HomeMy WebLinkAbout859 WalizerIn re: Arlington Walizer
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
: File Docket: 90 -005 -C
: Date Decided: September 15, 1992
: Date Mailed: September 18, 1992
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
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 deemed waived. The record is
complete. 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
S2.38.
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).
Walizer, 90 -005 -C
Page 2
I. ALLEGATION:
That Arlington Walizer, a Supervisor for Lamar Township,
Clinton County, violated the following provisions of the State
Ethics Act, (Act 170 of 1978), when he was compensated for
attending meetings other than board of supervisors' meetings:
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. Arlington Walizer served as a Township Supervisor for Lamar
Township, Clinton County, Pennsylvania from 1974 until he
resigned in March of 1990.
a. Arlington Walizer served as the township roadmaster from
1974 through 1990.
2. Lamar Township supervisors are - compensated for - 'service - as "
elected officials for attending regular meetings of the board
of township supervisors not to exceed 16 meetings per year.
a. Arlington Walizer was compensated at a rate of $50.00 per
township meeting.
b. The rate was established in accordance with the Second
Class Township Code.
3. Lamar Township records confirm that Arlington Walizer attended
various township meetings as follows:
a. 1986 Purpose
01 -06 -86 Supervisors
01 -07 -86 Auditors
02 -03 -86 Supervisors
03 -03 -86 Zoning Hearing Board
03 -10 -86 Supervisors
04 -07 -86 Supervisors
04 -28 -86 Zoning Hearing Board
05 -05 -86 Supervisors
06 -02 -86 Supervisors
r
W4lizer, 90 -005 -C
Page 3
07 -07 -86 Supervisors
07 -28 -86 Supervisors
08 -04 -86 Supervisors
09 -08 -86 Supervisors
10 -16 -86 Supervisors
10 -28 -86 Zoning Hearing Board
11 -04 -86 Supervisors
12 -01 -86 Supervisors
12 -29 -86 Supervisors
Total 18 Meetings
14 Supervisors
3 Zoning Hearing Board
1 Auditor
b. 1987 Purpose
01 -05 -87 Supervisors
01 -06 -87 Auditors
02 -02 -87 Supervisors
03 -02 -87 Supervisors
04 -02 -87 Zoning Hearing Board
04 -06 -87 Supervisors
05 -04 -87 Supervisors
06 -01 -87 Supervisors
06 -11 -87 Zoning Hearing Board
07 -06 -87 Supervisors
08 -03 -87 Supervisors
09 -07 -87 - Supervisors ..,_.
10 -05 -87 Zoning Hearing Board
11 -02 -87 Supervisors
12 -07 -87 Supervisors
12 -28 -87 Supervisors
Total 16 Meetings
13 Supervisors
2 Zoning Hearing Board
1 Auditor
c. 1988 Purpose
01 -04 -88 Auditors
01 -05 -88 Supervisors
02 -01 -88 Supervisors
03 -07 -88 Supervisors
04 -04 -88 Zoning Hearing Board
05 -02 -88 Supervisors
06 -05 -88 Supervisors
07 -06 -88 Supervisors
08 -01 -88 Supervisors
09 -05 -88 Supervisors
Walizer, 90 -005 -C
Page 4
09 -29 -88
10 -03 -88
11 -07 -88
12 -05 -88
12 -15 -88
12 -29 -88
d. 1989
01 -03 -89
01 -04 -89
02 -06 -89
02 -21 -89
03 -02 -89
03 -06 -89
04 -03 -89
04 -27 -89
05 -01 -89
05 -25 -89
06 -12 -89
06 -19 -89
07 -10 -89
08 -07 -89
09 -1174W
10-02-89'
11 -06 -89
12 -05 -89
Total 16 Meetings
13 Supervisors
2 Zoning Hearing Board
1 Auditor
a. 1986
07 -07 -86 273
12 -28 -86 467
b. 1987
07 -06 -87 664
12 -31 -87 879
Zoning Hearing Board
Supervisors
Supervisors
Supervisors
Zoning Hearing Board
Supervisors
Purpose
Supervisors
Auditors
Supervisors
Zoning Hearing
Zoning Hearing
Supervisors
Supervisors
Zoning Hearing
Supervisors
Zoning Hearing
Supervisors
Supervisors
Supervisors
Supervisors
Supervisor&T.
