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HomeMy WebLinkAbout914 HaafIn re: Rita Haaf STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 89 -004 -C Date Decided: December 7, 1993 Date Mailed: December 10, 1993 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III 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. 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). Rita Haaf, 89 -004 -C Page 2 I. ALLEGATION: That Rita Haaf, a former Supervisor for Summit Township, Erie County, violated the following provisions of the State Ethics Act (Act 170 of 1978), when she voted to hire the township solicitor to represent the supervisors in a personal suit against the township auditors; and when she failed to file a Statement of Financial Interests for the 1987 calendar year. 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). Section 4. Statement of Financial - Interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a Statement of Financial Interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1st, of each year that he holds such a position, and of the year after he leaves such a position. Any other public employee shall file a Statement of Financial Interests with the governing authority of the political subdivision by which he is employed no later than May 1, of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. S404(a). II. FINDINGS 1. Rita Haaf served as an elected Supervisor for Summit Township from 1978 through 1989. a. Haaf served as Chairman in 1986 and 1987. 2. At Reorganization Meetings of the Board of Supervisors, Haaf was appointed roadmaster of one of the three road districts in the township in 1987, 1988, and 1989. Rita Haaf, 89 -004 -C Page 3 a. Haaf was assigned to District #3. b. District #3 is defined as those township roads east of Route 97. 3. Haaf and the other two supervisors were each appointed liaisons to the various authorities and commissions appointed by the supervisors; of the office and administration of the roads; and of the roads and the garage. a. Haaf was responsible for the office and administration of the roads. 4. At the Reorganization Meetings of the board of supervisors in 1987, 1988 and 1989, Haaf was also appointed secretary/ treasurer. 5. Minutes of the Summit Township Auditor's meetings indicate that the following compensation was fixed by the auditors in 1989 for the township roadmasters and supervisors as laborers: a. Roadmaster salary - $5,420.00 per year. (1) This represented a $50.00 increase over the 1988 salary. b. Roadmasters pay as laborers - $5.00 per hour. (1) This was a decrease of $3.00 per hour from the rate set in 1988 by the auditors. 6. In January, 1989, the township supervisors initiated legal action in the Erie County Court of Common Pleas against the township auditors seeking to have the wages for the township supervisor /employees increased. a. The suit was initiated as a result of the auditors decreasing the hourly wages for supervisors pay as laborers. b. The appeal was from the 1989 Summit Township Auditor's Report by the Summit Township Supervisors. c. Haaf alleges that her compensation was not in issue in that she did not act as a township laborer. 7. The Summit Township Supervisors solicitor to represent them in auditors. a. Haaf states that she voted to authorized the township the lawsuit against the authorize the solicitor to Rita Haaf, 89 -004 -C Page 4 represent the township based upon the solicitor's opinion that the action would not contravene any applicable statute. reflect 8. Minutes following inn Summit egard to the the meetings s the a solicitor for 1989. a. January 3, 1989: Motion by Haaf, seconded by Wasiela, that Vedder J. White of the firm Elderkin, Martin, Kelly, Messina and Zamboldi, is hereby appointed Solicitor for the township for the year 1989 at an hourly rate of $80.00. Vote: 3/0. Present: Wasiela, Haaf and Hessinger. 9. On January 7, 1989, a special meeting was held for the purpose of appointing the township solicitor to represent the supervisors in the action against the auditors regarding compensation. a. The meeting was held at 11:00 a.m. in the municipal building. b. A motion was made by Wasiela, seconded by Haaf, to have Solicitor White appeal or take necessary legal action to get a decent wage in the matter of the action of the auditors. Motion carried by a 3 to 0 vote. Supervisors Haaf, Wasiela and Hessinger participating. c. The supervisors were questioned regarding the legality of the solicitor representing them. (1) Haaf avers that she questioned the solicitor regarding the legality of the proposed action. d. Solicitor White explained he was given written case notes by Shirley King (township resident) concerning the propriety of the solicitor representing the supervisors appeal of the auditors decision. He researched the propriety of the solicitor representing the supervisors' appeal and talked to the PSATS, and ethics, and as long as supervisors in a formal meeting have unanimously approved themselves, on behalf of the Township to appeal this, the solicitor is authorized to do so. Since the supervisors so designated this at the last meeting, he will file the appeal. Rita Haaf, 89 -004 -C Page 5 Present: Hessinger, Haaf and Wasiela (1) Haaf alleges that she relied upon the solicitor's opinion as to the proposed action. 10. The Summit Township. Supervisors action against the auditors was filed in the Court of Common Pleas, Erie County by Township Solicitor Vedder White. a. The civil action was filed to case no. 1705 -A -1989. 11. The Summit Township Auditors sought legal representation to defend them in the action filed by the supervisors. 12. By way of letter dated January 31, 1989, Solicitor Vedder J. White advised Rita Haaf, Secretary /Treasurer, that the Board of Auditors is permitted to employ an attorney to defend them in the action of the supervisors versus the auditors. a. The law requires that the Board make a reasonable effort to settle the case before hiring an attorney. b. Rate of compensation to be fixed by the court. There would be no objection to a rate of $80.00 per hour. 13. By way of letter dated February 2, Auditors advised Attorney Eugene authorized to represent them in supervisors against the auditors. Auditor's Samuel Eaton and William 1989, the Summit Township Brew, Jr., that he was the action taken by the The letter was signed by Mathias. 14. On February 3, 1989, Attorney Brew, of the law firm of McClure and Miller, advised the supervisors, by letter, that the auditors had employed him to represent them, and that the township will be responsible for the legal fees (Ref. case #268 -A- 1989). 15. On December 29, 1989, an Opinion and Order to case No. 1705-A- 1989, was issued by Judge Michael T. Joyce, Erie County Court of Common Pleas, regarding the Summit Township Supervisors versus the Summit Township Board of Auditors. a. The Court concluded that an hourly rate was more appropriately set for both a full -time and a part -time roadmaster. b. The Court ordered no compensation to be received by the roadmasters /supervisors for the unrecorded hours that they had reportedly worked for the township other than the salary of $5,420.00 they received. Rita Haaf, 89 -004 -C Page 6 c. Further, the Court found that the salary of $5,420.00, offset any retroactive increase in the hourly wage paid for recorded hours during 1989. d. Compensation for roadmasters and secretary /treasurer would be set for 1990, in accordance with the Opinion, and would not be retroactively applied to 1989. (1) The rates set were $11.50 per hour for full -time roadmaster, $8.50 per hour for part -time and $8.50 per hour for secretary /treasurer. 16. In the Order, Judge Joyce expressed the following concerns: a. The supervisors should tcapableeof responsibility to employ individuals who are performing the task required of their positions. b. The supervisors, when billing their hours to the township, should not confuse the duties of a supervisor with those of a roadmaster. c . It was noted that Supervisor / Roadmaster Hessinger suggested that the salary of $5,420.00 was paid for being on call 24 hours a day and the inconvenience generated by his position. Although this Court realizes that public office carries with it a multitude of problems which f follow a public servant home, it is the Cour holde that all public officials, p articularly those local public office such as a supervisor, are aware of these responsibilities and are still willing to run for office, knowing full well that the compensation will most likely be inadequate and there will be many uncompensated intrusions on their personal time. d. In attempting to retroactively apply the hourly wages set forth in this opinion to the 1989 hours claimed by each of the roadmaster /supervisors, this Court found great difficulty. Each roadmaster /supervisors submitted a number of unrecorded hours for which they now seek to be paid the hourly wage this Court is setting. However, considering that these hours have been paid for by e th township by the flat salary of $5,420.00, it appears roadmaster /supervisor has been paid a wage substantially higher than that which the Court is now setting. 17. The Summit Township Supervisors filed a post -trial motion for relief following Judge Joyce's December 29, 1989, ruling. a. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December Rita Haaf, 89 -004 -C Page 7 29, 1989. 18. An Opinion and Order was issued by Judge Michael T. Joyce, dated January 9, 1990, regarding the Summit Township Supervisors versus Summit Township Board of Auditors. a. Joyce denied the supervisor's motion for post -trial relief. b. The Retroactive Application of the Wages, set in the Court's Opinion and Order dated December 29, 1989, is not warranted. c. The unrecorded hours claimed by the roadmasters lacked credibility. d. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 19. On January 10, 1990, Judge Joyce issued an Opinion and Order agreeing that for the year 1990, it is the auditor's sole responsibility to set wages for the supervisors who also are employees of the township. The court modified its order of December 29, 1989, to the following: a. The Auditor's Report setting compensation for roadmasters secretaries, treasurer and laborers shall remain unchanged; b. It is recommended that the 1990 compensation level be set in a manner consistent with this Court's Opinion dated December 29, 1989. c. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 20. At the January 26, 1990, meeting of the Summit Township Supervisor's, a decision was made by the board to appeal the decision on retroactive pay. a. A motion was made by Wasiela, seconded by Hessinger, to appeal the judge's decision on retroactive pay and that the township is to pay the expense of the appeal. Solicitor White will contact Mrs. Haaf about the appeal. Motion by Wasiela, seconded by Hessinger, to amend (the) previous motion, adding that a letter should be sent to (the) auditors that we would like to meet with them and Rita Haaf, 89 -004 -C Page 8 try to resolve this the Solicitor is documents for the township. Vote passed 3/0. matter rather than go to court, and authorized to file the necessary appeal; legal fees paid by the Present: Hessinger, Wasiela, Peterson b. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 21. By letter dated February 2, 1990, the supervisors advised the auditors that the board of supervisors unanimously voted to appeal the Court Order concerning retroactive pay. a. The supervisors noted that they were firm in their opinion that retroactive pay was due in 1989. b. The supervisors believe the rate of pay set by Judge Joyce is fair and believe it should be applied to 1989. c. The supervisors have no alternative to appeal since this situation is financial hardship on Supervisor Thomas Wasiela. d. The supervisors sought non - advertised meeting to resolve the issue. e. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 22. By way of letter, dated January 29, 1990, the auditors advised Attorney Brew that he was authorized to represent them in the appeal by the supervisors. a. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 23. On February 26, 1990, the supervisors again requested a meeting with the auditors to settle the retroactive pay issue, citing the following: a. It makes no sense to spend approximately $20,000.00 of tax payer money when a settlement could be made for roughly half that amount. b. It makes no sense to meet with attorneys and pay them Rita Haaf, 89 -004 -C Page 9 $80.00 per hour for something we can do ourselves. c. Any agreement reached would have to be reviewed for legalities. d. If no settlement can be reached, the supervisors will be forced to continue the Appeal. e. The letter was signed by Thomas Wasiela, Richard Hessinger, and Ronald Peterson, and copied to William Mathias, King and William Graves. f. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 24. On February 23, 1990, Judge Michael T. Joyce of Court of Common Pleas of Erie County, issued an Order directing the Summit Township Supervisors to pay McClure and Miller the sum of $5,488.00 for legal services rendered to the Summit Township Auditors in the within litigation ( #1705 -A- 1989). a. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 25. An Order was issued by Commonwealth Court of Pennsylvania on January 18, 1991, denying the supervisor's application for re- argument. a. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 26. By way of letter dated January 25, 1991, Attorney Evan Rudert advised Thomas Wasiela that the last option for the supervisors would be to petition the PA Supreme Court to permit an appeal of the Commonwealth Court Order. Rudert further advised that the possibility of having the petition granted was very small. a. No petition was filed. b. Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 27. Records of Summit Township indicate the following invoices from the law firm of Elderkin, Martin, Kelly, Messina and Zamboldi, for services provided to Summit Township, in relation to representation of the supervisors in the Rita Haaf, 89 -004 -C Page 10 compensation suit against the auditors: a. Mav 1, 1989: January, 1989 -Conf. w /White (application)- .50 hours -Exam of law (Auditor's Appeal) - 2.00 hrs - Telephone conf. w /State Association .25 hours - Review Auditor's Minutes- .25 hrs - Dictate complaint and appeal- 1.00 hour - Review and prepare complaint- 1.25 hours - Telephone conf. w /Mathias and Eaton- .50 hrs. February, 1989 March, 1989 b. July 25, 1989: April, 1989 - Telephone conf. w /Brew- .25 hours - Review Brew's Pleading- .25 hours - Telephone conf. w /Wasiela- .25 hours - Dictate letter to Summit- .25 hours -Exam of Law (Brief)- .50 hours - Dictate Brief- .75 hours -Conf. w /Wasiela & White- 1.25 hours - Revise Brief- .50 hours - Appearance in Court- .50 hours - Telephone conf. w /State Association .25 hours Total hours: 10.75 @ $80.00 /hour = $860.00 Expenses: $71.50 January 17, 1989 - Filing Complaint Fee $40.50 January 19, 1989 - Filing Service Fee $27.00 January 19, 1989 - Filing Service Fee $4.00 Total: $931.50 - Meeting at Summit w /Auditor's- 2.00 hours - Telephone conf. w /White & Wasiela- .50 hours - Review State Assoc. documents- .50 Rita Haaf, 89 -004 -C Page 11 hours -Draft Appeal- 1.00 hour - Meeting w /White- .25 hours - Redraft Appeal- .50 hours - Meeting w /White- .25 hours - Telephone conf. w /Atty Brew- .25 hours -Draft letter to Atty. Brew- .25 hours - Appear in Court- 1.00 hours May, 1989 -Draft letter to Haaf- .25 hours -Draft reply motion- .50 hours June, 1989 - Telephone conf. w /Brew & Nailor- .25 hours - Draft Deposition Notices and letter .50 hours -Draft Interrogatories - .75 hours - Telephone conf. w /Wasiela- .25 hours - Revise documents - .25 hours -Draft status conf. Praecipe- .25 hours Total hours: 9.50 @ $80.00 per hour = $760.00 Expenses: $43.74 Filing fee for Complaint $ 40.50 Telephone Toll 3.24 Total: $803.74 c. October 12, 1989: July 11, 1989 July 12, 1989 July 14, 1989 July 27, 1989 August 1, 1989 - Preparation /Investigation of Law for Depositions - .75 hours - Telephone conference w /Nailor- .25 hours - Attend Depositions- 1.50 hours -Draft letter to Attorney Brew and client- .25 hours - Telephone conference w /witness- .50 hours - Telephone conference w /Little- .25 hours Rita Haaf, 89 -004 -C Page 12 -Draft file memo- .50 hours August 2, 1989 - Review Courthouse records, McKean- 1.00 hour - Draft motion to compel- .50 hours August 4, 1989 - Telephone conference w /Attorney McClure .25 hours - Draft letter to McClure- .25 hours August 7, 1989 - Meeting w /Wasiela- .25 hours -Exam of Law /Pennsylvania Evidence - 1.25 hours - Telephone conference w /Wasiela- .50 hours - Draft Pre -Trial Narrative and Revise- 1.75 hours August 8, 1989 -Exam of Law Federal Evidence- 3.25 hours August 9, 1989 -Exam of Law /Business records- 3.50 hours August 10, 1989 -Exam of Law /Surveys- 2.50 hours - Review Interrogatory answers- .50 hours August 11, 1989 - Review file and discuss- .50 hours - Exam of Law /Business records- 1.75 hours -Draft revision of Petition /Draft letter to Attorney Brew - .25 hours - Draft Certification of Service- .25 hours -Draft letter to Wasiela- .25 hours August 14, 1989 - Telephone conference w /Wasiela- .25 hours August 15, 1989 - Telephone conference w /Haaf- .25 hours -Draft letter to Haaf- .25 hours August 21, 1989 -Exam of Law Business records- 3.00 hours - Review minutes of the meetings- .50 hours September 7, 1989 - Review payroll information- .50 hours Rita Haaf, 89 -004 -C Page 13 September 11, 19$9 - Telephone conf. w /Brew- .25 hours - Appearance in Motion Court- 1.00 hour - Draft letter to Judge Levin- .5 hours Total hours: 29.25 @ $80.00 per hour = $2,340.00 Expenses: $209.14 June 1,1989 - Telephone tolls $ 23.24 July 27, 1989 Nailor Depositions $148.25 August 15, 1989 - Copies $ 37.65 September 12, 1989 September 14, 1989 d. January 16, 1990: October 13, 1989 - Telephone conf. w /client and witness- .50 hours October 25, 1989 October 31, 1989 November 2, 1989 November 6, 1989 November 7, 1989 November 15, 1989 November 17, 1989 November 29, 1989 November 30, 1989 -Draft Motion Trail listing- .50 hours Total: $2,549.14 - Conf. w /clerks- .25 hours - Appearance in Court (Cert. II)- .50 hours - Telephone conf. w /Judge Levin- .25 hours - Meeting w /White- .25 hours -Draft trail memo- .75 hours -Draft Trial Brief- 1.50 hours - Meeting w /Supervisors- 2.25 hours - Telephone conf. w /witnesses- .25 hours - Review and revise file- .50 hours -Draft letter and questions- .50 hours - Meeting w /clients- 1.50 hours - Telephone conf. w /witnesses- .25 hours -Draft trial memo- 1.50 hours Rita Haaf, 89 -004 -C Page 14 December 1, 1989 December 4, 1989 December 5, 1989 December 6, 1Q89 December 7, 1989 December 14, 1989 December 15, 1989 December 18, 1989 Total hours: 30.75 Expenses: $76.65 October 24, 1989 November 17 and December 5, 1989 (1) e. April 18, 1990 January 2, 1990 January 3, 1990 - Dictate revised Trial Brief- .50 hours - Meeting w /Attorney Brown- .50 hours - Revise Trial memo- .50 hours - Prepare for trial- 5.00 hours - Meeting w /Allegier- .50 hours - Meeting w /clients- 1.00 hours - Appearance in court- 6.00 hours - Meeting w /White- .50 hours - Appearance in Court- 6.00 hours - Meeting w /Wasiela and liessinger- 1.00 hour - Telephone conf. w /Haaf- .25 hours - Review Time records- 1.00 hour - Letter to Judge Joyce- .50 hours -Draft hours calculated- 1.00 hour - Revise letter- .25 hours @ $80.00 per hour = $2,460.00 - Copies $ 2.40 - Copies $74.25 - Examination of Law /Post -trial OW 400 Total: $2,536.65 Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. - Conf. w /White and Markham- .5 hours - Telephone conversation w /Wasiela- .25 hours - Examination of Law /Appeal- .5 hours -Draft Certification- .25 hours Rita Haaf, 89 -004 -C Page 15 January 5, 1990 Motion- 1.00 hour - Draft Post -trial Motion- 1.00 hour - Telephone conversation w /Wasiela- .25 hours - Revise Post -trial Motion- .50 hours January 11, 1990 - Examination of Law /Appeal- .50 hours January 15, 1990 - Examination of Law /Unanimity Appeal- .50 hours January 16, 1990 -Draft letter to supervisors- .25 hours January 24, 1990 - Meeting w /White and Wasiela- .50 hours -Draft Appeal Notices- .50 hours January 29, 1990 - Telephone conversation w /Hessinger .25 hours February 2, 1990 - Telephone conversation w /Hessinger .25 hours February 16, 1990 - Telephone conversation w /Wasiela (Status)- .25 hours February 19, 1990 -Draft letter to Sadler (CPA)- .25 hours February 22, 1990 - Appearance in Court (Fee Petition) 1.25 hours - Draft letter to Judge Joyce- .25 hours February 23, 1990 - Examination of Law /Attorney Fees - .50 hours -Draft letter to Judge Joyce- .25 hours March 2, 1990* - Telephone conversation w /Wasiela (Order)- .25 hours Total Hours: 10 @ $80.00 per hour = $800.00 Expenses $620.30 Copies: $ 20.55 Rita Haaf, 89 -004 -C Page 16 Filing fees 80.00 Transcript copies 519.75 Total: $1,420.30 (1) Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. f. July 24, 1990 April, 1990 May, 1990 - Exam of Law /Ct Annuity- 1.00 hour -Draft Brief Section I & II- 3.00 hours - Review RVW Records- .50 hours - Draft Brief- 2.50 hours - Revisions and Edit Brief- 4.00 hours - Prepare report for recording- 1.00 hour - Finalize Brief- 1.00 hour - Draft Brief- 1.00 hour - Prepare documents for copying- 1.00 hour June, 1990 - Review Auditor's Brief- 1.00 hour - Meeting w /clients- .50 hours -Draft reply to brief- 2.50 hours - Prepare reply- 1.00 hours - Draft letter to Commonwealth Court 75 hours - Prepare exhibits- .50 hours Total hours: 21.25 @ $80.00 per hour = $1,700.00 Expenses $506.00 April 6, 1990 - Copies $ 1.50 May 2, 1990 - Transcript printing $315.75 May 3, 1990 - Copy of Appellants Brief $ 58.72 May 4, 1990 - Postage for brief $ 35.07 June 15, 1990 - Copies $ 60.90 - Postage for brief $ 4.06 - Bindings $ 30.00 Total: $2,206.00 (1) Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. Rita Haaf, 89 -004 -C Page 17 g- November 2, 1990: August, 1990 -Draft letter to clients- .25 hours September,1 990 - Telephone conf. w /Wasiela- .25 hours - Preparation of oral agreement - 1.00 hours - Preparation for argument- 3.00 hours Total hours: 4.50 @ $80.00 per hour = $360.00 Expenses - $.45 August 27, 1990 Copies $.45 Total: $360.45 (1) Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. h. February, 1991: October, 1990 November, 1990 - Appearance in court /oral argument - 8 hours - Preparation for argument- 2.00 hours - Review Court Opinion- .50 hours - Draft letter to clients- .25 hours - Review file- .50 hours -Draft petition /reargument- 2.50 hours - Meeting w /Attorney Rudert- 1.00 hour - Draft /Revise Brief- 1.00 hour - Meeting w /Attorney Messina- .25 hours - Telephone conf. w /Cuneo- .50 hours - Telephone conf. w /Wasiela- .25 hours - Exam of Law /Review of Evidence - 2.75 hours Total hours: 19.50 @ $80.00 per hour = $1,560.00 Expenses - $173.66 Travel expense to Pittsburgh $ 58.00 Rita Haaf, 89 -004 -C Page 18 Copies 3.75 Advance for client 4.06 Copies 107.85 Total: $1,733.66 (1) Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 28. Records of Summit Township indicate the total amount of fees charged to and paid by the township to the township solicitor's law firm in the legal action taken by the supervisors against the auditors is as follows: a. 135.5 hours at $80.00 per hour - $10,840.00. Expenses (filing fees, transcripts, copies, etc.) - 1,701.44 Total - $12,541.44 b. Haaf asserts that only $4,284.38 was paid by the township to the solicitor's law firm during her term in office which payments included costs, copy costs, deposition costs and filing fees. 29. Records of Summit Township reflect invoices from the law firm of McClure and Miller, for services provided to the Summit Township Auditors, in relation to representation of the auditors in the compensation suit filed by the supervisors: a. April 25, 1989 - December 30, 1989: 68.6 hours @ $80.00 per hour - $5,488.00. b. January - October, 1990: 49 hours @ $80.00 per hour plus expenses of $58.08 - $3,978.08. (1) Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. c. Total: $10,666.08 (including $1,200.00 for expenses incurred prior to May, 1989). (1) Haaf states that she had no personal knowledge of such actions which occurred after she left office on December 29, 1989. 30. Minutes of the Summit Township Supervisor's meetings reflect that payments to the Elderkin Law Firm for services as township solicitor were approved as follows by the board of Rita Haaf, 89 -004 -C Page 19 supervisors: a. June 5, 1989: Motion was made by Wasiela, seconded by Hessinger, to approve the expenditures for May, with the exceptions of the RAK bill, the CAMSCO bill, and the Zep bill. Vote: 2/1. Haaf voted no. Present: Hessinger, Wasiela, Haaf. Bill list attached, b. August 7, 1989: Motion by Wasiela, seconded by Haaf, to approve the July expenditures as presented, having been reviewed by all board members. Vote: 3/0. Present: Hessinger, Wasiela, Haaf. Bill list attached. c. November 6, 1989: Motion by Haaf, seconded by Wasiela, approving payment of the bills for October, having been reviewed by all board members. Vote: 3/0 Present: Hessinger, Wasiela, Haaf. No bill list attached. d. February 5, 1990: Motion by Hessinger,•seconded by Peterson, to approve payment of the expenses for January, having been reviewed by all board members. Vote: 3/0 Present: Hessinger, Wasiela, Peterson. Bill list attached. Rita Haaf, 89 -004 -C Page 20 (1) Haaf denies the above because she was not a supervisor at that time. e. The above bill listings included approvals of payments for solicitor representation in the appeal against the auditors. f. May 7, 1990: Motion by Peterson, seconded by Hessinger, to approve payment of the bills for April as presented, having been reviewed by all board members. Vote: 3/0 Present: Hessinger, Wasiela, Peterson. Bill list attached. (1) Haaf denies the above because she was not a supervisor at that time. g. October 1, 1990: Motion by Peterson, seconded by Hessinger, to approve payment of the September bills as presented, having been reviewed by all board members. Vote: 3/0 Present: Hessinger, Wasiela, Peterson. Bill list attached. (1) Haaf denies the above because she was not a supervisor at that time. h. December 3, 1990: Motion by Peterson, seconded by Hessinger, to approve the November bills submitted and reviewed by all supervisors. Vote: 3/0 Present: Wasiela, Hessinger, Peterson. No bill list attached. (1) Haaf denies the above because she was not a supervisor at that time. Rita Haaf, 89 -004 -C Page 21 i. March 4, 1991: Motion by Hessinger, seconded by Wasiela, to approve payments of'the bills for February, 1991, having been reviewed by all board members with the exception of holding two (2) invoices (Mainline), and (RND Sales and Service) for further review by the supervisors. Vote: 3/0 Present: Hessinger, Wasiela, Haaf. Bill list attached. (1) Haaf denies the above because she was not a supervisor at that time. 31. Prior to each monthly meeting, the supervisors are provided with a list of bills which they review before the meeting. a. Bills are voted on at the meeting following receipt of the bills. b. Solicitor invoices are received quarterly. 32. 2. Summit Township records reflect payments to the Elderkin Law Firm for services provided to the township as the appointed solicitor, which included the representation of the supervisors in the suit against the auditors over wages. The following checks were issued to the Elderkin Law Firm and approved by two supervisors: Invoice Check Total Check Check Date Check No. Date Amount Sicrnatores 05/01/89 7864 06/05/89 $ 7,306.99 Haaf ($931.50) Hessinger 07/25/89 8062 08/07/89 $ 5,590.55 Haaf ($803.74) Hessinger 10/12/89 8278 11/06/89 $ 5,754.24 Haaf ($2,549.14) Hessinger 01/16/90 8477 02/05/90 $ 6,778.90.]a ($2,536.65) Hessinger 04/18/90 8723 05/07/90 $ 5,824.35 Peterson ($1,420.30) Rita Haaf, Page 22 Hessinger 07/24/90 Hessinger 11/02/90 Peterson Hessinger 02/91 Hessinger The check dates correspond with the meeting at which the bill was approved. The dollar figures in parentheses represent the amounts related to the civil suit. The checks are signed by the township secretary /treasurer and one supervisor. A township supervisor held the position of secretary /treasurer during this period. (1) Haaf denies the above on the basis that she held the position of secretary /treasurer only until December 31, 1989 at which time she was no longer a township supervisor. e. Haaf signed checks as secretary /treasurer. (1) Haaf denies the above on the basis that she held the position of secretary /treasurer only until December 31, 1989 at which time she was no longer a township supervisor. 33. Rita Haaf's term as a Summit Township Supervisor ended on January 3, 1990, the date of the Reorganization meeting. a. Haaf asserts that she vacated the township building as of December 31, 1989 and did not attend the January 3, 1990 reorganizational meeting. 34. Haaf did not participate in decisions or official action of the board of supervisors to appeal the Judge Joyce's ruling in the matter of the Supervisor's vs. the Auditor's. 35. Haaf did not receive any retroactive benefit from the court decision. a . b. c. d. 89 -004 -C 1034 10/10/90 $ 6,126.45 ($2,206.00) 1234 12/05/90 $ 20,089.46 ($360.45) 1432 02/23/91 $ 14,324.04 ($1,733.66) W Biala 36. Rita Haaf's financial gain as a result of employing the Rita Haaf, 89 -004 -C Page 23 township solicitor to represent the supervisor's in the suit against the auditors was $2,273.68. a. This represents 1/3 of the legal fee's between January, 1989, and December 31, 1989 (total $6,821.03). b. Haaf denies the above arguing that she voted against the payment of May bills, that she never saw an approval for the payment of the fourth quarter bill, that she participated .nd approved the payment of billings to the solicitor's office only in the amount of $3,352.88 which represented the sum of the July 25, 1989 and October 12, 1989 invoices and that one third of the legal fees between January 1989 and December 31, 1989 which were approved by her amounted to $1,117.62. 37. Haaf did not specifically recall signing the letter to the auditors, dated January 4, 1989, requesting a pay increase. 38. Haaf was not included in discussions between Supervisors Wasiela and Hessinger, and Attorney Craig Markham who was representing the supervisors, in regard to the hourly wage set by the auditors. 39. Haaf was not aware of correspondence between Attorney Markham and Wasiela regarding the suit against the auditors. a. When she questioned Wasiela or Hessinger about the matter, she was told that they were taking care of it. 40. Haaf agrees that she seconded the motion for Solicitor White to appeal or take necessary legal action to get a decent wage in the matter of the action of the auditors. a. She did this because she did not feel that $5.00 an hour for a laborer was enough money. b. She felt the auditors should have provided a job description for the hourly wage. c. She was satisfied with the wage the auditors had set for her as secretary /treasurer, and as roadmaster. d. She would not have voted to allow the solicitor to represent the supervisors if she would have been responsible for the legal expenses. e. The suit would not have benefitted her because it addressed hourly wages and she did not perform hourly work. Rita Haaf, 89 -004 -C Page 24 Findings 41 through 43 refer to the second allegation. through 40 are incorporated herein. 41. Records of Summit Township include the following of Financial Interests on file with the Township Rita Haaf. a. Filing date: March 30, 1987 For the Year: Blank Source of Inc ^me: Summit Township Creditors: None All other Financial Interest Categories: None b. Filing date: March For the year: 1988 Source of Income: Creditors: None All other Financial 31, 1989 Summit Township Interest Categories: None Findings 1 statements Clerk, for 42. Township Clerk Sharon Resjan, provided a Letter of Certification dated December 21,. 1989, stating that only Samuel Eaton (auditor) and Richard Hessinger (Supervisor) filed Statements of Financial Interests in 1988 for the year 1987. 43. - Records of Summit Township do not include Statements of Financial Interests on file for Rita Haaf for the calendar years 1987 and 1989. a. Haaf admits that unintentionally she did not file for the calendar year 1989 but asserts that she was not a supervisor in 1990 and was not sent the form. Haaf avers that she believed she filed the calendar year 1987 form which she is unable to locate or provide and asserts that the form would have contained the same information as in the other forms she filed. III. DISCUSSION: As a Summit Township Supervisor in Erie County, Rita Haaf, hereinafter Haaf, was a public official as that term is defined in the Ethics Act, 65 P.S. 5402; 51 Pa. Code 51.1. As such, her conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to her. 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 Rita Haaf, 89 -004 -C Page 25 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 financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988), allocatur denied, 520 Pa. 609, 553 A.2d 971 (1988). Section 4(a) of the Ethics Act quoted above requires that each public employee and each public official (Kremer v. State Ethics Commission, 56 Pa. Commw. 160, 424 A.2d 968 (1981)) must file a Statement of Financial Interests (FIS for the preceding calendar year of the year in which he is employed or served and for the year after he leaves such position. In this case we must determine whether Haaf as a Summit Township Supervisor violated Section 3(a) of the Ethics Law quoted above regarding the utilization of the Township Solicitor to represent the Supervisors in a court action against the Township ' Auditors regarding the setting of their wages as employee supervisors and second whether Haaf violated Section 4(a) by failing to file an FIS for the 1987 calendar year. Factually, Haaf served as a Township Supervisor from 1986 through 1989. After the Summit Township Auditors set the compensation for working supervisors in 1989 at a rate of $5,420.00 per year for roadmaster and $5.00 per hour for supervisors who worked as laborers, the Township Supervisors instituted legal action in the Court of Common Pleas of Erie County against the auditors seeking an increase in their wages as Township supervisor- Rita Haaf, 89 -004 -C Page 26 employees. The minutes of the January, 1989 meeting of the Summit Township Supervisors reflect that Attorney Vedder J. White was retained as Township Solicitor. The Supervisors in a January 7, 1989 meeting unanimously passed a motion to authorize the Solicitor to take legal action regarding their wages. The January 7, 1989 meeting minutes reflect that the Supervisors were questioned about the propriety of their utilizing the Township Solicitor for representation in the law suit against the Township Auditors. Up to the point in time when Haaf left the Township Board at the end of 1989, Haaf along with the other two Supervisors authorized and caused to be disbursed the sum of $4,284.38 for the legal costs regarding the challenge to the wages set by the Auditors. Additional payments for the Solicitor's representation were made after 1989 when Haaf was no longer a Supervisor. Haaf did vote in favor of the initial action to authorize the Solicitor to take legal action. As to the three disbursements made in 1989, Haaf voted against the first payment but voted in favor of the other two. As to the FIS's, the Township records reflect that Haaf did not file for the calendar years 1987 and 1989. Haaf admits that she did not file for 1989 but asserts that the non - filing was unintentional. As to the 1987 calendar year, Haaf claims she filed the FIS but is unable to locate the form. In applying the provisions of Section 3(a) of the Ethics Law quoted above to the instant matter, the actions of Haaf in retaining the Township Solicitor for representation in a law suit against the Township Auditors violated Section 3(a) of the Ethics Law. Clearly there was a use of office on the part of Haaf in that she seconded and voted in favor of the motion to utilize the Solicitor in the legal action against the Auditors at the January 7, 1989 meeting of the Township Board. In addition, Haaf voted to pay two of the three bills from the Solicitor in 1989. The fact that she voted "no" as to a list of bills which included the first payment is unavailing since the linchpin of the violation occurred by the action of authorizing the Solicitor to institute the legal action. The use of office resulted in a financial gain since Haaf did not have to pay $4,284.38 in 1989 for legal fees which were paid by the Township. Since Haaf and the other two Supervisors did not have to personally pay for the legal representation, they were enhanced by the out -of- pocket expenses they would otherwise have had to pay. In this regard, it is most important to note that the Solicitor was not retained by Haaf and the other Supervisors in their capacity as elected officials but in the capacity as Township Rita Haaf, 89 -004 -C Page 27 employees seeking to challenge the amount of compensation set by the Township Auditors. We must now determine whether the financial gain is compensation provided for by law. This Commission considered the issue of whether a township supervisor could obtain legal representation at township expense regarding the amount Of compensation fixed by the auditors in zvmanowski, Opinion 87 -002. In the cited Opinion, the requestor sought advice as to whether either the township solicitor could be utilized or whether the requestor could obtain private counsel who would be paid by the township regarding his representation in the law suit against the township. In that case, we opined that the Second Class Township Code did not authorize such representation which was in the nature of a private or personal action against the township by the supervisor: While there may be an appropriate mechanism for a supervisor to recover legal expenses if he must challenge the auditors report regarding the fixing of salary, such mechanism is not provided for In the Second Class Township Code and therefore, a supervisor who uses his position to secure funds to obtain such legal representation or who employs the services of the township solicitor to do such is receiving a financial gain that is not part of the compensation provided for by law. The receipt of such gain through the use of one's public office would thus not be in accord with the provisions of the State Ethics Act. 65 P.S. §403. See also, Appeal from Auditors' Report of McKean County, 69 Erie L.J. 56 (1986). The instant situation does not arise out of any official action that you have performed. Rather, it arises from your belief that the compensation fixed for you by the auditors is not appropriate for the services that you are performing. We thus believe that your processing of this matter is clearly one of a personal and individual nature and not related to your official actions. As such we do not believe that a township supervisor may utilize township funds to employe representation in pursuit of a personal legal action against the township. Id. at 4. In Herlands, Advice 88 -592, it was determined that. the Rita Haaf, 89 -004 -C Page 28 township solicitor or private counsel at township expense could not be utilized by supervisors in defending a surcharge action instituted against them by the auditors regarding the propriety of their mileage reimbursements and the receipt of health care benefits. See also, Borland and Sanders v. State Ethics Commission, Memorandum Opinion of Commonwealth Court filed at 1091, 1092 C.D. 1991 on November 29, 1991, wherein the Court affirmed the Commission's denial of r , 4consideration of Borland, Order No. 785 -R, and Sanders, Order No. 786 -R, wherein two township supervisors were found in violation of Section 3(a) of Act 170 of 1978 and directed to repay the legal fees paid by the township as to their challenge to their wages set by the auditors. Judicial precedent is also insightful on the issue. In Roofner's Appeal, 81 Pa. Super. 482, A. (1923), the Pennsylvania Superior Court determined that it was inappropriate for township supervisors to receive legal representation at township expense concerning their indictment on a charge of unlawfully neglecting and refusing to keep up a certain township road which had become unsafe and dangerous for travel. The Court in deciding that the supervisors were charged with official misconduct and hence not entitled to representation at township expense reasoned as follows: The power of a municipality or its appropriate officers to employ an attorney is limited to those matters in which the municipality has some official duty or which may probably be said to affect its interests. An attempted employment of an attorney in a matter in connection with which the municipality has no official duty, or which does not fall within the duties of the board or official making the contract of employment, does not render the municipality liable to the attorney for his compensation: Dillion on Municipal Corporations, Vol. 2, paragraph 824, at page 1246. It is a fundamental principle that public funds shall not be used for private purposes. The offense for which appellants were indicted was a personal one: Com. v. John Meany, 8 Pa. Superior Ct. 224. Their obligation to pay their counsel was personal. Counsel fees and other expenses incurred by public officials in defending criminal charges, or charges of official misconduct, Rita Haaf, 89 -004 -C Page 29 are incurred fora. private purpose and cannot, in the absence of statutory provision therefor, be paid from public funds. When one accepts a public office he assumes the risk of defending himself even against unfounded accusations at his own expense. 81 Pa. Super. at 484, 485. In Silver v. Davis, 493 Pa. 50, 425 A.2d 359 (1981), the Pennsylvania Supreme Court allowed representation by a solicitor in recall action against two members of the board of supervisors. However, in the cited case, such related to the official action and office of the township supervisors and did not involve matters of possible misconduct or matters which would be considered personal and private in nature. Therefore, based upon the statutory restriction of Section 3(a) of the Ethics Law, the prior precedent of this Commission as well .as judicial precedent, we find a clear violation of Section 3(a) of the Ethics Law regarding the utilization of the Township Solicitor at Township expense. In the instant matter, the Township expended $4,284.38 in 1989 for the representation of Haaf and the other two Supervisor - employees. Since the foregoing expenditure has been made on behalf of all three Supervisor - employees, it is fair and appropriate that Haaf repay one -third of the amount to the Township. Accordingly, Haaf is hereby directed within thirty (30) days of the date of this Order to forward a check to this Commission payable to Summit Township in the amount of $1,428.12. The power of this Commission to impose a penalty upon an individual who has received a financial gain is authorized in the Ethics Law. Act 170 of 1978, P.L. 883, Section 9. In addition, there is statutory authorization in Act 170 for this Commission to direct the divestiture of a financial gain received by an individual as to a conflict under the Ethics Law, Section 7(9)(iii). See also, Yacobet v. State Ethics Commission, supra, and McCutcheon v. State Ethics Commission, 77 Commw. Ct. 529, 466 A.2d 283 (1982). In this case, the divestiture of the financial gain received by Haaf is warranted and is so directed. As to the FIS allegations, we find that Haaf violated Section 4(a) of Act 170 of 1978 when she failed to file for the 1987 calendar year. Haaf is directed to file FIS's for not only the 1987 but also the 1989 calendar years. Rita Haaf, 89 -004 -C Page 30 Failure to comply with the foregoing provisions will result in the initiation by this Commission of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Rita Haaf as a Summit Township Supervisor was a public official subject to Act 170 of 1978. . 2. Haaf violated Section 3(a) of the Ethics Law when she seconded and voted in favor of a motion to retain the Township Solicitor to represent her and the other two Supervisor - employees at Township expense in a Law suit filed against the Township Auditors regarding the amount of their compensation as Township employees. 3.. Summit Township expended $4,284.38 in legal fees and costs in 1989 as to the law suit filed .against the Township Auditors. 4. As one of three Summit Township Supervisors, Haaf received a financial gain of $1,428.12 (1/3 of $4,284.38). 5. Haaf violated Section 4(a) of Act 170 of 1978 when she failed to file a Statement of Financial Interests for the 1987 calendar year. In re: Rita Haaf : File Docket: 89 -004 -C . Date Decided: December 7, 1993 Date Mailed: December 10, 1993 ORDER NO. 914 1. Rita Haaf as a Summit Township Supervisor violated Section 3(a) of the Ethics Law when she seconded and voted in favor of a motion to retain the Township Solicitor to represent her and the other two Supervisor- employees at Township expense in a law suit filed ag -?nst the Township Auditors regarding the amount of their compensation as Township employees. 2. Summit Township expended $4,284.38 in legal fees and costs in 1989 as to the law suit filed against the Township Auditors. 3. As one of three Summit Township Supervisors, Haaf received a financial gain of $1,428.12 (1/3 of $4,284.38). 4. Haaf is ordered within thirty (30) days of the date of issuance of this Order to forward a check or payment to this Commission in the amount of $1,428.12 payable to the order of Summit Township. 5. Haaf violated Section 4(a) of Act 170 of 1978 when she failed to file a Statement of Financial Interests for the 1987 calendar year. 6. Haaf is directed within thirty (30) days of the date of issuance of this Order to file Statements of Financial Interests for the 1987 and 1989 calendar years with this Commission. 7. Failure to comply with the provisions of Paragraphs 4 and 6 will result in the initiation by this Commission of an order enforcement action. BY THE COMMISSION, JAMES M. HOWLE , IR Commissioners Austin M. Lee and James W. Marshall, III, dissent as to the finding of a violation of Section 3(a) of Act 170 of 1978 and as to the direction to Haaf to divest herself of the financial gain.