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HomeMy WebLinkAbout858 TygerIn re: Richard Tyger STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: Date Decided: : Date Mailed: Before: James M. Howley, Daneen E. Reese, Roy W. Wilt Austin M. Lee Allan M. Kluger 90 -033 -C Seotembe; 15. 1992 September 18. 1992 Chair Vice Chair The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. 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 not 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 §2.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 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). 2. Tvaer, 90 -033 -C Page 2 I. ALLEGATION: That Richard Tyger, a Supervisor for Bradford Township, McKean County, violated the following provisions of the State Ethics Act when he received compensation not provided for by law in the form of administrative pay and office related duties: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a) II. FINDINGS: 1. Richard Tyger serves as a Township Supervisor for Bradford Township, McKean County, Pennsylvania. a. He has served in said position since January of 1988. The Bradford Township Board of Supervisors routinely appointed themselves to various .__positions of_responsibility in addition to that of Township Roadmaster. Records confirm that all three Supervisors were annually appointed Roadmasters. 3. Bradford Township was not divided into road districts by the Township Board of Supervisors. 4. Richard Tyger was appointed Office Supervisor in each year from 1988 -1990 inclusive at the Board of Supervisors' reorganization meetings. 5. Township Supervisors were compensated for service as elected officials for attending Township Supervisor meetings at a rate of $25.00 per meeting not to exceed 16 meetings per year. a. Said rate was established by Ordinance 85 -1 to be effective January 1986. b. The rate was established in accordance with the Second Class Township Code. 6. Minutes of the Township Board of Auditors meetings indicate =ma, 90 -033 -C Page 3 19 88 the following regarding the compensation of Township Supervisors for working on Township roads: a. January 1988 The Auditors present were Beverly Good and Nancy Getz. The pay rate for the Supervisors was set at $7.75 per hour. The mileage rate of .20 cents per mile was to remain the same. b. January 1989 The Auditors present were John DePetro, Nancy Getz and Beverly Good. The pay rate for the Supervisors was going to remain the same as it was in 1988 and that was $7.75 per hour. The mileage rate was going to be increased to .21 cents per mile. c. March 6, 1989 The Auditors held a public meeting. The Auditors present were Nancy Getz, Beverly Good and John DePetro. A motion to pay the Supervisors $8.00 per hour and .21 cents for mileage was made by Nancy Getz and seconded by John DePetro retroactive to January 1, 1989. d. January, 1990 Two Auditors were in attendance and they were Beverly Good and Margaret Fuller. Motion was made by Beverly Good to raise the pay rate of supervisor to $8.50 per hour. Also included in this was the inspection of Township roads in October and April as it was to be paid at the hourly rate. The mileage was also raised to .22 cents per mile. All of this was seconded by Margaret Fuller. 7. Records of Bradford Township indicate that Richard Tyger was compensated for various Township activities at an hourly rate set by the Auditors. 8. Records of Bradford Township indicate that various tasks performed by Richard Tyger for which he was compensated were not related to his functions as a Township Roadmaster. 9. Records of Bradford Township indicate the following regarding the number of hours worked on non - roadmaster duties by Richard Tyger: 2.41A Houys Dgscription of Duties 6 -01 -88 1.0 Office Tvver,, 90-033-C Page 4 1989 6 -08 -88 1.0 6 -22 -88 1.0 6 -29 -88 1.0 7 -06 -88 1.0 7 -13 -88 1.0 7 -28 -88 1.0 7 -27 -88 1.0 8 -10 -88 1.0 8 -17 -88 1.0 8 -24 -88 1.0 8 -31 -88 1.0 9 -07 -88 2.0 9 -14 -88 2.0 9 -21 -88 2.0 9 -28 -88 2.0 10 -05 -88 2.0 10 -11 -88 3.0 10 -12 -88 2.0 10 -13 -88 2.0 10 -19 -88 2.0 10 -27 -88 2.0 10 -29 -88 4.0 10 -31 -88 2.0 11 -08 -88 1.0 11 -09 -88 2.0 11 -16 -88 2.0 11 -18 -88 2.0 11 -25 -88 2.0 11 -30 -85 12 -02 -88 -_ ... 