HomeMy WebLinkAbout845 MilksIn re: Frank Milks
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
: File Docket:
: Date Decided:
: Date Mailed:
91 -022 -C
April 23. 1992
April 27, 1992
Before: Dennis C. Harrington,
James M. Howley
Daneen E. Reese
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 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.
Chair
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).
Mr. Frank Milks
April 27, 1992
Page 2
I. ALLEGATION:
That Frank Milks, a Supervisor for Foster Township, McKean
County, violated the following provisions of the State Ethics Act
(Act 170 of 1978), when he received compensation not provided by
law by being paid for attending various meetings not related to the
duties of roadmaster, laborer or secretary /treasurer:
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. Frank Milks served as a township supervisor for Foster
Township, McKean County, Pennsylvania from 1974 through 1989.
a. He served as Chairman of the Board of Township
Supervisors from 1974 through 1989.
2. Minutes of the Foster Township Board of Supervisors
Organizational Meetings confirm that Supervisor Frank Milks
and the other supervisors were appointed roadmasters.
a. January 5, 1987
The reorganization meeting was held as the supervisors
present were Frank Milks, Jon Dawley, and Ann Kilhofer.
Mr. Milks was named chairman of the supervisors and all
three supervisors were named as roadmasters. Jon Dawley
was named as a representative to the McKean County
Planning Commission.
b. January 4. 1988
The reorganization meeting was held as the supervisors
present were Jon Dawley and Ann Kilhofer. Mr. Milks was
named chairman of the supervisors and all three
supervisors were named as roadmasters. Jon Dawley was
named as a representative to the McKean County Planning
Commission.
Mr. Frank Milks
April 27, 1992
Page 3
c. January 3, 1989
The reorganization meeting was held as the supervisors
present were Frank Milks, Jon Dawley and Ann Rilhofer.
Mr. Milks was named chairman of the supervisors as all
three supervisors were named as roadmasters. Upon a
motion by Jon Dawley and seconded by Ann Rilhofer with
all supervisors agreeing, the following positions were
approved:
Office and Finance Ann Rilhofer
Roads Jon Dawley
Police and Parks Frank Milks
3. Foster Township was not divided into road districts by the
Township Board of Supervisors.
4. The Foster Township Board of Supervisors appointed themselves
to other positions of responsibility in addition to that of
township roadmaster.
5. Frank Milks was appointed to the following position in each
year from 1974 - 1989 inclusive by the board of supervisors:
a. Police and Parks
6. The Foster Township Board of Auditors set the compensation of
supervisors employed as roadmaster at their reorganizational
meetings.
a. January 5, 1987
Present: William Schubert, Emilio Chiodo and Marilyn
Causer.
The following wage rates for the supervisors were
established for the year 1987:
Jon Dawley - while performing his duties as a full -time
employee, $7.85 per hour.
All supervisors - (other than when performing full -time
employee's duties) the rate will be $7.75 per hour.
Meeting preparation and attendance at meetings are
excluded from the above as reimbursement is established
by statute.
b. January 5. 1988
Present: William Schubert, Emilio Chiodo and Marilyn
Mr. Frank Milks
April 27, 1992
Page 4
Causer.
The following wage rates for supervisors were established
for the year 1988:
All supervisors - (other than when performing full -time
employee's duties) the rate will be $8.10 per hour.
Meeting preparation and attendance at meetings are
excluded from the above as reimbursement is established
by statute.
c. January 4, 1989
Present: William Schubert, Emilio Chiodo and Marilyn
Causer.
The following wage rates for supervisors were established
for the year 1989:
All supervisors - (other than when performing full -time
employee's duties) the rate will be $8.10 per hour. This
is the same as last year. Meeting preparation and
attendance at meetings are excluded from the above as
reimbursement is established by statute.
7. Records of Foster Township indicate that Frank Milks was
compensated the same hourly rate he received as roadmaster by
the township for activities not related to his position as
roadmaster.
8. Records of Foster Township indicate the following regarding
the number of hours worked on non - roadmaster duties by Frank
Milks:
1987
Date Hours Description of Duties,
1/5/87 4.0 Reorganization meeting
1/6/87 2.0 Water Meeting
1/12/87 2.0 Zoning
1/20/87 3.0 Sewer Authority
1/26/89 2.0 Park Meeting
1/28/87 2.0 McKean County Meeting
2/2/87 4.0 Jeff & Police Department
2/9/87 2.0 Frank Janer - Lunch
2/12/87 2.0 Jeff - Police
3/2/87 3.0 Police - Jeff
3/4/87 4.0 Police - Jim
3/11/87 1.0 Police Department
Mr. Frank Milks
April 27, 1992
Page 5
3/25/87
4/12/87
4/17/87
4/20/87
4/22/87
5/4/87
5/5/87
5/6/87
5/14/87
5/21/87
5/28/87
5/29/87
6/2/87
6/26/87
6/15/87
7/2/87
7/6/87
7/16/87
7/23/87
8/15/87
8/20/87
8/22/87
8/24/87
8/26/87
9/1/87
10/2/87
10/19/87
10/29/87
11/4/87
11/10/87
11/12/87
11/17/87
12/8/87
12/17/87
1987
Total Hours 130.5
Rate of Pay $7.75/hr.
