HomeMy WebLinkAbout891STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Kenneth Billings File Docket: 92- 047 -C2
Date Decided: June 28, 1993
Date Mailed: June 30, 1993
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S.
§401 et seq. Written notice, of the specific allegation(s) was
served at the commencement of the investigation. A Findings Report
was issued and served, upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was filed and a hearing was waived. A Consent Order was submitted
by the parties to the Commission for consideration which was
subsequently approved. This adjudication of the Commission is
hereby issued which sets forth the individual Allegations, Findings
of Fact, Discussion, Conclusions of Law and Order.
This adjudication is final and will be made available as a
public document fifteen days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
§21.29(b).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. §408(h) during the fifteen day period
and no one unless the right to challenge this Order is waived, may
violate confidentiality by releasing, discussing or circulating
this Order. However, confidentiality does not preclude discussing
this case with an attorney at law.
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, 65 P.S. 5409(e).
Billings, 92- 047 -C2
Page 2
I. ALLEGATION:
That Kenneth Billings, a Supervisor for Bradford Township,
Clearfield County, violated the following provisions of the State
Ethics (Act 9 of 1989) when he used his position to obtain
compensation not related to his position of roadmaster.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
§403(a).
II. FINDINGS:
Section 2. 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 P.S. §402.
1. Kenneth Billings serves as a Township Supervisor for Bradford
Township, Clearfield County, PA.
a. He has served in this position since January, 1990.
b. He has also served as township roadmaster since January,
1990.
2. Minutes of the township supervisor's meetings reflect that
Kenneth Billings was appointed roadmaster at reorganization
meetings in January of 1990, 1991 and 1992.
3. Township supervisors were compensated for attending meetings
of the township supervisors at a rate of $50.00 per meeting
Billings, 92- 047 -C2
Page 3
not to exceed 30 meetings per year.
a. This rate was established by Ordinance 2 -85 effective
January, 1986.
b. The rate was established in accordance with the Second
Class Township Code.
4. Minutes of the meetings of the township auditors reflect the
following with regard to compensation of township supervisors
working as roadmasters:
a. January, 1990
c .
DATE
The auditors present were Dennis Albert, Cecil Morris and
Robert Homan. Wages and benefits were to remain the same
as last year. Supervisors working as roadmasters to
receive $9.25 per hour for township work.
b. January, 1991
The auditors present were Dennis Albert, Cecil Morris,
and Robert Homan. Supervisors Kenneth Billings and Seth
Cowder advised the auditors that they wanted their pay as
roadmasters to remain at $9.25 per hour. Supervisors
also advised that the township was recently divided into
two road districts with Cowder assigned as roadmaster for
District I and Billings assigned as roadmaster for
District II.
January, 1992
The auditors present were Cecil Morris, Dawn Peters and
Carl Taylor. The supervisors advised the auditors that
they were not asking for their hourly rate of pay of
$9.25 to be raised.
5. Township payroll records reflect that Billings was compensated
at the hourly rate of $9.25 as set by the auditors for
services performed by him.
6. Township records reflect that Billings claimed the following
number of hours worked which were administrative in nature.
04/23/90 1
HOURS DESCRIPTION OF DUTIES
Meeting at the courthouse in
Clearfield, Pennsylvania. Discuss a
plan to burn off gas or oil
contaminated soils.
Billings, 92- 047 -C2
Page 4
06/12/90 .5 Meeting with a DER representative at
an illegal dump site.
07/19/90 10 Meeting at DER, Norristown,
Pennsylvania, to obtain information
on a waste company.
08/23/90 3 Contacted township residents in the
vicinity of a gypsy moth spray
block.
09/17/90 1 Net with the township solicitor to
update a solid waste ordinance.
12/19/90 5 DER Williamsport. Meet with Gary
Metzger, DER, with regard to sewage
lines intersecting township roads.
05/19/92 1.5 Wal -Mart and Governor's Response
Team meeting.
06/16/92 2 Meeting with Wal -Mart personnel at
the site of a roadway problem or at
Butler Trucking Office.
06/30/92 8 Travel to DER (Williamsport) to
attend a meeting on sewage problems.
Travel back to the Clearfield office
to meet with Wal -Mart officials at
the Clearfield foundation to discuss
roads at their project.
