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HomeMy WebLinkAbout1355 KendallIn Re: Norbert Kendall File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Paul M. Henry Raquel K. Bergen 04 -034 Order No. 1355 2/28/05 3/1/05 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 ( "Ethics Act "), Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." A letter response was filed that did not contest the fact Findings of the Investigative Complaint. A hearing was waived. The record is complete. This adjudication of the State Ethics Commission is issued under the Ethics Act 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 the Ethics Act. 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. Kendall, 04 -034 Page 2 I. ALLEGATION: That Norbert Kendall, a (public official /public employee) in his capacity as a Supervisor of Wilmington Township, Lawrence County, violated the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for a private pecuniary gain by claiming hours worked as township roadmasterwhich were related to his position as an elected township supervisor; and when he failed to disclose on Statements of Financial Interests filed for the 2002 and 2003 calendar years income in excess of $1,300. 65 Pa.C.S. § 1102. § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term 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. Section 1105. Statement of financial interests (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. 65 Pa.C.S. §1105(b). II. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Norbert Kendall violated provisions of the State Ethics Act (Act 93 of 1998). Kendall, 04 -034 Page 3 2. Upon review of the complaint the Investigative Division initiated a preliminary inquiry on May 20, 2004. 3. The preliminary inquiry was completed within sixty days. 4. On July 12, 2004, a letter was forwarded to Norbert Kendall, by the Investigative Division of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7002 3150 0000 6075 2422. b. The domestic return receipt bore the signature of Norbert Kendall, with a delivery date of July 14, 2004. 5. Periodic notice letters were forwarded to Timothy R. Bonner, Esquire in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 6. The Investigative Complaint was mailed to the Respondent on January 5, 2005. 7 Norbert Kendall has served as a Supervisor for Wilmington Township, Lawrence County, since January 1994. a. Kendall served in the office of board Chairman from 1995 through 2003. b. Kendall served in the office of board Vice - Chairman in 2004. c. Kendall was appointed as the Wilmington Township delegate to the Lawrence County Council of Governments from at least 1999 through 2004. 8. Wilmington Township is a second -class township governed by a three - member board of supervisors. a. Supervisors currently receive $50.00 gross per meeting as payment for services in their supervisor capacity. 1. Regular meetings are held once per month. 2. Occasional special meetings are held throughout the year. b. The supervisors must be present at the meeting to receive the $50.00. 9. Kendall has been appointed as a township roadmaster annually during his entire length of service as a township supervisor. a. All three Wilmington Township supervisors are appointed as roadmasters at the township's annual re- organization meetings. b. No one supervisor maintains more authority over the other supervisors while working as roadmasters for the township. 10. The three township roadmasters act as the township road crew to address various road /maintenance related issues in the township. a. The roadmasters normally work 8:00 a.m. to 4:00 p.m., Monday through Friday with a one -hour paid lunch period. Kendall, 04 -034 Page 4 1. Hours normally change to 7:00 a.m. to 3:00 p.m. in the late spring and summer months. b. Exceptions to this schedule occasionally occur due to inclement weather, emergencies, etc. 11. Township roadmasters are responsible for maintaining the township roads; including inspecting roads, plowing roads, maintaining the township vehicles, etc. Wilmington Township has no written job description for the roadmaster position. 