HomeMy WebLinkAbout1018 Roberts (2)In re: Justin Roberts
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
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File Dockets:
Date Decided:
Date Mailed:
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Rev. Joseph G. Quinn
Boyd E. Wolff
91 -032 -C
95- 066 -C2
8/27/96
9/6/96
The Investigative Division of the State Ethics Commission conducted an
investigation regarding possible violations of the State Ethics Law, Act 170 of 1978,
P.L. 883, and Act 9 of 1989, P.L. 26. Written notice of the specific allegations was
served at the commencement of the investigation. A Findings Report was issued and
served upon completion of the investigation which constituted the Complaint by the
Investigation Division. An Answer was filed and a hearing was waived. The record
is complete. A consent agreement was submitted by the parties to the Commission
for consideration which was subsequently approved. This adjudication of the
Commission is hereby issued which sets forth the individual Allegations, Findings of
Fact, Discussion, Conclusions of Law and Order.
This adjudication is final and will be made available as a public document thirty
days after issuance. However, reconsideration may be requested which will defer
public release of this adjudication pending action on the request by the Commission.
A request for reconsideration does not affect the finality of this adjudication. A
reconsideration request must be received at this Commission within thirty days of
issuance and must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code §2.38 and /or 51 Pa.
Code §21.29(b).
The files in this case will remain confidential in accordance with Section 8(a) of
Act 170 of 1978 and Act 9 of 1989, 65 P.S. §408(h). 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, 65 P.S. §409(e).
Confidentiality does not preclude discussing this case with an attorney at law.
Roberts 91- 032 -C; 95- 066 -C2
Page 2
I. ALLEGATION:
That Justin Roberts, a public employee in his capacity as a Mental Health/
Mental Retardation Drug & Alcohol Administrator II (MH /MR /D &A) for Cambria County,
violated Section 3(a) of Act 9 of 1989 and Section 3(a) of Act 170 of 1978 when he
used the authority of his office for a private pecuniary benefit when he was
compensated during the traditional hours of a MH /MR Administrator for performing
alcohol (CRN's) evaluations and participating in a breathalyzer class.
II. FINDINGS:
1. Justin Roberts is employed by Cambria County, Department of Human Services
as a Mental Health, Mental Retardation, Drug & Alcohol Administrator II
(MH /MR /D &A).
a. Roberts was first employed by Cambria County on March 6, 1978, as a
Drug and Alcohol Specialist.
b. On July 2, 1984, Roberts was promoted to the position of MH /MR
Administrator.
c. Roberts was appointed Acting Human Services Director for the MH /MR
from February 12, 1988, to January 1, 1990.
d. On January 1, 1990, Roberts was promoted to MH /MR Administrator 1!.
2. The Cambria County Department of Human Services was made up of three
programs: Area Agency on Aging (AAA); Children and Youth Services (CYS);
and Mental Health, Mental Retardation, and Drug & Alcohol (MH /MR /D &A).
3. The job description for the position of MH /MR Administrator held by Roberts
included the following duties:
a. General Administration of the County Program.
b. Insure that mental health and mental retardation services required by the
Act are available.
c. Analyze and evaluate mental health and mental retardation needs and
services in the county and recommend improvements to the Board and
local authorities.
d. Position functions as Administrator of the County Drug and Alcohol
Program.
e. Administer the County MH /MR /D &A in accordance with the requirements
stated in Subsection 4200.33 of Title 55, Chapter 4200 of the
Pennsylvania Code.
f. The MH /MR Administrator meets with the Director of Human Services
monthly. The position has full freedom to complete program tasks in any
manner seen fit by the Administrator.
Roberts 91- 032•C;95- 066 -C2
Page 3
4. The Drug and Alcohol Planning Council appointed by the Cambria County
Commissioners makes recommendations to the Commissioners regarding
program policies and procedures.
a. Policies and procedures for the drug and alcohol program and the DUI
program are under the direct control and responsibility of the Cambria
County Commissioners.
5. Justin Roberts had oversight responsibility over local drug and alcohol program
activities.
a. Roberts implemented programs and procedures as developed by the
county commissioners and the Drug and Alcohol Planning Council.
6. The traditional work hours for the MH /MR Administrator are Monday through -
Friday, 8:00 a.m. to 4:00 p.m.; %: hour lunch; Saturday and Sunday as needed;
available 24 hours per day.
7. In 1978, Cambria County became involved in DUI programs as the result of
grant money becoming available through the Department of Transportation to
fund Breathalyzer Programs at the county level.
a. The purpose of the grant was to provide funding for scientific breath
testing equipment and education for local police departments.
b. Justin Roberts assisted in the grant proposal for the county and
submitted it to the Department of Transportation for approval, in 1977.
8. By way of letter, dated July 20, 1978, to Roberts, the Cambria County
Commissioners pledged their support and agreed to serve as the contract
agency for the Breathalyzer Program sponsored by the D &A Program.
a. The grant allowed for a program of education and rehabilitative treatment
of D.W.I. suspects.
The letter was signed by Commissioners T. T. Metzger, Jr., W. Donald
Templeton, and Joseph P. Roberts.
b.
g.
Other supervision includes: Staff meetings, clinical conferences,
individual consultation, review and analyze quality of services,
implementation of state regulations, administration of county policies.
h. The job description was signed by Justin Roberts and dated October 2,
1989.
9. By way of letter, dated September 27, 1979, Roberts informed the Highway
Safety Group of the Department of Transportation, that the Cambria County
Commissioners and the D &A Staff agreed to sponsor support and maintain the
Breathalyzer Program according to the conditions established by the Highway
Safety Program.
Pokers 91- 032 -C; 95- 066 -C2
Page 4
10. In 1983, D.U.I legislation, Act 289, established the Alcohol Highway Safety
Schools (DUI Schools).
a. Section 1549, subsection (b) required as follows:
Each county, Multi- County Judicial District or group of counties combined
under one program was to establish and maintain a course of instruction
on the problems of alcohol and driving.
These regulations included a uniform curriculum for the course of
instruction, training and certification requirements for instructors and
provision for the giving of both oral and written notice of the provisions
of Section 1543(b).
11. Cambria County President Judge H. Clifton McWilliams authorized Cambria
County's participation in the DUI Schools.
12. John Henry, Justin Roberts and Jay Roberts were named to serve as
Coordinators /Instructors for the program.
a. The three individuals were requested to serve as Instructors /Coordinators
by President Judge McWilliams.
b. Pursuant to Section 1549 of Act 289, the three individuals became
certified instructors.
13. By way of letter, dated April 18, 1983, the Office of Drug & Alcohol Programs,
advised Judge McWilliams of the following:
a. Justin Roberts and John Henry were in the process of completing
Instructor Certification requirements.
b. Jay Roberts had completed all the necessary requirements for
certification.
c. All three individuals needed to attend a Court Reporting Network (CRN)
Certification Workshop at which time the qualified service agreements
could be signed for the implementation of CRN.
d. In the interim, educational classes could be conducted by any of the three
individuals.
14. During the first two years, fees were not paid to individuals performing services
related to the DUI Program.
15. Justin Roberts, was certified as a CRN (Court Reporting Network) Evaluator by
the Department of Transportation and Department of Health, on April 28, 1983.
a. No recertification was required for CRN Evaluators.
b. Roberts served as a CRN Evaluator from 1983 through 1991.
Roberts 91- 032 -C; 95- 066 -C2
Page 5
c. Roberts was also certified in September, 1983, as a DUI Instructor by the
Governors Traffic Safety Council.
16. A resolution was passed by the Cambria County Commissioners on January 1,
1985, establishing the DUI Counter Attack Program and setting a fee for
services. The resolution provided as follows:
a. The Director of the Department of Human Services is responsible for the
administration of the program.