TOTAL 31.5
7. The amount of pay which Billings received as compensation for
performing the functions listed in Finding 6 above was as
follows:
YEAR PAY RATE HOURS
1990 9.25 20.5
1992 9.25 11.0
TOTAL
AMOUNT
$ 189.62
101.75
$ 291.37
8. Billings believed that he was entitled to receive compensation
for the hours listed in Finding 6.
a. Payments to Billings were approved by the auditors during
annual audits of township accounts.
Billings, 92- 047 -C2
Page 5
III. DISCUSSION:
As a Supervisor for Bradford Township, Clearfield County,
Kenneth Billings, hereinafter Billings, is a public official as
that term is defined under Act 9 of 1989. 65 P.S. §402. As such,
his conduct is subject to the provisions of the Ethics Law and the
restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 provides, in part, as follows:
"This amendatory act shall not apply to
violations committed prior to the effective
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto."
Since the occurrences in this case transpired after the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 9 to determine whether the Ethics Act was
violated.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest.
The issue before us is whether Billings violated Section 3(a)
of Act 9 of 1989 by receiving compensation as an employee -
supervisor for administrative services including but not limited to
attending meetings.
Billings has served as a Bradford Township Supervisor in
Clearfield County, Pennsylvania and as a Township roadmaster since
January, 1990. He was reappointed at the reorganizational meetings
in 1991 and 1992. As elected officials, the Bradford Township
Supervisors are compensated at a rate of $50.00 per meeting not to
exceed thirty meetings per year. As working Township employees,
the Supervisors are compensated at the rate of $9.25 per hour which
had been approved at the January meeting of the Auditors from 1990
through 1992. During the foregoing period, Billings was paid for
31.5 hours of work as an employee - supervisor involving duties which
were administrative in nature. (Fact Finding 6). The amount of
compensation received by Billings for performing such
administrative services amounted to $291.37. Billings believed he
was entitled to receive such compensation based upon the hourly
rate as approved by the Township Auditors.
Billings, 92- 047 -C2
Page 6
In determining whether the action of Billings violated Section
3(a) of the Ethics Law, we must review the pertinent provisions of
the Second Class Township Code. Although we do not have
jurisdiction to interpret the provisions of the Second Class
Township Code, it is necessary to review those provisions of law in
order to make a determination as to whether the financial gain was
compensation other than provided for by law under Section 3(a) of
the Ethics Law.
The Second Class Township Code provides that township
supervisors shall receive the following compensation:
53 P.S. §65515.
Compensation of Supervisors --
Supervisors may receive from the general
township fund, as compensation, an amount
fixed by ordinance not in excess of the
following:
Township Population
Not more than 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,999
25,000 to 34,999
35,000 or more
Annual Maximum Compensation
Fifteen hundred dollars
Two thousand dollars
Twenty -six hundred dollars
Thirty -three hundred dollars
Thirty -five hundred dollars
Four thousand dollars
Such salaries shall be payable monthly or
quarterly for the duties imposed by the
provisions of this act. The population shall
be determined by the latest available official
census figures. The compensation of
supervisors shall be fixed by the township
auditors either per hour, per day, per week,
semi - monthly or monthly, which compensation
shall not exceed compensation paid in the
locality for similar services, and such other
reasonable compensation for the use of a
passenger car, or a two -axled four - wheeled
motor truck having a chassis weight of less
than two thousand pounds when required and
actually used for the transportation of road
and bridge laborers and their hand tools and
for the distribution of cinders and patching
material from a stock pile, as the auditors
shall determine and approve; but no supervisor
shall receive compensation as a superintendent
or roadmaster for any time he spends attending
a meeting of supervisors.
Billings, 92- 047 -C2
Page 7
In reference to the meetings for which supervisors may receive
compensation, the Code further provides as follows:
The township supervisors shall meet for
the transaction of business at least once each
month, at a time and place to be fixed by the
board, but they shall not be paid for more
than sixteen meetings in any one year, except
for any township where, on account of the
exercise of governmental functions other than
those relating to roads, more meetings are
necessary, in which case, the number of
meetings for which the supervisors may be paid
may be increased to any number, not exceeding
fifty meetings in any year which shall include
hearings by aggrieved parties under the
Pennsylvania Sewage Facilities Act and other
hearings by aggrieved parties, hearings of a
judicial or quasi - judicial nature. Two
members of any board of supervisors consisting
of three members shall constitute a quorum and
three members of any board of supervisors
consisting of five members shall constitute a
quorum. Except as otherwise provided in this
act, an affirmative vote of a majority of the
entire board of supervisors shall be necessary
in order to transact any business. Necessary
expenses incurred in such meetings, including
office rent, stationery, light and fuel, shall
be paid out of the general township fund.