12. All three of the township supervisors work full time in their roadmaster capacity. a. No other individuals are employed on a full time basis with the Wilmington Township road crew. a. b. Occasional part time employees are hired as needed. 13. The roadmasters normally meet each morning at the township garage to address work to be performed that day. a. The roadmasters may work together or individually dependent upon work to be completed. 14. Wilmington Township supervisors' re- organization meeting minutes from 1999 through 2004 document the appointment of all three supervisors as roadmasters and their requested hourly rate shown below: Re- organization Meeting Date Requested Hourly Rate 01/04/1999 01/04/2000 01/03/2001 01/07/2002 01/06/2003 01/05/2004 01/05/1999 01/05/2000 01/03/2001 01/08/2002 01/07/2003 01/06/2004 $14.25 $14.50 $15.00 $15.25 $15.50 $15.50 a. Minutes note the requested hourly rate is to be approved by the township auditors. b. Minutes note Kendall's participation in the board's action requesting compensation from 1999 through 2004. 15. Wilmington Township Board of Auditors verification reports document the rates approved for working supervisors from 1999 through 2004 as follows: Auditors Re- organization Date Hourly Rate Approved $14.25 $14.50 $14.95 $15.25 $15.50 $15.50 Kendall, 04 -034 Page 5 a. From January 2002 through the present, supervisor /roadmasters not covered by Blue Cross /Blue Shield Major Medical and Drug Coverage through the township were entitled to an additional $0.50 per hour. b. Kendall began receiving the additional $0.50 per hour in January 2002. 16. Wilmington Township utilizes a log book to document specific days and total hours worked by the working supervisors and part time employees (when applicable). a. Days and hours worked by all three roadmasters and any part time help (if applicable) are documented on the same page in the log book. b. The log book provides a section for a brief description of the day's activities. c. The log book utilized documents a two -week work period per page. 17. Kendall has been the supervisor /roadmaster completing the log book for at least the past five years. a. Kendall documents the day's major activity in the description section of the log book. b. Supervisor Dale Elder or Supervisor William Allen completes the log in Kendall's absence. 18. Descriptions noted in the log book do not necessarily represent work completed by all three working supervisors. a. If the roadmasters worked individually, Kendall provides a brief description of each individual's major activity of the day in the log book. b. Descriptions of daily activities documented are not specifically associated with any one working supervisor in the log book. 1. Multiple descriptions documented on the same day could have been performed by any one of or combination of the working supervisors. 19. Kendall transfers the information from the log book to a bi- weekly time sheet when the two week work period documented in the log book is complete. a. Kendall transfers the same information in the log book to the time sheet. b. Kendall submits the completed time sheet to Susan Wimer, secretary/ treasurer, for processing. 20. From July 1999 through June 2004, Kendall submitted time sheets to the township which documented specific days worked, the total number of hours worked per day, and a description of activities performed. a. Kendall's signature appears on the majority of timesheets submitted for processing in the space on the timesheets which notes "Superintendent - Roadmaster- Foreman." 21. From approximately 1999 until mid -2004 Elder and Allen completed more of the physical activities related to road maintenance than did Kendall. 