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HomeMy WebLinkAbout1391 SmallIn Re: Marvin Small File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 05 -009 Order No. 1391 2/23/06 3/13/06 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegations. Upon completion of its investigation, 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 waived. 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Small, 05 -009 Page 2 I. ALLEGATION: That Marvin Small, a public official /public employee, in his capacity as Supervisor of Forest Lake Township, Susquehanna County, violated Section 1103(a) provisions [sic] of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §1103(a) when he used the authority of his office for private pecuniary gain of himself and /or members of his immediate family by utilizing township equipment and supplies for his personal use; and when in his capacity as Supervisor and Township Roadmaster he hired his sons to perform services for the Township Road Department; and then participated in actions of the board to approve payments to his sons. II. FINDINGS: 1. Marvin Small has been serving as Supervisor for Forest Lake Township, Susquehanna County, since approximately 1979. a. Forest Lake Township is a Second Class township. b. Small has served as Board Chairman since at least 2000. 2. From 2000 to 2004, Marvin Small has been serving Forest Lake Township in various capacities including Board Chairman, Secretary /Treasurer, Roadmaster, Laborer and Park and Cemetery Caretaker. 3. Official records of Forest Lake Township detail the following positions annually held by Marvin Small since 2000: Year Positions 2000: Chairman, Secretary /Treasurer, and working Supervisor. 2001: Chairman, Secretary /Treasurer, working Supervisor, Park and Cemetery Caretaker. 2002: Chairman, Secretary /Treasurer, working Supervisor, Park and Cemetery Caretaker 2003: Chairman, Secretary /Treasurer, working Supervisor, Park and Cemetery Caretaker 2004: Chairman, Secretary /Treasurer, Roadmaster, Park and Cemetery Caretaker and working Supervisor. 2005: Chairman, Secretary /Treasurer, Park and Cemetery Caretaker and working Supervisor. The following findings relate to the allegation that Marvin Small used township equipment and supplies for personal business. 4. Marvin Small, in his official capacity as a Forest Lake Township Supervisor; Roadmaster, and working Supervisor had access to township road equipment, welding equipment and leftover fill material. a. Small routinely makes decisions regarding the use of equipment and the disposition of fill material. 5. Haun Welding Supply Company has been supplying Forest Lake Township with Small, 05 -009 Page 3 welding tanks since 2001. 6. On December 13, 2001, Forest Lake Township leased an oxygen and a acetylene tank from Haun Welding for township use. a. These tanks were leased at an annual rate of $70.00. b. These tanks were leased with the intent to be used for normal township business. 7 On December 13, 2001, Haun Welding Company sold oxygen and acetylene to Forest Lake Township for $22.80. 8. Shortly after the emergency set of tanks were leased (July 1, 2003), Small transported them to his residence where they remained until approximately the Fall 2003. a. Between July 1, 2003, and the Fall of 2003, the emergency set of tanks were not available for general township use if needed. b. Small and /or members of his immediate family were the only individuals with access to these tanks. c. Small hooked up hoses, regulators, and torches he owned to the township emergency tanks to conduct restoration of old farm equipment. 1 Small and his sons restore old farm equipment. 2. Access to an oxygen and an acetylene tank are beneficial for restoration work of this nature. d. Small was not required to repair township equipment at his residence. 9. During the Fall of 2003, Pennypacker conducted an audit in regards to all welding tanks he had leased through his business. a. To account for the tanks Pennypacker had leased, he needed to review the serial numbers on each tank. 10. Small admitted to Pennypacker that the emergency tanks were at Small's residence. a. Approximately two weeks after Pennypacker spoke with Small, all of the tanks that were leased to Forest Lake Township were returned to Pennpacker. 11. Small realized a private pecuniary gain of $70.00 as a result of the personal use of township leased tanks. a. Financial gain based on the $70.00 lease value of the tanks to the general public. 12. Forest Lake Township has had a practice of providing individuals within the township the opportunity to acquire excessive dirt that is left over from excavating road ditches. a. Excessive dirt can be acquired either by calling the township building or Small, 05 -009 Page 4 township laborers will ask individuals located close to the excavating site if they would like any dirt. b. When dirt is delivered to an individual, it is dumped but not spread by township road workers. c. Individuals are not charged for the material or its delivery. 13. During the Spring of 2004, Nathan Small and Leslie Hawley were clearing debris and fill material from culverts in the vicinity of Griffis Road and Showalter. a. Nathan Small is a son of Marvin Small and an employee of Lake Forest Township. 14. Nathan Small operated the township dump truck and Leslie Hawley was using the township backhoe during this project. a. Approximately, four truck loads of leftover material was [sic] dropped off in a pile at Nathan Small's residence. 