HomeMy WebLinkAbout932 Wasiela• 1
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG. PENNSYLVANIA 17120
In re: Thomas R. Wasiela File Docket: 89 -003 -C
Date Decided: 06/23/94
Date Mailed: 06/30/94
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
The Investigative Division of 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 held. 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 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 wai 'ved, 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).
Was iela, 89 -003 -C
Page 2
1. ALLEGATION:
That Thomas R. Wasiela, a Supervisor for Summit Township, Erie
County, violated the following provisions of the State Ethics Act
(Act 170 of 1978), when he received overtime pay without auditor
approval; received pay for attending conventions and meetings;
received pay for working on the budget and performing road checks;
voted to hire the township solicitor to represent him in a personal
suit against the board of auditors; received salaries of both
roadmaster and road laborer; received salaries of both roadmaster
and road laborer for performing the same duties; and, received
payment for expenses for attending conventions in excess of actual
expenses incurred and when he failed to file a Statement of
Financial Interest 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. §403(x).
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 1 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. §404(a).
and that Thomas R. Wasiela, as a public official /public employee,
in his capacity as a Supervisor for Summit Township, Erie County
violated the following provisions of the State Ethics Act (Act 9 of
1989) when he submitted overtime hours and was compensated for same
without auditor approval; when he submitted hours for attending
meetings and other administrative duties and was compensated for
same; and when he approved payments to the township solicitor's law
Wasiela, 89 -003 -C
Page 3
firm to represent him in an action against the township auditors:
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).
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 of his immediate family or
a business with which he or a member of his
immediate family is associated. 65 P.S. §402.
II. FINDINGS:
A. PLEADINGS:
1. Thomas R. Wasiela served as an elected Summit Township
Supervisor from 1986 through 1991.
a. Wasiela served as Chairman in 1988 and 1990.
2. At Reorganization Meetings of the Board of Supervisors,
Wasiela was appointed roadmaster of one of the three road
districts in the township.
•
a. In 1987, Wasiela was assigned to District #1.
(1) District #1 is defined as those township roads West
of Route 19.
b. In 1988 and 1989, Wasiela was assigned to District #2.
(1) District #2 is defined as those township roads
Wasiela, 89 -003 -C
Page 4
between Routes 19 and 97.
c. In 1990 and 1991, Wasiela was assigned to District #3.
(1) District #3 is defined as those township roads East
of Route 97.
3. Wasiela 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. In 1987, Wasiela was the liaison with the various
authorities and commissions appointed by the supervisors.
b. Wasiela was responsible for the roads and garage in 1988,
1989, 1990, and 1991.
4. In 1990, the supervisors appointed themselves superintendents
and assigned themselves to specific duties which included:
office operations, public safety, parks and recreation; roads
and garage; and public works.
a. Wasiela was superintendent of the roads and garage.
b. This was in addition to his appointment as roadmaster in
charge of District #3.
5. The Summit Township Personnel Code adopted for township
employees, effective January 1, 1981, (revised 12/1/88 and
12/27/90) delineates the necessary requirements for
eligibility for overtime.
a. Hours of work: 5 consecutive 8 hour days, Monday through
Friday.
b. After regular hours, if employee is called in, he shall
be entitled to at least two hours overtime pay.
c. All overtime work shall be paid for at time and one half.
6. Thomas R. Wasiela's last day of work for Summit Township was
recorded as January 6•, 1992. Wasiela had been defeated in his
campaign for re- election in 1991.
7. In 1989 the Summit Township Auditors reduced the compensation
for the township supervisors serving as laborers from $8.00/
hour to $5.00 /hour.
8. In January, 1989, the township supervisors initiated legal
action in the Erie County Court of Common Pleas against the
Wasiela, 89 -003 -C
Page 5
township auditors seeking to have the wages for the township
supervisor /employees increased.
9. The Summit Township Supervisors authorized the township
solicitor to represent them in the lawsuit against the
auditors.
10. Minutes of the Summit Township Supervisor's meetings reflect
the following in regard to the appointment of a township
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.
11. 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.
12. The Summit Township Auditors sought legal representation to
defend them in the action filed by the supervisors.
13. By way of letter dated January 31, 19889, 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.
14. 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
Matheis.
15. 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
Wasiela, 89 -003 -C
Page 6
#268 -A- 1989).
16. The Summit Township Supervisors filed a post -trial motion for
relief following Judge Joyce's December 29, 1989, ruling.
17. 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.
18. 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.
19. 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 Messinger, 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 Messinger., to amend (the)
previous motion, adding that a letter should be sent to
(the) auditors that we would like to meet with them and
try to resolve this matter rather than go to court, and
the Solicitor is authorized to file the necessary
documents for the appeal; legal fees paid by the
township.
Wasiela, 89 -003 -C
Page 7
Vote passed 3/0.
Present: Messinger, Wasiela, Peterson
20. 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.
21. Byway of letter, dated January 29, 1990, the auditors advised
Attorney Brew that he was authorized to represent them in the
appeal by the supervisors.
22. 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
taxpayer money when a settlement could be made for
roughly half that amount.
b. It makes no sense to meet with attorneys and pay them
$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
Messinger, and Ronald Peterson, and copied to William
Matheis, Shirley Ring and William Graves.
23. 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).
Wasiela, 89 -003 -C
Page 8
24. An Order was issued by Commonwealth Court of Pennsylvania
January 18, 1991, denying the supervisor's applicatin for re-
argument.
25. 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.
26. Records of Summit Township indicate the following invoices
from the law firm of Elderkin, Martin, Kelly, Messina and
Zamboldi, for services provided to Summit Tow, in
relation to representation of the supervi ors s in the
compensation suit against the auditors:
a. m42....1, 1989:
January, 1989
February, 1989
March, 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 /Matheis and
Eaton- .50 hrs.
- Telephone conf. w /grew- .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
Wasiela, 89 -003 -C
Page 9
Total hours:
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
b. July 25, 1989:
April, 1989
May, 1989
June, 1989
Total hours:
Expenses:
10.75 @ $80.00 /hour = $860.00
-Draft letter to Haaf- .25 hours
-Draft reply motion- .50 hours
- 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
9.50 @ $80.00 per hour = $760.00
$43.74
Filing fee for Complaint $ 40.50
Telephone Toll 3.24
- Meeting at Summit w /Auditor's- 2.00
hours
- Telephone conf. w /White & Wasiela -
.50 hours
- Review State Assoc. documents- .50
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
Total: $803.74
Wasiela, 89 -003 -C
Page 10
c. October 12, 1989:
July 11, 1989
July 12, 1989
July 14, 1989
July 27, 1989
August 1, 1989
- P reparation /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
-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
-Exam of Law Federal Evidence- 3.25
hours
August 8, 1989
August 9, 1989
August 10, 1
August 11, 1989
-Exam of Law /Business records- 3.50
hours
-Exam of Law /Surveys- 2.50 hours
- Review Interrogatory answers- .50
hours
- 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-
Wasiela, 89 -003 -C
Page 11
August 14, 1989
August 15, 1989
August 21, 1989
September 7, 1989
September 11, 1989
September
September
Total hours: 29.25
Expenses: $209
June 1, 1989 -
July 27, 1989 -
August 15, 1989 -
d. January 16, 1990:
October 13, 1989
October 25,
October 31, 1989
November 2, 1989
.25 hours
-Draft letter to Wasiela- .25 hours
- Telephone conference w /Wasiela-
.25 hours
- Telephone conference w /Haaf- .25
hours
-Draft letter to Haaf- .25 hours
- Exam of Law Business records- 3.00
hours
- Review minutes of the meetings- .50
hours
- Review payroll information- .50
hours
-Draft Motion Trail listing- .50
hours
12, 1989 - Telephone conf. w /Brew- .25 hours
14, 1989 - Appearance in Motion Court- 1.00
hour
-Draft letter to
hours
Judge Levin- .5
@ $80.00 per hour = $2,340.00
.14
Telephone tolls $ 23.24
Nailor Depositions $148.25
Copies $ 37.65
Total: $2,549.14
- Telephone conf. w /client and
witness- .50 hours
- Meeting w /White- .25 hours
1989 -Conf. w /clerks- .25 hours
- Appearance in Court (Cert. 11)-
.50 hours
- Telephone conf. w /Judge Levin- .25
hours
Wasiela, 89 -003 -C
Page 12
November 6, 1989
November 7, 1989
November 15, 1989
November 17, 1989
November 29, 1989
November 30, 1989
December 1, 1989
December 4, 1989
December 5, 1989
December 6, 1989
December 7, 1989
December 14, 1989
December 15, 1989
December
18, 1989 - Revise letter- .25 hours
Total hours: 30.75
Expenses: $76.65
October 24, 1989
November 17 and
December 5, 1989
-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
- 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 Hessinger- --
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
@ $80.00 per hour = $2,460.00
- Copies $ 2.40
- Copies $74.25
Wasiela, 89 -003 -C
Page 13
e. April 18, 1990
January 2, 1990
January 3, 1990
January 5, 1990
January 29, 1990
February 2, 1990
February 16, 1990
February 19, 1990
February 22, 1990
Total: $2,536.65
-Conf. w /White and Markham- .5
hours
- Telephone conversation w/Wasiela-
.25 hours
- Examination of Law /Appeal- .5
hours
-Draft Certification- .25 hours
- Examination of Law /Post -trial
Motion- 1.00 hour
-Draft Post -trial Motion- 1.00 hour
- Telephone conversation w /Wasieia-
.25 hours
- Revise Post -trial Motion- .50
hours
January 11, 1990 - Examination of Law /Appeal- .50
January 15, 1990 - Examination of Law /Unanimity
January 16, 1990 -Draft letter to supervisors- .25
January 24, 1990 - Meeting w /White and Wasiela- .50
hours
-Draft Appeal Notices-
- Telephone conversation
.25 hours
hours
Appeal- .50 hours
hours
- Telephone conversation
.25 hours
- Telephone conversation
(Status)- .25 hours
-Draft letter to Sadler
hours
.50 hours
w /Hessinger
w /Hessinger
w /Wasiela
(CPA)- .25
- Appearance in Court (Fee Petition)
1.25 hours
-Draft letter to Judge Joyce- .25
hours
T4:1211214., 89 -003 -C
Page 14
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
Filing fees 80.00
Transcript copies 519.75
f. July 24, 1990:
April, 1990
May, 1990
June, 1990
Total:
$1,420.30
-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
- 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
May 2, 1990 - Transco $ 1.50
May 3, 1990 - ipt printing $315.75
Copy of Appellants Brief $ 58.72
May 4, 1990 - Postage for brief $ 35.07
Wasiela, 89 -003 -C
Page 15
g.
•
June 15, 1990 - Copies $ 60.90
Postage for brief $ 4.06
- Bindings $ 30.00
November 2, 1990:
August, 1990
September,1 990
Total hours: 4.50 @ $80.00 per hour = $360.00
Expenses - $.45
August 27, 1990 Copies $.45
Total: $ 360.45
h. February, 1991:
October, 1990
November, 1990
Total: $2,206.00
-Draft letter to clients- .25 hours
- Telephone conf. w /Wasiela- .25
hours
- Preparation of oral agreement -
1.00 hours
- Preparation for argument- 3.00
hours
- 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 Rudder- 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
Wasiela, 89 -003 -C
Page 16
Total: $ 1,733.66
27. The total amount of fees charged to and paid by the township,
in the legal action taken by the supervisors against the
auditors is as follows:
a. 135.5 hours at $80.00 per hour -
Expenses (filing fees, transcripts,
copies, etc.) -
Total -
28. The law firm of McClure and Miller was compensated for
services provided to the Summit Township Auditors in relation
to representation of the auditors in the law suit filed by the
supervisors:
a. April 25,
per hour
b. January -
expenses
c. Total:
incurred
a. June 5, 1989:
Travel expense to Pittsburgh
Copies
Advance for client
Copies
$ 58.00
3.75
4.06
107.85
$10,840.00
1,701.44
$12,541.44
1989 - December 30, 1989: 68.6 hours @ $80.00
- $5,488.00.
October, 1990: 49 hours @ $80.00 per hour plus
of $58.08 - $3,978.08.
$10,666.08 (including $1,200.00 for expenses
prior to May, 1989).
29. 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
Supervisors:
Motion was made by Wasiela, seconded by Messinger, 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: Messinger, Wasiela, Haaf.
Bill list attached.
b. August 7, 1989:
Motion by Wasiela, seconded by Haaf, to approve the July
Wasiela, 89 -003 -C
Page 17
expenditures as presented, having been reviewed by all
board members.
Vote: 3/0.
Present: Messinger, 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.
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.
g. October 1, 1990:
'Wasiela, 89 -003 -C
Page 18
Check #
Present: Hessinger, Wasiela, Haaf
Bill list attached.
30. Prior to each monthly meeting,
with a list of bills which they
a. Bills are voted on at the
the bills.
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: Messinger, Wasiela, Peterson.
Bill list attached.
h. December 3, 1990:
Motion by Peterson, seconded by Messinger, to approve
the November bills submitted and reviewed by all
supervisors.
Vote: 3/0.
Present: Wasiela, Messinger, Peterson
No bill list attached.
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 (RNS Sales and
Service) for further review by the supervisors.
Vote: 3/0.
05/1/89 7864
the supervisors are provided
review before the meeting.
meeting following receipt of
b. . Solicitor invoices are received quarterly.
31. The following checks were issued by Summit Township to the
Elderkin law firm and approved by at least two supervisors:
Invoice
Date
Total
Check Date Amount
06/05/89 $ 7,306.99 Haaf
Approved
Wasiela, 89 -003 -C
Page 19
( 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 Wasiela
(2,536.65) Messinger
04/18/90 8723 05/07/90 5,824.35 Peterson
(1,420.30) Hessinger
07/24/90 1034 10/10/90 6,126.45 Wasiela
(2,206.00) Hessinger
11/02/90 1234 12/05/90 20,089.46 Peterson
( 360.45) Hessinger
02/91 1432 02/23/91 14,324.04 Wasiela
(1,733.66) Hessinger
a. The check dates correspond with the meeting at which the
bill was approved.
b. The dollar figures in parentheses represent the amounts
related to the civil suit.
c. The checks are signed by the township secretary /treasurer
and one supervisor.
d. A township supervisor held the position of Secretary/
treasurer during this period.
32. Wasiela was an appointed roadmaster for the township and held
that position during the years that he served as Supervisor.
33. Wasiela was hired as a full time employee in February, 1988.
34. In 1988, Wasiela was paid $5,420.00 in his position as
roadmaster; and $10,692.80 as an employee /laborer for the
township.
35. In 1989, Wasiela was paid $5,420.00 in his position as
roadmaster; and $10,690.75 as an employee /laborer for the
township.
36. The Summit Township Board of Supervisors authorized attendance
of board'members at annual conventions of the Pennsylvania
Association of Township Supervisors.
37. At meetings of the Summit Township Supervisor's expenses of
supervisors while attending conventions was questioned.
Minutes confirm the following:
a. June 5, 1989:
Was_ 89 -003 -C
Page 20
Supervisor Haaf stated she does expenditures of Supervisor Hessinger t approve of the
attending the State Convention in et'rshe . W ina ca t e e
we are only to pay expenditures for She so to
attend, not their guest or wives. Superv to
was not what happened and therefore, she will not oases ' that
payment of the bills. approve
Supervisor Wasiela asked Solicitor White for a
what is covered for this convention, ding on
advised that he would have to look into and or
back
to the Supervisors on the proper procedure.
indicated she had spoken with the Mts.
he F•S.A.T.S. and the
advised only expenditures y
ures of officials is allowable. She
is only concerned with the payment for the wives.
Motion was made by
to approve the expenditures for May, the exception
of the RAK Bill, the CAMSCO Bill an the ZEP Bill. exceptions
Wasiela and Hessinger, yes; Haaf, no.
Present: Hessinger, Wasiela, Haaf.
b. June 19, 1989:
Helen Swartzentruber asked about
the were discussed at the last weeting as to whether
attendi Township
g• should pay for the expenses of the wives
Supervisor Wasiela explained that was turned over
to the solicitor and he did not think anything has been
brought to the supervisors. Solicitor Messina
that he is in a position to say that the Toship
responsible. for the expenses of the supervisors, but not
their wives.
Present: Hessinger, Wasiela, Haaf.
c. January 15, 1990:
Shirley King, 8612 Peach Street, stated that last year
there were people who took their spouses and the expenses
of the spouses were paid for by the township. This was
to be repaid to the township. She asked if this has been
done yet. Chairman Wasiela stated that it will be paid
back.
Discussion ensued on this matter in
Swartzentruber feels the township should not which
be Helen
the expenses for the wives T�t
to go to a conventiinon. .
Wasiela, 89 -003 -C
Page 21
Supervisor Hessinger feels the spouses should go to the
convention because it is a good time for them to meet the
other spouses but he pays his own wife's expenses and the
guest charge has always been paid by the supervisors out
of their own money. It has always been done by past
practice to charge the township for paying this until it
was brought to the attention of supervisors. He has no
problem paying for his wife's expenses.
38. Payments were made on behalf of Thomas Wasiela to attend the
annual convention of the Pennsylvania State Association of
Township Supervisors held from April 12; 1987 to April 15,
1987 at Pittsburgh, Pennsylvania.
a. Wasiela was prepaid $90.00 per day for four days
attendance plus $52.80 for round trip mileage for his car
from Summit Township, to Pittsburgh, Pennsylvania. This
was comprised of 264 miles traveled at 20 cents per mile.
The total expense was indicated as $412.80.
The Township issued a check, #6105, to Wasiela on
May 4, 1987 in the amount of $52.80 (for mileage only).
The Township directly paid a convention (delegate)
registration fee of $50.00 for Wasiela.
The Township directly-paid a hotel registration fee up to
$85.00 for Wasiela.
No listing of actual expenses incurred at the convention
was submitted by Wasiela.
39. Payments were made on behalf of Thomas Wasiela to attend the
annual convention of Pennsylvania State Association of
Township Supervisors held from April 17, 1988 to April 20,
1988, at Hershey, Pennsylvania.
a. A travel expense report detailed Wasiela's expenses:
(1) 625 miles traveled at 20 cents per mile for round
trip mileage for Wasiela's car from Summit
Township, Pennsylvania to Hershey, Pennsylvania,
totaling $125.00;
b.
c .
d.
e.
(2) Meals - $173.42;
(3) Three nights lodging - $105.64;
(4) Cash paid for miscellaneous expenses listed as tips
- $31.00.
Wasiela, 89 -003 -C
Page 22
(5) The total expense indicated as $435.06.
b. The Township issued check no. 6846 to Wasiela on April
29, 1988 in the amount of $435.06.
c. The Township directly paid a hotel registration fee of
$85.00 for Wasiela.
d. The Township directly paid a convention (delegate)
registration fee of $60.00 for Wasiela.
40. Hotel and meal expense receipts were submitted by Wasiela for
attending the convention in Hershey, Pennsylvania.
a. Lodging at the Best Western Inn, Hershey, Pennsylvania,
from April 17, 1988 through April 20, 1988 at $59.00 per
night. Two adults were registered. The expense
indicated as $187.62 minus the $85.00 pre -paid by the
Township plus $3.02 in phone calls. The total expense
was indicated as $105.64.
b. Wasiela claimed tips on a handwritten statement in an
amount of $31.00.
c. Of the eleven receipts for meals, one was from McDonalds,
totaling $4.01. Wasiela claimed tip expense for this
meal.
d. Receipt no. 038883 for meals at Leed's Restaurant,
Harrisburg, PA, in the amount of $25.64, dated April 17,
1988, lists two persons served.
e. Wasiela's wife accompanied him on this trip.
41. Wasiela reimbursed the Township for the expenses incurred at
the 1988 convention by his wife, which had previously been
paid by the Township.
a. Wasiela reimbursed the township by personal check no.
4707 in an amount of $74.94.
b. A notation on the check indicates that the payment was
made for convention expenses not approved for 1988.
42. Wasiela had determined the amount of reimbursement by dividing
in half the cost of the meals plus tips, over the four days of
the convention.
a. An amount of $15.00 was deducted from the actual total of
$99.94.
Wasiela, 89 -003 -C
Page 23
b. The $15.00 deduction represented an amount overpaid by
Wasiela's reimbursement for 1989 convention expenses.
43. Payments were made by Summit Township on behalf of Thomas
Wasiela to attend the annual convention of the Pennsylvania
State Association of Township Supervisors held from April 23,
1989 to April 26, 1989 at Hershey, Pennsylvania.
a. The Township issued check nos. 7852 to Wasiela on
May 30, 1989 in the amount of $374.75.
b. The Township directly paid a convention (delegate)
registration of $60.00 for Wasiela.
c. The Township directly paid a hotel registration fee of
$90.00 for Wasiela.
44. A handwritten statement on a memo sheet dated May 23, 1989,
provided by Wasiela details the following expenses:
a. 700 miles traveled at 2 cents per mile for round
trip mileage for Wasiela's car from Summit Township,
Pennsylvania to Hershey, Pennsylvania, totaling
$168.00; meals and tips - $137.75; lodging (after
prepaid deposit by Township) $69.00. The total expenses
indicated as $374.75.
b. Hotel and meal expense receipts:
(1) Lodging at the White Rose Motel, Hershey,
Pennsylvania, from April 23, 1989 to April 26, 1989
at $50.00 per night. The receipt lists Thomas and
Marjorie Wasiela as guests. The total expense
indicated as $159.00 minus the $90.00 pre paid by
the Township. The total expense was indicated as
$69.00.
(2) Receipt from the Country Pride in Brookville, in
the amount of $10.62 (plus $2.00 tip) is dated
April 22, 1989 at 10:40 AM, (the day before the
convention started).
•
45. On May 8, 1991, Wasiela reimbursed the township with personal
check #4680, payable to Summit Township, in the amount of
$73.60, which included a notation that the payment was for
1989 convention expenses which were not approved.
a. The unapproved expenses include the cost of Wasiela's
wife's meals and a double occupancy room charge
approximated to be $15.00.
Wasiela, 89 -003 -C
Page 24
b.
The unaliowed costs were determined by totaling the meals
plus tips for the four days of the convention, and
dividing the total amount in half.
c. An amount of $15.00 was estimated to be the amount
charged for an extra person staying in the room..
46. Wasiela submitted expenses to the Township's Secretary by for
attendance at the Annual Pennsylvania State Association of
Township Supervisors Convention, April 22 through the 25th,
1990, in the amount of $375.39 (with receipts for 8 meals) as
follows:
Comfort Inn - $129.42
Meals - $72.69
Mileage - 722 miles at 24 cents per mile - $173.28
Wasiela indicated that he has charged the Township for his
meal expense at one half the total amount of the receipt from
the restaurants. This would indicate that Wasiela's wife
attended the convention with him.
47. Minutes of the January 15, 1990 Supervisors Meeting, include
a motion to approve expenses and wages to the Annual
Convention of the Township Supervisors in Hershey,
Pennsylvania on April 22 through the 25, 1990. The vote was
unanimous, Hessinger, Peterson and Wasiela voting yes.
48. Records on file with Summit Township include the following
statements of Financial Interest for Thomas Wasiela.
a. Filing date: April 28, 1987
For the year: 1986
Source of Income: Oberlander Drilling; Summit
Township; unemployment compensation;
and several construction contractors
Creditors: Penn Bank -9.375 percent
All other Financial Interest categories: none
b. Filing date: April 13, 1989:
For the year:
Source of Income: Summit Township
Creditors: Markette - 9+ percent; Penn Bank - 9+
percent; Chrysler Corporation - 9+
percent.
All other Financial Interests categories: none.
49. Subsequent to the initial audit of the Statements of Financial
Interests on file with the Summit Township Administrative
Secretary, a filing by Thomas Wasiela for the 1987 calendar
was found.
Wasiela, 89 -003 -C
Page 25
a. A certification as to the authenticity of the document
was provided by the Administrative Secretary on May 7,
1991.
50. The Statement of Financial Interests on file with Summit
Township for the 1987 calendar year disclosed the following:
a. Filing date: April 11, 1988
For the year: blank
Sources of Income: I.U.O.E. (International Union of
Operating Engineers);
Summit Township;
Oberlander Drilling.
B. TESTIMONY:
Creditors: Penn Bank - 9.37 %; Marquette Savings and
Loan - 9.25 %.
All other Financial Interests Categories - none.
b. The form was printed on SEC -1 Rev -1 -88.
51. Wasiela makes the following legal arguments:
a. The Investigative Division has not complied with the
provisions of Act 9 of 1989.
b. The allegations are contrary to Act 9 of 1989 in that the
findings report excludes evidence which rebuts various
findings.
52. Shirley A. King was an elected auditor in Summit Township,
Erie County, Pennsylvania from 1/90 to 3/93.
a. The Township Board of Auditors set the compensation of
the supervisors who are employed in the township.
(1) Health and medical benefits were also set by the
auditors.
b. When the Township Board of Auditors considered the issue
of overtime, it concluded that overtime should be
restricted to emergencies.
c. In setting the salary of employee- supervisors, the
auditors differentiated between part -time and full -time
but not as to employment position held.
d. All three supervisors were appointed roadmasters to one
of three districts in the township.
Wasiela, 89 -003 -C
Page 26
b.
e. Job descriptions of the supervisor- employees were
requested by the auditors but no independent verification
was made as to whether functions were being performed by
the supervisor - employees.
f. The Board of Supervisors attended and had input in some
meetings of the Summit Township Sewer Authority.
(1) Supervisors Hessinger and Wasiela had input about
the amount of fees charged by the Authority.
The auditors for 1990 set the hourly as recommended
by the Common Pleas Court in prior litigation instituted
against the auditors by the supervisors.
(1) The rate was $8.50 for part -time and $11.00 for
full -time employees.
h. Exhibit ID -4, p54 reflects the discussion by the auditors
of overtime for extreme emergencies.
g.
(1)
The auditors approved a benefit package per the
personnel code for employees of Summit Township.
(a) Personnel Code benefits were separate from
overtime.
i. Overtime is setting a rate of pay.
53. Scott Kuzma is an elected auditor in Summit Township, Erie
County, Pennsylvania from 1992 to the present.
a. In 1992, the supervisor - employees were paid an hourly
wage set by the auditors.
Overtime benefits were separate from medical, health and
insurance benefits.
c. Overtime was approved in
conditions.
1992 for only emergency
d. The hourly wage for township
did not include functions
legislative functions.