22. As the Chairman of the Board of Supervisors, Kendall was often viewed as the main contact for the township for any meetings or functions requiring attendance, any Kendall, 04 -034 Page 6 questions requiring assistance, etc. a. When Elder and Allen were performing physical work in the township, Kendall's presence was, at times, required at the township office or elsewhere in the township to address issues related to the board of supervisors. b. Kendall spent more time at the township office than did Elder and Allen. 23. From mid -2004 on, Kendall participated in a much more active role regarding physical work performed on road maintenance. a. Kendall's participation increased at about the time he received the notice of investigation letter dated July 12, 2004, informing him of the Ethics Commission investigation and allegations. 24. In approximately mid -2002, three supervisors for Hickory Township, Lawrence County, were found to have violated the restricted activities section of the State Ethics Act as a result of claiming hours for payment worked [sic] as township roadmasters which were supervisory in nature and subsequently approving payment of those hours. a. Hickory Township borders Wilmington Township. 25. Kendall, Elder, and Allen had discussions as a group regarding activities which could be legitimately claimed as roadmaster related as a result of the outcome of the situation with the Hickory Township supervisors. a. One subject specifically discussed as an area of concern was receiving payment as a roadmaster for attendance at Council of Government (COG) meetings. 26. The supervisors did not individually, or as a group, request a written opinion from Jonathan Soloman, Wilmington Township Solicitor, regarding activities which could be claimed as roadmaster related. a. The supervisors informally questioned Solomon on the subject after the situation in Hickory Township became public. b. Solomon indicated that issues involving zoning, building permits, etc., could not be claimed under roadmaster hours. 1. Solomon supplied Wimer with the same explanation because Wimer processed payroll for the township at that time. 27. Between July 1999 and June 2004 Kendall claimed hours and received wages as a township roadmaster for duties performed which were related to his position as township supervisor. a. These duties included attending COG meetings, meetings with County Commissioners, DCNR, PENNDOT, township solicitor, zoning issues and water issues. 28. From July 1999 through June 2004, Kendall was compensated for approximately 77 hours at his hourly roadmaster rate for performing duties associated with his position as an elected supervisor which totaled $1,185.57 as shown below: a. Date Description Hours Claimed Wage Per Hour Check Number 01 -11 -00 Grant App 0.25 $14.50 1408 01 -13 -00 Wil Boro Mtg 0.50 $14.50 1408 01 -19 -00 Grant Mtg 1.00 $14.50 1408 02 -03 -00 Auditor Mtg 0.25 $14.50 1432 02 -04 -00 Zoning Issue 0.50 $14.50 1432 03 -01 -00 COG Mtg 1.50 $14.50 1471 03 -07 -00 Courthouse 1.00 $14.50 1486 04 -07 -00 Meeting 0.50 $14.50 1529 04 -25 -00 Commissioners Mtg 0.50 $14.50 1560 05 -15 -00 Atlas 0.50 $14.50 1585 05 -16 -00 Pa DOT Mtg 0.50 $14.50 1585 05 -19 -00 Atlas Mtg 0.50 $14.50 1585 05 -24 -00 Pa DOT Mtg 0.50 $14.50 1585 05 -25 -00 Atlas Mtg 0.50 $14.50 1585 05 -26 -00 Atlas 0.50 $14.50 1585 06 -19 -00 Mtg w/ Sgt Mohney 0.50 $14.50 1625 08 -08 -00 Pa DOT Mtg 0.50 $14.50 1711 08 -09 -00 E M Mtg 0.50 $14.50 1711 08 -17 -00 DCNR Mtg (0.50) Water Mtg (0.50) 1.00 $14.50 1711 08 -18 -00 Ct House (0.50) Grant (0.50) 1.00 $14.50 1711 09 -28 -00 PSP Open House 1.00 $14.50 1775 10 -03 -00 Courthouse 0.50 $14.50 1801 11 -01 -00 COG Mtg 1.50 $14.50 1835 12 -06 -00 COG 1.50 $14.50 1872 Total 17.0 Date Description Hours Claimed Wage Per Hour Check Number 01 -03 -01 COG (1.50) Auditor Mtg (0.50) 2.00 $14.95 1910 02 -07 -01 Water Mtg 0.50 $14.95 1974 02 -28 -01 Terrorism Class 4.00 $14.95 2007 03 -07 -01 COG Mtg 1.50 $14.95 2015 04 -04 -01 COG 1.50 $14.95 2053 04 -09 -01 Zoning Issue 0.50 $14.95 2053 Date Description Hours Claimed Wage Per Hour Check Number 07 -12 -99 Zoning Issue 0.50 $14.25 1142 09 -16 -99 Census 2000 0.25 $14.25 1214 10 -01 -99 Atlas Mtg 0.50 $14.25 1259 10 -25 -99 Boro Mtg 0.50 $14.25 1297 Total 1.75 Kendall, 04 -034 Page 7 1999 b. 2000 c. 2001 Date Description Hours Claimed Wage Per Hour Check Number 05 -18 -01 Zoning 0.50 $14.95 2121 06 -06 -01 COG (1.50) Water (0.50) 2.00 $14.95 2148 06 -08 -01 Zoning 0.50 $14.95 2148 07 -17 -01 Pa DOT Mtg 0.50 $14.95 2213 07 -25 -01 Water Mtg 0.50 $14.95 2248 07 -27 -01 Zoning Issue 0.50 $14.95 2248 08 -01 -01 Zoning Issue 0.50 $14.95 2248 08 -15 -01 Zoning Issue 0.50 $14.95 2255 08 -31 -01 Water Mtg 0.50 $14.95 2297 09 -05 -01 COG 1.50 $14.95 2318 10 -18 -01 Zoning 0.50 $14.95 2392 10 -24 -01 Water Mtg 0.50 $14.95 2392 10 -30 -01 Water & Sewer 0.50 $14.95 2422 10 -31 -01 Water 0.50 $14.95 2422 11 -01 -01 Water 0.50 $14.95 2422 11 -07 -01 Water & Sewer 0.50 $14.95 2422 11 -13 -01 Courthouse 1.00 $14.95 2432 11 -20 -01 Planning 0.50 $14.95 2432 11 -26 -01 Water 0.50 $14.95 2457 12 -05 -01 COG Mtg 1.50 $14.95 2457 12 -11 -01 Water 0.50 $14.95 2475 12 -12 -01 Water 0.50 $14.95 2475 Total 25.0 Date Description Hours Claimed Wage Per Hour Check Number 01 -02 -02 COG Mtg 1.50 $15.75 2504 01 -15 -02 Atty 0.25 $15.75 2520 01 -16 -02 Atty 0.25 $15.75 2520 02 -04 -02 Mtg 0.25 $15.75 2559 03 -06 -02 COG Mtg (1.50) Tax Issue (0.25) 1.75 $15.75 2613 05 -01 -02 COG Mtg 1.50 $15.75 2705 06 -05 -02 COG Mtg 1.50 $15.75 2747 07 -03 -02 COG Mtg 1.50 $15.75 2807 09 -04 -02 COG Mtg 1.50 $15.75 2921 10 -02 -02 COG Mtg 1.50 $15.75 2970 11 -06 -02 COG Mtg 1.50 $15.75 3017 12 -04 -02 COG Mtg 1.50 $15.75 3075 Total 14.50 Date Description Hours Claimed Wage Per Hour Check Number 01 -08 -03 COG Mtg 1.50 $16.00 3133 02 -05 -03 COG Mtg 1.50 $16.00 3189 03 -05 -03 COG Mtg 1.50 $16.00 3237 Kendall, 04 -034 Page 8 d. 2002 e. 2003 Date Description Hours Claimed Wage Per Hour Check Number 01 -07 -04 COG Mtg 1.50 $16.00 3812 02 -04 -04 COG Mtg 1.50 $16.00 3863 03 -03 -04 COG Mtg 1.50 $16.00 5015 05 -05 -04 COG Mtg 1.50 $16.00 5059 06 -02 -04 COG Mtg 1.50 $16.00 5078 Total 7.50 Date Description Hours Claimed Wage Per Hour Check Number 05 -07 -03 COG Mtg 1.50 $16.00 3332 06 -04 -03 COG Mtg 1.50 $16.00 3379 11 -05 -03 COG Mtg 1.50 $16.00 3680 12 -03 -03 COG Mtg 1.50 $16.00 3737 12 -17 -03 COG Mtg 1.50 $16.00 3755 Total 12.00 Kendall, 04 -034 Page 9 f. 2004 g. The amount of time documented 'n the "Hours Claimed" category was provided by Kendall during a taped statement with Commission investigators on October 28, 2004. 29. Kendall received roadmaster wages totaling $1,185.57 from July 1999 through June 2004 for hours spent on supervisory activities as depicted below: a. 1999: $ 24.94 b. 2000: $ 246.50 c. 2001: $ 373.75 d. 2002: $ 228.38 e. 2003: $ 192.00 f. 2004: $ 120.00 g. Total: $1,185.57 30. Payroll is issued to Wilmington Township employees on a bi- weekly basis. a. Payroll is approved at regular monthly meetings for payroll issued during the previous month. b. The motion to approve payroll is incorporated along with the motion to approve the monthly bills. 31. Voting at Wilmington Township meetings occurs either by roll call vote or by group aye /nay vote. Date Worked Check Date Check No. Kendall's Vote Approving Payroll Kendall Sign As Signatory 07 -12 -99 07 -29 -99 1142 Yes Yes 09 -16 -99 09 -22 -99 1214 Yes No 10 -01 -99 10 -06 -99 1259 Yes Yes 10 -25 -99 11 -04 -99 1297 Yes Yes 01 -11 -00 01 -26 -00 1408 Yes Yes 01 -13 -00 01 -26 -00 1408 Yes Yes 01 -19 -00 01 -26 -00 1408 Yes Yes 02 -03 -00 02 -10 -00 1432 Yes Yes 02 -04 -00 02 -10 -00 1432 Yes Yes 03 -01 -00 03 -09 -00 1471 Yes Yes 03 -07 -00 03 -23 -00 1486 Yes Yes 04 -07 -00 04 -20 -00 1529 Yes Yes 04 -25 -00 05 -04 -00 1560 Yes Yes 05 -15 -00 05 -31 -00 1585 Yes Yes 05 -16 -00 05 -31 -00 1585 Yes Yes 05 -19 -00 05 -31 -00 1585 Yes Yes 05 -24 -00 05 -31 -00 1585 Yes Yes 05 -25 -00 05 -31 -00 1585 Yes Yes 05 -26 -00 05 -31 -00 1585 Yes Yes 06 -19 -00 06 -29 -00 1625 Yes Yes 08 -08 -00 08 -23 -00 1711 Yes Yes 08 -09 -00 08 -23 -00 1711 Yes Yes 08 -17 -00 08 -23 -00 1711 Yes Yes 08 -18 -00 08 -23 -00 1711 Yes Yes 09 -28 -00 10 -04 -00 1775 Yes Yes 10 -03 -00 10 -18 -00 1801 Yes Yes Kendall, 04 -034 Page 10 a. Voting on ordinances, resolutions, or other important issues occurs via roll call fashion. b. Voting on routine monthly issues (i.e. approval of minutes, approval of monthly bills and payroll, etc.) occurs in group aye /nay fashion. 1. Any abstentions or objections made during the group vote are specifically noted in the minutes. 32. Signature authority over township accounts lies with the secretary /treasurer and all three supervisors. a. Township checks require the signatures of the secretary /treasurer and at least two supervisors. b. All three supervisors have the opportunity to sign township checks if they desire to do so. c. Signatures on township checks must be live signatures. 1. Facsimile stamps are not utilized. 33. Kendall participated in actions as a township supervisor in approving monthly payroll and signing payroll checks issued to himself for hours claimed as a roadmaster which were supervisory in nature as follows: Date Worked Check Date Check No. Kendall's Vote Approving Payroll Kendall Sign As Signatory 11 -01 -00 11 -15 -00 1835 Yes Yes 12 -06 -00 12 -15 -00 1872 Yes Yes 01 -03 -01 01 -11 -01 1910 Yes Yes 02 -07 -01 02 -22 -01 1974 Yes Yes 02 -28 -01 03 -08 -01 2007 Yes Yes 03 -07 -01 03 -22 -01 2015 Yes Yes 04 -04 -01 04 -18 -01 2053 Yes Yes 04 -09 -01 04 -18 -01 2053 Yes Yes 05 -18 -01 05 -30 -01 2121 Yes Yes 06 -06 -01 06 -14 -01 2148 Yes Yes 06 -08 -01 06 -14 -01 2148 Yes Yes 07 -17 -01 07 -26 -01 2213 No Yes 07 -25 -01 08 -08 -01 2248 Yes No 07 -27 -01 08 -08 -01 2248 Yes No 08 -01 -01 08 -08 -01 2248 Yes No 08 -15 -01 08 -22 -01 2255 Yes Yes 08 -31 -01 09 -06 -01 2297 Yes Yes 09 -05 -01 09 -20 -01 2318 Yes Yes 10 -18 -01 11 -01 -01 2392 Yes Yes 10 -24 -01 11 -01 -01 2392 Yes Yes 10 -30 -01 11 -15 -01 2422 Yes Yes 10 -31 -01 11 -15 -01 2422 Yes Yes 11 -01 -01 11 -15 -01 2422 Yes Yes 11 -07 -01 11 -15 -01 2422 Yes Yes 11 -13 -01 11 -29 -01 2432 Yes Yes 11 -20 -01 11 -29 -01 2432 Yes Yes 11 -26 -01 12 -13 -01 2457 Yes Yes 12 -05 -01 12 -13 -01 2457 Yes Yes 12 -11 -01 12 -27 -01 2475 Yes Yes 12 -12 -01 12 -27 -01 2475 Yes Yes 01 -02 -02 01 -10 -02 2504 Yes Yes 01 -15 -02 01 -24 -02 2520 Yes Yes 01 -16 -02 01 -24 -02 2520 Yes Yes 02 -04 -02 02 -20 -02 2559 Yes Yes 03 -06 -02 03 -21 -02 2613 No Motion Noted Yes 05 -01 -02 05 -15 -02 2705 Yes Yes 06 -05 -02 06 -14 -02 2747 Yes Yes 07 -03 -02 07 -09 -02 2807 Yes Yes 09 -04 -02 09 -18 -02 2921 Yes No 10 -02 -02 10 -17 -02 2970 Yes Yes 11 -06 -02 11 -14 -02 3017 Yes Yes 12 -04 -02 12 -11 -02 3075 Yes Yes 01 -08 -03 01 -22 -03 3133 Yes Yes 02 -05 -03 02 -20 -03 3189 Yes Yes 03 -05 -03 03 -20 -03 3237 Yes Yes 05 -07 -03 05 -14 -03 3332 Yes Yes 06 -04 -03 06 -12 -03 3379 Yes Yes 11 -05 -03 11 -13 -03 3680 Yes Yes 12 -03 -03 12 -10 -03 3737 Yes Yes 12 -17 -03 12 -22 -03 3755 Yes Yes 01 -07 -04 01 -22 -04 3812 Yes Yes 02 -04 -04 02 -19 -04 3863 Yes No Kendall, 04 -034 Page 11 Date Worked Check Date Check No. Kendall's Vote Approving Payroll Kendall Sign As Signatory 03 -03 -04 03 -19 -04 5015 Yes Yes 05 -05 -04 05 -14 -04 5059 Yes Yes 06 -02 -04 06 -11 -04 5078 Yes Yes Kendall, 04 -034 Page 12 a. Of the fifty -eight checks issued to Kendall which included wages for supervisor duties, Kendall signed fifty -four as an authorized township signatory. 