or his family including mowing grass, moving dirt, plowing snow and digging holes; when he used township cellular telephones for his personal use; and when he participated in the hiring of his immediate family members for part -time positions with the township. Pursuant to Section 3(a)/1103(a) of the Ethics Law, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. 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 Johnston, 99- 077 -C2 Page 16 business with which he or a member of his immediate family is associated. 65 P.S. §402. Section 3(a)/1103(a) of the Ethics Law 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. 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. Johnston served as the Supervisor and a Roadmaster in South Newton Township from January 1996 through June 2000. Johnston was also the Head Roadmaster, a position wherein he was in charge of all road related activities. The position was on an as needed" basis whereby Johnston would discuss projects with other members of the Board to determine work schedules. As Head Roadmaster, Johnston had the sole responsibility for selecting part -time road workers. During the annual spring clean -up in the township, part -time employees were hired. In April 1996, Johnston hired his two children, Candace and Gary Johnston, II, (Gary), to assist with the township clean -up. No vote of the Board of Supervisors was taken to authorize the hirings. Johnston also hired five other individuals for the clean -up. All seven individuals were paid at the same rate of $9.50 per hour. Both Candace and Gary received $154.89 for working for the township during the 1996 spring clean -up. Johnston also hired Gary as a part -time road department employee on an as needed" basis throughout the years 1996, 1999 and January 2000. Gary was paid a total of $935.75 for the work he performed for the township at that time. As a Supervisor, Johnston regularly participated in approving payments from the township to his two children for the work they performed. At a January 1999 Board of Supervisors meeting, Candace was appointed to the position of Township Auditor, for which she received $133.00 in compensation. Johnston participated in that vote to appoint his daughter. In May 1997, Johnston's wife, Hope, began cleaning the township building. Since the Board was unable to find someone to clean the building, Johnston offered the services of his spouse. No Board action was taken to approve the hiring of Hope. The township issued payments to Hope totaling $420.00 for the period of May 1997 through December 1999, for cleaning the township building. Johnston participated in the payment process for his spouse. Separate and apart from the above, Johnston owned certain land behind his home which he subdivided into four parcels. Johnston constructed a lane, 1,000 feet in length, to access the four parcels. In 1998, Gary built a house on one of the parcels which was given to him by Johnston. There is a 200 foot driveway from the lane to Gary's home. The other three parcels were not developed and the lane was not dedicated as a township street. Johnston ordered two street signs at township expense, totaling $28.98, plus a stop sign which were installed on his lane, Johnston Drive. Johnston participated in the bill approval process to pay for the street signs. On at least four occasions between January 1999 and January 2000, Johnston used township trucks to plow Johnston Lane as well as the driveway to his son's house. Johnston, 99- 077 -C2 Page 17 Johnston also hired his son Gary to assist him in snowplowing for the township. In addition, Johnston used township equipment to cut weeds around his son's new home as well as on Johnston Drive. Johnston also used a township backhoe and truck to move a dirt pile on his son's lot to the other three lots that Johnston owned. In the summer of 1996, Johnston utilized the township tractor with attachments to repair Gary's race cars. On September 1, 1998, Johnston directed a township employee, Thomas Coons, to work on Gary's property to dig a trench to an electrical junction box as well as to move certain furniture from Johnston's home to Gary's house. In January 2000, when another Supervisor, Thomas Bixler, was appointed to the position of Road Foreman, he directed Johnston to desist in plowing Johnston Drive. However, Johnston disregarded the direction and plowed the drive which only benefited Gary. The private pecuniary benefits that inured to Johnston or his immediate family are quantified in Fact Finding 59. The sum total of the use of township equipment or personnel for the above activities totaled $651.75. The pecuniary benefits that Johnston's immediate family members, spouse, child and son, received when Johnston hired them to work for the township totaled $1,753.10. See, Fact Finding 60. In another scenario, the township contracted for cellular telephone and pager service. Johnston chose to extend the coverage plan for this service to include Sullivan County where he has extended family and where he also hunts. However, there are no records available as to the use of the pager. As to the cellular phone, the records do not indicate any personal use by Johnston. In 1997, the Board of Supervisors attended the Annual Pennsylvania Association of Township Supervisors (PSATS) Convention in Hershey. Although two of the three Supervisors chose to commute to the convention site, Johnston decided to stay at the hotel and went through a pre- registration. Johnston submitted a expense report totaling $619.17. Part of that amount consisted of a lodging charge of $235.32. However, a $90.00 deposit had been prepaid by the township so that the actual lodging expense was only $145.32. Hence, Johnston submitted and received reimbursement in the amount of $90.00 to which he was not entitled. The total pecuniary benefit received by Johnston and members of his immediate family through the use of public office totaled $2,523.83. See, Fact Finding 80. 