Supervisors`
Supervisors
Supervisors „
Total 18 Meetings
13 Supervisors
4 Zoning Hearing Board
1 Auditor
Check # Amount
Board
Board
Board
Board
4. Arlington Walizer claimed compensation for attending all of
the meetings outlined in finding #3. He was compensated as
follows for attending meetings:
$450.00 (9 meetings)
$450.00 (9 meetings)
$450.00 (9 meetings)
$350.00 (7 meetings)
Walizer, 90 -005 -C
Page 5
c. 1988
07 -06 -88 1063
12 -31 -88 1277
d. 1989
04 -03 -89 1371
07 -10 -89 1465
a. 1986
01 -07 -86
03 -03 -86
04 -28 -86
10 -28 -86
b. 1987
01 -06 -87
04 -02 -87
06 -11 -87
c. 1988
01 -04 -88
09 -29 -88
12 -15 -88
d. 1989
01 -04 -89
02 -21 -89
03 -02 -89
04 -27 -89
Purpose
Auditors
Zoning Hearing Board
Zoning Hearing Board
Zoning Hearing Board
TOTAL
Auditors
Zoning Hearing Board
Zoning Hearing Board
Zoning Hearing Board
$350.00 (7 meetings)
$450.00 (9 meetings)
$300.00 (6 meetings)
$300.00 (6 meetings)
5. Records of Lamar Township confirm that Arlington Walizer
participated in board actions to approve expenditures which
included payments to him for attending meetings as follows:
a. July 7, 1986
December 28, 1986
July 6, 1987
December 31, 1987
July 6, 1988
December 31, 1988
April 30, 1989
b. Walizer also signed all checks made
meeting attendance.
payable to him for
6. Arlington Walizer was compensated for meetings other than
board of supervisors meetings as. follows:
Amount
$50.00
50.00
50.00
50.00
$200.00
Auditors $50.00
Zoning Hearing Board 50.00
Zoning Hearing Board 50.00
TOTAL $150.00
Auditors $50.00
Zoning Hearing Board 50.00
Zoning Hearing Board 50.00
TOTAL $150.00
$50.00
50.00
50.00
50.00
Walizer, 90 -005 -C
Page 6
05 -25 -89 Zoning Hearing Board 50.00
TOTAL $250.00
7. For the period 1986 through 1989, Arlington Walizer was paid
a total of $750.00 for attending meetings other than Lamar
Township Board of Supervisors' meetings.
III. pISCIISSION:
As a Supervisor for Lamar Township in Clinton County,
Pennsylvania, Arlington Walizer, hereinafter Walizer, is a public
official as that term is defined in the Ethics Act, 65 P.S. 5402;
51 Pa. Code 1.1. 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 moist' 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
3(a): Hoak /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 Walizer as a
Walizer, 90 -005 -C
Page 7
Lamar Township Supervisor violated Section 3(a) of Act 170 of 1978
quoted above regarding the receipt of compensation for attending
meetings other than meetings of the Board of Supervisors.
Walizer served as a Lamar Township Supervisor and roadmaster
from 1974 until his resignation in March, 1990. Lamar Township
Supervisors were compensated at the rate of $50.00 per board
meeting, not to exceed 16 meetings per year. Walizer attended and
was compensated for such meetings (Fact Finding 4).
Aside from Township Board of Supervisors' meetings, Walizer
also attended and was compensated for attending meetings which were
other than for the Board of Supervisors' meetings (Fact Finding 6).
Walizer participated in the Township Board action to approve such
expenditures and signed some checks which were payable to him for
attending such meetings (Fact Finding 5). From 1986 through 1989,
Walizer received $750.00 for attending such meetings (Fact Finding
7).
In determining whether the action of Walizer violated Section
3(a) of the Ethics Act, 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 the Ethics Act.
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:
Township Population
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 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
walizer, 90 -005 -C
Page 8
-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. §65515.
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 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 otherthan -.:.
those relating to roads, more meetings ire
necessary, in which case, the number of
meetings for which the supervisors maybe 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 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. S65512.
The duties that a supervisor is responsible for performing are
Walizer, 90 -005 -C
Page 9
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 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 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. §65515; 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
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
Township, 27 D & C 3d 253, (Berks 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 Waltzer violated Section 3(a) of the Ethics Act.
Walizer used public office to obtain $750.00 in payments which
constitutes a financial gain other than compensation provided for
Walizer, 90 -005 -C
Page 10
by law. The foregoing compensation received by Walizer was not
authorized under the Second Class Township Code. Accordingly,
Walizer is ordered to make timely restitution through this
Commission payable to the order of Lamar Township in the amount of
$750.00.
IV. CONCLu IONS 9F LAW:
1. Arlington Walizer as a Lamar Township Supervisor is a public
official subject to the provisions of the Ethics Law.
2. Walizer violated Section 3(a) of the Ethics Act by receiving
$750.00 for attending meetings other than the meetings of the
Board of Supervisors which is a financial gain other than
compensation provided for by law.
In re: Arlington Walizer : File Docket: 90 -005 -C
: Date Decided: September 1,5. 1992
: Date Mailed: September 111. 1992
ORDER NO. 859
1. Arlington Walizer as a Lamar Township Supervisor violated
Section 3(a) of the Ethics Act by receiving $750.00 for
attending meetings other than the meetings of the Board of
Supervisors which is a financial gain other than compensation
provided for by law.
2. Walizer is ordered to make timely restitution through this
Commission payable to the order of Lamar. Township in the
amount of $750.00.
3. Failure to make restitution within thirty (30) days of the
issuance of this Order will result in a directive of this
Commission for the initiation of an order enforcement action.
BY THE COMMISSION,