34. During a taped statement provided to Commission investigators on October 28, 2004, Kendall provided the following information: a. Kendall received no formal guidance or training from the Pennsylvania Association of Township Supervisors or the township solicitor on what could be claimed as roadmaster related in association with hours worked. b. Kendall believed that any activity associated with township roads in anyway was roadmaster related. c. Kendall started work before normal working hours, finished work after normal working hours, or worked a portion of or through his one -hour lunch period to account for time spent on supervisory duties during normal working hours. 1. The bulk of this time was not related to road work. d. Kendall believes he provided the township with at least eight -hours of road related work per day. e. Kendall never requested a written opinion from the State Ethics Commission regarding the types of duties which could be legitimately claimed as roadmaster related. THE FOLLOWING FINDINGS RELATE TO KENDALL's FAILURE TO DISCLOSE INCOME IN EXCESS OF $1,300.00 ON STATEMENTS OF FINANCIAL INTERESTS FILED FOR THE 2002 AND 2003 CALENDAR YEARS. 35. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Kendall was required to file Statements of Financial Interests by May 1St annually in his position as a Wilmington Township Supervisor and Roadmaster. 36. Kendall was aware of the requirement to file Statements of Financial Interests in his position as a township supervisor. a. Kendall filed Statements of Financial Interests with Wilmington Township for the past five calendar years as shown below: Date Filed Calendar Year 01/13/00 1999 01/12/01 2000 01/03/02 2001 01/10/03 2002 01/09/04 2003 37. Kendall failed to disclose income received from Wilmington Township on his 2002 Kendall, 04 -034 Page 13 and 2003 calendar year Statement of Financial Interests set forth by Section 1105(b) of the State Ethics Act. 38. Kendall earned in excess of the $1,300.00 reporting threshold in calendar years 2002 and 2003 in his position as a full time township roadmaster /supervisor. a. Kendall received $35,714.28 from Wilmington Township in 2002. b. Kendall received $38,317.13 from Wilmington Township in 2003. 39. Kendall realized a financial gain of approximately $1,185.57 between July 1999 and June 2004 as a result of receiving wages as a township roadmaster for duties that were related to his position as township supervisor. Year 1999 2000 2001 2002 2003 2004 Total Wages $24.94 $246.50 $373.75 $228.38 $192.00 $120.00 $1,185.57 III. DISCUSSION: Respondent Norbert Kendall (also referred to herein as "Respondent," "Respondent Kendall," or "Kendall ") has at all times relevant to this matter been a public official subject to 1998 the , C provisions hapter 11 of , 65 the Pa. C. S. Public Official et and seq Employee . Ethics Act ( "Ethics Act "), Act 93 of § 1101 The allegations are that Respondent, as a Supervisor of Wilmington Township, Lawrence County, violated Sections 1103(a) and 1105(b)(5) of the Ethics Act when he used the authority of his office for a private pecuniary gain by claiming hours worked as township roadmaster which were related to his position as an elected township supervisor; and when he failed to disclose on Statements of Financial Interests filed for the 2002 and 2003 calendar years income in excess of $1,300. Section 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. Pursuant to Section 1105(b)(5) of the Ethics Act, a public official must disclose on his Statement(s) of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. Having noted the issues and applicable law, we shall now summarize the relevant facts. The facts as averred in the Investigative Complaint are deemed admitted by the Respondent. 