HomeMy WebLinkAbout924 YoffeeIn re: Edward A. Yoffee
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 91 -054 -C
Date Decided: 04/29/94
Date Mailed: 05/04/94
Before: Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
The Investigative Division of 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).
Yo, 91 -054 -C
Page 2
I. ALLEGATION:
That, Edward A. Yoffee, a former supervisor of Fairview Township,
York County, violated the following provisions of the State Ethics
Act (Act 170 of 1978) when he received compensation as township
secretary /treasurer without auditor approval.
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. §403(a).
II. FINDINGS:
1. Edward Yoffee served as a Fairview Township Supervisor in York
County, PA, from August, 1987 to November, 1991.
a. Yoffee served as Vice Chairman of the Board of
Supervisors from 1989 until November, 1991.
b. He also served as Township Secretary from April, 1988 to
November, 1991.
c. Yoffee served as a member of the township municipal
authority from 1984 to August, 1987.
2. Minutes of the township supervisor's meetings reflect that
actions were taken as follows:
a. April 20, 1988 - Appointment of supervisor. Mr. Bender
advised that this appointment is for the unexpired term
vacant due to the death of Supervisor Robert J. Seybold.
It was moved by Yoffee, seconded by Bender to appoint
Arvel Freydenfelt, Jr., to replace Seybold. Roll call
vote: Yoffee - yes, Bender - yes. The motion carried
unanimously.
(1) A roll call at this special meeting reflected that
Edward A. Yoffee was appointed Secretary to the
Board of Supervisors as a replacement for Mr.
Seybold in this role.
b. January 3, 1989 - Freydenfelt made a motion, seconded by
Bender, to appoint Yoffee as Secretary to the Board of
Yoffee, 91 -054 -C
Page 3
Supervisors. Vote: Freydenfelt - yes, Bender - yes.
Yoffee - abstain. The motion carried. Yoffee then made
a motion, seconded by Freydenfelt, to appoint Paul S.
Tezik as Assistant Secretary. Vote: All yes. The
motion carried.
c. January 2, 1990 - Bender made a motion, seconded by
Freydenfelt, to appoint Yoffee as Secretary of the Board
of Supervisors. Vote: All yes, the motion carried. ,
Bender then made a motion, seconded by Yoffee to appoint
Paul S. Tezik as Assistant Secretary of the Board of
Supervisors. Vote: All yes, the motion carried.
d. January 7, 1991 - Bender made a motion, seconded by
Freydenfelt to appoint Yoffee as Secretary to the Board
of Supervisors. Vote: All yes, the motion carried.
Yoffee then made a motion, seconded by Freydenfelt to
appoint Paula S. Tezik as Assistant Secretary. Vote:
All yes, the motion carried.
3. Township disbursement records reflect that payments were made
for Yoffee's Blue Cross /Blue Shield Insurance as follows
INVOICE
PAYMENT DATE
07/88
08/88
09/88
10/88
11/88
12/88
01/89
02/89
03/89
04/89
05/89
06/89
07/89
08/89
09/89
10/89
11189
12/89
01/90
02/90
03/90
04/90
05/90
06/90
07/90
AMOUNT
$ 204.70
$ 204.70
$ 215.60
$ 215.60
$ 215.60
$ 215.60
$ 233.05
$ 233.05
$ 233.05
$ 233.05
$ 233.05
$ 233.05
$ 232.30
$ 232.30
$ 232.30
$ 232.30
$ 232.30
$ 232.30
$ 255.05
$ 255.05
$ 255.05
$ 255.05
$ 255.05
$ 255.05
$ 255.05
Yoffee, 91 -054 -C
Page 4
08/90
09/90
10/90
11/90
12/90
01/91
02/91
03/91
04/91
05/91
06/91
07/91
08/91
09/91
10/91
1.1/91
Total
$ 255.05
$ 255.05
$ 255.05
$ 255.05
$ 255.05
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$ 303.35
$10,461.35
4. Minutes of the township auditors meetings from January, 1987
through January, 1991 reflect no approval for Yoffee to receive
Blue Cross /Blue Shield coverage as compensation for the duties he
performed as Township Secretary.
a. No other compensation was fixed for the township
secretary /treasurer by the auditors.
5. Former Township Auditor Edward Wylie stated that payment for
Yoffee's medical insurance coverage was not approved by the
auditors.
a. He stated Yoffee was not receiving pay for duties he
performed as Township Secretary.
6. A solicitor's opinion dated December 3, 1987, from Attorney
James Johnson advised that payments to health insurance plans
are not authorized by the Second Class Township Code unless
the supervisor is also an employee with compensation fixed by
the township auditors.
7. Township payroll and man hour records were not kept to
document the work performed by Yoffee as Township Secretary.
8. Former Township Supervisor Charles Bender advised that
Yoffee's predecessor as Township Secretary Robert Seybold did
not receive medical_ insurance coverage from the township.
9. Yoffee did not keep a record of the hours he worked as
township secretary.
10. Yoffee signed checks, subdivision plans, bond documents, loan
documents, grant documents for the police and other
Yoffee, 91 -054 -C
Page 5
departments and certifications involving a dangerous drug test
as part of his duties as township secretary.
11. Yoffee served as liaison to the news media and the township's
office staff, highways and parks and recreation departments.
a. He was accessible at all times through his car phone or
a beeper.
