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HomeMy WebLinkAbout1235 ClinemyerIn Re: William Clinemyer, Sr. File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey 01- 036 -C2 Order No. 1235 5/2/02 5/16/02 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 Act, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., by the above -named Respondent. At the commencement of its investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation, 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 Stipulation of Findings is quoted as the Findings in this Order. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Clinemyer 01- 036 -C2 Page 2 I. ALLEGATION: That William Clinemyer, Sr., a public official /public employee in his capacity as a Supervisor for Washington Township, Cambria County, violated Section 3(a)/1103(a) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101, et seq.) when he used the authority of his office for a private pecuniary benefit by, including but not limited to, utilizing township equipment, materials, manpower and facilities for his personal use; and when he participated in actions of the board of supervisors, including but not limited to, hiring his son; and, including but not limited to, authorizing and approving work schedules, approving payroll, and signing checks. II. FINDINGS: 1. William Clinemyer, Sr., has served as a Supervisor for Washington Township, Cambria County since 1994. a. Clinemyer was appointed Chairman of the Board in 1996 and 1998. 2. Clinemyer was appointed township Roadmaster during reorganization meetings of the board as Supervisors every year with the exception of 1996 and 1998. a. Since 1996, Supervisor William Hershel has also served as a roadmaster. 3. Clinemyer and Hershel perform roadmaster duties on an "as- needed" basis. a. Clinemyer performs roadmaster duties as his schedule allows. 4. The Washington Township Board of Auditors have set the pay for the roadmasters as follows: 1997 $6.50 for supervisors. 1998 $6.50 for laborers and operators. 1999 $7.50 for supervisors and operators; $7.00 for laborers. 2000 $7.50 for supervisors and operators. 2001 $7.50 for supervisors. 5. Washington Township does not employ full time or part time road workers. a. When assistance is needed on the roads, the township draws from a pool of individuals depending on availability. b. Workers would be called on to perform the following types of work: - Patch and pave roads, cut brush and berms, clean ditches, grade roads. - Assist with snowplowing. - Equipment maintenance. c. Washington Township does not advertise for as- needed help. 6. The roadmasters are responsible for finding individuals to work as- needed for the township. a. No votes are taken by the board of supervisors to approve the hiring of these workers. b. The township has had difficulty in finding dependable part -time employees willing to work for $7.50 per hour. Time Period Hours Check No. Check Date Net Pay Gross Pay Description 04/01- 04/30/99 12 4688 04/26/99 $ 80.58 $ 90.00 Worked on roads. 07/01- Plane Bank and Mt. Road 07/31/99 14.5 4832 08/19/99 96.29 108.75 Clean ditches. 08/01- 08/31/99 8 4872 09/01/99 56.49 63.75 Nolls Creek Work. 09/01- Weed for paving; Paved 09/15/99 22.0 4883 09/16/99 146.11 165.00 Bldg; Potholes Mt. Road. 05/01- Cleaned floors; worked on 05/31/01 10 4881 06/06/01 66.41 75.00 roads. 06/01- Grade Mt. Rd.; weed Nolls 06/30/01 13 4890 07/02/01 86.33 97.50 Creek & Plane Bank; clean meeting room. Clinemyer 01- 036 -C2 Page 3 c. Family members and friends of other township officials have worked for the township in the past with the township road department. 7. In 1999 and 2001 William Clinemyer, Jr. worked for the township on an as- needed basis. a. Williman [sic] Clinemyer, Jr., is the son of Supervisor William Clinemyer, Sr. b. No vote of the Board of Supervisors took place authorizing the hiring. c. Supervisor Clinemyer asked his son if he was interested in working part -time. 1. Clinemyer knew his son could operate equipment and would be dependable. d. Clinemyer asked Supervisor /Roadmaster William Hershel if he objected to Clinemyer's son working for the township. 1. Hershel was not opposed. e. Clinemyer did not discuss the hiring of his son with Supervisor William Noga, as Noga was not a roadmaster. 8. William Clinemyer, Jr. did not work for the township prior to 1999, or in 2000. a. Clinemyer, Jr's, job duties included operating a township truck. 9. William Clinemyer, Jr. was paid at the rate of $7.50 per hour in 1999 and 2001, the rate set by the township auditors. a. William Clinemyer, Jr. drove the township truck which qualified him to receive the hourly rate of an operator. 10. William Clinemyer, Jr., was paid a gross total of $600.00 for work he performed for Washington Township in 1999 and 2001. 1999: $427.50 2001: $172.50 11. Payments issued by the township to William Clinemyer, Jr., in 1999 and 2001, are as follows: Check Date Check No. Amount signed by Clinemyer Vote 04/26/99 4688 80.58 Yes -- 08/19/99 4832 96.29 Yes Motioned 09/01/99 4872 56.49 Yes -- 09/16/99 4883 146.11 Yes -- 06/06/01 4881 66.41 No -- 07/02/01 4890 86.33 No -- Clinemyer 01- 036 -C2 Page 4 a. Net income to William Clinemyer, Jr. in 1999 and 2001 totaled $532.21. 