65 Pa. C. S. § 1108(e); 51 Pa. Code § 21.5(k). Respondent has served as a Supervisor for Wilmington Township ( "Township ") since January 1994. The Township Board of Supervisors ( "Board ") is a three - member Board. Respondent served as Board Chairman from 1995 through 2003 and as Board Vice - Chairman in 2004. Respondent was also appointed as the Township's delegate to the Lawrence County Council of Governments ( "COG ") from at least 1999 through 2004. Kendall, 04 -034 Page 14 As payment for their services as supervisors, the Township supervisors receive $50.00 gross for each Board meeting attended. All three Township supervisors are appointed roadmasters at the Township's annual re- organization meetings. Respondent has been appointed a Township roadmaster each year during his entire length of service as a Township Supervisor. For the years 1999 -2004, the Township Board of Auditors approved hourly rates for the working supervisors as detailed in Finding 15. From January 2002 through the present, supervisor /roadmasters not covered by Blue Cross /Blue Shield Major Medical and Drug Coverage through the Township were entitled to an additional $0.50 per hour. Respondent began receiving the additional $0.50 per hour in January 2002. The Township utilizes a logbook to document specific days, work activity, and total hours worked by the working supervisors and part time employees (when applicable). Respondent has completed the logbook for at least the past five years, with the other supervisors completing the log in Respondent's absence. Respondent transfers the information from the logbook to a bi- weekly time sheet, which he submits to the Township Secretary /Treasurer for processing. From July 1999 through June 2004, Respondent submitted time sheets to the Township that documented specific days worked, the total number of hours worked per day, and a description of activities performed. Respondent's signature appears on the majority of timesheets submitted for processing in the space noted " Superintendent - Roadmaster- Foreman." Between July 1999 and June 2004, Respondent claimed and was compensated for approximately 77 hours at his hourly roadmaster rate for performing duties associated with his position as an elected supervisor, which compensation totaled $1,185.57 as detailed in Findings 28, 29 and 39. In his capacity as a Township Supervisor, Respondent participated in actions approving monthly payroll and signing payroll checks issued to himself for hours claimed as a roadmaster that were supervisory in nature as detailed in Finding 33. Of the fifty - eight checks issued to Respondent that included wages for supervisor duties, Respondent signed fifty -four as an authorized Township signatory. Turning to the admitted Findings relating to Respondent's Statements of Financial Interests, Respondent failed to disclose the Township as a source of income on his 2002 and 2003 calendar year Statements of Financial Interests as required by Section 1105(b)(5) of the Ethics Act. For each of these calendar years, Respondent earned income from the Township that was well in excess of the $1,300 reporting threshold, specifically, $35,714.28 in 2002 and $38,317.13 in 2003. We shall now determine whether Respondent violated Sections 1103(a) and 1105(b)(5) of the Ethics Act as alleged in the Investigative Complaint. As we apply the facts to the allegations, due process requires that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (1991). Based upon our review of the record, we find that there is clear and convincing proof to support the alleged violations. Clear and convincing proof is "testimony that is so `clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (Pa. 1998) (Citation omitted). With regard to the first allegation, there is clear and convincing proof, consisting of admitted Findings, that Respondent violated Section 1103(a) of the Ethics Act when he used the authority of his office for a private pecuniary gain by claiming and receiving Kendall, 04 -034 Page 15 compensation for approximately 77 3/ hours at his hourly roadmaster rate for duties that were related to his position as an elected township supervisor. A township supervisor may not claim /receive compensation as a working supervisor for time spent doing supervisor duties. See, e.g., R.H. and T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Cmwlth. 