53 P.S. §65512.
The duties that a supervisor is responsible for performing are
regulated by statute. As can be seen from the foregoing, the
compensation to be paid for a supervisor who is not otherwise
employed by the township is strictly regulated by the Second Class
Township Code. A supervisor may only receive compensation, as set
forth above, for supervisor meetings regarding the transaction of
township business. The type of meeting for which a township
supervisor may be compensated must be one at which official
township business is transacted. Additionally, the Second Class
Township Code provides for compensation at the specific meetings
outlined in §65512 above. The Code does not appear to permit the
compensation of a township supervisor for attending other types of
meetings or for performing the administrative functions of his
office. Any such other compensation must be earned in and as part
of the services performed while serving in one of the statutorily
authorized positions. Thus, if the township supervisors were to
award to themselves compensation for attendance at meetings that
are not official township meetings of the board of supervisors, or
Billings, 92- 047 -C2
Page 8
for performing duties not authorized by law, such would violate the
provisions of the State Ethics Law as such payment would not
constitute compensation provided by law. The above interpretation
of the Second Class Township Code is a view that has also been
expressed by the State Association of Township Supervisors which
specifically indicated that supervisors may not be compensated for
meetings with engineers, solicitors, planning commissions,
authorities, or recreation boards. See, Township News, May, 1985,
Page 66.
The Code sets forth clearly when supervisors may receive
compensation other than as set forth above. Generally, township
supervisors may be employed by the township as a roadmaster,
laborer, or secretary /treasurer. 53 P.S. §65410. The compensation
to be paid to supervisors working in such positions is to be fixed
by the township board of auditors. 53 P.S. § §65515, 65531, 65540.
Township supervisors may not receive any other compensation except
as provided above. In Coltar v. Warminister Township, 8 Pa. Commw.
Ct. 163, 302 A.2d 859 (1973), the Commonwealth Court of
Pennsylvania held that a second class township supervisor may not
appoint himself to positions other than those set forth in the
township code (roadmaster, laborer, or secretary /treasurer), and
receive compensation therefore. See also, Conard v. Exeter
Township, 27 D &C.3d 253 (Berks 1983). It is clear, therefore, that
the duties for which a township supervisors may be compensated are
strictly regulated by the Code, and when performing in the
positions set forth in the Code, the supervisor's pay must be
specifically set forth by the township board of auditors.
In applying the above provisions of law to the instant matter,
we find that Billings violated Section 3(a) of the Ethics Law.
Billings used the authority of public office to obtain $291.37 in
payments which constitute a private pecuniary benefit. The
foregoing compensation received by Billings was not authorized
under the Second Class Township Code. Accordingly, Billings is
ordered to make timely restitution through this Commission payable
to the order of Bradford Township in the amount of $291.37. Since
there was no intent to violate the Ethics Law, this matter will be
closed upon payment of restitution. However, failure to make
restitution will result in a directive of the Commission to
institute an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Kenneth Billings, as a Bradford Township Supervisor, is a
public official subject to the provisions of Act 9 of 1989.
2. Billings violated Section 3(a) of Act 9 of 1989 when he used
the authority of office to obtain a private pecuniary benefit
consisting of $291.37 for performing administrative services
or attending meetings of the Board of Supervisors.
In Re: Kenneth Billings File Docket: 92- 047 -C2
Date Decided: June 28, 1993
Date Mailed: June 30, 1993
ORDER NO. 891
1. Kenneth Billings, as a Bradford Township Supervisor, violated
Section 3(a) of Act 9 of 1989 when he used the authority of
office to obtain a private pecuniary benefit consisting of
$291.37 for performing administrative services or attending
meetings of the Board of Supervisors
2. Billings is directed within thirty (30) days of the date of
issuance of this Order to submit restitution in the amount of
$291.37 to this Commission payable to the Order of Bradford
Township.
3. Failure to comply with Paragraph 2 will result in a directive
of this Commission to institute order enforcement proceedings.
BY THE COMMISSION,
JAMES M. HOWL R