HomeMy WebLinkAbout915 MillerIn re: Earl I. Miller
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 90 -004 -C
Date Decided: 02/17/94
Date Mailed: 02/24/94
Before: James M. Howley, Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
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. A Consent Agreement was
submitted by the parties to the Commission for consideration which
was subsequently approved. This adjudication of the Commission is
hereby issued which sets forth the individual Allegations, Findings
of Fact, Discussion, Conclusions of Law and Order.
This adjudication is final and will be made available as a
public document fifteen - days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
$2.38.
The files in this case will remain confidential in accordance
with Section 8(a) of Act 170 of 1978 during the fifteen day period
and no one unless the right to challenge this Order is waived, may
violate confidentiality by releasing, discussing or circulating
this Order. However, confidentiality does not preclude discussing
this case with an attorney at law.
Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000
or imprisonment for not more than one year, 65 P.S. 409(e).
Miller, 90 -004 -C
Page 2
I. ALLEGATION: _
That Earl Miller, a Supervisor for Washington Township,
Schuylkill County, violated the following provisions of the State
Ethics Act (Act 170 of 1978) when he received compensation in the
form of IRA payments without auditor approval in 1984, 1985, 1986,
1987, 1988, 1989 and 1990 for serving as township building and road
permit inspector.
Section 3. Restricted Activities.
(a) No public official or public_ employee
shall use his public office or any
confidential information receivedthrough 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. 5403(a).
II. FINDINGS:
1. Earl Miller serves as Township Supervisor for Washington
Township, Schuylkill County, Pennsylvania.
a. He has served in._this_ position since January, 1982.
b. He has also served as Township Roadmaster from January,
1982 to August, 1993.
c. - Miller has served as. _Township . Building ,and Roads .Permit
•Inspector since January, 1983.
1) This position was not related to the position of
roadmaster, laborer or secretary /treasurer.
2. Minutes-of - the township supervisor's meetings reflect that
Earl Miller. was appointed roadmaster and building and road
permit inspector at,.. reorganization meetings in January of
1984,1985,..1986,:1987, 1988 and 1989.
a. Miller had no set hours as the building and road permit
inspector.
b. Earl Miller routinely voted for his appointment to this
position.
3. Township supervisors were compensated for attending township
meetings at a rate of $25.00 per meeting for calendar years
1984, 1985, 1986, 1987, 1988 and 1989.
Miller, 90 -004 -C
Page 3
4. A payment of $25.00 for each road inspection tour was received
by the township supervisor for calendar years 1984, 1985,
1986, 1987, 1988 and 1989.
a. Road inspection tours are conducted twice yearly.
5. Township supervisors were also compensated for serving as
roadmasters at a rate fixed by the township board of auditors.
6. Minutes of the meeting of _the township auditors reflect the
following with regard to compensation of township supervisors
working as roadmasters:
a. January, 1984
The auditors present were Harold German,. Steve Frantz,
and Barry Newswanger. The roadmaster's wages were set
at $7.25 per hour.
b. January, 1985
The auditors present were German, Frantz and Newswanger.
The roadmaster's wages were st at $7.85 per hour.
c. January, 1986
The auditors present were German, Frantz and Newswanger.
The roadmasters's wages were set at $8.25 per hour.
d. January, 1987
The auditors present were German, Frantz and Newswanger.
The roadmaster's wages were set at $8.58 per hour.
e. January, 1988
The auditors present were Frantz and Robert Evanchalk.
Chairman German was absent. The wage set for the
roadmaster was $9.10 per hour. Auditors were advised
that the supervisor intended to cut back weekly hours
from 45 to 40 except for periods of snow removal or road
construction.
f. January, 1989
The auditors present were German, Grantz and Evanchalk.
The wage set for the roadmaster was $9.60 per hour. The
supervisors reported for the record that the township
road crew stayed within the 40 hours per week guidelines
whenever possible during 1988.
Mille , 90 -004 -C
Page 4
g.
January, 1990
The auditors present. were German, Evanchalk and James
Martin. The wage set for the ro was $9.85 per
hour. The auditors received a request from the
supervisors that the auditors consider a pension plan for
supervisors and township employees. No action was taken.
The auditors requested additional information on
available pension plans. The auditors, were informed
that supervisor and roadmaster Miller was to receive a
$1,200 I.R.A. contribution as compensation for his duties
as building and road permit inspector. The legitimacy-of
this type of compensation was questioned and the auditors
stated it will be investigated before any payment would
be made.
h. January 15, 1990
Auditors German, Evanchalk and Martin and Supervisor
Walter Stump were present. Stump advised the auditors
that Solicitor Richard Thornburg believed the auditors
should require Miller to,refund the $1,500,00 credited to
his I.R.A. in 1989.
Earl. Miller received compensation for serving in
the position of township building and roads permit inspector.
8. This compensation was in the form of a contribution to an IRA
account that Miller maintained.