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: a violation of Section 1103(a) when Johnston, a township supervisor and roadmaster, on several occasions between 1996 and 2000 used township equipment for the personal use of himself and members of his immediate family; a violation of Section 1103(a) of the Ethics Law when Johnston while a township supervisor on several occasions during the period 1996 to 2000 participated in discussions, recommendations and /or voting which led to the hiring of his son, daughter and wife for occasional part -time employment with the township and thereafter failed to abstain from voting to approve bill lists which included payment to his immediate family members; no violation of Section 3(a)/1103(a) in that there is insufficient evidence to substantiate the allegation that respondent obtained a private pecuniary benefit by using a township provided cellular telephone and pager for his own personal use; no violation of Section 3(a)/1103(a) in that there is insufficient evidence that Johnston acted to obtain a private pecuniary benefit where the township reimbursed him $90.00 in excess of his actual 1997 PSATS convention expenses by mistake neglecting an advance Johnston, 99- 077 -C2 Page 18 deposit it previously paid; and a payment by Johnston in the amount of $1,200.00 through this Commission to South Newton Township within thirty (30) days of the issuance of the final adjudication in this matter. In applying the provisions of Section 3(a)/1103(a) to the instant matter, the actions of Johnston were uses of authority of office. See, Juliante, Order 809. But for the fact that Johnston was a Supervisor, he could not have hired members of his own immediate family, utilized township equipment or personnel, or submit expense reimbursements for his attendance at the annual PSATS convention. Through such uses of the authority of office, there were various private pecuniary benefits that were received: employment of immediate family members, excessive reimbursement for attendance at the PSATS convention, no out of pocket expenses by utilizing township equipment and personnel for personal, non - township related activities, and the purchase of street signs for Johnston's private lane. These private pecuniary benefits inured to Johnston or his spouse, daughter and son, the latter three of whom are members of his immediate family as that term is defined under the Ethics Act. See, Section 402/1102 of the Ethics Act. We have consistently held that a public official /employee may not use the authority of office for personal financial gain by utilizing government office equipment, personnel or supplies for private, business, or political activities. See, Friend, Order 800, Catone, Order 994, Metrick, Order 1037, Cours, Order 1150. Accordingly, Johnston violated Section 3(a)/1103(a) of the Ethics Act when he used township equipment or township employees for personal use of himself and members of his immediate family. In addition, Johnston violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions to hire his son, daughter, and spouse for part -time employment with the township and failed to abstain from voting to approve bills which included payment to his immediate family members. Regarding the utilization of the township cellular phone and pager, there is insufficient evidence to establish that Johnston used office for a personal financial gain. There are no records as to usage of the pager. As to the cellular phone, there is no showing of usage by Johnston for personal purposes. Accordingly, we find no violation as to the pager and cellular phone based upon insufficient evidence. Finally, regarding the excess reimbursement for attending the PSATS convention, we find no violation as per the express stipulation of the parties in the Consent Agreement. However, in that the excess expense was $90.00, we find that amount to be de minimis under the facts of the case and on that basis find no violation of Section 3(a)/1103(a) of the Ethics Act. 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, Johnston is directed to make payment in the amount of $1,200.00 to South Newton Township through this Commission within 30 days of the mailing 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. Johnston, as a Supervisor in South Newton Township, was a public official subject to the provisions of Act 9 of 1989. 2. Johnston violated Section 3(a)/1103(a) of the Ethics Act when he used township equipment for the personal use of himself and members of his immediate family. Johnston, 99- 077 -C2 Page 19 3. Johnston violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions to hire his son, daughter, and spouse for part -time employment with the township and failed to abstain from voting to approve bills which included payment to his immediate family members. 4. Johnston did not violate Section 3(a)/1103(a) of the Ethics Act regarding the utilization of the township cellular phone and pager based upon insufficient evidence. 5. Johnston did not violate Section 3(a)/1103(a) of the Ethics Act regarding the excess reimbursement for attending the PSATS convention in that the amount involved was de minimis. In Re: Gary A. Johnston ORDER NO. 1200 File Docket: 99- 077 -C2 Date Decided: 5/15/01 Date Mailed: 5/30/01 1 Johnston, as a Supervisor in South Newton Township, violated Section 3(a)/1103(a) of the Ethics Act when he used township equipment for the personal use of himself and members of his immediate family. 2. Johnston violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions to hire his son, daughter, and spouse for part -time employment with the township and failed to abstain from voting to approve bills which included payment to his immediate family members. 3. Johnston did not violate Section 3(a)/1103(a) of the Ethics Act regarding the utilization of the township cellular phone and pager based upon insufficient evidence. 4. Johnston did not violate Section 3(a)/1103(a) of the Ethics Act regarding the excess reimbursement for attending the PSATS convention in that the amount involved was de minimis. 5. Per the Consent Agreement of the parties, Johnston is directed to make payment in the amount of $1,200.00 to South Newton Township through this Commission within 30 days of the mailing 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