HomeMy WebLinkAbout892STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Seth G. Cowder File Docket: 92- 061 -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. §409(e).
Cowder, 92- 061 -C2
Page 2
I. ALLEGATION:
That Seth G. Cowder, a Supervisor for Bradford Township,
Clearfield County, violated the following provisions of the State
Ethics Act (Act 9 of 1989) when he approved compensation for
himself, not provided for by law, in the form of payments for
administrative services, including but not limited to, attendance
at meetings.
II. FINDINGS:
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).
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. Seth Cowder serves as a Township Supervisor for Bradford
Township, Clearfield County, Pennsylvania.
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
Seth Cowder was appointed roadmaster at reorganization
meetings in January of 1990, 1991 and 1992.
Cowder, 92- 061 -C2
Page 3
3. Township supervisors were compensated for attending meetings
of the township supervisors at a rate of $50.00 per meeting
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
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.
c. 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 Cowder was compensated
at the hourly rate of $9.25 as set by the auditors for
services performed by him.
6. Township
of hours
DATE
04/23/90
records reflect Cowder claimed the following number
worked which were administrative in nature.
HOURS DESCRIPTION OF DUTIES
1
Meeting at the courthouse in
Clearfield, Pennsylvania. Discuss a
plan to burn off gas or oil
Cowder, 92- 061 -C2
Page 4
contaminated soils.
05/30/90 5 Meeting with DER official, Gary
Metzger in Williamsport, PA with
regard to sewage treatment and a
solid waste plan.
06/12/90 .5 Meeting with a DER official Jim
Green at a township property, where
trash was being illegally dumped.
07/19/90 10 Meeting with DER official at
Norristown, PA to obtain information
from a case file on a solid waste
company.
08/23/90 3 Contacted township residents located
in a designated area which was to be
sprayed to eliminate a gypsy moth
problem.
09/17/90 1 Meet with the township solicitor in
her Clearfield, PA, Office to sign a
document pertaining to a road
agreement.
12/19/90 5 Meet with DER official, Gary
Metzger, in Williamsport, PA, with
regard to sewage lines intersecting
township roads.
02/12/92 1 Meet with Allen Walker, Bradford
Coal Co., at the township building
at his request with regard to road
agreements. Walker's employee Skip
Peters also attended.
02/25/92 4 Initial meeting with Governor's
Response Team at the Best Western
Motel, Clearfield, to determine the
site of the Wal -Mart Distribution
Center.
05/19/92 1 Meeting at township road site or at
the Butler Trucking Co. office
pertaining to Wal -Mart and township
roads. Pertained to a problem with
an engineering firm.
05/20/92 .5 Meeting at township road site or at
the township building with regard to
Cowder, 92- 061 -C2
Page 5
Wal -Mart and township roads.
Pertained to a problem with an
engineering firm.
06/16/92 2 Meeting at the Butler Trucking Co.
office or the site of the Wal -Mart
Distribution Center. Also, walked
the roadways leading to the site to
see if any problems exist.
06/22/92 2 Meeting with Representative George
or DER official, Greg Robertson,
with regard to Red Water sites along
township roads.
06/30/92 8 Meeting with DER official Gary
Metzger, in Williamsport, PA, with
regard to sewage matters. Then
return to the office of Guy Graham,
Clearfield Foundation, to attend a
meeting concerning township roads.
07/13/92 1 Meeting with Helen Wise, a State
Official, Representative Camille
George, and Solicitor Ann Wood at
Houtzdale, PA, with regard to grants
for the Wal -Mart project.
TOTAL 45
7. The amount of pay which Cowder received as compensation for
performing the functions listed in Finding 6 above was as
follows:
AMOUNT
III. DISCUSSION:
YEAR PAY RATE HOURS
1990 9.25 23 $ 212.75
1992 9.25 22 203.50
TOTAL $ 416.25
8. Cowder believed that he was entitled to receive compensation
for the hours listed in Finding 6.
a. Payments to Cowder were approved by the auditors during
annual audits of township accounts.
As a Supervisor for Bradford Township, Clearfield County, Seth
G. Cowder, hereinafter Cowder, is a public official as that term is
defined under Act 9 of 1989. 65 P.S. §402. As such, his conduct
Cowder, 92- 061 -C2
Page 6
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 Cowder 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.
Cowder 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, Cowder was paid for 45
hours of work as an employee - supervisor involving duties which were
administrative in nature. (Fact Finding 6). The amount of
compensation received by Cowder for performing such administrative
services amounted to $416.25. Cowder believed he was entitled to
receive such compensation based upon the hourly rate as approved by
the Township Auditors.
In determining whether the action of Cowder 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
Cowder, 92- 061 -C2
Page 7
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:
Compensation of Supervisors
Supervisors may receive from the general
township fund, as compensation, an amount
fixed by ordinance not in excess of the
following:
53 P.S. §65515.
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.
In reference to the meetings for which supervisors may receive
compensation, the Code further provides as follows:
The township supervisors shall meet for
Cowder, 92- 061 -C2
Page 8
53 P.S. §65512.
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.
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
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
Cowder, 92- 061 -C2
Page 9
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 Cowder violated Section 3(a) of the Ethics Law.
Cowder used the authority of public office to obtain $416.25 in
payments which constitute a private pecuniary benefit. The
foregoing compensation received by Cowder was not authorized under
the Second Class Township Code. Accordingly, Cowder is ordered to
make timely restitution through this Commission payable to the
order of Bradford Township in the amount of $416.25. 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. Seth G. Cowder, as a Bradford Township Supervisor, is a public
official subject to the provisions of Act 9 of 1989.
2. Cowder violated Section 3(a) of Act 9 of 1989 when he used the
authority of office to obtain a private pecuniary benefit
consisting of $416.25 for performing administrative services
or attending meetings of the Board of Supervisors.
In Re: Seth G. Cowder File Docket: 92- 061 -C2
. Date Decided: June 28, 1993
. Date Mailed: June 30, 1993
ORDER NO. 892
1. Seth G. Cowder, 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
$416.25 for performing administrative services or attending
meetings of the Board of Supervisors.
2. Cowder is directed within thirty (30) days of the date of
issuance of this Order to submit restitution in the amount of
$416.25 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