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HomeMy WebLinkAbout850 DawleyIn re: Jon Dawley STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Dockets 91 -034 -C : Date Decided: June 23. 1992 : Date Mailed: June 29, 1992 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington 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 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). Mr. Jon Dawley Page 2 I. ALLEGATION: That Jon Dawley, a Supervisor for Foster Township, McKean County, violated the following provisions of the State Ethics Act when he received compensation for attending various meetings not related to the duties of roadmaster, laborer or secretary/ treasurer: 65 P.S. 5403(a). 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. II. FINDINGS: 1. Jon Dawley has served as a township supervisor for Foster Township, McKean County, Pennsylvania since 1982. 2. Minutes of the Foster Township Board of Supervisors Reorganizational Meetings confirm that Supervisor Jon Dawley 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. c. January 3, 1989 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 as all three supervisors Mr. Jon Dawley Page 3 were named as roadmasters. Upon a motion by Jon Dawley and seconded by Ann Kilhofer with all supervisors agreeing, the following positions were approved: Office and Finance Ann Kilhofer Roads Jon Dawley Police and Parks Frank Milks d. January 2, 1990 The reorganization meeting was held as the supervisors present were Robert Slike, Jon Dawley and Ann Kilhofer. Mr. Slike was named chairman of the supervisors as all three supervisors were named as roadmasters. Ann Kilhofer was named secretary and assistant - treasurer. Also the following areas of responsibility were announced: Office and Finance - Ann Kilhofer; Roads - Jon Dawley, and assistant road supervisor is Robert Slike, Police and Parks - Robert Slike. e. January 7, 1991 The reorganization meeting was held as the supervisors present were Robert Slike and Ann Kilhofer as Jon Dawley was not in attendance. All three supervisors were named as roadmasters. 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. Jon Dawley was appointed to the following position in each year from 1982 - 1991 inclusive: a. McKean County Planning Commission b. Roads 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. Mr. Jon Dawley Page 4 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 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. d. January 3, 1990 Present: William Schubert, Emilio Chiodo and Marilyn Causer. The following wage rates for supervisors were established for the year 1990: All supervisors - (other than when performing full -time duties) the rate will be $8.50 per hour. Meeting preparation and attendance at meetings are excluded from 1 Mr. Jon Dawley Page 5 the above as reimbursement is established by statute. e. September 21, 1990 A meeting of the Foster Township Auditors was held with William Schubert, Emilio Chiodo and Marilyn Causer present. A special meeting was held to discuss a salary rate for Jon Dawley. A motion was made by William Schubert and seconded by Marilyn Causer that effective 9/20/90 the wage rate for Jon Dawley would be $9.50 an hour for performing employee mon- managerial duties for Foster Township. f. January 8, 1991 Present: William Schubert, Emilio Chiodo and Marilyn Causer. The following wage rates for supervisors were established for the year 1991: All supervisors - (other than when performing full -time employee's duties) the rate will be $9.10 per hour. Meeting preparation and attendance at meetings are excluded from the above as reimbursement is established by statute. 7. Records of Foster Township indicate that Jon Dawley 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 Jon Dawley: 1987 Date Hours Description of Duties 01/04/87 1.5 Foster Township Audit 01/08/87 1.5 Foster Township Sewer 01/20/87 3.0 Bradford City Sanitary 01/26/87 2.0 Foster Township Park Authority 01/28/87 2.0 McKean County Officials 01/29/87 3.0 Tuna Valley Officials 02/25/87 2.0 McKean County Officials 03/17/87 2.0 McKean County Planning 03/25/87 2.0 McKean County Officials 03/26/87 3.0 Tuna Valley Officials 01/13/87 1.5 McKean County Planning Mr. Jon Dawley Page 6 07/14/87 07/14/87 08/05/87 08/11/87 08/12/87 09/08/87 09/23/87 10/08/87 10/13/87 10/15/87 10/19/87 11/03/87 11/09/87 11/17/87 11/23/87 12/08/87 12/08/87 12/16/87 12/28/87 1987 Total Hours 57.5 Rate of Pay $7.75 /hr. 1988 01/13/88 01/18/88 01/21/88 1988 Total Hours 8.0 Rate of Pay $8.10 /hr. 1989 01/10/89 01/10/89 01/18/89 01/19/89 01/27/89 02/14/89 02/15/89 02/16/89 02/28/89 03/14/89 03/15/89 03/28/89 04/04/89 04/19/89 1.0 Meeting /office 2.0 McKean County Planning 2.0 Foster Township Zoning 2.0 McKean County Planning 1.0 Meeting /office 2.0 County Planner 2.0 County Officials 2.0 McKean County Officials 2.0 McKean County Planning 2.0 Foster Township Park Authority 1.0 Foster Township Sewer Authority 2.0 Foster Township Water 1.0 Meeting /Zoning 2.0 McKean County Planning 2.0 Foster Township Special 2.0 Foster Township Employee 2.0 McKean County Planning 2.0 Foster Township Sewer 2.0 Foster Township Employment 2.0 Bradford Sanitary Authority 3.0 Foster Township Employment 0 Tuna Valley 2.0 McKean County Planning 1.5 Meeting /school ETTA 2.0 McKean County Officials 3.0 Tuna Valley 1.5 Meeting, office employees 2.0 McKean County Planning 2.0 McKean County Office Association 2.0 Foster Township Police 2.0 Meeting, Office Employees 2.0 McKean County Planning 2.0 McKean County Officials 1.5 Meeting Employee 2.0 McKean County Planning 2.0 McKean County Office Mr. Jon Dawley Page 