Loading...
HomeMy WebLinkAbout824 FretzIn re: Joseph R. Fretz r %�r ��.3 ; ' . r r t-C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 91 -029 -C : Date Decided: February 20, 1922 Date Mailed: February 27. 1992 Before: Dennis C. Harrington, Chair James M. Howley, Vice Chair 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 §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). Joseph R. Fretz Page 2 I. ALLEGATION: That Joseph R. Fretz, a Supervisor in Williams Township, Northampton County, violated the following provisions of the State Ethics Act (Act 170 of 1978) when he received compensation not provided for by law by approving and accepting payments for the position of Williams Township Secretary /Treasurer in excess of that authorized by the Board of Auditors. II. FINDINGS: 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. S403(a). 1. Joseph R. Fretz served as a Supervisor in Williams Township, Northampton County for approximately twenty -nine years. a. He resigned from that position in June of 1991. 2. Fretz was appointed by the Board of Supervisors to the positions of Active Roadmaster and Secretary /Treasurer in 1985, 1986 and 1987. a. He gave up the positions in 1988 because of illness. 3. At the Reorganizational Meetings of the Williams Township Board of Auditors in 1985, 1986 and 1987 the salary for the Secretary /Treasurer position was set at 3 percent commission of all monies received and paid by Fretz. 4. Williams Township had expenditures in the following amounts from the General Funding Account, the State Funding Account and Federal Revenue Sharing Accounts made by Joseph Fretz in his capacity as township secretary - treasurer. Joseph R. Fretz Page 3 a. 1985 b. 1986 c. 1987 General Fund: State Funding: Revenue sharing: Total $486,174.50 General Fund: State Funding: Revenue Sharing: Total $479,497.23 General Fund: State Funding: Revenue Sharing: Total $547,960.40 5. The following amounts, based on three percent commission, are the salaries that should have been paid to Joseph Fretz as compensation for the position of Secretary /Treasurer: a. 1985 $14,585.23 b. 1986 - $14,384.92 c. 1987 - $16,438.81 6. Williams Township payroll records confirm that Fretz was paid the following amounts as salary for the Secretary /Treasurer position: a. 1985 - $12,500.00 b. 1986 - $14,000.00 c. 1987 - $15,650.00 $379,712.37 $ 75,765.90 $ 30,696.23 $379,663.23 $ 71,035.09 $ 28,798.91 $470,645.37 $ 75,105.37 $ 2,209.66 Joseph R. Fretz Page 4 7. The records reflect that Fretz was underpaid the following amounts: a. 1985 - $2,085.23 b. 1986 - $ 384.92 c. 1987 - $ 788.81 8. Joseph Fretz in his capacity as Secretary /Treasurer, calculated his salary for that position from the expenses paid from the General Fund, the State Liquid Fuels Fund, and Federal Revenue Sharing Fund. III. DISCUSSION: a. The salary was based on the three percent commission approved by the Board of Auditors. b. Fretz calculated the three percent commission on all expenses paid by him with the exception of repayments of a loan and the actual commission payment. c. Fretz usually underpaid himself but never attempted to make up the difference. 9. In 1989 and 1990 the Williams Township Board of Auditors reviewed the payments to Fretz's successor and determined he was underpaid. They ordered the Township to make up the difference. a. The Board of Auditors never ordered the Township to pay Fretz the amount he did not receive. As a Supervisor for Williams Township, Joseph R. Fretz, hereinafter Fretz, 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. 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 Joseph R. Fretz Page 5 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. The issue before us is whether Fretz as a Williams Township Supervisor violated Section 3(a) of Act 170 of 1978 regarding his receipt of compensation for the position of secretary treasurer which allegedly exceeded the amount authorized by the Williams Township Board of Auditors. Fretz served as a Supervisor in Williams Township, Northampton County for twenty nine years until his resignation in June, 1991. Fretz was appointed by the Williams Township Board of Supervisors to the position of roadmaster and secretary /treasurer in the years 1985 through 1987. The record reflects that the Williams Township Board of Auditors at its 1985 through 1987 reorganizational meetings set the salary of the secretary /treasurer at a 3% commission on all monies received and paid by the secretary /treasurer. The following expenditures were made by the township through Fretz as Secretary /Treasurer: in 1985, $486,174.50; in 1986, $479,497.23 and in 1987, $547,960.40. Based upon the above payments, Fretz was entitled to receive $14, 585.23 in 1985, $14,384.92 in 1986 and $16,438.81 in 1987. However, the Township only paid Fretz $12,500.00 in 1985, $14,000.00 in 1986 and $15,650.00 in 1987. Thus, for the three years in question, Fretz was underpaid by $2,085.23 in 1985, $384.92 in 1986 and $788.81 in 1987. Thus, the salary Fretz Joseph R. Fretz Page 6 was entitled to was based upon a 3% commission approved by the auditors. Fretz received less than the amount of compensation to which he was entitled but never attempted to receive the difference between that amount and the underpayment actually received. In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the instant matter, we find no violation of the Ethics Law because the compensation received by Fretz was provided for by law. In particular, the Second Class Township Code does allow an elected supervisor to be employed by the township in certain working positions: superintendent, roadmaster, laborer, or secretary/ treasurer. In this case, Fretz was employed in one of the authorized working positions and furthermore his salary in that working position was set by the Williams Township Board of Auditors as required by the Second Class Township Code. Finally, since the salary which Fretz received was not in excess of that which was allowed by law, the financial gain received by Fretz was compensation provided for by law. Accordingly, Fretz did not violate Section 3(a' of Act 170 of 1978 by receiving the salary for the position of secretary /treasurer which was authorized in law and approved by the Williams Township Board of Auditors. IV. CONCLUSIONS OF LAW: 1. Joseph R. Fretz as a Second Class Township Supervisor in Williams Township, Northampton County was a public official subject to the provisions of Act 170 1978. 2. Fretz did not violate Section 3(a) of Act 17 of 1978 by receiving compensation for the position of secretary/ treasurer which did not exceed that amount authorized by the board of auditors. In re: Joseph R. Fretz : File Docket: 91 -029 -C Date Decided: February 20, 192 . Date Mailed: February 27. 1992 ORDER No. 824 1. Joseph R. Fretz as a Williams Township Supervisor did not violate Section 3(a) of Act 170 of 1978 when he received compensation in the position as secretary/ treasurer which did not exceed that amount set by the board of auditors. BY THE COMMISSION, &%/ DENNIS C. HARRINGTON,!/CHAIR