HomeMy WebLinkAbout820 WisnewskiIn re: Fred Wisnewski
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG. PENNSYLVANIA 17120
: File Docket:
Date Decided:
: Date Mailed:
89 -067 -C
December 4_,1991
December 11.1991
Chair
Before: Dennis C. Harrington,
James M. Howley
Daneen E. Reese
Roy W. Wilt
Austin M. Lee
James P. Gallagher
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 52.38.
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).
Wisnewski, 89 -067 -C
Page 2
I. ALLEGATION:
That you, a supervisor for Lake Township, Luzerne County,
violated the following provisions of the State Ethics Act (Act 170 of
1978) when you, as a non - employee supervisor, received health
insurance benefits paid for with township funds:
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. Fred Wisnewski served as supervisor for Lake Township,
Luzerne County from 1983 through 1989.
a. Wisnewski was a non - employee supervisor.
b. Wisnewski was in charge of the township police
department.
2. Minutes of the following Lake Township Supervisor meetings
disclosed that Wisnewski voted in favor of the supervisors
to receive health insurance benefits that were paid for by
the township:
a. January 7, 1985
Wisnewski moved to pay individual Blue Cross for
Supervisor Hoover and Supervisor Wisnewski and 1/2 for
Tax Collector Orloski. Seconded by Hoover. Vote -
Wisnewski, "aye "; Grey, "aye "; Hoover, "aye ". Motion
carried.
b. January 5. 1987
Grey moved to pay Blue Cross -Blue Shield for Supervisor
Hoover, Supervisor Wisnewski and Ruth Orloski (1/2).
Seconded by Hoover. Vote - Wisnewski, "aye "; Grey,
"aye "; Hoover, "aye ". Motion carried.
4. The Lake Township auditors never approved insurance benefits
as part of the compensation for employee /supervisors.
Wisnewski, 89 -067 -C
Page 3
5. Linda VanGorder, Secretary of the Lake Township Auditors,
addressed the following letter dated February 1, 1986 to the
township supervisors in response to the township supervisors
seeking the auditors approval of their Blue Cross -Blue
Shield payments:
a. In answer to your letter of January 7, 1986, the Board
of Auditors declined to move on the issue. According
to our P.S.A.S. magazine, Blue Cross -Blue Shield
payments are not considered compensation, and
therefore, do not require our approval for payment.
Should the courts rule that we must approve this
expenditure, we would certainly take appropriate action
at that time.
6. Wisnewski was covered by the health and medical
insurance.
7. Wisnewski reimbursed Lake Township for the share of the
insurance premium attributable to his wife's coverage.
8. Lake Township records confirm the following amounts paid for
Fred Wisnewski's health insurance benefits:
A. BLUE CROSS ACCOUNT
1985
1986
a. His spouse was also covered.
Total Paid by
}Month Premium Wisnewski
April 149.65 $171.90
May 149.65 -
June 149.65 171.90
July 142.10 -
August 142.10 171.90
September 142.10 -
October 142.10 153.90
November 142.10 -
December 142.10 153.90
Total Paid by
Month Premium Wisnewski
January $142.10
February 142.10 $253.20
law
Wisnewski, 89 -067 -C
Page 4
III. DISCUSSION:
March 142.10
April 142.10
May 142.10
June 142.10
July 147.75
August 147.75
September 147.75
October 147.75
November 147.75
December 147.75
1987
162.60
169.00
165.20
168.60
Total Paid by
Month Premium Wisnewski
January $157.55 $173.50
February 157.55 -
March 157.55 178.40
April 157.55
May 157.55 178.40
June 157.55 -
July 143.10 89.20
August 143.10 -
September 143.10 160.70
October 157.55 169.55
November 157.55 -
December 157.55 178.40
Total $4887.90 $2869.05
9. Wisnewski paid the difference between an individual
membership and a family membership;
a. Lake Township paid $2,018.85 for Wisnewski's health
insurance benefits during the 2 1/2 year period.
b. Wisnewski paid for his health insurance benefits in
full beginning in January of 1988.
As a Supervisor for Lake Township, Luzerne County, Fred
Wisnewski, hereinafter Wisnewski, 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.
Wisnewski, 89 -067 -C
Page 5
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 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 Wisnewski as a
Lake Township Supervisor violated Section 3(a) of Act 170 of 1978
regarding the receipt of township paid health insurance benefits to
his as a non - employee supervisor.
Wisnewski has served as a Lake Township Supervisor in Luzerne
County from 1983 through 1989. Wisnewski was in charge of the
township police department and was a non - employee supervisor. The
minutes of the Board of Supervisors for January 7, 1985 reflect that
Wisnewski made and voted in favor of a successful motion to pay Blue
Cross /Blue Shield benefits to himself and another supervisor with
half paid benefits for the tax collector. Likewise, the January 5,
1987 minutes of the Township Board of Supervisors reflect Wisnewski
voting in favor of a successful motion to pay Blue Cross /Blue Shield
benefits for himself, another supervisor and half paid benefits for
the tax collector. The record reflects that the Lake Township
Wisnewski, 89 -067 -C
Page 6
Auditors never even approved insurance benefits for the employee -
supervisors. In this regard the secretary of the Lake Township
Auditors wrote a letter on February 1, 1986 wherein it was stated that
the Board of Auditors was following the advice contained in their
state publication that Blue Cross /Blue Shield payments are not
considered compensation and do not require auditor approval.
As to Wisnewski, health and medical insurance was paid not only
for himself but also for his wife; however, Wisnewski reimbursed the
township for the share of insurance premiums attributable for his
wife's coverage. For the period from April 1985 through 1987, the
township paid $2018.85 for Wisnewski's health insurance benefits.
