HomeMy WebLinkAbout916 WeikelSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In re: Eugene Weikel File Docket: 93- 011 -C2
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 complaints regarding
possible violations of the State Ethics Law, Act No. 170 of 1978
and Act No. 9 of 1989. 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
S2.38 and /or 51 Pa. Code §21.29(b).
The files in this case will remain confidential in accordance
with Section 8(a) of Act 170 of 1978 and Act 9 of 1989, 65 P.S.
§408(h), 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. S409(e).
Weikel, Eugene, 93- 011 -C2
Page 2
I. AT.LEGATION:
That Eugene Weikel, a Supervisor for West Cameron Township,
Northumberland County, violated the following provisions of the
State Ethics Act (Act 9 of 1989) when he received compensation for
administrative duties not related to the duties of roadmaster,
laborer or secretary /treasurer.
Section 3. Restricted Activities
(a) ; No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65, P . S .
S403(a).
and that Eugene Weikel, a Supervisor for West Cameron Township,
Northumberland County, violated the following provisions of the
State Ethics Act (Act :170 of 1978) when he received compensation
for administrative duties not related to the duties of roadmaster,
laborer or secretary /treasurer.
Section 3. Restricted Activities.
II. . FINDINGS:
(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. 5403(a).
1. Eugene Weikel served as a West Cameron Township Supervisor in
Northumberland County, Pennsylvania, from 1976 to December,
1993.
a. Weikel was Chairman of the Board of Supervisors
intermittently from 1976 to 1989, and from 1990 to
December, 1993.
b. Be also intermittently served as Vice - Chairman of the
Board of Supervisors and Township Roadmaster during the
period 1976 to 1989.
2. West Cameron Township Supe vino the are township routinely appointed ppointed
labo and roadmaster
reorganization meetings.
a. Eugene Weikel served as a laborer from 1988 through 1992.
Weikel, Eugene, 93- 011 -C2
Page 3
3. Minutes of the West Cameron Township Auditor's meetings
reflect that the following actions were taken in regards to
setting a salary for supervisors working on township roads.
January 4, 1988 - A motion by Phyllis Weikel to keep the
hourly rate at $6.00 per hour for supervisors. Seconded by
Karen Collier. A motion was -made by Phyllis Weikel to approve
paying the maximum allowed by-the Second Class Township Code
for mileage. Seconded by Terry Lutz.
January 3, 1989 - A motion by Phyllis Weikel to keep the
hourly rate at $6.00 per hour for supervisors. Karen Collier
seconded. Motion by Phyllis Weikel to approve paying the
maximum allowed by the Second Class Township Code for mileage.
Seconded by Terry Lutz.
January 3, 1990 - Motion by Phyllis Weikel to keep the hourly
rate at $6.00 per hour for supervisors. Seconded by Karen
Collier. Roll call vote was Weikel yes, Collier yes and Lutz
yes. Motion by Phyllis Weikel to approve paying the maximum
allowed by the Second Class Township Code for mileage.
Seconded by Karen Collier.
January 7, 1991 - Motion by Phyllis Weikel to keep the hourly
rate of supervisors at $6.00 per hour. Seconded by Karen
Collier. Roll call vote was Weikel yes, Collier yes and Lutz
yes. Motion by Phyllis Weikel to approve paying the maximum
allowed by the Second Class Township Code for mileage.
Seconded by Karen Collier.
January 7, 1992 - Motion by Tim Lutz to approve raising the
hourly rate of supervisors from $6.00 to $6.25 per. hour.
Seconded by Karen Collier. Roll call vote was Terry Lutz yes,
Tim Lutz yes and Collier yes. Motion by Collier to approve
paying the maximum allowed by the Second Class Township Code
for mileage. Seconded by Terry Lutz.
4. West Cameron Township has participated in a Federal program of
distributing surplus food items since at least 1987.
a. The items have been distributed from the township
municipal building.
b. Township supervisors have participated in distributing
the commodities:
c. In addition to distributing items, supervisor
participation included transporting commodities from
Sunbury to the municipal building, a round trip of (33)
miles.
Weikel, Eugene, 93- 011 -C2
Page 4
5. Eugene Weikel has participated in the transporting and
distribution of surplus food items from 1988 through
September, 1992.
a. Weikel has been paid an hourly rate by the township for
these services.
