Loading...
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