1/8/88
1/11/88
1/21/88
2/1/88
2/9/88
2.0 McKean County Association
3.0 Meeting, Ann
2.5 Police - Jeff
2.0 Police, Jeff & Jim
2.0 Tax Collection
3.0 Police, Jeff
3.0 At Office
4.0 Police, Jeff & Jim
3.0 Budget, Jon & Ann
4.0 Water /Sewer Meeting
3.0 Police Business
2.0 Ann & JoAnn, sign checks
2.0 At Office, Jeff
1.0 Ann, sign checks
4.5 Meeting
2.0 Building Meeting
3.0 Meeting - JoAnn & Ann
2.0 Park Meeting
2.0 Meeting at building, Ann
2.0 Phone
4.0 John & Ann, Meeting
3.0 Luncheon - with Janner
4.0 Meeting in Smethport
4.0 Meeting - JoAnn (review
forms)
3.0 Police - Jeff
4.0 Police - reorganize
2.0 Prepare /JoAnn Meeting
1.5 Police 11/4/87
3.0 Jon & Ann meeting
3.0 Budget Meeting - Jon &
Ann
3.0 Jeff - Meeting
4.0 Mutz, Jon, Ann meeting
4.0 Employees' meetings
0 Met Ann & Jon, then Jeff
1988
2.0 Jeff & Jim, meeting
3.0 Chambersburg Commerce
2.0 Budget
2.0 Jeff, meeting
2.0 Mutzabaugh (police)
Mr. Frank Milks
April 27, 1992
Page 6
2/17/88 3.5 Employee meeting
3/2/88 3.0 Jeff & Jim, meeting
3/6/88 3.0 Mutzabaugh meeting
3/17/88 2.0 Employee meeting
4/4/88 3.0 Ann - Jon meeting
4/15/88 1.0 JoAnn - sign checks
4/16/88 4.0 Janner - meeting
5/10/88 3.0 Attend meeting with
township
5/3/88 6.0 Ann, Jon, Frank - budget
5/31/88 4.0 Jeff & Jim, police
5/31/88 2.0 Sign checks at office
6/6/88 4.0 Jeff - meeting
6/17/88 4.0 SPCA Meeting
6/30/88 4.0 Ann at office
7/1/88 4.0 Ann & Jon meeting, Jon
meeting at office
7/11/88 2.0 Budget with Ann & Jon
7/18/88 2.0 Police meeting
7/26/88 4.0 Luncheon meeting with
N o r t h w e s t
Engineers
8/5/88 2.0 Ann & Jon Employees'
meeting
8/16/88 4.0 Jon & Ann, finances
8/23/88 3.0 Met OECD meeting
8/24/88 4.0 Jeff & Jim meeting
9/12/88 3.5 Jon, Ann budget
9/15/88 4.0 Mutzabaugh - office
9/21/88 2.0 Police, part -time
employee
10/3/88 3.0 Ann & Jon, office work
session
10/6/88 2.0 Ann & Jon, office work
session
10/13/88 2.0 Ann, Jon - finance
10/19/88 3.0 Police
11/7/88 2.0 Part -time police
11/17/88 4.0 Prepare budget, 1989 -
Ann - Jon
11/18/88 2.0 Frank Janner meeting
11/18/88 2.0 Warren Paynler
11/21/88 4.0 Prepare the budget -
1989, Ann & Jon
11/23/88 2.0 Police meeting
11/29/88 2.0 Jeff meeting
12/5/88 4.0 Jeff meeting
12/8/88 4.0 Ann & Jon, finish budget
12/9/88 2.0 Talk to police
12/12/88 2.0 Mutzabaugh meeting
Mr. Frank Milks
April 27, 1992
Page 7
12/14/88 2.0 Employees wages
12/19/88 Ann on office problems
1988
Total Hours 136.0
Rate of Pay $8.10 /hr.