6. A former township supervisor, Johnathan Brightbill,
transported and distributed the surplus food, prior to
Weikel's service in 1988.
a. Brightbill was paid an hourly rate by the township for
this service.
7. Eugene Weikel transported the surplus food commodities from
Sunbury, Pennsylvania, to a distribution point in the township
with his personal truck.
a. A round trip of 3 3' miles was required.
b. This trip was made on a two to three times yearly basis
during 1988 through September, 1992.
8. , Township man -hour reports, prepared And signed by Weikel, and
`checks reflect that the following hours claimed by Mr. Weikel
and checks issued as payment for his services related to the
food surplus program.
check Number
Not indicated
1264
1361
1463
1514
1696
Not indicated
1758
Not indicated
1825
Not indicated
;940
Not indicated
2023
2155
2158
2315
2320
2383
Dates of
05/11/88
05/.8/88,
10/19/88
02/20/89,
05/24/89,
02/20/90,
03/01/90,
05/24/90
06/05/90
09/26/90
02/68/91
.02/20/91
03/04/91,
03/13/91,
06/19/91,
11/13/91
11/20/91,'
06%10/92
06/.17/92,
06/25/92
09/16/92,
09/30/92
Service Hours Amount
8 $ 48.00
05/20/88 10 60.00
8 48.00
02/22/89 - 6 36.00
05/26/89 13 78.00
02/26/90 13.5 81.00
03/02/90 4 24.00
2.5 15.00
4.5 27.00
09/27/90. 11 66.00
1.5 9.00
2 12.00
03/06/91,
03/15/91
06/20/91
11/21/91
06/24/92,
09/23/92,
21.5 129.00
13 78.00
6. 36.00
9 54.00
4 25.00
'18 112.50
12 75.00
Weikel, Eugene, 93- 011 -C2
Page 5
TOTAL $ 1,013.00
9. Eugene Weikel routinely made motions and voted to pay the
township's monthly bills at township meetings.
a. When Weikel sewed as Board Chairman, he requested
motions to pay bills.
b. When Weikel did not serve as Board Chairman, he
motions to pay the township monthly bills.
c. Payments to him for his services to the food
program were included in these bills.
did make
surplus
(1) Payments to Weikel in the Food Surplus Program were
included among other Township bills.
10. During the West Cameron Township supervisor's meeting for
October 6, 1992, Township Secretary Cathy Pechne informed the
supervisors that they are not to be compensated for giving out
commodities. Pechne added that this activity-is considered to
be volunteer work.
a. Also, in these minutes, Supervisor Weikel made a motion
to approve $.28 per mile for use of personal vehicles
when performing township work. Supervisor Earl Pechne
seconded and the motion passed.
11. Minutes of the West Cameron Township supervisors meeting of
November 2, 1992, reflect that township resident Ethel Zamboni
questioned Weikel as to whether or not he would repay the
township for the 'money he received for distributing the
surplus food.
a. Weikel replied no and said he will sign -up and distribute
commodities but he will not transport the commodities.
Weikel further stated that sign -up and pick =up would only
be three hours for each day.
(1) Weikel asserts that he stated that he would
continue to act as a,volunteer in the Food Surplus
Program and that he would repay the Township if it
were determined that the payments to him for his
services were improper.
12. The township sought an opinion from Pennsylvania State
Association of Township Supervisors (PSATS) requesting whether
a township supervisor could be compensated for distributing
surplus agricultural commodities.
13. By letter dated October 26, 1992, the PSATS issued a reply
Weikel, Eugene, 93- 011 -C2
Page 6
which, . in part, concluded:
a. Although the activities of townships have expanded for
beyond road - related. work, Sections 511 -516 of the
Township Code limit th? capacities or positions for which
supervisors may be employed and compensated by the
township.
b. Based on the above, a supervisor could not be compensated
for volunteer work, such as distributing surplus
agricultural commodities. However, the board of
supervisors could approve the individual to be reimbursed
for actual expenses incurred as a result of the volunteer
work if performed as a township supervisor.
14. Weikel ceased being paid for distributing surplus food items
after receipt of this advice.
a. Weikel states
that Weikel .
transporting
commodities.
that he consulted with counsel who advised
could not receive compensation for
and distributing surplus agricultural
b. Weikel has issued a check to West Cameron Township in the
sum $1,013.00 in.- reimbursement for the funds issued to
him.
c. Weikel asserts that he accepted the payments mistakenly,
unwittingly and without proper knowledge that his actions
were violative of either the Township code or Ethics Law.