15. During early Summer 2004, this fill material was leveled off during a weekend by Gary Griffis (Nathan Small's father -in -law), Adam Griffis, Nathan Small, and Darren Small, Nathan's brother. a. Forest Lake Township equipment was not used to level off the material. b. Gary Griffis used a red Farmall tractor with a blade, and Darren Small borrowed a yellow CAT bulldozer from his employer at the time, Dale Payne to level the material. 16. During 2002, shale from a nearby quarry was delivered to Nathan Small's house to be used to construct a driveway. a. Nathan Small borrowed the following pieces of machinery from Walter Frystack for the project: a white International dump truck, a yellow CAT bulldozer, and a yellow CAT bucket - loader. b. The project was completed by Nathan Small, Gary Griffis and Adam Griffis, Marvin Small did not assist with it. c. Forest Lake Township equipment was not used on this project. d. Forest Lake Township does not own the same type /make of equipment used on this project. 17. The Handrick Annex is under the control of the Birchardville Cemetery Association and has been in existence since the Summer of 2001. a. In order for the annex to be built, approximately 5 acres of land had to be cleared. b. The association's brush hog was used to clear the property of growth. c. The annex previously was a pasture which needed to be leveled off. 18. Minutes from the Forest Lake Board of Supervisors meetings include official action approving the use of the township's roller by the Birchardville Cemetery Association Small, 05 -009 Page 5 free of charge. a. This authorization was granted by Supervisors Melvin Shimer and Tim Wickizer on June 1, 2001. b. Marvin Small did not participate in this action. The following findings relate to the allegation that Marvin Small used the authority of his position to hire his sons to perform services for the township. 19. Nathan Small, the son of Marvin Small has been employed by Forest Lake Township since January 2000. a. Marvin Small participated in board of supervisors decisions resulting in the hiring of Nathan Small. 20. Minutes of board of supervisors meetings confirm that Marvin Small participated in board actions voting to hire his son, Nathan Small, to the compensated positions of laborer during re- organizational meetings held since January 4, 2000. Annual hirings occurred as follows: a. Meeting Date Official Action Recorded Vote Son Hired January 4, 2000 Vote 3 -0 Nathan Small January 2, 2001 Second, Vote 2 -0 Nathan Small January 7, 2002 Second, Vote 3 -0 Nathan Small January 6, 2003 Second, Vote 3 -0 Nathan Small January 5, 2004 Second, Vote 2 -0 Nathan Small 21. Township supervisors do not officially approve compensation rates for township employees during meetings of the board of supervisors. a. Small, as Secretary /Treasurer, Supervisor, and Roadmaster made decisions for compensation after consultation with Supervisor Wickizer. 22. Small, in his official capacity as a township supervisor, participated in setting the pay for township laborers including his son Nathan, as follows: a. Year Rate 2000 8.00 an hour 2001 $8.50 an hour 2002 $9.00 an hour 2003 $11.00 an hour 2004 $11.50 an hour 23. Employee payroll is not approved as part of the monthly payment of bills. a. Employee wages are included as part of the annual township budget. b. Signed biweekly time sheets approve the hours worked. c. Payments are authorized as a result of two supervisors signatures on a township check. 24. Since January 2000, Marvin Small, Along with Tim Wickizer, approved approximately 94 biweekly time sheets authorizing payments of approximately $53,503.38 to his son, Nathan Small. Small, 05 -009 Page 6 25. Marvin Small, along with Tim Wickizer, took official capacity as secretary/treasurer, signed the front side of approximately 80 checks totaling $39,966.28 issued to Nathan Small for payment as a township laborer. 26. W -2 Wage and Tax statements on file with Forest Lake Township detail the following annual payments received by Nathan Small: 2000: $ 4,091.25 2001: $ 9,955.63 2002: $ 1,983.00 2003: $18,950.25 2004: $19,095.88 27. Marvin Small made the decision to utilize the services of his son during 2003 and 2004. The following findings relate to the use of the authority of Marvin Small's public position resulting in the hiring of his son, Darren Small, as a township laborer. 28. Meeting minutes of the Forest Lake Township re- organizational meeting held on January 5, 2004, confirm that Marvin Small seconded the motion to hire Darren Small as a township laborer and cast the deciding vote resulting in the hiring. a. Darren Small is a son of Marvin Small. 30. In his capacity as roadmaster, Marvin Small determined the hours worked by Darren Small as a laborer. a. Marvin Small made the decision which part -time workers to utilize and would assign duties to all part -time laborers. 31. Marvin Small, as Supervisor, Secretary /Treasurer, and Roadmaster determined the rate of compensation to be paid to Darren Small. a. Small compensated Darren Small at the rate of $10.00 /hour for the 1/10/04 to 1/15/04. b. Small increased the rate to $10.50 /hour for all subsequent pay periods. 