12. Clinemyer was responsible for scheduling his son, William Clinemyer, Jr., to work for the township. a. Clinemyer supervised his son during hours that William Clinemyer, Jr., worked for the township with the exception of August 3, 1999. 1. William Clinemyer, Jr., worked 5.5 hours on that date for Supervisor William Hershel. 13. Clinemyer did not abstain on votes of the board of supervisors to approve payment of the bills which included payments to his son. a. Only the supervisors making the motion and seconding the motion participate in the vote. b. Roll call votes and yea /nay votes are not utilized. 14. Clinemyer participated in approving payments, totaling $532.21, to his son as follows: a. Clinemyer did not abstain on any of the votes to approve payment of the bills as noted above. (The following findings relate to the allegation that William Clinemyer, Sr., used township equipment for his personal use). 15. Clinemyer used township equipment on his personal property between 1997 and 2002, including a backhoe, front -end loader (W -20), truck, plow, and vacuum cleaner. 16. Washington Township owned an Enviro Vac purchased from Sears in 1998 for general township use. a. The vacuum was valued at $140.00. 17. From the spring of 1999, until approximately July 2001, Clinemyer utilized the Enviro Vac at his residence. a. Clinemyer would return the Enviro Vac to the township when specifically requested to do so and within several days he would take it back to his home. b. Clinemyer returned the Enviro Vac to the township on or about July 5, 2001. 18. On at least five occasions during the 2000/2001 winter, Clinemyer used township trucks or the front loader (W -20) to plow his driveway. Clinemyer 01- 036 -C2 Page 5 a. Specific dates that Clinemyer plowed his driveway are unknown. b. Clinemyer also plowed the driveway of Supervisor William Hershel. c. It has been a common practice for the township to plow the driveways of supervisors working as roadmasters. 19. Clinemyer used the township front -end loader (W -20) to level dirt on his property on various occasions between 1997 and July 2001. a. The dirt had been dumped in Clinemyer's yard by the township. b. The dirt came from the grading of township roads and /or cleaning ditches. c. The township provided residents with dirt collected from road work upon request. d. The township generally dumped the dirt on a resident's property, but did not level or spread it. 20. Clinemyer also used the front -end loader on his property on June 20, 2001, to dig a trench. a. Clinemyer used the front -end loader for approximately one hour. b. The cost of renting a front -end loader is $40.00 per hour, with an operator. 21. Clinemyer also used the township backhoe on his personal property to dig a drainage ditch and install pipe and to plant a tree in his front yard. a. The estimated time to dig and backfill the ditch is four hours. b. The estimated time to haul the tree and plant it was one hour. 22. Clinemyer was observed using the backhoe on his personal property on Easter weekend 2001 (April 15 -16, 2001). a. Clinemyer used the backhoe for at least one hour on that date. 23. Township equipment, including backhoe and snow plows, are not available for use by the general public. 24. The cost of renting a backhoe is $35.00 per hour plus travel time. (The following findings relate to the allegation that William Clinemyer, Sr., used township property for the storage of personal items). 25. Between 1997 and 2001, Clinemyer used the township garage and areas around the garage to store personal items, including vehicles, lawn mowers and a furnace. 26. In or around the fall of 1998, Clinemyer stored a cast iron furnace in the township garage for approximately three months. a. While stored in the township garage Clinemyer sanded, painted, and repaired the furnace. 27. Clinemyer utilized township employees to move the furnace to his residence on Clinemyer 01- 036 -C2 Page 6 township time, using a township truck. a. At least one township employee, John Williams, assisted Clinemyer with moving the furnace. b. The township F -350 truck was used to move the furnace. c. The furnace was carried into Clinemyer's basement. d. Time spent moving the furnace was at least one hour. 1. Clinemyer lives approximately 1/2 mile from the township building. e. The exact date of the moving of the furnace is not known. 28. From 1998 until July 2001, Clinemyer stored a Wheel Horse riding lawnmower in the township garage each winter. a. Clinemyer occasionally used the lawnmower to mow on township property, and on some road berms c. [sic] Clinemyer moved the lawnmower to a neighbor's house on or about July 5, 2001. 