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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