32. Biweekly time sheets on file with the township for Darren Small confirm Marvin Small, along with Tim Wickizer, approving 11 timesheets which authorized payments totaling $4,709.25 to his son. 33. Marvin Small, in his official capacity as secretary /treasurer, along with Tim Wickizer, signed the front side of 8 checks totaling $2,605.84 issued checks to Darren Small for payment in relation to township business. a. Checks issued to Darren Small for 2004 were signed by Marvin Small and Tim Wickizer. III. DISCUSSION: At all times relevant to this matter, the Respondent, Marvin Small (Small), has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official Small, 05 -009 Page 7 and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Marvin Small, as a Forest Lake Township Supervisor, violated Section 1103(a) of the Ethics Act when he utilized township equipment and supplies for his personal use; when he hired his sons to perform services for the Township Road Department; and when he participated in actions to approve payments to his sons. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 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. "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 Pa.C.S. § 1102. 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. 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. Small has served as a Forest Lake Township Supervisor since 1979. From 2000 to 2004, Small has also held various other Township positions. See, Fact Findings 2, 3. As both an elected and working supervisor, Small has access to various Township equipment. The Township leases oxygen and acetylene welding tanks from a private business. The annual rental for the tanks is $70 and the cost for the oxygen and acetylene is $22.80. During the Summer of 2003, Small took the tanks to his residence where he and members of his immediate family used the equipment to restore old farm equipment. When the lessor of the tanks wanted to see them in order to review the serial numbers, Small admitted that the tanks were at his private residence. Shortly thereafter, Small returned the tanks to the Township. The financial gain that Small realized for using the tanks for personal use was $70. See, Fact Finding 11. Small, 05 -009 Page 8 When Township employees excavate ditches, the Township has a practice of offering the excess dirt to individuals in the area. Sometimes, the individuals call the Township building for the dirt; other times, the laborers themselves contact individuals and ask if they would like to receive the dirt. Although the Township does not charge the individuals for the delivery of the dirt, it is dumped on their property without being spread by the Township workers. During the Spring of 2004, Township employees Leslie Hawley and Small's son, Nathan, cleaned debris and fill from culverts in the vicinity of Griffiths Road and Showalter. Following completion of the Township project, four truck loads of material were dumped on Nathan Small's property. The material was leveled on the property without the use of Township equipment or employees. When Nathan Small became employed by the Township, Small participated in the actions of the Board of Supervisors to hire him. Such actions occurred at the annual reorganization meetings for the years 2000 through 2004. The actions taken by Small are delineated in Fact Finding 20. In addition, Small participated in the actions to set the pay for the Township laborers that included Nathan. See Fact Finding 22. Instead of approving employee payroll at monthly meetings of the Board of Supervisors, supervisors sign the time sheets and two supervisors co -sign the Township checks for the pay to the Township employees. Small co- signed numerous checks in payment to his son, Nathan, as a Township laborer. See Fact Findings 24, 25. Small also participated in the action to hire another one of his sons, Darren, as a Township laborer at the January 2004 reorganizational meeting. Small cast the deciding vote to hire Darren. In addition, Small as Road Master determined the number of hours worked by Darren as a laborer. Small, as a Supervisor, Secretary /Treasurer and Roadmaster, determined the rate of compensation to be paid to his son Darren as a Township laborer. Finally, Small signed timesheets and co- signed checks in payment to his son Darren. See, Fact Findings 32, 33. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: "3. The Investigative Division will recommend the following in relation to the above allegations: a. That no violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred in relation to Small's use of township equipment and supplies for his personal use and any such use was de minimis or authorized by the township; and b. That a violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred when Small participated in hiring his sons to perform services for the Township Road Department; and c. That a technical violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred when Small approved time sheets and payments to his sons for services performed. 4. Small agrees to make payment in the amount of $2,000 in settlement of this matter payable to the Commonwealth of Small, 05 -009 Page 9 Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Small agrees to abstain from participating in any matters relating to employment of his sons or other family members by the township." Consent Agreement, ¶3, ¶4 and ¶5. Regarding the utilization by Small of Township equipment and supplies for personal use, such actions were uses of authority of office by Small as to the oxyacetylene tanks that the Township had leased. But for the fact that Small was a supervisor, he would not have been in a position to take such Township leased equipment to his personal residence and utilize that equipment for personal purposes. The financial gain that Small received through the use of authority of office was approximately $70. That private pecuniary benefit inured to Small. Although all of the component elements to establish a violation of Section 1103(a) are present in this case, there are two statutory exceptions to conflict under the Ethics Act. One of those exceptions is the de minimis economic impact exception. Since the private pecuniary benefit was only $70, such amount is within the realm of the de minimis economic exclusion as enunciated by the courts. See, Bixler v. S.E.C., 847 A.2d 785 (Pa. Commw. 