1996). The element of use of authority of office is established by Respondent's various actions in submitting such time for payment and approving and signing payroll checks to himself that included such unauthorized compensation. The resulting private pecuniary benefit to Respondent consisted of unauthorized compensation in the total amount of $1,185.57. With regard to the second allegation, there is clear and convincing proof, consisting of admitted Findings, that Respondent violated Section 1105(b)(5) of the Ethics Act when he failed to disclose the Township as a source of income in excess of $1,300 on his Statements of Financial Interests filed for the 2002 and 2003 calendar years. See, In Re: Benninghoff, Pa. _, 852 A.2d 1182 (2004). The Investigative Division has filed a Position Statement in which it requests that this Commission direct Respondent to make restitution to the Township as to the unauthorized financial gain of $1,185.57. We agree that restitution is warranted. See, 65 Pa.C.S. § 1107(13). Respondent is directed to make payment of restitution to the Township through this Commission in the amount of $1,185.57 by no later than the thirtieth (30 day after the mailing date of this Order. If he has not already done so, Respondent is directed to file with the Township amended Statements of Financial Interests for calendar years 2002 and 2003, providing full financial disclosure as required by the Ethics Act and specifically including the Township as a source of income, and to forward copies verifying such filings to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Supervisor of Wilmington Township ( "Township "), Lawrence County, Pennsylvania, Respondent Norbert Kendall ( "Kendall ") has at all times relevant to this matter been a public official subject to the provisions of the Ethics Act. 2. Kendall violated Section 1103(a) of the Ethics Act when he used the authority of his office by claiming and receiving compensation for approximately 77 hours at his hourly roadmaster rate for duties related to his position as an elected township supervisor, resulting in a private pecuniary benefit to himself consisting of unauthorized compensation in the amount of $1,185.57. 3. Kendall violated Section 1105(b)(5) of the Ethics Act when he failed to disclose the Township as a source of income in excess of $1,300 on his Statements of Financial Interests filed for the 2002 and 2003 calendar years. 4. Restitution is warranted in this case. In Re: Norbert Kendall ORDER NO. 1355 File Docket: 04 -034 Date Decided: 2/28/05 Date Mailed: 3/1/05 1 Norbert Kendall ( "Kendall ") violated Section 1103(a) of the Ethics Act when, as a Supervisor of Wilmington Township ( "Township "), Lawrence County, Pennsylvania, he used the authority of his office by claiming and receiving compensation for approximately 77 hours at his hourly roadmaster rate for duties related to his position as an elected township supervisor, resulting in a private pecuniary benefit to himself consisting of unauthorized compensation in the amount of $1,185.57. 2. Kendall violated Section 1105(b)(5) of the Ethics Act when he failed to disclose the Township as a source of income in excess of $1,300 on his Statements of Financial Interests filed for the 2002 and 2003 calendar years. 3. Kendall is directed to make payment in the amount of $1,185.57 payable to Wilmington Township through this Commission by no later than the thirtieth (30 day after the mailing date of this Order. 4. If he has not already done so, Kendall is directed to file with the Township amended Statements of Financial Interests for calendar years 2002 and 2003, providing full financial disclosure as required by the Ethics Act and specifically including the Township as a source of income, and to forward copies verifying such filings to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. 5. Non - compliance with Paragraph 3 or 4 above will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair