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HomeMy WebLinkAbout1258 HeinemanIn Re: Neil Heineman File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael Healey 01- 023 -C2 Order No. 1258 12/4/02 12/16/02 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 not 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 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Heineman 01- 023 -C2 Page 2 I. ALLEGATION: That Neil Heineman, a ublic official /public employee) in his capacity as a Supervisor and Chairman of the Board of u ervisors for Sadsbury Township, Chester County, violated Section 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 utilizing township equipment, including but not limited to a township backhoe and dump truck for work projects on his personal property; when he participated in discussions and actions of the board of supervisors to change the location of sewer lines to avoid paying the required tap -in fees; and when he was compensated for the position of township treasurer without having the salary approved by the township board of auditors. II. FINDINGS: 1. Neil Heineman served as a Sadsbury Township, Chester County, supervisor from January 4, 1996, to December 31, 2001. 2. Heineman was annually appointed chairman of the Sadsbury Township Board of Supervisors from 1998 through 2001. 3. Heineman served as roadmaster for Sadsbury Township from January 4, 1996, until leaving office at the end of 2001. a. As Township Roadmaster, Heineman served as liaison between the board of supervisors and the road department employees and was the immediate supervisor of Road Foreman Doug McGuigan. 4. Heineman was appointed temporary Township Treasurer on March 3, 1998, by the board of supervisors. a. Heineman abstained from the vote. b. Heineman was appointed due to the resignation of township secretary/treasurer Debra Arnold. 5. Heineman was re- appointed temporary township treasurer during the township reorganization meeting of January 4, 1999. a. Heineman was appointed township treasurer on January 4, 2000, and January 2, 2001. 6. The entire board of township auditors resigned their positions in 1998 prior to commencing the audit of the township accounts for 1997. 7. No auditors were available in 1998 or 1999 to set a rate of compensation for Heineman serving as temporary township treasurer and roadmaster. a. The township board of auditors set a salary for the treasurer's position in 2000 and 2001 as follows: 2000: $17.00 /hour 2001: $18.00 /hour 8. Heineman began collecting compensation as treasurer at a rate of $15.00 /hour beginning with the pay period March 31, 1998. a. This was the rate previously set by the board of supervisors for the previous Heineman 01- 023 -C2 Page 3 treasurer. b. Heineman was compensated for 699.85 hours in 1998 for treasurer duties. c. Heineman's net compensation for 1998 as roadmaster and treasurer totaled $9,122.98. 9. During a special meeting of February 11, 1998, the board of supervisors unanimously approved the hiring of the certified public accounting firm, Croft, Drozd, Barr and Company to perform the township audit for 1997 at a rate not to exceed $5,000.00. a. The company was reappointed in 1999 to conduct the 1998 audit. 10. In December 1998 Heineman requested the appointed auditors (Croft, Drozd & Barr) set a rate of compensation for him in the position of treasurer for calendar year 1999. a. On December 16, 1998, Joseph Drozd, CPA, of Croft, Drozd, Barr and Company, notified the board that a rate of $16.00 /hour was set for Neil Heineman's services as township treasurer for 1999. 11. Heineman was compensated at $16.00 /hour, the rate set by the appointed township auditors, in 1999 for treasurer duties. a. Heineman was paid a total of $13,912 as treasurer and roadmaster. 12. The compensation received by Heineman for the position of roadmaster and treasurer in 1999 was approved by the auditors hired to do the audit of township accounts. 13. Heineman, as treasurer, signed checks issued to him in 1998 and 1999 and approved payments to him as part of the township payroll. a. Heineman, as treasurer, and at least two (2) supervisors were required to sign checks. (The following findings relate to the allegation that Neil Heineman used township equipment for personal purposes) 14. In February of 1999, the Sadsbury Township Board of Supervisors sought proposals for the purchase of a new backhoe for the township road department. 15. The township solicited and received quotes from the following companies. a. Plasterer — Equipment Co. - John Deere backhoe at $65,449.36. b. Heitzman Equipment Co. - Case backhoe at $62,100.00. c. Giles and Ransome - Caterpillar backhoe at $77,582.00. 16. On June 1, 1999, Heineman prepared a memorandum to the board of supervisors recommending that the John Deere backhoe would best serve township needs. a. The memorandum outlined the process through which Heineman and McGuigan operated the equipment for approximately 10 to 15 hours, met with representatives of the various equipment companies, watch videos, talked with backhoe operators and made phone calls concerning information on service for the equipment. Heineman 01- 023 -C2 Page 4 b. The memorandum concluded that it was Heineman's and McGuigan's opinion that the Board of Supervisors should purchase the John Deere backhoe, Model 410E, for $69,340.51 (including options). c. The memo contained the signatures of Heineman and McGuigan. 17. During the board of supervisor's meeting of June 1, 1999, Supervisor Heineman made a motion, seconded by Supervisor Ralph Garris, that the township purchase the backhoe from Plasterer Equipment Company for $69,340.51, using the state piggyback system. a. The motion passed by a unanimous vote of the three member board. 18. Prior to, and subsequent to the purchase of the backhoe, Heineman was not required to, and did not operate a backhoe, or similar type equipment, as an employee of the township. 19. In February 2000, Heineman approached Supervisors Garris and Terry Franciscus, before a supervisors meeting, and asked if they opposed him taking the new backhoe to his residence to do the demolition work. a. Garris informed Heineman that he, Heineman, would have to be the judge as to whether it was proper for him to use the backhoe at his residence. b. Franciscus was not opposed, but did not approve, the use of the backhoe by Heineman. 20. The issue of Heineman using the backhoe at his residence was not discussed at a public meeting prior to Heineman using the equipment around his home. a. The board of supervisors never publicly voted to authorize Heineman using the backhoe for personal projects. 21. At about the time of Heineman's request the road crew was using the backhoe for a project on Buck Run Creek, a stream located in close proximity to Heineman's property. a. As roadmaster, Heineman decided to store the backhoe at his residence at night, during the workweek. b. Heineman stored the backhoe at his residence because of convenience, and he wanted to practice using the backhoe by tearing down a section of his residence. 22. Sadsbury Township employees were never required, as part of their regular township duties, to demolish a building. 23. It was not a necessity to store the backhoe at Heineman's residence. a. The job site at Buck Run Creek was approximately one mile to one and one -half miles from the township building where the backhoe is normally stored and would have taken ten to fifteen minutes to drive the backhoe back to the township garage. 24. The backhoe was left at Heineman's residence for approximately one month in March 2000 during which time Heineman used it to demolish a section of his residence. a. McGuigan did not participate in demolishing the building. Heineman 01- 023 -C2 Page 5 25. During the time period in March 2000 when he used the township backhoe for demolition of personal property, Heineman claimed 148.75 hours worked or an average of 35 hours per week. 26. Heineman's use of the township backhoe was observed by township residents who expressed outrage at Heineman's use of the equipment during the April 3, 2000, public meeting of the board of supervisors. a. After being confronted by residents over the use of the township backhoe for personal purposes, Heineman offered that interested parties would also be able to use the township backhoe. 27. The cost of renting a John Deere, Model 410E, backhoe, during the year 2000, would have amounted to $275 per day, $825 per week, or $2,400 per month. (The following findings relation [sic] to the allegation that Neil Heineman participated in decisions of the board of supervisors to relocate sewer lines to avoid paying tap -in fees. 28. In June 1994, Sadsbury Township engineer prepared an updated Act 537 Sewage Facilities Plan. a. The plan included a cooperative agreement among the township, the Borough of Parkesburg and the City of Coatesville. 29. In November 1994, the Chester County Department of Health determined that in excess of 50% of the township on -lot sewage disposal systems were malfunctioning. a. The study concluded that a need existed for the township to provide an alternative to the present method of sewage disposal. b. The report recommended addressing alternatives during the Act 537 planning process. c. The county study was done as part of a revision and update of its Sewage Facilities Act 537 Plan. 30. A group of townships residents were concerned with the township's proposed Act 537 Sewer Plan and the cost of connecting to the system and formed an association in 1994 called the Sadsbury Township Concerned Citizens. a. Neil Heineman served as Vice - President of the Concerned Citizens group. b. Many members of the Concerned Citizens were opposed to a sewer system due to costs for connecting and tap -in fees. c. The group was critical of the Chester County assessment claiming the county was biased in favor of a public sewer system. d. The group pushed for an independent survey. 31. In August 1995 Sadsbury Township contracted with Lanchester Soil Consultants to conduct an unbiased survey of the same areas surveyed by the county. a. That survey similarly concluded that a solution to sewage disposal needs of certain areas of the township needed to be addressed. Heineman 01- 023 -C2 Page 6 b. One of the identified areas of potential concern was the area where Neil Heineman resides and owns rental properties. 32. In 1995, five individual Sadsbury Township property owners/developers felt a sewer system would benefit efforts to develop their land and formed the Sadsbury Sewer Corporation (SSC) to explore the possibility of a public sewer system. a. The SSC was formed with the intention of financing the construction of a sewer system through a section of Sadsbury Township. b. In 1996, the SSC hired the engineering firm of Alfred Benesch and Company to design the sewer system for the lands owned by the participating property owners of the SSC which would be turned over to the township. 33. In order for the SSC to build a section of the sewer system and deed it to the township, the township board of supervisors were required to amend the township's Act 537 Plan, the Sewage Facilities Planning Act. a. The township authorization to the SSC to proceed and subsequent amendment to the plan gave the board of supervisors the opportunity to have input on the location of the sewer lines; who was going to be served by the system; and the size of the sewer lines. 34. The board of supervisors, with Heineman present, met with the SSC and the CCA, on numerous occasions during 1996, and 1997, to discuss the proposed sewer system. a. Heineman took an active role in the discussions with the CCA and SSC. 1. Heineman was opposed to a public sewer system as proposed in the Act 537 Plan. 2. One of the reasons for Heineman's opposition was the plan would have resulted in increased expenses for Heineman for tap -ins of his personal and rental properties. b. The discussions resulted in revisions to the Act 537 Plan. 35. The township revised the Act 537 Plan in January 1995, February 1997 and August 1997. 36. In February of 1996, the Sadsbury Township Board of Supervisors, at Heineman's request, hired David Linahan, P.E., of Yerkes Associates, to evaluate the feasibility as to whether the township should construct a sewer system, tie into the system owned by the City of Coatesville Authority (CCA), or construct their own sewer plant. a. In July of 1996, Linahan provided an opinion to the board of supervisors that it would be more beneficial for the township to construct their own sewer system and connect it to the CCA sewer plant. 37. During the period from 1996 through December 1997, when the township was discussing and negotiating proposals with the SSC and CCA, Heineman consistently opposed the township's involvement with the proposed sewer plan and voted against the agreements with SSC and the CCA and the formation of a sewer authority. a. Heineman was opposed to agreements with the City of Coatesville and the SSC and voted against approving agreements on April 7, 1997, and July 7, 1997. Heineman 01- 023 -C2 Page 7 1. The motions were approved by 2 to 1 votes. b. Heineman was in the minority on the board of supervisors and unable to block the agreements with SSC and CCA. 38. Heineman voted against the motions of the board approving actions for the sewer plan. a. On July 7, 1997, the board of supervisors approved Resolution 1997 -5, a resolution to adopt the Act 537 Plan and agreements with the CCA and SSC. b. On October 14, 1997, the board of supervisors approved the hiring of Yerkes Engineering for work on the sewer system. 1. The board of supervisors also reviewed and approved Township Ordinance 1997 -5, which formed the Municipal Sewage Authority of Sadsbury Township. 2. Heineman voted against the formation of a sewage authority. 3. The board appointed Supervisors Ralph Garris, Douglas Doratt and Neil Heineman to serve on the Authority along with township residents Donald Daggett and William Barnes. c. On December 1, 1997, the board of supervisors met, discussed and approved a motion that assigned the SSC and CCA agreements to the Municipal Sewage Authority of Sadsbury Township. 39. On January 5, 1998, Terry Franciscus replaced Supervisor Doratt on the board of supervisors. a. Franciscus was a member of the Concerned Citizens Group opposed to the sewer system. 40. Franciscus and Heineman made decisions to replace the township engineer and township solicitor due to their dissatisfaction with the engineer's and solicitor's support of the sewer system. 41. Heineman made the motions, at the January 5, 1998 board of supervisors reorganization meeting, to appoint Herbert E. MacCombie Jr., of MacCombie Consulting Engineers and Surveyors, as township engineer, and to appoint Attorney Vincent Pompo, of the law firm of Lamb, Windle, and McErlane, as township solicitor. a. The motions were approved by a 2 to 1 vote. 42. Heineman also initiated action, at the January 5, 1998 reorganization meeting, to dissolve the Municipal Sewage Authority of Sadsbury Township. a. The motion passed by a 2 — 1 vote upon motion by Heineman, seconded by Franciscus. 43. Heineman also made a motion at the January 5, 1998, meeting to establish a sewer committee with him serving as chairman and Franciscus serving as vice chairman. a. The motion passed with Heineman and Franciscus voting in favor. b. Heineman requested, and received, permission from Supervisors Garris and Franciscus to serve as liaison between the board of supervisors and the SSC. Heineman 01- 023 -C2 Page 8 44. As township liaison with the SSC, Heineman was the only supervisor to interact with engineers and contractors during the planning and construction phases of the sewer line project. 45. Sadsbury Township, through Ordinance Number 2000 -02, dated April 3, 2000, required that all property owners, with residences within 150 feet of the sewer, connect to the sewer system. a. It was known from discussions that took place in 1996 and 1997 that residences within 150 feet would be required to connect to the system. b. The Ordinance set a connection fee of $2,450 for each Equivalent Dwelling Unit connected to the system. 46. One of the main factors considered by the supervisors in designing the sewer system was to build the system as close as possible to as many residences in the township in order to require them to tap into the system. 47. Heineman owns the property at 9 Greenbelt Drive, Pomeroy, PA, which is located in Sadsbury Township. a. Heineman's personal residence is located on the property. b. A second building, containing 6 apartment units, is also located on the property owned by Heineman. 48. The original plans for the SSC sewer system, designed in 1995, called for the sewer line to run parallel to Greenbelt Drive, next to the east side of the road, in front of Heineman's property. a. If built as originally designed the sewer line would have come within 150 feet of Heineman's property thereby requiring him to tap in to the sewer system. 49. From 1997 through 2001 Heineman, as township supervisor and liaison to the SSC, participated in discussions with the SSC, representatives of the Alfred Benesch Company, David Linaham, and Herbert MacCombie, in reference to the location of the sewer line in front of his property. a. Heineman expressed concern that the proposed sewer line would interfere with his septic system, which was located on township land across Greenbelt Drive from his residence. b. Heineman informed Linahan of his preference of running the line adjacent to Buck Run Creek, either on the east or west side of the stream, which would place the system beyond the 150 feet limit, thus eliminating the need for Heineman to tie into the system. 50. At Heineman's direction, Linahan and the Benesch Company engineers researched the possibility of running the sewer line on the east side of the Buck Run Creek through a section of land owned by the Penguin Company. a. Penguin Company officials did not want the line on their property as it would require destroying trees and the natural setting of the land. 51. On December 10, 1998, Benesch Company engineers designed the sewer line to run adjacent to the west side of Buck Run Creek, in front of Heineman's property resulting in Heineman's apartment house being located beyond the 150 feet limit not requiring Heineman 01- 023 -C2 Page 9 connection to the sewer system. 52. The SSC approved the design in order to obtain Heineman's approval of the project. a. The township supervisors would have to approve the plan and accept a deed of dedication to take over the system. 1. To accept the deed of dedication the board of supervisors would have to approve the system's line location. 53. On or about November 10, 1999, Jacqueline Peleschak, an engineer for Benesch, during the construction stage of the sewer project, met with Lymberis, Herbert MacCombie and Heineman, to discuss the possibility of constructing the line closer to the location listed on the original plan which would bring both Heineman's residence and apartment house within the 150 feet that required the property owner to tie into the system. a. Heineman informed Peleschak and Lymberis that he wanted the line built as designed on the later plans, which placed his apartment complex beyond the 150 feet limit. b. Peleschak and Lymberis complied with Heineman's request because of Heineman's position on the board of supervisors and the need to have the board of supervisors approve the plan and accept dedication of the sewer system. 54. The sewer line was constructed as redesigned by Peleschak beginning in 1999. a. Heineman has not been required to tap -in to the sewer system. 55. On March 8, 2001, the Sadsbury Township Board of Supervisors, on a motion by Heineman, seconded by Garris, voted unanimously to approve Resolution 2001 -3 accepting dedication of the sewer system built by the SSC. 56. Heineman's vote to approve the system with changes that did not require him to connect his home and apartment complex to the sewer system saved him tap -in fees totaling $17,150.00 (7 tap -ins @$2,450.00) III. DISCUSSION: At all times relevant to this matter, the Respondent, Neil Heineman, hereinafter Heineman, 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 se as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Heineman as a Sadsbury Township Supervisor violated Section 1103(a) of the Ethics Act when he: utilized township equipment for work projects on his personal property; participated in discussions and actions of the board of supervisors to change the location of sewer lines to avoid paying tap -in fees; and received compensation as township treasurer without having the salary approved by the township board of auditors. 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: Heineman 01- 023 -C2 Page 10 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 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. Heineman served as a Sadsbury Township Supervisor and Roadmaster from January of 1996 through December of 2001. Because all of the Township Auditors resigned their positions in 1998 prior to commencing a township audit for the 1997 accounts, no auditors were available in 1998 or 1999 to set the rate of compensation for Heineman who was serving as the temporary township treasurer and roadmaster. Heineman began receiving compensation as Treasurer at $15 per hour from March of 1998 based upon the rate set by the Board of Supervisors for the previous treasurer. After the Board of Supervisors in a special meeting in February of 1998 appointed a private certified public accounting firm, Croft, Drozd, Barr and Company to perform the 1997 township audit, Heineman requested that the appointed auditor set his compensation for treasurer for the calendar year 1999. In December of 1998, the CPA firm notified the Board that it set the rate at $16 per hour for Heineman's services as township treasurer for 1999. The compensation received by Heineman for his positions of roadmaster and treasurer for 1999 was approved by the CPA firm. Heineman, as treasurer, signed checks issued to him in 1998 and 1999 and also approved payments to himself as part of the township payroll. Township checks required three co- signatures, the treasurer and two supervisors. As to the second allegation, Sadsbury Township, in February of 1999, sought proposals for the purchase of a backhoe for the township road department. Although Heineman as a township employee did not operate a backhoe either before or after its purchase, he approached two supervisors in February 2000 requesting that he take the new backhoe to his residence to do demolition work. The two supervisors neither approved nor opposed such action by Heineman. The utilization of the backhoe at Heineman's residence was not disclosed at a public meeting nor considered or authorized by the Board of Supervisors. Heineman 01- 023 -C2 Page 11 During that time, the road crew was using the backhoe for the Buck Run Creek Project which was in close proximity to Heineman's property. Heineman as roadmaster made the decision to store the backhoe at his residence at night during the workweek even though the project site was only 1 to 11/2 miles from the township building where the backhoe is stored. Further, Sadsbury Township employees were never required to store backhoe equipment at their personal residence. The backhoe remained at Heineman's residence for approximately one month during which time Heineman used it to demolish a section of his residence. After certain township residents observed Heineman's use of the township backhoe at his personal residence, they raised the issue at a public meeting. The cost of renting that particular type of backhoe amounted to $825 per week. The third allegation concerns the matter of Heineman's participation and relocation of a sewer line in the township. After both the Chester County Department of Health and the independent Lanchester Soil Consultants did a review as to the township sewage system, it was concluded that sewage disposal concerns had to be addressed in certain areas. One such area was where Heineman had his personal residence and several rental properties. In 1995, several property owners within the township formed the Sadsbury Sewer Corporation (SSC) to explore the possibility of a public sewer system through a section of the township. The SSC hired an engineering firm to design a sewer system for the land of the participating property owners which system plan would eventually be turned over to the township. The Board of Supervisors met with SSC representatives on numerous occasions. At those times, Heineman took an active role in opposing the plan. In this regard, the plan would have resulted in increased expenses for Heineman, consisting of tap -in fees as to his personal and rental properties. In February of 1996 at Heineman's suggestion, the Township Board of Supervisors contracted with a consultant to evaluate the feasibility of the township of either constructing the sewer line, tying in the system to another municipality, or constructing its own sewer plant. f The consultant concluded that it would be more beneficial for the township to construct its own sewer system and connect it to the existing municipal system of the City of Coatesville Authority (CCA). During this time, Heineman consistently opposed the township's involvement with the proposed sewer plant and voted against agreements with SSC and CCA and the formation of a sewer authority. However, since Heineman was in the minority, he was unable to block the agreements between Sadsbury Township and the SSC and CCA. When one of the supervisors was replaced in January of 1998 by Terry Franciscus who was opposed to the sewer system, Heineman and Franciscus made the decision to replace the township engineer and solicitor who were supportive of the proposed sewer system. The township engineer and solicitor were replaced by 2 -1 vote with Heineman and Franciscus voting in favor of the replacements. In addition, by a 2 -1 vote, Heineman and Franciscus initiated action to dissolve the Township Municipal Sewage Authority. Finally, Heineman made a motion for the establishment of a township sewer committee with himself as chairman and Franciscus as vice - chairman. As township liaison to the SSC, Heineman was the only supervisor who could interact with the engineers and contractors regarding the planning and construction phases of the sewer line project for the township. As to sewer line tap -ins, the existing Sadsbury Township Ordinance provided that residents within 150 feet of the sewer were required to tap -in and pay a connection fee of $2,450 for each equivalent dwelling unit connected to the system. As the sewer system was originally laid out, Heineman's personal property as well as a second building containing six apartment units were within the 150 feet of the sewer so as to require tap -in connections. From 1997 through 2001, Heineman, as a township supervisor, participated in actions relative to the location of the sewer line in front of his property. Heineman advocated for Heineman 01- 023 -C2 Page 12 running the sewer line in a different location which would place the system beyond the 150 feet limit thereby eliminating the need for Heineman to connect to the system. The engineers, at Heineman's directions, researched the possibility of running the sewer line at the other location. Opposition to the change of location existed because certain individuals were concerned about the destruction of trees and the natural setting of the land if the sewer line were relocated. However, the sewer line was redesigned to that other location resulting in Heineman's apartment house being located beyond the 150 feet tap -in requirement. This was done in order to obtain Heineman's approval for the project. After an engineer from the firm discussed the possibility of constructing the line closer to the original location which would have brought Heineman's properties within the 150 feet tap -in requirement, Heineman stated that the lines were to be built as designed. The engineers complied with Heineman's request because of Heineman's position on the Board of Supervisors. Beginning in 1999, the sewer line was constructed and Heineman was not required to tap -in to the sewer system. In March of 2000, the Township Board of Supervisors voted unanimously to approve a resolution as to the sewer system. Such action did not require Heineman to tap into the sewer as to his home and apartment complex thereby saving him $17,150 as to seven tap -in fees. 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 proposes that this Commission find: no violation occurred when Heineman received compensation as township treasurer without having a salary approved by the elected township auditors because the salary was set by the appointed auditors; a violation of Section 3(a)/1103(a) of the Ethics Act when Heineman participated in actions and votes of the board of supervisors resulting in the location of a sewer line being moved thereby eliminating the requirement that his properties tie into the system; and an unintentional violation of Section 3(a)/1103(a) of the Ethics Act when Heineman used township equipment, specifically a front -end loader, for personal projects. In addition, Heineman agrees to make ayment of $3,500 through this Commission to Sadsbury Township within thirty days of the date of mailing of this Order. In applying Section 3(a)/1103(a) of the Ethics Act to the first allegation, there were uses of authority of office when Heineman co- signed checks in payment to himself for acting as township treasurer. The uses of authority of office resulted in pecuniary