2.0 12 -07 -88 2.0 12 -09 -88 1.0 12 -14 -88 2.0 12 -15 -88 2.0 12 -19 -88 1.0 12 -21 -88 2.0 12 -13 -88 2.0 12 -28 -88 24-4. Total 66.0 Office Office Office Office Work Office Work Office Work Office Work Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Office Pay Rate $7.75/hr Total: $511.50 1 -04 -89 2:0 Office 1 -06 -89 2.0 Office 1 -10 -89 2.0 Office 1 -11 -89 1.0 Office 1 -13 -89 1.0 Office 1 -18 -89 2.0 Office 1 -19 -89 1.0 Office ?veer, 90 -033 -C Page 5 1 -25 -89 2.0 Office 2 -01 -89 2.0 Office 2 -03 -89 2.0 Office 2 -06 -89 1.0 Office 2 -08 -89 2.0 Office 2 -15 -89 2.0 Office 2 -20 -89 2.0 Office 2 -22 -89 3.0 Office 3 -01 -89 2.0 Office 3 -08 -89 2.0 Office 3 -15 -89 2.0 Office 3 -29 -89 3.0 Office 4 -05 -89 2.0 Office 4 -12 -89 2.0 Office 4 -19 -89 2.0 Office 5 -03 -89 2.0 Office 5 -10 -89 5.0 Office 5 -17 -89 2.0 Office 5 -24 -89 2.0 Office 5 -31 -89 2.0 Office 6 -07 -89 2.0 Office 6 -14 -89 2.0 Office 6 -21 -89 2.0 Office 6 -23 -89 2.0 Office 6 -28 -89 2.0 Office 7 -05 -89 2.0 Office 7 -12 -89 2.0 Office 7 -19 -89 2.0 Office 7 -26 -89 2.0 Office ... 8 -03 -89 2.0 Office 8 -09 -89 2.0 Office 8 -16 -89 2.Q Office 8 -23 -89 2.0 Office 9 -06 -89 2.0 Office 9 -13 -89 2.0 Office 9 -20 -89 2.0 Office 9 -27 -89 2.0 Office 10 -04 -89 2.0 Office 10 -11 -89 2.0 Office 10 -18 -89 2.0 Office 10 -25 -89 2.0 Office 11 -01 -89 2.0 Office 11 -08 -89 2.0 Office 11 -15 -89 2.0 Office 11 -21 -89 2.0 Office 11 -29 -89 2.0 Office 12 -06 -89 2.0 Office 12 -18 -89 2.0 Office 12 -19 -89 1.0 Office 12 -20 -89 2.0 Office 12 -21 -89 3.5 Office er, 90 -033 -C Page 6 1990 12 -26 -89 2.0 Office Total 119.5 Pay Rate $8.00 /hr. Total: $956.00 1 -03 -90 2.0 Office 1 -10 -90 2.0 Office 1 -07 -90 2.0 Office 1 -17 -90 2.0 Office 1 -24 -90 2.0 Office 1 -31 -90 2.0 Office 2 -07 -90 2.0 Office 2 -14 -90 2.0 Office 2 -21 -90 2.0 Office 2 -28 -90 2.0 Office 3 -21 -90 2.0 Office 3-26-90 2.0 Office 4 -04 -90 3.0 Office. 4 -11 -90 2.0 Office 4 -18 -90 3.0 Office 4 -25 -90 2.0 Office 5 -02 -90 3.0 Office 5 -09 -90 3.0 Office 5 -16 -90 2.0 Office 5 -23 -90 3.0 Office 6 -06 -90 2.0 Office 6 -13 -90 2.0 Office 6 -20 -90 2.0 Office 6 -27 -90 2.0 Office 7 -04 -90 2.0 Office 7 -11 -90 2.0 Office 7 -18 -90 2.5 Office 7 -25 -90 2.0 Office 8 -01 -90 2.0 Office 8 -08 -90 2.0 Office 8 -15 -90 2.0 Office 8 -29 -90 2.0 Office 9 -05 -90 2.0 Office 9 -12 -90 2.0 Office 9 -26 -90 2.0 Office 10 -03 -90 2.0 Office 10 -10 -90 2.0 Office 10 -17 -90 2.0 Office 10 -24 -90 2.0 Office 10 -31 -90 0 Office Total 85.5 Pay Rate $8.50 /hr Total $726.75 =gm, 90 -033 -C Page 7 10. The rate of pay at which Richard Tyger was compensated and the total amount paid to him for performing the functions listed in Finding 10 above was as follows. YE RA PAY RATE HOURS MONEY 1988 $7.75 66.00 $511.50 1989 8.00 119.50 956.00 1990 8.50 85.50 726.7$ $2,194.25 11. The Township Supervisors maintained their own time sheets and submitted them for payments. III. DISCUSSION: As a Supervisor.for Bradford Township, McKean County, Richard Tyger, hereinafter Tyger, is a public official as that term is defined in the Ethics Act, 65 P.S. S402; 51 Pa. Code S1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, 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 prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section Tvaer, 90 -033 -C Page 8 3(a): Moak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). In the instant matter we must determine whether Tyger as a Bradford Township Supervisor violated Section 3(a) of Act 170 of 1978 quoted above regarding the receipt of compensation for administrative and office related duties. Factually, Tyger has served as Township Supervisor since January, 1988. In addition, Tyger has been employed as a Township Roadmaster during the foregoing years. Tyger also held the position of "Office Supervisor ". Bradford Township Supervisors were compensated at the rate of $25.00 per meeting not to exceed 16 meetings per year. The minutes of the Township Board. of Auditors for the January reorganizational meetings from 1988 through 1990 reflect the setting of the pay and mileage rate for working Supervisors at twenty cents a mile and an hourly rate of pay of $7.75 in 1988, $7.75 per hour and twenty -one cents per mile in 1989 which was subsequently reset at $8.00 in March, 1989 and $8.50 per hour with mileage at twenty -two cents for 1990. A review of the records of Bradford Township reflect that Tyger was paid for functions which did not relate to the working_ position as Township Roadmaster. (Pact Finding 8). 