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