29. Clinemyer owned a 1982 Chevrolet Citation from November 1996 until at least July 2001. a. Clinemyer last renewed the vehicle registration in September 1998. b. Clinemyer stored the Chevrolet Citation on township property at various intervals during the time period that he owned the vehicle. c. While the vehicle was operational, it was stored on township property during the winters of 1996/1997 and 1998/1999. d. The vehicle was stored behind the township building continuously from October 1999 through 2001. (The following findings refer to the allegation that Clinemyer used township facilities for personal use). 30. Clinemyer used the township garage to perform maintenance and repairs on vehicles, and to wash his personal vehicle. a. Clinemyer replaced brake pads on his vehicle using township tools. b. In January 2002 Clinemyer and township employee Ted Beck replaced the fan belt on a 1990 Jeep owned by Clinemyer. 1. Neither Clinemyer nor Beck were on township time. 31. Since 1996 Clinemyer has received income from the township as follows: 1996 1997 1998 1999 $ 3,709.00 $ 3,847.25 $ 3,762.00 $ 6,388.25 Clinemyer 01- 036 -C2 Page 7 2000: $ 7,170.00 32. Clinemyer has filed Statements of Financial Interests with Washington Township as follows: Calendar Year Date Filed 1996 03/17/97 1997 02/10/98 1998 02/18/99 1999 03/10/00 2000 Unknown 2001 01/17/02 33. Clinemyer did not disclose income from Washington Township on Statements of Financial Interests filed for calendar years 1997, 1998, and 1999. III. DISCUSSION: At all times relevant to this matter, the Respondent, William Clinemyer, Sr., hereinafter Clinemyer, 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 William Clinemyer, Sr., in his capacity as a Supervisor for Washington Township, Cambria County, violated Section 3(a)/1103(a) of the Ethics Act when he utilized township equipment, materials, manpower, and facilities for his personal use; participated in actions of the board of supervisors as to the hiring of his son; and authorized and approved work schedules and payroll, and signed checks. Pursuant to Section 3(a)/1103(a) of the Ethics Act, 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/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 f of ce 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 Clinemyer 01- 036 -C2 Page 8 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. Clinemyer has served as a Supervisor for Washington Township (Township) since 1994. Clinemyer has also served as Township Roadmaster every year except 1996 and 1998. Clinemyer serves as Roadmaster on an as- needed basis. Roadmasters are responsible for finding individuals to work for the Township on an as- needed basis. Clinemyer asked his son whether he was interested in working part -time for the Township operating a Township truck. Clinemyer approached another Supervisor/ Roadmaster and asked whether he had any objection to Clinemyer's son working for the Township. The Supervisor /Roadmaster stated that he was not opposed. Clinemyer was responsible for scheduling his son to work for the Township. Clinemyer's son worked for the Township in 1999 and 2001 on an as- needed basis and received compensation at the rate of $7.50 per hour in both years as set by the Township Auditors. Clinemyer's son was paid a net total of $532.21 for 1999 and 2001. Clinemyer participated in approving payments totaling $532.21 to his son between April 1999 and July 2001. Clinemyer did not abstain from voting to approve any bills that included payments to his son. Between 1997 and 2002, Clinemyer used township equipment for personal use. From the spring of 1999 until approximately July 2001, Clinemyer used the Township's $140.00 Enviro Vac vacuum cleaner at his residence. Clinemyer also used Township vehicles including the Township's front end loader (W-20) to plow his driveway on at least five occasions during the 2000/2001 winter. The front-end loader was also used by Clinemyer in June 2001 to level dirt and to dig a trench on his property. In April 2001, Clinemyer used the Township backhoe on his property for approximately one hour. Clinemyer utilized the backhoe to dig a drainage ditch, install a pipe, and plant a tree in his front yard. Township equipment is not available for use by the general public. The cost of renting a front -end loader is $40.00 per hour, with an operator. The cost of renting a backhoe is $35.00 per hour plus travel time. Between 1997 and 2001, Clinemyer used Township property to store personal items including vehicles, lawn mowers, and a furnace. In 1998, Clinemyer stored a cast iron furnace in the Township garage. Clinemyer also sanded, painted and repaired the furnace in the garage and used Township employees on Township time to transport the furnace from the garage to his residence using a Township truck. Each winter from 1998 until 2001, Clinemyer stored his riding lawnmower in the garage and, at various times from 1996 to through 2001, he stored his personal vehicle on Township property. Clinemyer also used the Township garage to maintain, repair, and wash his personal vehicle. Some of the repairs made to his personal vehicle were performed by Clinemyer alone or with a Township employee using Township tools. 