1) The Director of Human Services shall have the authority to assign
the duties described below to such individuals as he may select,
provided they are fully qualified and certified to perform such
duties as specified by the regulations of the Governor's Traffic
Safety Committee of the Pennsylvania Department of Highways.
2) Individuals who are assigned
purpose of the Commonwealth
paid at the rate of $20.00 per
the average interview and
approximately one hour.
to interview defendants for the
Reporting Network (CRN) shall be
interview; it being recognized that
completion of form requires
3) Each individual who is assigned to give instruction at any require
safe driving course shall be paid at the rate of $20.00 per teachin
hour.
d
9
4) If any individual performing such services is also a County
employee, he shall perform services authorized by this Resolution
at such times and /or in such manner so as not to interfere with the
regular performance of his County employment.
b. The Resolution is signed by Joseph P. Roberts, President, Cambria
County Commissioners.
c. This resolution was passed as the result of the 1983 DUI Legislation.
17. A DWI Fee Schedule attached to the Resolution, dated January 1, 1985,
specified that the DWI Instructor receive $20.00 per hour; CRN Evaluators
receive $20.00 per hour; and the Breathalyzer Program activities receive $9.60
per hour.
a. All monies were to be drawn from the fees generated by the DWI
Program. No County monies were to be utilized.
b. A 1995 Resolution provided that individuals performing CRNs were to be
paid $20.00 per interview.
18. CRN evaluations, which included preparation of paperwork and a face to face
interview with each participant, were allotted one hour increments by the staff.
Roberts 91- 032 -C; 95- 066 -C2
Page 6
D.atg
a. John Henry and Justin Roberts performed paperwork incident to CRN
evaluations prior to the time allotted which required only Y2 hour for
purposes of an evaluation interview.
19. Justin Roberts performed CRN evaluations from 1983 through 1991.
Justin Roberts was not compensated for performing CRN's from 1983
until the County Commissioners approved payments in 1985.
Roberts completed CRNs so as not to interfere with the regular
performances of his county duties.
20. All CRN evaluations were scheduled by Christine Driskel, MH /MR /D &A
Administrative Assistant and certified CRN Evaluator.
a.
b.
21. Between January, 1988, and September, 1991, Justin Roberts conducted
approximately 392 CRN evaluations.
a. Many of the 392 CRN evaluations were scheduled and conducted during
the traditional work hours for the MH /MR Administrator.
b. The CRNs were performed so as not to interfere with the regular
performance of his county employment.
22. On 09/18/89, Roberts was reported as conducting twelve evaluations and was
reported as using a full vacation day.
23. On the following dates, Justin Roberts was compensated as follows for
completing CRNs :
# of CRN's
05/09/89 10
11/15/89 9
07/19/90 4
11/19/90 10
CRN
Start/Stop
8:00 a.m. -
8:00 a.m. -
8:00 a.m. -
8:00 a.m.-
Time
1:00 p.m.
12:30 p.m.
10:00 p.m.
1 :00 p.m.
Leave
2 hrs Personal
2 hrs Vacation
2 hrs Vacation
2 hrs Vacation
a. Roberts conducted the CRN evaluations during the traditional hours as a
MH /MR Administrator.
b. Leave was scheduled in the afternoon.
24. On numerous occasions between January, 1988, and September, 1991, Justin
Roberts conducted CRN evaluations at 7:30 a.m. prior to the start of his regular
work day of his county employment.
25. Justin Roberts was compensated for conducting CRNs from the Cambria County
DWI County Attach Program account.
a. Although he had signature authority for the account, Justin Roberts did
not sign checks payable to himself.
Roberts 91- 032 -C; 95- 066 -C2
Page 7
26. In March, 1990, the Cambria County CRN Evaluation Time Sheets were
replaced with the Cambria County D. W.I Counter Attack Program Billing Invoice.
a. The new invoices provided more detail on the service provided, included
a statement certifying the accuracy of the information and required a
Notary Stamp.