7 04/27/89 05/08/89 05/30/89 05/30/89 06/08/89 06/13/89 06/15/89 06/21/89 07/05/89 07/11/89 07/14/89 09/20/89 09/21/89 10/10/89 11/08/89 11/13/89 11/14/89 12/06/89 12/06/89 12/12/89 12/13/89 12/15/89 1989 Total Hours 71.5 Rate of Pay $8.10 /hr. 1990 01/31/90 03/07/90 03/08/90 03/08/90 04/10/90 04/12/90 05/27/90 05/14/90 06/12/90 06/32/90 06/25/90 07/09/90 07/12/90 07/19/90 07/26/90 08/07/90 08/07/90 08/21/90 08/22/90 09/07/90 09/11/90 1.0 Meeting /Office 1.0 Employees Pension Bill 2.0 Police Meeting 2.0 Meeting OECD 2.0 Bid Opening Penny Eddy 2.0 County Planning 2.0 Police 2.0 Police 2.0 Meeting /Office /Police 2.0 McKean County Planning 4.0 McKean County Redevelopment 2.0 McKean County Officials 2.0 Foster Township Police 2.0 McKean County Planning 2.0 House Numbers Review 2.0 Foster Township Engineers 3.0 McKean County Planning 1.0 Foster Township Police 2.0 Foster Township Police 2.0 McKean County Planning 2.0 OECD 2.0 East End Salvage 2.0 McKean County Planning 2.0 Foster Township Zoning 1.0 Bradford City 2.0 Park Authority 2.0 McKean County Planning 2.0 McKean County Convention 2.0 Limestone Scott Award 3.0 Office Garbage 2.0 County Planning 2.0 Foster Township Park 2.0 Foster Township Alden 2.5 East End 2.0 Park 2.0 Park 2.0 Employee 1.0 Bradford Township Zoning 1.0 Office, Bob & Ann 2.0 McKean County Planning 2.0 Bill, Bob, Ann & Jon 2.0 Foster Township Interview 2.0 McKean County Planning Mr. Jon Dawley Page 8 08/17/90 2.0 Phil, Ann, Bob & Jon 1990 Total Hours 42.5 Rate of Pay $8.50 /hr. 9. The rate of pay at which Jon Dawley was compensated and the total amount paid to him for performing the functions in Finding 8 was as follows: ar Pav Rate Total # of Hrs. Amount of Money 1987 $7.85 57.5 $451.38 1988 8.10 8.0 64.80 1989 8.10 71.5 579.15 1990 8.50 42.5 361.25 Total - $1,456.58 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 16 meetings per year. 12. By Ordinance No. 52 on July 1, 1991 the Board of Supervisors of Foster Township amended the compensation received by township supervisors. a. Ordinance No. 52 of the Township of Foster, Chapter 1 of Code of Ordinances entitled Administration and Government, Part 3 titled Township Personnel changed the maximum amount of compensation a supervisor could receive from $2.000 to $1,500.00. b. The supervisors' compensation was reduced due to a decrease in the population of Foster Township. III. DISCUSSION: As a Supervisor for Foster Township, McKean County, Jon Dawley, hereinafter Dawley, is a public official as that terra 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 1 Mr. Jon Dawley Page 9 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 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 Dawley 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. Dawley served as a Foster Township Supervisor since 1982 and as Chairman of the Board in 1989. The minutes of the Foster Township Board reflect that in the January reorganizational meetings in 1987 through 1991, Dawley was named to various positions and specifically appointed as a roadmaster. In addition, Dawley was appointed to the McKeon County Planning Commission and Roads Committee from 1982 through 1991. 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; January 4, 1989, $8.10 per hour; January 3, 1990, $8.50 per hour; September 21, 1990, $9.50 per hour effective September 20, 1990; and January 8, 1991, Mr. Jon Dawley Page 10 $9.10 per hour with the same noted exclusion applicable to all years. Dawley 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 Dawley amounted to $1,456.58 (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 Dawley 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 - sisc 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 Mr. Jon Dawley Page 11 53 P.S. 565515. 53 P.S. §65512. 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. 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 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. 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 Mr. Jon Dawley Page 12 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 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. §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. SS65515; 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 Dawley violated Section 3(a) of the Ethics Act. Dawley used public office to obtain $1,456.58 in payments which constitutes a financial gain and which is not compensation provided for by law. The foregoing compensation received by Dawley was for activities which did not relate to the working position as township roadmaster but rather to the elected position of township supervisor. Accordingly, Dawley is ordered to make timely restitution through this Commission payable to the order of Foster Township in the amount of $1,456.58. Mr. Jon Dawley Page 13 IV. CONCLUSIONS OF LAW: 1. Jon Dawley as a Foster Township supervisor is a public official subject to the provisions of the Ethics Act. 2. Dawley violated Section 3(a) of the Ethics Act by receiving $1,456.58 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: Jon Dawley ORDER NO. 850 : File Dockets 91 -034 -C : Date Decided: June 23, 1992 : Date Mailed: June 29. 1992 1. Jon Dawley as a Foster Township supervisor violated Section 3(a) of the Ethics Act by receiving $1,456.58 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. Dawley is ordered to make timely restitution through this Commission payable to the order of Foster Township in the amount of $1,456.58. 3. Failure to make restitution will result in a directive of this Commission for the initiation of an order enforcement action. BY THE COMMISSION, JAMES M. HOWL IR