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: (1) an unintentional violation of Section 3(a)/1103(a) of the Ethics Act by Clinemyer when he used Township facilities and Clinemyer 01- 036 -C2 Page 9 property to store personal items including a furnace, vehicle and lawn mower; (2) a de minimis violation of Section 3(a)/1103(a) of the Ethics Act by Clinemyer when he utilized Township equipment to plow his driveway; (3) a violation of Section 3(a)/1103(a) of the Ethics Act by Clinemyer when he utilized Township equipment, including an Enviro Vac, backhoe and front - end loader on his personal property; (4) a violation of Section 3(a)/1103(a) of the Ethics Act by Clinemyer when he participated in actions of the Board of Supervisors, resulting in his son being hired as a part -time worker for the Township Road Crew; and (5) an agreement by Clinemyer to make payment in the amount of $800.00 to Washington Township through this Commission within thirty (30) days of the issuance of this Order. In this case, we find an unintentional violation of Section 3(a)/1103(a) of the Ethics Act as to Clinemyer's utilization of Township property to store personal items including a vehicle, lawn mower and furnace. We also find a violation of Section 3(a)/1103(a) of the Ethics Act by Clinemyer as to his use of Township's Enviro Vac vacuum cleaner, front -end loader, and backhoe at his personal residence. Finally, we find a violation of Section 1103(a) of the Ethics Act as to Clinemyer's participation in actions of the Board of Supervisors as to the hiring of his son to work for the Township Road Crew. The foregoing actions of Clinemyer constituted uses of authority of office. But for the fact that Clinemyer was a Township Supervisor, he could not have used the Township's facilities or equipment for personal use or participated in the hiring of his son to work for the Township Road Crew. See, Juliante, Order 809. The uses of authority of office resulted in private pecuniary benefits to Clinemyer, who did not have out -of- pocket expenses as to the use of Township facilities or equipment, and private pecuniary benefits to Clinemyer's son, who was paid a net total of $532.21 from the Township for 1999 and 2001. Accordingly, we find that Clinemyer unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used Township property to store his personal items. We also find that Clinemyer violated Section 3(a)/1103(a) of the Ethics Act when he utilized Township equipment for personal use, and participated in actions of the Board of Supervisors as to the hiring of his son as the part - time worker for the Township Road Crew. As to Clinemyer's utilization of Township's front end loader (W -20) to snow plow his own driveway during the 2000/2001 winter, we find a "de minimis violation of Section [3(a)]/1103(a)" as per the Consent Agreement of the parties. 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, Clinemyer is directed to make restitution of $800.00 to Washington Township through this Commission within thirty (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. Clinemyer, as a Supervisor for Washington Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Clinemyer unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used Township facilities and property to store personal items, including a furnace, vehicle and lawn mower. 3. Clinemyer committed a de minimis violation of Section 3(a)/1103(a) of the Ethics Act when he utilized Township equipment to snow plow his driveway. Clinemyer 01- 036 -C2 Page 10 4. Clinemyer violated Section 3(a)/1103(a) of the Ethics Act when he utilized Township equipment, including an Enviro Vac, backhoe and front -end loader at his personal residence. 5. Clinemyer violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions of the Board of Supervisors as to the hiring of his son as a part -time worker for the Township Road Crew. In Re: William Clinemyer, Sr. ORDER NO. 1235 File Docket: 01- 036 -C2 Date Decided: 5/2/02 Date Mailed: 5/16/02 1. Clinemyer, as a Supervisor for Washington Township, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used Township facilities and property to store personal items, including a furnace, vehicle and lawn mower. 2. Clinemyer committed a de minimis violation of Section 3(a)/1103(a) of the Ethics Act when he utilized Township equipment to snow plow his driveway. 3. Clinemyer violated Section 3(a)/1103(a) of the Ethics Act when he utilized Township equipment, including an Enviro Vac, backhoe and front -end loader at his personal residence. 4. Clinemyer violated Section 3(a)/1103(a) of the Ethics Act when he participated in actions of the Board of Supervisors as to the hiring of his son as a part -time worker for the Township Road Crew. 5. Per the Consent Agreement of the parties, Clinemyer is directed to make payment of $800.00 to Washington Township through this Commission within thirty (30) days of the 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, LOUIS W. FRYMAN, Chair