27. Roberts was also certified as a DUI Instructor.
a. DUI classes were usually held in the evening after the regular hours of
the MH /MR /D &A Program office.
b. Instructors were paid a set rate of $20.00 per hour.
c. Each class consisted of 4, 3 %2 hour sessions.
28. On December 12, 1989, at the Richland Township Building, Justin Roberts
assisted instructor Ken Hallendall in instructing the Richland Township Police
Department on the use of a portable breathalyzer.
a. The class was held from 7:30 a.m. to 4:30 p.m.
b. The class was held on a regular workday for Roberts.
c. Roberts did not take leave on 12/12/89, and was paid for a full day as
MH /MR /D &A Administrator.
d. Roberts received payment of $160.00 (8 hours at $20.00 per hour), as
per voucher #1 170, dated 12/12/89.
29. In January, 1990, Justin Roberts, contracted with the Cambria County DUI
Counter Attack Program, to provide services in relation to the DUI Program, for
the period of 01/01/90 to 12/31/90.
a. Roberts was to provide police department /breath testing site duties as
needed, at a rate of $9.60 /hour.
b. Roberts was to serve as a DUI Instructor at a rate of $20.00 /hour.
c. The agreements are signed by Roberts and John Henry, Director of
Human Services.
d. Similar agreements were entered into between the DUI Counter Attack
Program and employees of the MH /MR and D &A Programs.
30. In January, 1991, the Cambria County Controller refused to pay county
employees who performed services for the DUI Program based on his
interpretation of Article XVIII, Section 1806, of the County Code which
prohibits any County Officer from directly or indirectly being personally
interested in any contract in which the county is a party.
Roberta, 91- 032 -C; 95- 066 -C2
Page 8
31. Cambria County Solicitor George Raptosh, issued a written opinion on March
27, 1991, to the County Commissioners, in regard to the controller's refusal to
pay county employees, and elected and appointed officials, for the services they
performed relating to the DUI Program.
a. Raptosh opined that Statutory Provision 16 P.S. 1806, was limited to
those individuals defined by the Constitution as officers.
b. Employees were not defined in the constitution.
c. With respect to elected officials, any fee generated cannot be retained if
it is incidental to the particular office. Each case must stand on it's own
factual circumstances for determination as to whether the fee is
incidental to the conduct of a particular office.
32. On August 5, 1991, Blair Pawlowski, Solicitor for the Cambria County
Department of Human Services, initiated an Advice Request to the State Ethics
Commission in regard to county employees participating, in a private capacity,
in the County Accelerated Rehabilitative Disposition (A.R.D.) Program for which
they would be paid from fee's paid by participants of the program.
a. The advice was requested on behalf of Justin Roberts and other
employees and officials including Jay Roberts, Sheriff and DUI Instructor;
Christine Driskel, Administrative Assistant, and CRN Evaluator and
Clerical; Michele Denk, Drug and Alcohol Specialist and CRN Evaluator;
Patrick DeRubis, Fiscal Operations Officer and performing fiscal
responsibilities in regard to the DUI Program.
b. The Advice was requested in regard to potential prospective conduct, in
that the named individuals had been requested to again perform services
in relation to the program.
33. On September 19, 1991, the Legal Division of the State Ethics Commission
issued an Advice of Counsel, No. 91 -581 to Pawlowski. The advisory provided
in part:
a. In applying Section 3(a) of the Ethics Law to the instant matter, we note
that Section 3(a) does not prohibit public officials /employees from
business activities or employment outside of their public service as public
officials /employees; however, the public official /employee may not use
the authority of office for the advancement of his own private pecuniary
benefit or that of a business with which he is associated. Pancoe,
Opinion 89 -011. Should any of these individuals use the authority of
office or confidential information received through the public position to
obtain a private pecuniary benefit for himself, or for an immediate family
member or a business with which the individual or an immediate family
member is associated, such would constitute a conflict of interest
prohibited by Section 3(a) of the Ethics Law.