9. The township auditors never approved the payments to Miller's
I.R.A in calendar years 1984, ° 1985, 1986, .. 19874 1988 and 1989
as part of his compensation. .,
10. The township supervisors approved the township contribution to
- Miller's I.R.A. with - other bills to be .paid at monthly
meetings as follows:
3/7/84 F & Insurance .Co...- Pension $1,200.00
3/12/85 F & G Life Insurance Co. - Pension $1,200.00
3/7/86 F & G Life - Pension - Earl $1,200.00
3/5/87 F & G Life Insurance Co. Pensions $1,500.00
3/2/88 F & G Life Insurance Co. - Earl Pension $1,200.00
3/6/89 F & G Life - E. Miller Pension $1,500.00
TOTAL $7,800.00
Miller, 90 -004 -C
Page 5
11. Township records reflect that payments to Miller's I.R.A. were
made by issuing the following checks from the Washington
Township Road District Fund.
Number Date Amount
#3617 3/1/84 $1,200.00
#3960 3/12/85 $1,200.00
#4329 2/18/86 $1,200.00
#4791 2/12/87 $1,500.00
#5286 3/2/88 $1,200.00
#5605 3/1/89 $1,500.00
TOTAL $7,800.00
12. The above checks were signed by Walter Stump and Earl Miller
on behalf of the township.
13. Solicitor Richard Thornburg issued an opinion on February 22,
1990, that pension contributions made by a township for a
supervisor - employee is compensation and must be approved by
the auditors.
14. Thornburg suggested that Miller reimburse the township for the
Z.R.A. payment of $1,500.00 in 1989.
15. Miller reimbursed the township in the amount of $1,500:00 for
the 1989 Z.R.A. payment by-issuing draft #1465 dated April 11,
1990.
16. The net financial gain_to Miller was $6,3 plus interest.
17. The 1989 Township Auditor's Report reflects that $1,606.00 was
received by the township for the issuance of building permits
and $305.00 was received for road occupancy permits during
this year.
18. , Earl Miller filed a Statement of Financial Interests for the
1990 calendar year.
a. The form is dated February 10, 1991.
b. The filing was made on form SEC -1 Rev. 1/92.
1) That form was not printed until January, 1992.
Miller, 90 -004 -C
Page 6
2) "' "Miller advised he retroactively
form.
c. On line 11, direct or indirect sources
reported Washington Township.
-- 19. Earl Miller also filed Statements of
the 1991 and 1992 calendar years.
III. DISCUSSION
Financial Interests for
As' a Washington Township Supervisor, Earl
hereinafter Miller, is a" public Official as that term
the Ethics Act. 65 P.S. §402, =51 Pa. Code = 11.1.
conduct is subject to the provisions of the Ethics
restrictions therein-are applicable tO him. '
Initially, :it is noted that Section 9 of Act `9
1989, P.L. 26, in part, 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 Iaw, which is continued
in effect for that purpose -as- if this act were
not in force. Por 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.
filed that
of income, Miller
I. Miller,
is defined in
As such, his
Act and the
of --June 26,
Since the occurrences in this case transpired prior to the
effective date of Act 9 (June 26, 19 89) , 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 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 P. Comm.
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-1r'. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d
1374,x1988), allocatur denied, 520 Pa. 609, 553'A:2d.971 (1988).
t
Miller, 90 -004 -C
Page 7
The issue before us is whether Miller violated Section 3(a) of
Act 170 of 1978 by receiving compensation as an employee - supervisor
in the form of IRA payments as Township Building and Road Permit
Inspector without Auditor approval.
Miller has served as a Supervisor since 1982, as a Roadmaster
from 1982 to .1993, and as Township Building and Road Permit
Inspector since 1983.
Although the Township Auditors set the compensation for the
Supervisors as Roadmasters for the years 1984 through 1990, the
Auditors did not take action on a pension plan for. Supervisors and
Township employees even though requested to do so. When the
Auditors were advised that Miller would receive a $1,200.00 yearly
IRA payment as compensation for his duties as Building and Road
Permit Inspector, the propriety of such action was questioned by
the Auditors. Subsequently, in a January 15, 1990 meeting,
Supervisor Stump informed the Auditors that the Township Solicitor
believed that the Auditors should require Miller to refund the
$1,500.00 credited to his IRA in 1989.
Even though the Township Auditors never approved payment to
Miller's IRA for the years 1984 through 1989, Miller received
Township paid contributions to his IRA amounting to $7,800.00 for
those years. After Miller reimbursed the Township in the amount of
$1,500.00 for the 1989 IRA contribution, the net contribution made
by the Township to Miller's IRA amounted to $6,300.00.
