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HomeMy WebLinkAbout920 WeaverSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Marvin J. Weaver File Docket: 93- 021 -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. 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 and /or 51 Pa. Code 521.29(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. 5408(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. 5409(e). Weaver, 93- 021 -C2 Page 2 I. ALLEGATION: That Marvin J. Weaver, a Township Supervisor for Greene Township, Clinton County, violated the following provisions of the State Ethics Act (Act 170 of 1978) when he accepted compensation not provided for by law by being compensated as Township Zoning Officer and Building Inspector while simultaneously serving as Township Supervisor. 65 P.S. 5403(a). II. FINDINGS: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. Act 170 of 1978, P.L. 883, Section 3(a). And that Marvin J. Weaver, a Township Supervisor for Greene Township, Clinton County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he accepted compensation not provided for by law by being_ compensated as Township Zoning Officer while simultaneously serving as Township Supervisor. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 1. Marvin Weaver has served as a Greene Township Supervisor in Clinton County, PA, from September, 1988 to the present. a. Weaver was building inspector from 1976 to April, 1993. b. He was appointed zoning officer in January, 1988 and served until his resignation in April, 1993. 1) As .zoning officer, he also handled the issuance of permits for the township. c. Weaver is also employed as a truck driver for Valley Services. Weaver, 93- 021 -C2 Page 3 2. Minutes of the Greene Township Supervisors' meetings for January 4, 1988 reflect that Marvin J. Weaver was appointed township zoning officer at $50.00 per month for his services. 3. Minutes for the Greene Township Supervisors' meeting for September 26, 1988 confirm that the supervisors held a meeting for the purpose of appointing a supervisor to take the place of recently deceased, Marvin E. Weaver. There were nine applicants present including Marvin J. Weaver. Supervisor Ralph Brungart made a motion to appoint Marvin J. Weaver, the deceased's son. Supervisor Tom Rockey seconded this motion. No other motions were made and Marvin J. Weaver was appointed. 4. On November 7, 1989, Marvin J. weaver was elected township supervisor to serve a full four year term. a. Weaver began serving that term in January, 1990. 5. Minutes s of Greene Weaver's Supervisors' t as building Reorganization Meetings inspector/ g zoning officer: a. January 2, 1989 - All agreed to a motion by Supervisor Rockey to appoint Marvin J. Weaver as building inspector and Otto Hughes as sewage officer. b. January 2, 1990 - Supervisor Brungart made a motion to appoint Marvin J. Weaver as building inspector and Otto Hughes as sewage officer. All agreed to the vote. c. January 2, 1991 - Supervisor Brungart made a motion to keep Marvin J. Weaver as building inspector and Otto Hughes as sewage officer. All agreed. d. January 6, 1992 - Supervisor Brungart made a motion to keep Marvin J. Weaver as building inspector and zoning officer and Otto Hughes as sewage officer. The vote was yes. All agreed. e. January 4, 1993 - Supervisor Brungart made motion to appoint Marvin J. Weaver as zoning officer. Supervisor Rockey seconded and the motion carried. The vote was yes. f. Appointments were listed as building inspector in 1989, 1990 and 1991, but Weaver also served as zoning officer. 6. Township payroll records reflect that the following checks were issued to Mr. Weaver in payment for his services as township zoning officer. All of the checks were in the amount of $50.00. gazer, 93- 021 -C2 Page 4 Check Number Date 4344 12/06/88 4367 .12/29/88 4416 02/06/89 4451 03/07/89 4468 04/03/89 4503 05/02/89 4545 06/07/89 4622 08/17/89 4629 09/06/89 4668 09/30/89 5039 11/07/89 5099 01/08/90 5127 02/06/90 5151 03/06/90 5186 04/03/90 5216 05/01/90 5240 06/05/90 5275 07/02/90 5302 08/06/90 5337 09/03/90 5356 10/02/90 5391 10/29/90 5460 12/26/90 5503 02/05/91 5531 03/04/91 5555 04/01/91 5581 05/06/91 5607 06/03/91 5632 07/01/91 5667 08/05/91 5682 09/02/91 5709 09/30/91 5755 11/06/91 5770 12/03/91 5809 12/30/91 5852 02/21/92 5903 04/07/92 5976 07/06/92 110 08/03/92 127 08/31/92 Yearly Amount $ 100.00 $ 450.00 600.00 600.00 $ 600.00 Weaver, 93- 021 -C2 Page 5 b. b. 156 207 233 261 300 337 10/05/92 11/03/92 11/30/92 12/29/92 02/01/93 03/01/93 $ 450.00 $ 100.00 apprised Weaver that he as supervisor and zoning 7. Solicitor Pasquale Schiavo verbally had a conflict of interest by serving officer. a. The question arose when an individual discussed matter during a zoning dispute in March, 1993. 8. Weaver resigned as zoning officer in April, 1993 when he made aware of the conflict by the solicitor. a. By memorandum to the supervisors dated April 6, 1993, Weaver tendered his resignation. Weaver stated he would not have accepted the dual if he knew it was a conflict. 9. Marvin Weaver filed'a Statement of Financial Interests for the 1990 calendar year on April 23, 1991. a. On line 11, director or indirect sources of income, Weaver indicated "none ". He failed to list employment with Valley Services, Loganton, PA, as a truck driver. the was roles c. He failed to list Greene Township as a source of income. 10. Marvin Weaver filed a Statement of Financial Interests for the 1991 calendar year on April 23, 1992. a. On line 11, direct or indirect sources of income, Weaver indicated "none." b. He failed to list employment with Valley Services, Loganton, Pa, as a truck driver. c. He failed to list Greene Township as a source of income. 11. Marvin Weaver filed a Statement of Financial Interests for the 1992 calendar year on April 26, 1993. Weaver, 93- 021 -C2 Page 6 a. On line 11, director or indirect sources of income, Weaver indicated "none. b. He did not list employment with Loganton, PA, as a truck driver. c. He failed to list Greene Township as a The term "conflict of interest" is defined under 9 of 1989 as follows: 12. On the above statements, Weaver listed his public office or position as township supervisor. a. Weaver did not list his dual role of zoning officer. III. DISCUSSION: 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 Valley Services, source of income. 