III. DISCUSSION:
Initially, it is noted that the allegations in this case
relate to both Act 9 of 1989 and Act 170 of 1978. In this regard,
Section 9 of Act 9 of 1989, .P.L. 26, provides; 'in part, as follows:
This amendato "ry 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 th;.s
section, a violation was committed prior to
the effective date of this act if any, elements
of the violations_occurred prior thereto.
Under botl} Act 170 of 1978 and Act 9 of 1989, as a Supervisor
in West Cameron Township, F,ugene_Weikel, hereinafter Weikel is a
public,officiah as that term is defined under both acts. See also
Weikel, Eugene, 93- 011 -C2
Page 7
51 Pa. Code. As such, his conduct is subject to the provisions of
both laws and the restrictions therein are applicable to him.
Under Section 3(a) of Act 9 of 1989 quoted above, a public
official shall not engage in conduct that constitutes a conflict of
interest.
The term "conflict of interest" is defined under Act 9 of 1989
as follows:
65 P.S. 5402.
Section 2. Definitions.
"Conflict or conflict of_interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential information received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or_a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member or his immediate family or
a business with which he or a member of his
immediate family is associated.
Under Section 3(a), of Act 170 of 1978 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 financial gain which
is not authorized as part of his compensation is prohibited by
Section 3(a): Roak/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).
The issue before us is whether Weikel violated Section 3(a) of
Act 9 of 1989 or Act 170 of 1978 by receiving compensation as an
employee- supervisor for performing services as to a food surplus
Weikel, Eugene, 93- 011 -C2
Page 8
program.
Weikel served as a West Cameron Township Supervisor from 1976
to 1993, as Vice - Chairman and Roadmaster intermittently from 1976
to 1989 as Chairman intermittently from 1976 to •1989 and 1990 to
December, 1993, and as laborer from 1988 through 1992.
The minutes of the Auditors of West Cameron Township reflect
action taken at the January-meetings for the years 1988 through
1991 to set the hourly rate for supervisors at $6.00 per hour and
for the 1992 year to set the rate at $6.25 per hour plus the
maximum allowable for mileage in all years.
Since West Cameron Township participated in a federal food
surplus distribution program, Weikel transported and distributed
surplus food items from 1988 through September, 1992 using his
personal truck.
Weikel was paid $1,013.00 - for his work as to the food surplus
program. Fact Finding 8. Weikel was paid through motions and
votes to pay his bills as part of a package of monthly bills of
West Cameron Township.
The propriety of the acceptance by Weikel of compensation for
performing services as to the food surplus program was questioned
by the West Cameron Township Secretary, by a citizen at a monthly
board meeting and by PSATS. -
Lastly, Weikel has ceased being paid for performing services
as to the food surplus program and has made restitution of
$1,013.00 that he received for such services.
In determining whether the actions of Weikel violated Section
3(a) of the Ethics Law, we must review the pertinent provisions of
the Second Class Township ". Although we do not have
jurisdiction to interpret the provisions of the Second Class
Township it is necessary to review those provisions of law in
order to make a determination as-to whether the financial gain was
compensation other provide$ for by law under Section 3(a) of
Act 170 of - 1978 or a pecuniary benefit which was private under Act
9 of 1989.
The Second Class Township Code provides that township
supervisors shall receive the following compensation:
Compensation of Supervisors --
Supervisors may receive from the general
township fund, as- compensation, an amount
fixed by ordinance not in excess of the
following:
Weikel, Eugene, 93- 011 -C2
Page 9
53 P.S. 565515.
Township Population
Not more than 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,999
25,000 to 34,999
35,000 or more
Annual Maximum Compensation
Fifteen hundred dollars
Two thousand dollars
Twenty -six hundred dollars
Thirty -three hundred dollars
Thirty -five hundred dollars
Four thousand dollars
Such salaries shall be payable monthly or
quarterly for the duties imposed by the
provisions of this act. The population shall
be determined by the latest available official
census figures. The compensation of
supervisors shall be fixed by the township
auditors either per hour, per day, per week,
semi- monthly or .monthly, which compensation
shall not exceed compensation paid in the
locality for similar services, and such other
reasonable compensation for the use of a
passenger car, or a two -axled four - wheeled
motor truck .having a chassis weight of less
than two thousand pounds when required and
actually used for the transportation of road
and bridge laborers and their hand tools and
for the distribution of cinders and patching
material from a stock pile, as the auditors
shall determine and approve; but no supervisor
shall receive compensation as a superintendent
or roadmaster for any time he spends attending
a meeting of supervisors.