III. DISCUSSION:
As a former supervisor of Fairview Township, Edward A. Yoffee,
hereinafter Yoffee, was a public official as that term is defined
in the Ethics Act, 65 P.S. S402; 51 Pa. Code §1.1. As such, his
conduct is subject to the provisions of the Ethics Act and the
restrictions therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989, P.L. 26, provides, in part, as follows:
This amendatory act shall not apply to
violations committed prior to the effective
date of this act, and causes of action
initiated for such violations shall be
governed by the prior law, which is continued
in effect for that purpose as if this act were
not in force. For the 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 in the allegations, 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).
Yoffee, 91 -054 -C
Page 6
The issue before us is whether Yoffee violated Section 3(a) of
Act 9 of 1989 by receiving compensation as an employee- supervisor
for Fairview Township.
Factually, Yoffe served
York County from August, 1987
Yoffee held township officer
through 1991 and township
addition, Yoffee served as
authority from 1984 to 1987.
as a Fairview Township Supervisor in
to November, 1991. During that time
positions of Vice Chairman from 1989
secretary from 1988 to 1981. In
a member of the township municipal
Minutes of the Township Board of Supervisors reflect that on
April 20, 1988 Yoffee was appointed Secretary to the Board;
thereafter, Yoffe was reappointed to that position at the
reorganizational meetings in 1989 through 1991.
The township records reflect that payments were made for
Yoffee's blue cross /blue shield insurance from July, 1988 through
November 19, 1991 totaling $10,461.35. A review of the minutes of
the township auditors reflect no approval as to Yoffee for blue
cross /blue shield coverage.
Yoffee did work as the township secretary although no records
were kept for documentation. As township secretary, Yoffee did
sign checks, subdivision plans, bond documents, loan documents,
rent documents for police and other departments and certifications
involving dangerous drug tests. Finally, Yoffe served as liaison
to the news media and township office staff, highways, parks and
recreations departments; he was readily accessible through his car
phone and beeper.
In determining whether the action of Yoffee 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 in part:
(c) In addition to the compensation authorized under this section,
supervisors while in office or while in the employ of the
township may be eligible for inclusion in township -paid
insurance plans, as follows:
(1) Supervisors and their dependents shall be eligible for
inclusion in group life, health, hospitalization, medical
service and accident insurance plans paid in whole or in
part by the township. No policy of group life insurance
Yoffee, 91 -054 -C
Page 7
shall contain any provision for the accrual or deferral
of a cash surrender value, loan value or any other
nonforfeitable benefit, in addition to or beyond the face
amount of insurance, that shall inure to the benefit of
the supervisor, any beneficiary or any other individual
having an insurable interest in the life of a supervisor.
Such insurance, however, may contain a provision that
when the insurance, or any portion of it, on a person
covered under the policy ceases because of termination of
employment or the termination of the insured's term of
office, such person shall be entitled to have issued to
him by the insurer, without evidence of insurability, an
individual policy of insurance on any form customarily
issued by the insurer at the age and for the amount
applied for if: (i) such amount is not in excess of the
amount of life insurance which ceases because of such
termination; and (ii) the application for the individual
policy is made and first premium is paid to the insurer
within thirty -one days after such termination.
Participation by supervisors shall not require auditor
approval. Such insurance shall be uniformly applicable
to those covered and shall not improperly discriminate in
favor of supervisors.
53 P.S. 65515 (c)(1).
The review of the above cited provision of the•Second Class
Township Code which was amended in 1988, reflects that auditor
approval is no longer required as a prerequisite for township
supervisors receiving paid blue cross /blue shield benefits. Hence,
the current state of the law under the Second Class Township Code
is that supervisors may receive, without the necessity of auditor
approval, township paid insurance benefits. It appears that the
only statutory limitation in the Code is that the benefits program
does not discriminate in favor of the supervisors.
In applying the above provisions of law to the instant matter,
we find that Yoffee did not violate Section 3(a) of the Ethics Law.
Yoffee received township paid blue cross /blue shield without
auditor approval which is authorized under the Second Class
Township Code. Hence, such benefits did not constitute a financial
gain other than compensation provided by law. The foregoing
compensation received by Yoffee was authorized under the Second
Class Township Code. Accordingly, we find no violation of Section
3(a) of Act 170 of 1978.
IV. CONCLUSIONS OF LAW:
1. Edward A. Yoffee, as a former Fairview Township Supervisor,
was a public official subject to the provisions of Act 170 of
1978 as added and amended by Act 9 of 1989.
Yoffee, 91 -054 -C
Page 8
2. Yoffee did not violate Section 3(a) of Act 170 of 1978 as to
the receipt of compensation consisting of blue cross /blue
shield insurance without auditor approval in that such
benefits were authorized under the Second Class Township Code.
In Re: Edward A. Yoffee : File Docket: 91 -054 -C
Date Decided: 04/29/94
Date Mailed: 05/04/94
ORDER NO. 924
1. Edward A. Yoffee, as a former Fairview Township Supervisor,
did not violate Section 3(a) of Act 170 of 1978 as to the
receipt of compensation consisting of blue cross /blue shield
insurance without auditor approval in that such benefits were
authorized under the Second Class Township Code.
BY THE COMMISSION,
cti
DANEEN E. REESE, VICE CHAIR