In determining whether the receipt of the township paid health
insurance by Wisnewski violates Section 3(a) of Act 170 of 1978, it
is necessary for us to review the provisions of the Second -Class
Township Code as part of our determination as to whether a violation
occurred under Section 3(a) quoted above. In particular, in order for
us to determine whether the financial gain, consisting of the township
paid health insurance benefits, to Wisnewski was compensation other
than provided for by law, we must review the provisions of the Second -
Class Township Code to determine whether Wisnewski was entitled to
such benefits.
The Second -Class Township Code, Act No. 41 of 1988, P.L. 312,
provides in part:
(c) In addition to the compensation authorized under this
section, supervisors while in office or while in the employ of the
township may be eligible for inclusion in township -paid insurance
plans, as follows:
(1) Supervisor - employees and their dependents shall be
eligible for inclusion in group life, health, hospitalization,
medical service and accident insurance plans paid in whole'or in
part by the township.
(2) Any life, health, hospitalization, medical service or
accident insurance coverage contract entered into by a township
between January 1, 1959 and March 31, 1985, that includes or
provides coverage for non - employe supervisors shall not be void or
unlawful solely because such inclusion of non - employe supervisors
was subsequently found to be without lawful authority. No
penalty, assessment, surcharge, forfeiture or disciplinary action
of any kind may occur as a result of participation by non - employe
supervisors. Insurance benefits payable to insureds or their
beneficiaries arising out of or on account of deaths, injuries,
accidents or illnesses occurring prior to the effective date of
this amendatory act shall remain the property of the insureds or
Wisnewski, 89 -067 -C
Page 7
their beneficiaries.
(4) Supervisors and their dependents, whether or not they
are employed by the township, shall also be eligible for inclusion
in township group life, health, hospitalization, medical service
and accident insurance plans if they pay their pro rata share of
the premium.
53 P.S. 65 515.
* * *
The above quoted provisions of the Second -Class Township Code
provide amnesty to non - employee supervisors as to annuity /pension
benefits received between the period of January 1, 1959 and March 31,
1985. Further, Act 41 prospectively allows employee- supervisors to
receive township paid insurance benefits without auditor approval
(provided the plan does not improperly discriminate in favor of the
supervisor- employees 53 P.S. 65 515(c)(1). However, Act 41
continues the existing limitation in the Second -Class Township Code
that non - employee supervisors are not entitled to township paid
insurance benefits. Act 41 of 1988 does allow non - employee
supervisors to participate in a township group plan provided that they
pay their pro -rata share of the premiums. 53 P.S. 65 515(c)(4).
It is clear from the provisions of the Second -Class Township Code
quoted above that non - employee supervisors are not entitled as a
matter of law to township paid insurance benefits. In this regard, it
is noted that the township paid benefits received by Wisnewski were
made outside of the amnesty provided for in Act 41. Therefore, the
receipt by Wisnewski of the township paid insurance benefits from
April of 1985 through 1987 was not authorized in law. Further,
Wisnewski's receipt of this financial gain was compensation. In,
Svnoski v. Hazel Township 93 Pa. Commw. Ct. 168, 500 A.2d 1282 (1985).
The financial gain was compensation other than provided by law under
the Second Class Township Code. Hence, Wisnewski violated Section
3(a) of Act 170 of 1978 by using public office to receive such
financial gain.
Under decisional law, we note that Commonwealth Court in Summers
Repvert, Winn v. SEC 128 Pa. Commw. Ct. 520, 563 A.2d 1295 (1989) and
Uremovic4, Spahr v. SEC, 129 Pa. Commw. Ct. 549, 566 A.2d 375 (1989),
upheld the right of township supervisors to receive insurance benefits
without auditor approval. However, in the cited cases, it must be
noted that the supervisors in question were employee - supervisors.
Since Wisnewski in this case is a non - employee supervisor, the
foregoing Opinions have no application to this case.
In the instant matter, the financial gain received by Wisnewski
which is other than compensation provided for by law amounts to
$2018.85. The right of this Commission to order a public
Wisnewski, 89 -067 -C
Page 8
official /employee who has received a financial gain from his
governmental body to make restitution has been specifically upheld by
Commonwealth Court. See, Yacobet v. SEC, supra. In the instant
matter, the appropriate restitution would be the financial gain
received by Wisnewski which amounts to $2018.85. We therefore direct
Wisnewski to make restitution to Lake Township by forwarding a check
to this Commission payable to the order of Lake Township in the amount
of $2018.85. Failure to comply with the foregoing provision will
result in a directive by this Commission to institute an Order
enforcement action.
IV. Conclusions of Law:
1. Fred Wisnewski, as a Lake Township Supervisor, Luzerne County, is
a public official subject to the provisions of Act 170 of 1978.
2. Wisnewski violated Section 3(a) of Act 170 of 1978 when he
received township paid insurance benefits as a non - employee
supervisor which was a financial gain other than compensation
provided for by law.
3. The financial gain received by Wisnewski amounts to $2018.85.
In re: Fred Wisnewski
: File Docket: 89 -067 -C
: Date Decided: December 4,1991
: Date Mailed: December 13.,1991,
ORDER No. 820
1. Fred Wisnewski, as a Lake Township Supervisor, Luzerne County,
violated Section 3(a) of Act 170 of 1978 when he received township
paid insurance benefits as a non - employee supervisor which was a
financial gain other than compensation provided for by law.
2. The financial gain received by Wisnewski amounts to $2018.85.
3. Wisnewski is directed to forward a check to this Commission
payable to the order of Lake Township in the amount of $2018.85.
4. Failure of Wisnewski to comply with the provisions of paragraph 3
will result in a directive by this Commission to institute an
Order enforcement action in this case.
BY THE COMMISSION,
DE S C. INGTON CHAIR