1989
1/3/89 1.5 Meeting, check ETTA
1/5/89 3.0 Meeting
1/12/89 2.0 Meeting Jeff
1/12/89 1.0 Police problem
1/12/89 1.0 Police at Jeff's office
1/24/89 2.0 Police
2/2/89 4.0 A. Nelson meeting
2/2/89 2.0 Frank Janner meeting
2/6/89 2.0 JoAnn meeting
2/6/89 3.0 Employee meeting
2/9/89 2.0 Employees' meeting
2/16/89 2.0 Police
2/22/89 3.0 TV Cable & junkyard
3/2/89 4.0 Police
3/30/89 1.0 Ann & Jon office
4/5/89 2.0 Police
4/12/89 2.0 Lunch with Frank Janner
4/27/89 4.0 Employees' meeting
5/2/89 2.0 TV Cable meeting
5/7/89 2.0 Police
6/8/89 2.0 Police
5/30/89 2.0 Police
7/31/89 2.0 Police
8/28/89 4.0 Employee negotiations
9/4/89 2.0 Police
9/12/89 4.0 Police
8/30/89 2.0 Police
9/21/89 1.0 Police
9/26/89 2.0 Police
10/7/89 4.0 Police
10/19/89 4.0 Contract police
10/31/89 2.0 Police
11/8/89 4.0 Police negotiations
11/15/89 2.0 OECD meeting
11/30/89 3.0 Tuna Valley
12/8/89 4.0 Police negotiations
12/19/89 3.0 Police negotiations
12/11/89 2.0 Police
12/18/89 2.0 Budget meeting
12/27/89 7.0 Police hearing
Mr. Frank Milks
April 27, 1992
Page 8
1989
Total Hours 103.5
Rate of Pay $8.10 /hr.
9. The rate of pay at which Frank Milks was compensated and the
total amount paid to him for performing the functions in
Finding 8 was as follows:
Year Pay Rate Total # of Hours Amount of Money
1987 7.75 130.5 $1,011.38
1988 8.10 136.0 1,101.60
1989 8.10 103.5 838.35
Total - $2,951.33
10. The township supervisors maintained their own time sheets and
submitted them for payments.
11. 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 26 meetings per year.
III. DISCUSSION:
As a Supervisor for Foster Township, McKean County, Frank
Milks, hereinafter Milks, is a public official as that term is
defined in the Ethics Act, 65 P.S. 402; 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 /her).
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.
Mr. Prank Milks
April 27, 1992
Page 9
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 interests; Koslow v.
State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374
(1988). Likewise, a public official /employee may not use the
status or position of public office for his own personal advantage;
Huff, Opinion 84 -015.
In the instant matter we must determine whether Milks as a
Foster Township Supervisor violated Section 3(a) of Act 170 of 1978
quoted above regarding the receipt of compensation as a roadmaster
for activities which are alleged to be within the scope of his
duties as an elected Township Supervisor and Chairman of the Board.
Milks served as a Foster Township Supervisor and Chairman of
the Board from 1974 through 1989. The minutes of the Foster
Township Board reflect that in the January reorganizational
meetings in 1987 through 1989, Milks was named Chairman of the
Board and specifically appointed as a roadmaster. In addition,
Milks was appointed to the Police and Parks Committee or Department
from 1974 through 1989.
The Foster Township Board of Auditors set the compensation for
Supervisors who were employed as roadmaster as follows at their
reorganizational meetings; January 5, 1987, $7.85 per hour with the
notation that meeting preparation and attendance were expressly
excluded; January 5, 1988, $8.10 per hour with the same noted
exclusion; and January 4, 1989, $8.10 per hour with the same noted
exclusion.
Milks did receive compensation, at the roadmaster rate of pay,
for performing activities that did not relate to the employee
position of roadmaster (Fact Finding 7). The specific dates, the
work times and duties are outlined in Fact Finding 8. The total
compensation received by Milks amounted to $2,951.33 (Fact Finding
9). The foregoing is separate and apart from the compensation
received as an elected Supervisor (Fact Finding 11).
In determining whether the action of Milks violated Section
3(a) of the Ethics Act, we must review the pertinent provisions of
Mr. Frank Milks
April 27, 1992
Page 10
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
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. S65515.
In reference to the meetings for which supervisors may receive
Mr. Frank Milks
April 27, 1992
Page 11
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 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 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
Mr. Frank Milks
April 27, 1992
Page 12
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 Milks violated Section 3(a) of the Ethics Act. Milks
used public office to obtain $2,951.33 in payments which
constitutes a financial gain and which is not compensation provided
for by law. The foregoing compensation received by Milks was for
activities which did not relate to the working position as township
roadmaster but rather to the elected position of township
supervisor. Accordingly, Milks is ordered to make timely
restitution through this Commission payable to the order of Foster
Township in the amount of $2,951.33.
IV. Conclusions of Law:
1. Frank Milks as a Foster Township supervisor is a public
official subject to the provisions of the Ethics Act.
2. Milks violated Section 3(a) of the Ethics Act by receiving
$2,951.33 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.
In re: Frank Milks
ORDER NO. 845
: File Docket: 91 -022 -C
: Date Decided: April 23. 1992
: Date Mailed: April 27, 1992
1. Frank Milks as a Foster Township supervisor violated Section
3(a) of the Ethics Act by receiving $2,951.33 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. Milks is ordered to make timely restitution through this
Commission payable to the order of Foster Township in the
amount of $2,951.33.
3. Failure to make restitution will result in a directive of this
Commission for the initiation of an order enforcement action.
BY THE COMMISSION,
et,
DENNIS C. HARRINGTON, CHAIR