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 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 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 violations occurred prior thereto. Under both Act 170. of 1978 and Act 9 of 1989, as a Greene Township Supervisor, Marvin J. Weaver, hereinafter Weaver, is a public official as that term is defined under both acts. See also 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. Weaver, 93- 021 -C2 Page 7 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 rdinimis 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. 65 P.S. 5402. 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): 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). The issue before us is whether Weaver violated Section 3(a) of Act 170 of 1978 or Act 9 of 1989 by receiving compensation as a Township Zoning Officer and /or Building Inspector. Weaver has served as r ToAwns th Superviso from January, 1988 September 1988 to th e p esent reorganizational meeting of the Board of Supervisors, Weaver was appointed Zoning Officer. At the subsequent reorganizational meetings, Weaver was appointed as Building Inspector for 1989 through 1991; . however, Weaver also served as Zoning Officer during that time. In addition, Weaver was specifically appointed to both positions in 1992 and solely to the position of Zoning Officer in 1993. The compensation paid to Weaver as Township Zoning Officer was $50.00 per month. After the Township Solicitor advised Weaver that he had a conflict by simultaneously serving as Supervisor and Zoning Officer, Weaver resigned and stated that he would not have accepted both positions if he had known there was a conflict. Although not part of the allegation, it is noted that Weaver Weaver, 93- 021 -C2 Page 8 failed to list on his 1990, 199. and 1992 calendar year Financial Interests Statements (FIS's), the following information: his position as Zoning Officer and secondly, Greene Township and Valley Services as sources of income. In determining whether the action of Weaverviolated 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. S65515. In reference to- the meetings for which supervisors may receive compensation, the Code provides limitations as'noted in Section 512, 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 byy 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 565512. The Code does not appear. to permit the compensation of a township supervisor for attending other types of meetings orl 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. The Second Class Township Code sets forth clearly when supervisors may receive compensation ether 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. S65410. The compensation to be paid to supervisors- working in such positions is to be fixed by the township board of auditors. 53 P.S. 5565515, 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. §_ee also, Conard v. Exeter Township, 27 D &C.3d 253 (Berks 1983). It is clear, therefore, that the duties for which a township supervisor Weaver, 93- 021 -C2 Page 9 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 Weaver violated Section 3(a) of both Act 170 of 1978 and Act 9 of 1989. Weaver used the authority of public office to obtain compensation as a Zoning Officer /Building Inspector of $50.00 per month which constitutes,a financial gain other than compensation provided by law and a private pecuniary benefit. The foregoing compensation received by Weaver was not authorized under the Second Class Township Code in two respects. First, Weaver was working as Township Zoning Officer /Building Inspector which are not authorized working positions for a township supervisor. Thus, Weaver could not work in such positions and derivatively could not receive any compensation for those positions. 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 or private pecuniary benefit. As to a financial gain received in violation of the Ethics Law, this Commission has been granted the authority to offer 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 recommended no further alt also set impose forth in Act 9 of 1989 6P . S . S407(13); restitution orapen y 65 P.S. 5409(c). As per the consent agreement of the parties, the Investigative Division and the Respondent, Weaver has agreed to pay $550.00 to Greene Township. Based upon such agreement, Weaver is directed within thirty (30) days to make payment of the $550.00 through this Commission to Greene Township. Turning to the matter of the deficiencies on the 1990 through 1992 calendar year FIS's filed by Weaver, we do not find any violations of the Ethics law in that such was not part of the allegation before us. However, we shall direct Weaver to file amended FIS's for the three calendar years in question to include Greene Township and Valley Services as sources of income and to list his position as Zoning Officer /Building Inspector for three years. Such amended FIS's must be filed within thirty (30) days of the date of this Order with this Commission. Failure to comply- with the above will result in the Weaver, 93- 021 -C2 Page 10 institution of an order enforcement action against Weaver. IV. CONCLUSIONS OF LAW: 1. Marvin J. Weaver, as a Greene 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. Weaver violated Section 3(a) of Act 170 of 1978 and Act 9 of 1989 when he used the authority of office to obtain compensation as Township Zoning Officer /Building Inspector. In Re: Marvin J. Weaver : File Docket: 93- 021 -C2 : Date Decided: 02/17/94 Date Mailed: 02/24/94 ORDER NO. 920 1. Marvin J. Weaver, as a Greene Township Supervisor, violated Section 3(a) of Act 170 of 1978 and Act 9 of 1989 when he used the authority of office to obtain compensation as Township Zoning Officer /Building Inspector. 2. Weaver is directed within thirty (30) days of the date of issuance of this Order to make payment in the amount of $550.00 to this Commission payable to the order of Greene Township as per the consent agreement between the Investigative Division and Respondent. 3. Weaver is directed within thirty (30) days of the date of issuance of this Order to file amended Financial Interests Statements (FIS's) for the calendar years 1990, 1991 and 1992 listing his position as Zoning Officer /Building Inspector as well as Supervisor and listing Greene Township and Valley Services as sources of income. 4. Failure to comply with Paragraphs 2 and 3 will result in a directive of this Commission to institute order enforcement proceedings. 5. Compliance with Paragraphs 2 and 3 will result in the closing of the case with no further action by this Commission. BY THE COMMISSION, JAMES M. HOWL , R