benefits to Heineman himself consisting of the payments he received as treasurer. However, the pecuniary benefits were not private in that they were authorized in law. In particular, the CPA firm that was retained by the township to conduct the 1997 township audit specifically set the compensation at $16 per hour for the township treasurer. Accordingly, the compensation Heineman received at the rate $16 per hour was authorized in law. Hence, Heineman did not violate Section 3(a)/1103(a) of the Ethics Act as to his compensation as township treasurer in that the salary was set by the appointed township auditors. See, Akerly, Order 976. Turning to the second allegation concerning the use by Heineman of the township backhoe for personal purposes, there were uses of authority of office by Heineman. But for the fact that he was the township supervisor, he would not have been in a position as supervisor and roadmaster to direct that the backhoe be parked during work week nights at his personal residence. While the backhoe was on Heineman's personal residence, he utilized the backhoe to demolish a portion of his personal residence. Such actions were uses of authority of office. The uses of authority of office resulted in a pecuniary benefit to Heineman consisting of his utilization of the township backhoe for personal purposes without any out of pocket expenses on his part. Such pecuniary benefits were private because there is no authorization in law for Heineman to utilize township equipment for personal purposes. Heineman 01- 023 -C2 Page 13 Accordingly, Heineman unintentionally violated Section 1103(a) of the Ethics Act when he used township equipment for personal work on his private residence. See, Keeney, Order 1243. As to the allegation concerning the relocation of the sewer line, the stipulated findings reflect numerous instances and actions by Heineman as a supervisor and also as Chairman of the Sewer Committee blocking any action whereby the sewer line would be located within 150 feet of his ersonal residence and rental units as well as taking actions to relocate the line so that it would be beyond 150 feet thereby eliminating the requirement that Heineman would have to pay seven tap -in fees at $2,450 per unit. Heineman, in his elected public position, was instrumental and effective in specifically locating the sewer system so that he would not be required to pay the tap -in fees. This Commission has long held that use of office to eliminate personal or out -of- pocket expenses constitutes a pecuniary benefit. See, Catone, Order 994. This is precisely what Heineman did in this case. Heineman violated the public trust by looking out for his personal interest rather than the public interest. Accordingly, Heineman violated Section 1103(a) of the Ethics Act when he used the authority of office as a township supervisor resulting in the location of the sewer line being moved to a position which eliminated the requirement that his properties tie into the system. 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, Heineman is directed to make payment in the amount of $3,500 made payable to Sadsbury Township and forwarded to 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. Heineman, as a Supervisor and Chairman of the Board of Supervisors for Sadsbury Township, was a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Heineman did not violate Section 3(a)/1103(a) of the Ethics Act as to his compensation as township treasurer in that the salary was set by the appointed township auditors. 3. Heineman unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used township equipment for personal work on his private residence. 4. Heineman violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office as a township supervisor resulting in the location of the sewer line being moved to a position which eliminated the requirement that his properties tie into the system and that he pay tap -in fees. In Re: Neil Heineman ORDER NO. 1258 File Docket: 01- 023 -C2 Date Decided: 12/4/02 Date Mailed: 12/16/02 1. Heineman, as a Supervisor and Chairman of the Board of Supervisors for Sadsbury Township, did not violate Section 3(a)/1103(a) of the Ethics Act as to his compensation as township treasurer in that the salary was set by the appointed township auditors. 2. Heineman unintentionally violated Section 3(a)/1103(a) of the Ethics Act when he used township equipment for personal work on his private residence. 3. Heineman violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office as a township supervisor resulting in the location of the sewer line being moved to a position which eliminated the requirement that his properties tie into the system and that he pay tap -in fees. 4. Per the Consent Agreement of the parties, Heineman is directed to make payment in the amount of $3,500 made payable to Sadsbury Township and forwarded to 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, Louis W. Fryman, Chair