Roherts, 91- 032 -C; 95- 066 -C2
Page 9
b. For example, if any of these individuals was to use the authority of his
office to assign himself to perform services in the A.R.D. program, such
would constitute a conflict of interest. This is a most important point
because you indicated in your telephone conversation with Assistant
Counsel for this Commission that Justin L. Roberts may have some role
in work assignments for this program, although your later faxed
transmission represents and assures this Commission that James Kudel,
the Director of the Department of Human Services, "has made and will
continue to make any work assignments pursuant to the Commissioners'
resolution." Thus, subject to the restrictions herein herein 1nel conditioned upon
your express representation that none of these named individuals,
including Justin L. Roberts, has any role whatsoever in selecting
participants for the program and /or assigning individuals to particular
work assignments in the program, the participation of these individuals
in the program would not constitute a conflict of interest.
c. A public official /employee must exercise caution so that his private
business activities do not conflict with his public duties. Crisc(, Opinion
89 -013. Thus, a public official /employee could not perform private
business using governmental facilities or personnel. In particular, the
governmental telephones, postage, staff, equipment, research materials,
personnel or any other property could not be used as a means, in whole -
or part, to carry out private business activities. In addition, the public
official /employee could not during government working hours, solicit to
promote such business activity. Pancoe, supra.
d. The advisory concluded that as MH /MR Administrator for Cambria
County, Pennsylvania, Justin L. Roberts is a public employee subject to
the provisions of the Ethics Law. Section 3(a) of the Ethics Law would
not preclude Roberts from outside employment /business activity -
including participating as instructor, guest speaker, and /or administrator
in Cambria County's Accelerated Rehabilitative Disposition ( "A.R.D. ")
program - subject to the restrictions and qualifications as noted above.
The Advice is expressly conditioned upon the representations and
assurances which you have made to this Commission that none of these
individuals will select participants or make any work assignments with
respect to the A.R.D. program. None of these individuals may use the
authority of office or any confidential information gained through public
position to obtain any business in a private capacity, including but not
limited to participation in the A.R.D. program. In the event that the
private employment or private business matters of any of these
individuals would be pending before their governmental body, then said
individuals could not participate in such matters and the disclosure
requirements of Section 30) of the Ethics Law as outlined above must be
satisfied. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law.
34. On September 27, 1991, Judge Gerald Long, Court of Common Pleas of
Cambria County issued miscellaneous docket order 98 -91 regarding the
operation of interviews and school instruction for the A.R.D. Program.
Roberts 91- 032 -C; 95- 066 -C2
Page 10
a. The order was issued following a review of the State Ethics Commission
Advisory Opinion.
b. Justin Roberts and Christine Driskel were appointed to perform CRN
evaluations at $20.00 per hour;
c. Justin Roberts and Jay Roberts were appointed as Instructors of the DUI
School at $20.00 per hour;
d. Patrick DeRubis was to provide bookkeeping services at $9.60 per hour;
e. All individuals were required to keep a uniform time sheet of the service
provided, time and date, and identity of the client, and turn them in
monthly.
f. None of the individuals will do any of the work authorized by the order
during the hours of 8:00 a.m. to 4:00 p.m. Monday through Friday, the
normal workday.
35. Between September 20, 1991 and November 20, 1991, Justin Roberts
conducted CRN evaluations, during his lunch hour or on days that he took
vacation.
a. Roberts conducted 40 CRN evaluations on nine days, during this time
period.
b. Roberts no longer conducted CRN's, during his regular working hours.
36. Effective December 1991, Christine Driskel became the sole CRN evaluator in
the Cambria County DUI Program.
a. This was the result of a decision made by President Judge D. Gerard
Long.