In determining whether the action of Miller violated Section
3(a) of the Ethics Law, we must review the pertinent provisions of
the Second Class Township Code. Although we do not have
jurisdiction to interpret the provisions of the Second Class
Township Code, it is necessary to review those provisions of law in
order to .make a determination as to whether the financial gain was
compensation other than provided for by law under Section 3(a) of
the Ethics Law.
The Second Class Township Code provides that township
supervisors shall receive only the compensation as set forth in
Section 515, 53 P.S. 565 In reference to the for
which supervisors may receive compensation, the Code provides
limitations as noted in Section 512, 53 P.S. §65512.
The duties that a supervisor is responsible for performing are
regulated by statute. The compensation to be paid for a supervisor
who is not otherwise employed by the township is strictly regulated
by the Second Class Township Code. A supervisor may only receive
compensation for supervisor meetings regarding the transaction of
township business. The type of meeting for which a township
supervisor may be compensated must - be one at which official
township business is transacted. Additionally, the Second Class
4i11er, 90 -004 -C
Page 8
Township Code provides for compensation at the specific meetings as
outlined in 565512. The Code does not appear to permit the
compensation of a township supervisor for attending other hypes of
meetings or for performing the functions of his
office. Any such other compensation must be earned as part of the
services performed while - serving in one of the statutorily
authorized positions.
The Second Class Township Code sets forth clearly when
supervisors may receive compensation other than as set forth above.
Generally, a township supervisor may be employed by the township as
a roadmaster, laborer, or secretary /treasurer. 53 P.S. 565410.
The compensation to be paid to supervisors working in such
positions is to be fixed tby the township board' of auditors. 53
P.S. 5565515, 65531,:-65540.- Township supervisors may not receive
any other compensation except as provided above In Coitar v.
Warminister Township, 8 of Pa. Penns lvania held that d l clas
the Commonwealth Court class
Pennsylvania
township supervisor may not appoint himself to positions other than
those set forth in the township code (roadmaster, laborer, or
secretary /treasurer), and receive compensation therefore. See
also, Conard v. Exeter Township, 27 D &C.3d 253 (Berks 1983). It is
clear, therefore, that the duties for which a township supervisor
may be compensated are strictly regulated by the Second Class
Township Code, and when performing in the positions set forth in
the Code, the supervisor's compensation must be specifically set
forth by the township board of auditors.
In applying the above provisions of law to the instant matter,
we find that Miller violated Section 3(a) of the Ethics Law.
s
Miller used the authority of public office to obtain IRA payments
which constitute a financial gain other than compensation provided
by law. The foregoing compensation received by Miller was not
authorized under the Second Class Township Code in two respects.
First, Miller was working as Township Building and Road Permit
Inspector which is not an authorized working position for a
township supervisor. Thus, Miller could not work in such a
position and derivatively could not receive any compensation for
that position. Second, the compensation was not, nor could it be,
approved by the Auditors and therefore was a financial gain other
than compensation provided by law.
As to a financial gain received in violation of the Ethics
Law, this Commission has been granted the authority to offer the
opportunity to an individual who has obtained financial gain as a
result of a violation of the Ethics Law the opportunity to divest
himself of said gain. Section 7(9)(iii) of Act 170 of 1978. See
also, Section 9(c). See also, McCutcheon v. State Ethics
Commission, supra; Yocabet v. State Ethics Commission supra. We
have on a number of occasions offered individuals the opportunity
to divest themselves of the financial gain received and thereafter
Miller, 90 -004 -C
Page 9
recommended no further action.
As per the Consent Agreement of the parties, the Investigative
Division and the Respondent, Miller has agreed to pay $2,700.00 to
Washington Township. Based upon such agreement, Miller is directed
within thirty (30) days to make payment of the $2,700.00 through
this Commission to Washington Township.
IV. CONCLUSIONS OF LAW:
1. Miller, as a Washington Township Supervisor, is a public
official subject to the provisions of Act 170 of 1978.
2. Miller violated Section 3(a) of Act 174 of 1978 when he used
the authority of office to obtain a financial gain other than
compensation provided by law as to IRA payments made by the
Township to Miller as Township Building and Road Permit
Inspector.
In Re: Earl I. Miller
ORDER NO. 915
File Docket: 90 -004 -C
Date Decided: 02/17/94
Date 02/24/94
1._._ Miller, as a Washington Township Supervisor, violated Section
3(a) of Act 170 of 1978 when he used the authority of office
to obtain a financial gain other than compensation provided by
law as to.IR.A, payments made by the Township to Miller as
Township Building and Road Permit Inspector.
2. Miller is directed within, thirty (30) days of the date of
issuance of this Order to make payment in the amount of
$2,700.00 to this Commission payable to the order of
Washington Township as_per the Consent Agreement between the
Investigative Division and Respondent.'
3. Failure to comply with Paragraph 2 will result in a directive
of this Commission to institute order enforcement proceedings.
4. Compliance with Paragraph 2 will result in the closing of the
case with no further action by this Commission.
BY THE COMMISSION,