In reference to the meetings for which supervisors may receive
compensation, the Code further provides as follows:
The township supervisors shall meet for
the transaction of business at least once each
month, at a time and place to be fixed by the
board, but they shall not be paid for more
than sixteen meetings in any one year, except
for any township where, on account of the
exercise of governmental functions other than
those relating to roads, more meetings are
necessary, in which case, the number of
meetings for which the supervisors may be paid
may be increased to any .number, not exceeding
fifty meetings in year which shall include
hearings by aggrieved parties under the
Pennsylvania Sewage Facilities Act and other
hearings by aggrieved parties, hearings of a
Weikel, Eugene, 93- 011 -C2
Page 10
judicial or. quasi - judicial nature. Two
members of any board of supervisors consisting
of three members shall constitute a quorum and
three members of any board of supervisors
consisting of five members shall constitute a
quorum. Except as otherwise provided in this
act, an affirmative vote of a majority of the
entire board of supervisors shall be necessary
in order to transact any business. Necessary
expenses incurred in such meetings, including
office ..rent; stationery, light and ,fuel, shall
be paid out -of the general township fund.
53 P.S. S65512.
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
Township Code provides for compensation at the specific meetings as
outlined in §65512 above. The Code does not appear to permit the
compensation of a township supervisor for attending other types of
= meeetings or for performing the administrative 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. Thus, if township supervisors were to award
to themselves compensation for attendance at meetings that are not
official township .. meetings of, the board of supervisors as per
Section 515 of the Code, or for performing duties not authorized by
law, such would violate the . p rovisionS ' o. the Sta.e Ethics Law as
such payment would not constitute compensation provided by law.
The above interpretation of the Second. Class-Tow4Ship Code is a
view that has also been expressed by the State Association of
Township Supervisors which specifically indicated that supervisors
may not be compensated for meetings with engineers,-solicitors,
planning commissions, authorities, or recreation boards. See,
Township News, May, 1985, Page 66. In the Township News, June,
1993, page 90, it is stated that supervisors may not be compensated
for time spent responding to citizen concerns, phone calls, and
such administrative functions. Further, a supervisor - employee may
not use "employee" time to deal with official supervisory duties on
non - road - related activities.
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.
Weikel, Eugene, 93- 011 -C2
Page 11
The compensation to be paid to supervisors working in such
positions is to be fixed by the township board of auditors. 53
P.S. S §65515, 65531, 65540. Township supervisors may not receive
any other compensation except as provided above. In Coltar v.
Warminister Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859 (1973),
the Commonwealth Court of Pennsylvania held that a second class
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 supervisors
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 Weikel violated Section 3(a) of the Ethics Law.
Weikel used the authority of public office to obtain $1,013.00 in
payments which constitute a private pecuniary benefit and a
financial gain other than compensation provided by law. The
foregoing compensation received by Weikel was not authorized under
the Second Class Township Code.
Weikel has made timely restitution payable to the order of
West Cameron Township in the amount of $1,013.00. Since there was
no intent to violate the Ethics Law, this matter will be closed
with no further action by this Commission.
IV. CONCLUSIONS OF LAW:
1. Eugene Weikel, as a West Cameron Township Supervisor, is a
public official subject to the provisions of Act 170 of 1978
as added and amended by Act 9 of 1989.
2. Weikel violated Section 3(a) of Act 9 of 1989 when he used the
authority of office to obtain a private pecuniary benefit and
a financial gain other than compensation provided by -law in
the amount of $1,013.00 for performing services as to a food
service program.
In re: Eugene Weikel
ORDER NO. 916
1. Eugene Weikel, as a West Cameron Township Supervisor, violated
Section 3(a) of Act 9 of 1989 when he used the authority of
office to obtain a private pecuniary benefit and a financial
gain other than compensation provided by law in the amount of
$1,013.00 for performing services as to a food service
program.
2. With Weikel having already made restitution in the amount of
$1,013.00 to West Cameron Township, no further action will be
taken.
File Docket: 93- 011 -C2
Date Decided: 02/17194
Date Mailed: 02/24/94
BY THE COMMISSION,
JAMES M. HOWLEY, CHAIR