37. Justin Roberts was compensated for conducting 397 CRN evaluations between
January 1988 and September 1991.
#'s of CRNS
a. Year conducted e $20 /CRN Total/Year
1988 99 $ 1,980.00
1989 103 2,060.00
1990 113 2,260.00
1991 82 1,640.00
TOTAL $ 7,940.00
11I. DISCUSSION:
Initially, it is noted that the allegations in this case relate to both Act 9 of 1989
and Act 170 of 1978. In this regard, Section 9 of Act 9 of 1989, P.L. 26, provides,
in part, as follows:
Rnherts 91- 032 -C; 95- 066 -C2
Page 11
This amendatory act shall not apply to violations committed prior
to the effective date of this act, and causes of action initiated for such
violations shall be governed by the prior law, which is continued in effect
for that purpose as if this act were not in force. For the purposes of this
section, a violation was committed prior to the effective date of this act
if any elements of the violations occurred prior thereto.
Under both Act 170 of 1978 and Act 9 of 1989, as a Mental Health/ Mental
Retardation Drug & Alcohol Administrator II (MH /MR /D &A) for Cambria County, Justin
Roberts, hereinafter (Roberts), is a public employee as that term is defined under both
Acts. See also 51 Pa. Code. As such, his conduct is subject to the provisions of both
laws and the restrictions therein are applicable to him.
The issue before us is whether Roberts violated Section 3(a) of Act 9 of 1989
and Section 3(a) of Act 170 of 1978 when he allegedly used the authority of his office
for a private pecuniary benefit by contracting to perform alcohol (CRN's) evaluations
and participating in a breathalyzer class during regular office hours.
Section 3(a) of Act 9 of 1989 provides as follows:
Section 3. Restricted Activities
(a) No public official or public employee shall
engage in conduct that constitutes a conflict of interest.
65 P.S. §403(a).
The term "conflict of interest" is defined under Act 9 of 1989 as follows:
Section 2 Definitions.
65 P.S. §402.
"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 or
his immediate family or a business with which he or a
member of his immediate family is associated.
Section 3(a) of Act 170 of 1978 provides as follows:
Roberts 91- 032 -C; 95- 066 -C2
Page 12
65 P.S. §403(a).
facts.
Section 3. Restricted Activities.
(a) No public official or public employee shall use his public
office or any confidential information received through his
holding public office to obtain financial gain other than
compensation provided by law for himself, a member of his
immediate family, or a business with which he is
associated.
Under Section 3(a), of Act 170 of 1978 quoted above, this Commission has
determined that use of office by a public official to obtain a financial gain for himself
or a member of his immediate family or a business with which he is associated which
is not provided for in law transgresses the above provision of law. Thus, use of office
by a public official to obtain financial gain which is not authorized as part of his
compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics
Commission 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics
Commission 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a)
of the Ethics Act would prohibit a public official /employee from using public office to
advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa.
Commw. Ct. 19, 540 A.2d 1374 (1988).
Having noted the issues and applicable law, we shall now summarize the salient
Although Roberts was originally employed by Cambria County in 1978 as a Drug
and Alcohol Specialist, he was promoted to and is currently the Administrator of the
Cambria County Department of Human Services for Mental Health /Mental Retardation,
Drug and Alcohol (MH/MR/D&A). The job description for an MH /MR Administrator is
to administer the County Program, ensure the availability of services, analyze and
evaluate the needs and services in the County, perform functions for the County Drug
and Alcohol Program and provide various supervisory functions. Although Roberts'
position required him to be available 20 hours per day, his traditional work hours were
from 8 am to 4 pm with a one -half hour lunch.