'The - tots compensation received by Tyger for the years in question totaled $2,194.25. In determining whether the actions of Tyger violated Section 3(a) of Act 170 of 1978, 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 per se, 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 Act 170 of 1978. 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: Tvaer, 90 -033 -C Page 9 Township 1gpua ;ion Not more than 4,999 5,000 to 9,999 10,000 to 14,999 15,000 to 24,000 25,000 to 34,999 35,000 or more Annual Maximum Co:aflensation 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 not supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 53 P.S. 565515. 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 Tvger, 90 -033 -C Page 10 judicial or quasi - judicial nature. Two members of any board of supervisors consisting of three members shall constitute a quorum and three members shall constitute a quorum. Except as otherwise provided in this act, an affirmative vote of a majority of the entire board of any 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. 565512. 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 565512, 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 statutory authorized positions Thus, if the township supervisors were 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 act 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. 565410. The compensation to be paid to supervisors working in such positions is to be fixed by the township board of auditors. 53 P.S. 5565515; 65531, 65540. Township supervisors may not receive any other compensation except as provided above. This concept has been upheld by various courts in the Commonwealth. In Coltar v. Warminister Township, 8 pa. Commw. Ct. 163, 302 A.2d 859, (1973), the Commonwealth Court of Tvicer, 90 -033 -C Page 11 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 Conrad v. Exeter Townshio, 27 D & C 3d 253, (Becks 1983). It is clear, therefore, that the duties for which a township supervisor 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 Tyger violated Section 3(a) of Act 170 of 1978. Tyger used public office to obtain financial gain consisting of the $2,194.25 in payments which constitute a financial gain and which is not compensation provided for by law. The foregoing compensation received by Tyger was for activities which did not relate to the working position as Township Roadmaster but rather to the elected position of Township Supervisor. Accordingly, Tyger is ordered to make restitution through this Commission payable to the order of Bradford Township in the amount of $2,194.25. IV. CONCLUSIONS OF LAW: 1. Richard Tyger as a Bradford Township Supervisor is a public official subject to the provisions of the Ethics Act. 2. Tyger violated Section 3(a) of Act 170 of 1978 by receiving $2,194.25 for performing functions which did not relate to the Township employee position of Roadmaster which is therefore a financial gain other than compensation provided for bylaw. In re: Richard Tyger : File Docket: 90 -033 -C : Date Decided: September 15. 1992 : Date Mailed: September 18, 1992 ORDER NO. 858 1. Richard Tyger as a Bradford Township Supervisor violated Section 3(a) of the Ethics Act by receiving $2,194.25 for performing functions which did not relate to the Township employee position of Roadmaster which is therefore a financial gain other than compensation provided for by law. 2. Tyger is ordered to make timely restitution through this Commission payable to the Order of Bradford Township in the amount of $2,194.25. BY THE COMMISSION, JAMES M. HOWLEY