2004). Accordingly, Small did not violate Section 1103(a) of the Ethics Act when he used Township leased equipment for personal use in that the financial gain received in the amount of $70 was de minimis. As to the matter of the four loads of dirt that were delivered to the property of Small's son, Nathan, there is no showing in the stipulated findings that there was any use of authority of office by Small. The Township had a practice of offering excavated dirt to Township residents within the area of excavation. There was no Township equipment utilized to spread the dirt that was dumped on Nathan Small's property. Since there can be no violation of the Ethics Act without a use of authority of office and since there is no showing of any use of authority on the part of Small, we find that Small did not violate Section 1103(a) regarding the dumping of four loads of dirt on his son's property in that there was no use of authority of office by Small. See, McGuire and Marchitello v. SEC, 657 A.2d 1346 (Pa. Commw. 1995). As to the hiring of Small's sons, Nathan and Darren, as Township employees, Small participated in the actions to hire both of his sons. Such actions were uses of authority of office. See, Juliante, Order 809. Such uses of authority of office resulted in pecuniary benefits consisting of the compensation that Small's two sons received as Township employees. The pecuniary benefits were private because there was no authorization in law for Small to participate in the hiring of his sons. As noted, the private pecuniary benefits inured to Small's two sons, who are members of his immediate family as that term is defined under the Ethics Act. Hence, Small violated Section 1103(a) of the Ethics Act in each instance when he participated in actions to hire his two sons, Nathan and Darren, as Township employees. See, Rinehimer, Order 1216. Lastly, Small also authorized payments to his two sons as Township employees. In particular, Small signed timesheets and co- signed numerous Township checks in payment to his sons for the services they performed as Township employees. Such actions were uses of authority of office. The uses of authority of office by Small resulted in private pecuniary benefits consisting of the compensation that his sons received as Township employees. Accordingly, Small technically violated Section 1103(a) of the Ethics Act when he signed timesheets and co- signed checks in payment to his two sons for services they performed as Township employees. See, Schweinsberg, Order 940. Small, 05 -009 Page 10 We would remind Small that as a public official, his future actions must comport with the Ethics Act. In any instance of a conflict as to himself, an immediate family member or business with which associated, Small must abstain from participation and observe the disclosure requirements of Section 1103(j) of the Ethics Act. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Small is directed to make payment in the amount of $2,000 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter and abstain from participating in any matters relating to the employment of his sons or other immediate family members by the Township. 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. Marvin Small, as a Forest Lake Township Supervisor in Susquehanna County, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Small did not violate Section 1103(a) when he used Township leased equipment for personal use in that the financial gain received in the amount of $70 was de minimis. 3. Small did not violate Section 1103(a) regarding the dumping of four loads of dirt on his son's property in that there was no use of authority of office by Small. 4. Small violated Section 1103(a) in each instance when he participated in actions to hire his two sons, Nathan and Darren, as Township employees. 5. Small technically violated Section 1103(a) when he signed timesheets and co- signed checks in payment to his two sons for services they performed as Township employees. In Re: Marvin Small File Docket: 05 -009 Date Decided: 2/23/06 Date Mailed: 3/13/06 ORDER NO. 1391 1. Marvin Small, as a Forest Lake Township Supervisor in Susquehanna County, did not violate Section 1103(a) when he used Township leased equipment for personal use in that the financial gain received in the amount of $70 was de minimis. 2. Small did not violate Section 1103(a) regarding the dumping of four loads of dirt on his son's property in that there was no use of authority of office by Small. 3. Small violated Section 1103(a) in each instance when he participated in actions to hire his two sons, Nathan and Darren, as Township employees. 4. Small technically violated Section 1103(a) when he signed timesheets and co- signed checks in payment to his two sons for services they performed as Township employees. 5. Per the Consent Agreement of the parties, Small is directed to make payment in the amount of $2,000 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter and abstain from participating in any matters relating to the employment of his sons or other immediate family members by the Township. 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