In 1978 Cambria County became involved in a Driving Under the Influence (DUI)
Program resulting from a grant of monies from PennDOT to fund Breathalyzer
Programs at the County level. The Cambria County Commissioners, by letter dated
July 20, 1978, committed to be the contract agency for the Breathalyzer Program
sponsored by the D &A Program. The grant allowed for an educational program and
rehabilitative treatment of DUI individuals. Roberts advised PennDOT that the Cambria
County Commissioners and D &A staff would agree to sponsor and support the
Breathalyzer Program according to the conditions of the Highway Safety Program.
After the Cambria County President Judge authorized the County to participate
in the DUI schools, John Henry, Jay Roberts and Roberts were named to serve as
Coordinators /Instructors for the program. As per the requirements of the DUI
legislation, Act 289 of 1983, those individuals became certified instructors. The three
individuals needed to attend a court reporting network (CRN) certification workshop
but could in the interim conduct educational classes. During the first two years, fees
were not paid to individuals performing services related to the DUI Program.
Roberts 91- 032 -C; 95- 066 -C2
Page 13
Roberts became certified as a CRN Evaluator by PennDOT and the Department
of Health in April, 1983. At that time, no certification was required for CRN
Evaluators and Roberts served in that capacity from 1983 through 1991. Roberts
became certified in September, 1983 as a DUI Instructor by the Governor's Traffic
Safety Council. Roberts was promoted to the position of MH /MR Administrator in
July, 1984.
The Cambria County Commissioners on January 1, 1985 enacted a Resolution
establishing a DUI Counter Attack Program which included a schedule of fees for
services. That Resolution allowed the Director of Human Services to administer the
Program, assign duties to individuals at his discretion provided they were qualified and
certified, assign individuals to interview defendants with compensation at the rate of
$20 per interview, pay instructors at the rate of $20 per teaching hour provided there
was no interference with their regular County employment. The fee schedule attached
to the Resolution provided for DUI Instruction at $20 an hour, CRN Evaluations at $20
an hour, Breathalyzer Program activities at $9.60 an hour. A subsequent Resolution
regarding CRN functions provided for a payment of $20 per interview.
Although Roberts performed CRN evaluations from 1983 through 1991, he did
not receive any payments until after 1985 when approved by the County
Commissioners. Roberts performed CRNs so as not to interfere with his regular
performance of his County duties. The CRN evaluations were scheduled by Christine
Driskel, who is an MH /MR /D &A Administrative Assistant and certified CRN Evaluator.
For the period January, 1988 through September, 1991, Roberts conducted
approximately 392 CRN evaluations which were typically scheduled and conducted
during his traditional County working hours. However, there were also times that
Roberts did evaluations during vacation or personal leave or prior to the start of his
regular work day at the County.
As a certified DUI Instructor, Roberts usually held evening classes after his
regular working hours. The record reflects one instance on December 12, 1989 when
Roberts assisted an instructor in teaching policemen the use of the portable
breathalyzer which instruction occurred between 7:30 and 4:30 during a regular work
day for which Roberts was paid a full days wage as MH /MR /D &A Administrator.
In January, 1990, Roberts contracted with Cambria County DUI Counter Attack
Program to provide services as to the DUI Program for the calendar year 1990 at a rate
of $9.60 an hour for testing and $20 an hour for giving instruction.
When the Cambria County Controller raised a question regarding the County
Code prohibition against County officers having an interest in a County contract for
such programs, the County Solicitor issued an opinion that the Code was limited in its
application to elected and appointed officials but not employees. After the Solicitor
requested an advisory from the Ethics Commission, Advice of Counsel 91 -581 was
issued on September 19, 1991. In summary, the Advice of Counsel directed that
although Roberts was not precluded from outside employment or business activities,
he could not use the authority of office, confidential information, government facilities
or personnel for outside business activities.
Subsequently, an Order was issued from the Court of Common Pleas of Cambria
County that Roberts and Christine Driskel were appointed to perform CRN evaluations
at $20 per hour but that none of the individuals could do any work during the hours
Roberts 91-032-C; 95-066-C2
Page 14
of 8 am to 4 pm, Monday through Friday. From September through November, 1991,
Roberts conducted CRN evaluations during his lunch hour or on days that he took
vacation. From December, 1991 forward, Christine Driskel became the sole CRN
Evaluator in the Cambria County DUI Program.
Having summarized the above relevant facts, we must now determine whether
the actions of Roberts violated Section 3(a) of Act 9 of 1989 and Section 3(a) of Act
170 of 1978.
In order to establish a violation, Section 3(a) requires a use of the authority of
office or confidential information by a public official /employee for the private pecuniary
benefit of himself, a member of his immediate family, or business with which he or a
member of his immediate family is associated.
In this case, we find technical violations under both Section 3(a) of Act 170 of
1978 and Act 9 of 1989 regarding Roberts activities as a County employee in
performing certain functions as to these County- sponsored programs for which he
received compensation in addition to his regular compensation as a County employee.
There clearly was a use of authority of office by Roberts in that at times he engaged
in these activities during his regular office hours. Such action by Roberts resulted in
a financial gain or pecuniary benefit consisting of the fees that he received for
performing such services. Lastly, the pecuniary benefit was private and the financial
gain was other than compensation provided for by law because such activities should
not have occurred during his regular working hours. Accordingly, Roberts committed
technical violations of Section 3(a) of Act 170 of 1978 and Act 9 of 1989 when he
engaged in the above activities.
Our decision above is consistent with our prior precedent wherein we have held
that public officials /employees cannot for financial gain engage in private business,
election, campaign, or other non - official governmental activities during regular office
hours nor can they use the offices, personnel, equipment or supplies for such
activities. Cohen Order 610; Williams, Order 734; Rakowskv Order 943.
Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S.
§407(13), specifically empowers this Commission to impose restitution in those
instances where a public official /employee has obtained a financial gain in violation of
the Ethics Law. The parties have stipulated that the private pecuniary benefit amounts
to $620. See, Fact Findings 23, 28. Therefore, we find that restitution of $620 is
warranted. Since Roberts has already made payment in the amount of $620 through
this Commission to Cambria County, we shall take no further action in this case.
Lastly, we note that the parties have filed a Consent Agreement and Stipulation
of Findings which set forth a proposed resolution of the allegations. We believe that
the Consent Agreement is the proper disposition for this case based upon our review
as reflected in the above analysis and the totality of the facts and circumstances.
IV. CONCLUSIONS OF LAW:
1. Justin Roberts, as a Mental Health /Mental Retardation Drug & Alcohol
Administrator II for Cambria County, is a public employee as that term is defined
under Act 170 of 1978 and Act 9 of 1989.
Roberta, 91- 032 -C; 95- 066 -C2
Page 15
2. A technical violation of Section 3(a) of Act 170 of 1978 occurred when Roberts
was compensated for performing CRN's during the traditional hours of a MH /MR
Administrator.
3. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Roberts
was compensated for CRN's during the traditional hours of a MH /MR
Administrator and when he participated in instructing a breathalyzer class during
his traditional working hours.
4. The private pecuniary benefit received by Roberts was $620.00.
In re: Justin Roberts
File Dockets: 91 -032 -C
95- 066 -C2
Date Decided: 8/27/96
Date Mailed: 9/6/96
ORDER NO. 101 S
1. Justin Roberts, as a Mental Health /Mental Retardation Drug & Alcohol
Administrator II for Cambria County, technically violated Section 3(a) of Act
170 of 1978 when he was compensated for performing CRN's during the
traditional hours of a MH /MR Administrator.
2. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Roberts
was compensated for CRN's during the traditional hours of a MH /MR
Administrator and when he participated in instructing a breathalyzer class during
his traditional working hours.
3. Since Roberts has made restitution in the amount of $620.00 as to the private
pecuniary benefit, we shall take no further action.
BY THE COMMISSION,
UANEEN E. HEESE, CHAIR