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