54. Joyce A. Savocchio is the Mayor of
a. Savocchio is the chairperson of the Erie Area Congress of
Government (COG).
(1) Summit Township is a member of the COG.
supervisors as roadmasters
of attending meetings or
Erie, Pennsylvania.
Wasiela, 89 -003 -C
Page 27
(a) Supervisor Hessinger was an authorized
delegate of Summit Township.
(2) COG delegates must be elected officials.
(3) The COG mainly deals with legislative/
administrative matters.
b. All municipalities of Erie County comprised the Solid
Waste COG which formulates a solid waste plan.
(1) A delegate must be an elected official
(a) Supervisor Hessinger served as a delegate.
(2) The COG deals with administrative /legislative
matters as to how to implement the solid waste
plan.
(3) The COG would deal with funding and bond issues
that relate to the solid waste issue.
(4) A municipal delegate could send a representative to
the COG.
55. William Charles Matheis was an elected auditor in Summit
Township, Erie County, Pennsylvania from 1985 to 1991.
a. The Board of Auditors set the compensation of the
supervisor - employees and amount of township bonds.
b. There was a point in time where a distinction was made
between the positions of laborer and roadmaster.
(1) An hourly rate of pay was given for working as a
laborer.
(2) A salary was given for working as a roadmaster.
c. The auditors set other benefits such as hospitalization
and medical.
d. The auditors'did not set the dumber of hours that could
be worked.
56. Samuel Eaton was a Summit Township Auditor from 1/88 to 1990.
a. The auditors set the compensation for the supervisor -
employees.
b. Compensation was not set for the position of
Wasiela, 89 -003 -C
Page 28
superintendent.
c. Benefits encompassed hospitalization and insurance or
pension.
57. E. Michael Wander was a Summit Township Auditor from 1982 to
1989.
a. In 1988 and 1989, the auditors set the hourly rate for
township employees.
(1) Prior to that time, a straight salary had been set
by the auditors.
(2) In that time period, the auditors did not set a
rate for overtime.
(3) Prior to that time, there was no overtime because
of the straight salary.
(4) No overtime was set in 1988 and 1989.
(5) The auditors approved benefits for the supervisors
for pension, health, and accident plans.
b. When the supervisors asked for an hourly rate of wage,
the auditors met and decided on $8.00 per hour.
c. The auditors did not look into the actual functions that
the supervisors were performing.
(1) A roadmaster meant a person actually physically
working on the roads.
d. The salary that a supervisor - employee received was in
addition to meeting pay.
58. Theodore Siegel is a member of the Summit Township Planning
Commission from 1970 to the present.
a. The planning commission makes recommendation to the
township board of supervisors.
b. In the 1980's, the planning commission rewrote the zoning
ordinances and solicited the input of the township
supervisors.
(1) The supervisors had the power to pass the zoning
ordinance.
(2) The supervisors met with 'developers who had
Wasiela, 89 -003 -C
Page 29
development proposals before the township board of
supervisors.
c. Supervisor Hessinger was an active participation on
behalf of the Board of Supervisors as to development
proposals that came before the Planning Commission.
59. Louis Benko is a member of the Summit Township Zoning Hearing
Board.
a. The zoning hearing board rules on variances and special
exceptions.
b. Supervisor Hessinger attended certain hearing and
provided information.
60. Richard J. East is the Chairman of the Recreation Board in
Summit Township for the last eight or nine years.
a. The board oversees Picnicanna Park for the supervisors
and other recreational sporting activities.
b. Supervisor Hessinger and Wasiela have attended meetings
of the recreations board.
61. Robert Caruso is the Deputy Executive Director /Director of
Investigations of the State Ethics Commission.
a. The cases of Messinger and Wasiela were initiated by
sworn complaint.
(1) Exhibit ID - 1 is a redacted copy of the sworn
complaint against Richard Hessinger.
(a) The complaint was time stamped as received on
1/20/89.
(1) The complaint was not being actively
pursued at that time due to sunset wind
down.
(b) As to the letter advising Richard Messinger of
the commencement of the investigation and the
conduct of the investigation, no Commission
member played any role in such activities.
(2) Exhibit ID - 2 is a redacted copy of the sworn
complaint as to Thomas Wasiela which involved the
same occurrences as to Richard Hessinger as to the
time and circumstances as to the investigation.
Wasiela, 89 -003 -C
Page 30
(a) No Commission member played any role in the
commencement or conduct of the investigation.
b. In 10/89, preliminary inquiries were authorized and
assigned to case investigator Mary Albert.
c. Whether a case is docketed under Act 170 of 1978 or Act
9 of 1989 is determined by when the activity of the
respondent occurred or began.
d. After final documents were slIh1i i tted as to the case
involving Messinger and Wasiela, a discussion ensued
between the Director of Investigations and Executive
Director as to whether the activity was a continuing
course of conduct or not so to be reviewed under Act 9 of
1989.
(1) A decision was made to send an additional letter
advising that a review of actions under Act 9 of
1989 was being implemented.
e. There was no motion or action by Commission members to
initiate these cases.
(1) The Executive Director of the Commission initiated
these two cases.
62. Mary Albert is a special investigator for the Investigative
Division of the Commission.
a. As part of conducting the investigation as to Supervisors
Messinger and Wasiela, Albert copied various document
such as minutes of the supervisors and auditor's
meetings, time records, payroll records, W-2's, invoices,
checks, correspondence and other documents.
(1) Various charts were prepared as to the documents
submitted into evidence by the Investigative
Division.
(a) Exhibit ID 18 characterizes actions not
related to activities of Messinger . as
roadmaster or secretary /treasurer.
(b) Exhibit ID -19 characterizes activities of
Messinger from 1988 and 1989 as compensation
for which he was paid an hourly rate for
duties performed as roadmaster and roadmaster
related functions.
(c) Exhibit ID -20 characterizes the overtime paid
Wasiela, 89 -003 -C
Page 31
to Hessinger between 1988 and 1993.
(d) Exhibit ID -21 is a chart which characterizes
the meetings that Supervisor Wasiela was
compensated at an hourly rate for duties as a
supervisor.
(e)
Exhibit ID -22 is a chart which characterizes
the days in which Hessinger attended the state
associates conventions and was compensated as
a road worker in 1988, 1989 and 1990 years.
(1) For 1988 and 1989 Hessinger received both
the roadmaster's salary and an hourly
rate for attending the conventions.
Exhibit ID -23 is a chart for Wasiela which
characterizes compensation at an hourly rate
for duties related to roadmaster.
Exhibit ID -24 is a chart for Wasiela which
characterizes compensation received for
overtime hours between 1988 and 1991.
Exhibit ID -25 is a chart for Wasiela which
characterizes the days Wasiela attended state
conventions and was compensated as a road
worker
(i) Exhibit ID -26 is a chart listing compensation
and benefits fixed by the township board of
auditors for the years 1987 through 1993.
b. In 1989, Wasiela received a roadmaster salary of $5,420.
c. The board of supervisors provided for the payment of
wages and expenses for conventions in 1989 through 1990.
(1) Hessinger got paid an hourly rate when he went to
the convention in 1990.
• (2) Payments involved both the roadmaster and the
laborer. •
d. A second investigative notice was sent out after 60 days
of obtaining information on or about September 15, 1993.
63. David A. Skellie is the appointed director of the Department
of planning for Erie County.
a. Skellie is the treasurer and manager of the Erie County
Wasiela, 89 -003 -C
Page 32
Solid Waste Management Council.
b. As to the Erie Area Council of Government, Skellie is an
alternate.
(1) Hessinger is the representative of Summit Township.
c. Hessinger is a Summit Township representative to Erie
County Metropolitan Planning Commission.
64. Kevin R. Lenz is a Summit Township Supervisor since January,
1992.
a. The board of supervisors has given
responsibilities in the area of planning.
b. The designated roadmaster is the supervisor
charge of what transpires in the township.
Hessinger
who is in
c. Hessinger is the township designate on the Erie County
Metropolitan Planning Commission, Erie County Solid Waste
Council.
d. Elected supervisors do not receive compensation other
than a fixed fee for meetings of the Board of
Supervisors.
e. Attendance at a zoning hearing board in the township by
a supervisor was not in the capacity as a roadmaster.
(1) Attending meetings, talking to residents, taking
phone calls and reading literature is not service
as a roadmaster.
f. Time spent as to proposed revision to a master plan would
be done in the capacity of a supervisor.
(1) Such work would be in the position of supervisor
for a master transportation plan or solid waste
plan.
65. The memo by the assigned investigator to open the case against
• Wasiela as a full investigation was dated August 6, 1990.
66. The memo by the assigned investigator to open the case against
Hessinger as a full investigation was dated August 9, 1990.
67. The memoranda referenced in paragraphs 65 and 66 above would
have been received in Harrisburg within a week and a half of
the memo dates.
Wasiela, 89 -003 -C
Page 64
Given the current uncertainty as to the status of restitution
power under Act 170 of 1978 and considering the. totality of the
facts and circumstances of this case, we will exercise our
discretion and not impose restitution as to these violations which
occurred under Act 170 of 1978 but will impose restitution for
those violations that are governed by Act 9 of 1989. In this
regard, we note that the decision of the Court of Common Pleas of
Erie County which was issued in December 29, 1989 specifically put
the supervisors on notice so as not to "confuse the duties of a
supervisor with those of a roadmaster" "when billing their hours to
the township ", as well as issues of submitting "a number of
unrecorded hours for which they now seek to be paid the hourly wage
••• "• Id. at 4. The foregoing decision was appealed to
Commonwealth Court which affirmed the decision of the lower court.
Although intent is not a prerequisite to establishing a
violation of the Ethics Law to impose restitution, there is no
escaping the fact that Wasiela knew as of December 29, 1989 that he
could not bill as a township employee for duties encompassed within
the positions of elected township supervisor and that he could not
bill for time to which he was not entitled; however, this is
precisely what Wasiela did. Such action was contrary to the
Township Code, the Common Pleas decision as affirmed by
Commonwealth Court and for our purpose, the Ethics Law. We
therefore conclude that restitution of the private pecuniary
benefit received_ by Wasiela from January 1990 forward is
appropriate and warranted under the facts of the case.
Wasiela is ordered to make timely restitution through this
Commission payable to the order of Summit Township in the amount of
$4,583.37. Failure to make restitution will result the institution
of an order enforcement action.
As to the FIS allegation, the record reflects that Wasiela did
file an FIS for the calendar year 1987 with Summit Township in
April, 1988. Accordingly, since the 1987 calendar year FIS was
timely filed, we find no violation of Section 4(a) of Act 170 of
1978.
IV. CONCLUSIONS OF LAW:
1. Wasiela, as a Summit Township Supervisor, was a public
official subject to the provisions of Act 170 of 1978 as added
and amended by Act 9 of 1989.
2. Wasiela violated Section 3(a) of Act 170 of 1978 when he
received overtime at the rate of 150% of the hourly rate set
by the township auditors in the calendar years 1988 and 1989.
3. Wasiela violated Section 3(a) of Act 9 of 1989 when he
received overtime at the rate of 150% of the hourly rate set
Wasiela, 89 -003 -C
Page 33
68. Richard Hessinger is an elected Summit Township Supervisor
since 1980.
f. The auditors never approved pay for a superintendent.
(1) The supervisors worked as roadmasters.
g. Hessinger states that he prepares specifications for bids
in the capacity as secretary.
h. Any routine business that people would inquire about
would be marked in the time card as roadmasters.
i. Hessinger asserts that planning related matters were in
his capacity as secretary.
j. In 1988/89 there was a two tier system of pay.
k. As a result of a lawsuit filed by the supervisors against
the auditors, the township paid the legal fees for the
representation of the three supervisors.
(1) The fees amounted to $12,541.44.
1. The .Second Class Township Code as to the duties of the
secretary does not use the terms planning and zoning.
(1) There are no references for waste management,
subdivisions, land use, sewer, water,
transportation planning or running recreation
facilities or parks.
(2) There are no specific provisions as to the duties
of treasurer.
a. Hessinger has served as roadmaster and
secretary /treasurer.
b. In 1988, the hourly wage for roadmaster was $8.
(1) The rate was lowered to $5 per hour in 1989.
c. In 1988/89, Hessinger attended meetings dealing with
administrative matters.
d. Since 1990, Hessinger's salary as a township employee was
computed on an hourly rate.
e. Messinger has served as the township delegate to various
boards.
Wasiela, 89 -003 -C
Page 34
m. The Second Class Township Code delineates certain power
to the supervisors such as ashes, garbage, rubbish and
other refuse materials.
n. Hessinger concedes that a supervisor cannot receive pay
for meeting with the solicitor.
o. Exhibit ID - 70 -34 reflects, a 6.9 hour solicitor meeting
on the time card of Hessinger.
p In 1990, the supervisors were not only appointed
roadmasters but also as superintendents.
If Hessinger did not attend the PSATS convention, he
would have been teaching school but not working for the
township.
g.
r. Hessinger through counsel seeks a dismissal of the case.
69. Thomas R. Wasiela was a supervisor in Summit Township through
1991.
a. Wasiela stated that some items on his time cards needed
clarification.
b. As to the supervisors convention in 1988, Hessinger
charged the township for Sunday attendance but Wasiela
did not.
c. On April 23, 1988 Hessinger and Wasiela were out on the
roads.
(1) Wasiela states that such action was not a semi-
annual spring check of the roads.
(a) Hessinger put on his time card for that day
five (5) hours for the spring road check.
d. On December 6 and December 7, 1989 Wasiela charged for
roadmaster pay for attending a court hearing which
challenged their salary as township employees as fixed by
the auditors.
(1) Wasiela charged the township for the eight hours he
spent in court each day.
(2) Wasiela's meeting with the supervisors' attorney,
writing to the judge and an employee and assembly
of a pick up bed for the truck was charged as 8
hours time for compensation.
Wasiela, 89 -003 -C
Page 35
e. Wasiela claims that the charge for compensation on
January 23 and January 24, 1990 for insurance involved
health insurance as to all township employees.
f. Wasiela states that a charge for compensation for
activity with Penn Valley publishers to codify all
township ordinances was roadmaster related.
Travel to Harrisburg by Wasiela to sign loan
documentation papers as to a Penn VEST loan was done in
his capacity as elected supervisor.
h. Wasiela states that the duties of a supervisor were
identical to that of roadmaster.
g•
i. It is asserted by Wasiela that the functions performed by
elected township supervisors only occur at the monthly
meeting of the board of supervisors.
Wasiela through counsel seeks a dismissal of the case.
C. EXHIBITS:
J-
70. The investigation against Wasiela was instituted based upon
the receipt of a signed sworn complaint filed with the
Investigative Division.
71. The Investigative Division supplied Wasiela with hearing
and /or exculpatory evidence as per Section 8(e) of Act 9 of
1989.
72. The Summit Township Board of Auditors set the following
compensation for the supervisors as township employees in the
following years:
a. On 01/06/87 for the 1987 calendar year.
(1) Existing benefit for pension, hospitalization and
insurance were retained.
(2) The salary for secretary /treasurer Tdas set at $765
per month.
( 3)
The salary for roadmasters was set at $5,150 per
year.
b. On 01/08/88 for the calendar year.
(1) The salary for secretary /treasurer at $9,650 per
year.
Wasiela, 89 -003 -C
Page 36
(1)
(3)
(
(2) The salary of roadmasters to
(a) If roadmasters work as
rate of the lowest paid
Pension, hospitalization and
continue until a meeting
benefits.
$5,420 per year.
laborers, an hourly
man.
insurance benefits to
is held to upgrade
A supplement of $10 per hour for Wasiela and $8 per
hour for Hessinger as laborers as per a special
meeting of 01/21/88.
(a) All township employee benefits to roadmasters
whether working as laborers or roadmasters or
secretary /treasurer as per the Township
Personnel Code.
On 03/24/88, action to average the bottom four
wages of township employees which equal or
approximates $8 per hour as wages for township
roadmaster when working as laborer.
c. On 01/04/89 for the 1989 calendar year.
(1) Action to approve benefits that supervisors have
for hospital, pension and insurance.
(2) The salary for the secretary /treasurer at $9,650.
(3) The salary for roadmaster at $5,420.
(4) The salary for roadmasters as laborers for the
township is $5 per hour.
d. On 01/03/90 for the 1990 calendar year.
The salary of full time roadmaster supervisors is
set at $11.50 per hour.
(2) The rate of pay for a part time supervisor
roadmaster is $8.50 per hour..
(a) The above rate 'applied to secretary treasurer.
Benefits are approved with an increase in pension
to $1,750.
e. On 01/08/91 for the 1991 calendar year.
(1) The salary of full time wage for supervisor while
Wasiela, 89 -003 -C
Page 37
an employee was $12.00 per hour with part time rate
of $9.00.
Pension is $1,750 for full time supervisor with
part time at 62% of $1,750 per year.
Routine overtime is not acceptable but overtime in
extreme emergency is approved.
(a) There was no different rate established for
overtime.
f. On 01/07/92 for the calendar year 1992.
(1) Pension for full time roadmasters at $2,060 with a
rate of 2/7 for part time supervisor roadmaster.
(2) Health and medical benefits for full time
supervisor roadmaster at $475 per month.
(3) $10,000 life insurance and disability insurance for
all three supervisor - roadmasters.
(4) Supplemental insurance of $600 per year for each
supervisor- roadmaster.
(5) $12.35 per hour full time and $9.25 part time for
roadmasters.
(6) At 01/21/92 meeting, hourly wage are rounded to
$12.36 and $9.26.
(7) Overtime not approved as a general practice for
roadmasters except in cases of extreme emergency.
(a) Overtime rate for the year at time- and -a -half.
g. On 01/05/93 for the calendar year 1993.
(1) Pension of $2,185 for full time supervisors
employed by township with proration for part time.
(2) ,Health medical benefit at $416.02 per month and
$439.67 per month for employee and family for full
time roadmasters with proration for part time.
(3) $10,000 life insurance and supplemental of $636 per
year approved for three roadmasters.
(4) Dental insurance for each roadmaster or $29.10 per
month or $349.20 per year.
Wasiela, 89 -003 -C
Page 38
g -
( 5)
Rate of $12.98 per hour for supervisors employing
themselves as roadmasters.
A statement appears that overtime is only approved
for cases of extreme emergency.
(a) No motion, second or vote is reflected.
73. At a 01/04/84 meeting of the township, a number of residents
criticized the work and salary of the supervisors who worked
as roadmasters.
( 6)
74. The Court of Common Pleas of
1989 issued a decision in the
Township Supervisors against
12/29/89 which noted:
a. In 1989, the compensation was $9,650 per annum for
secretary /treasurer, $5,420 per annum for roadmaster plus
$5.00 per hour for working on the roads as laborers.
b. Supervisors may not set their own compensation which
would be an abuse of authority.
c. The Second Class Township Code
compensation system with a flat
hourly rate for road work.
d. An hourly rate is appropriate
roadmasters.
Erie County, at Docket 1705 --A-
case of a lawsuit by the Summit
the Summit Township Auditors on
does not envision a dual
salary supplemented by an
for full and part time
e. The full time roadmaster hourly rate is $11.50, the part
time rate for roadmaster is $8.50.
f. Supervisors when billing should not confuse duties of
supervisors with that of roadmaster.
The roadmaster /supervisor submitted a number of
unrecorded hours for which they seek to be paid.
(1) The roadmaster /supervisor had been paid a wage
substantially higher than now set by the court.
h. The compensation for roadmasters and secretary treasurer
should not be applied retroactively to 1989.
i. The decision was appealed by the supervisors to
Commonwealth Court which affirmed the Erie Common Pleas
Court.
75. F'or the years 1991 and 1993, the auditors approved overtime in
Wasiela, 89 -003 -C
Page 39
d.
emergencies but did not change the rate from the flat hourly
rate.
a. For 1992, overtime occurred after 8 hours per day or 40
hours per week at the rate of time and one half.
b. No overtime was approved for 1987, 1988, 1989 and 1990.
76. The minutes of the Summit Township Board of Supervisors
reflect the following actions:
a.
b.
c .
On 01/05/87:
(1) Wasiela is appointed roadmaster of District 1.
(2) Wasiela is appointed voting delegate to the
Pennsylvania State Association Convention.
On 01/04/88:
(1) Wasiela is appointed roadmaster in District 2.
(2) Hessinger is appointed roadmaster in District 1.
(3)
Hessinger is voting delegate with Wasiela
alternate, to the Pennsylvania State Association
Convention.
On 02/01/88:
(1) Wasiela hired as full time
$8.00 per hour.
(2) Hessinger hired as part time
at $8.00 per hour.
On 04/04/88:
employee on roads at
laborer on the roads
(1) Motion by Hessinger passed to pay the wages to
Township officials attending the annual convention
on April 17 -20, 1988, with Hessinger and Wasiela
voting in favor of the motion.
e. On 01/03/89:
(1) Hessinger appointed roadmaster of District 1.
(2) Wasiela appointed roadmaster to District 2.
(3) Hessinger is a delegate, with Wasiela as alternate
to the Pennsylvania State Association Conventions.
Wasiela, 89 -003 -C
Page 40
f. On 01/07/89:
j
(1) Supervisors authorized to attend PSATS convention
with expenses paid according to the Code.
g. On 01/02/90:
(1) Hessinger is appointed roadmaster of District 1.
(2) Wasiela is appointed roadmaster of District 3.
(3) The supervisors are named superintendent.
(4) Wasiela is delegate, with Hessinger alternate, to
the Pennsylvania State Association Convention.
(5) Hessinger appointed as township representative to
the Erie County Planning Commission.
h. On 01/15/90:
(1) Motion by Hessinger passed to approve expenses and
wages to the PSATS convention on 04/22 -25/90 with
Hessinger and Wasiela voting in favor of the
motion.
i. On 01/26/90:
(1) Motion passed to appeal decision of Court of Common
Pleas as to retroactive pay issue, with legal fees
to be paid by township, with Hessinger and Wasiela
voting in favor of the motion.
On 06/04/90:
(1) Expenses approved to attend semi- annual convention.
(2) Hessinger authorized to work full time during the
summer.
k. On 01/07/91:
(1) Hessinger is appointed roadmast of District 1.
(2) Wasiela is appointed roadmaster of District 3.
(3) All supervisors are named superintendents.
(4) Hessinger is delegate, with Wasiela alternate, to
the Pennsylvania State Associates Convention.
Wasiela, 89 -003 -C
Page 41
(5) Hessinger is appointed township representative to
the Erie County Planning Commission for 1991.
1. On 03/18/91:
(1)
m. On 07/01/91:
(1) The status of Secretary Hessinger is changed from
part time to full time.
n. On 01/06/92:
(1) Hessinger is appointed roadmaster in District 1.
(2) Hessinger is appointed township representative to
the Erie County Planning Commission.
(3)
o. On 01/04/93:
(3)
Motion by Hessinger passed to pay expenses and
wages in 1991 PSATS convention as per the Second
Class Code with Hessinger and Wasiela voting in
favor of the motion.
Motion by Hessinger passed to approve expenses to
attend PSATS convention in April, 1992 with
Hessinger and Wasiela voting in favor of the
motion.
(1) Hessinger is appointed roadmaster in District 1.
(2) Hessinger is appointed township representative to
the Erie County Planning Commission.
Motion passed to approve expenses to attend PSATS
convention in April 1993 with Hessinger voting in
favor of the motion.
77. Hessinger and Wasiela voted as supervisors to institute, with
expenses paid by the township, a lawsuit filed by the
supervisors against the township auditors regarding the
compensation of the, supervisors as township employees.
a. The legal fees and expenses paid by the township on
behalf of Wasiela and Hessinger amounted to $12,541.44.
(1) The portion of the above legal fees and expenses
which related to the appeal of the decision of the
Court of Common Pleas to Commonwealth Court
amounted to $5,200.41.
Wasiela, 89 -003 -C
Page 42
78. Wasiela received the following compensation for "overtime" at
a rate of 1.5 times the hourly rate authorized by the township
auditors for roadmaster work:
19 88:
Date Day of work Hours
08/22/88
08/23/88
08/25/88
08/26/88
08/27/88
Monday
Tuesday
Thursday
Friday
Saturday
Total 1988:
Authorized Rate per hour:
Received Rate per hour:
Unauthorized Rate per hour:
Total Unauthorized Rate:
1989:
01/14/89 Saturday
01/15/89 Sunday
N/L
03/22/89 Wednesday
05/20/89 Saturday
06/21/89 Wednesday
06/23/89 Friday
06/26/89
06/27/89
07/06/89
08/02/89
08/03/89
08/23/89
08/24/89
08/25/89
09/19/89
09/20/89
09/30/89
Monday
Tuesday
Thursday
Wednesday
Thursday
Wednesday
Thursday
Friday
Tuesday
Wednesday
Saturday
$8.00 /hr
OT $12.00 /hr
$4.00/hr
(18.2 x $4.00 /hr)= $72.80
1.3
1.9
1.5
1.1
8.0
1.0
.9
2.6
3.7
10.0
18.2 hrs.
Du ies
Unknown
Unknown
Unknown
Unknown
Unknown
4.5 Haul and stockpile
cinders
4.0 Haul cinders
.5 N/L
1.4 Cinder Elk Creek Hill -
pull stuck milk tank
truck up hill
2.6 Picnicanna, work with
Chuck Burger, (free flow)
to open drain for one
kitchen to bathrooms
.5 Haul patch- repairs on
Zwilling Rd.
. Haul cold patch; patch
Donation Rd.; patch
Benjaman Rd.
. Patch roads
•8 Water Tower Road
.5 Haul 2A and bank gravel
1.0 Patch roads
• 3 Patch roads
. 6 Patch roads, clean
intersections
Truck stone
Truck stone
Move dirt -dozer
Move dirt -dozer
Dozer
Wasiela, 89 -003 -C
Page 43
10/07/89 Saturday
11/14/89 Tuesday
11/21/89 Tuesday
12/20/89 Wednesday
12/29/89 Thursday
Authorized Rate per hour:
Received Rate per hour:
Unauthorized Rate per hour:
Total Unauthorized rate:
1990:
01/14/90 Sunday
08/07/90 Tuesday
08/18/90 Saturday
10/20/90 Saturday
11/02/90 Saturday
11/06/90 Tuesday
Authorized Rate per hour:
Received Rate per hour:
Unauthorized Rate per hour:
Total Unauthorized rate:
1991:
02/01/91
02/15/91
05/24/91
05/30/91
06/07/91
07/05/91
08/16/91
Total 1989: 43.9
Total 1990: 18.0
• Friday
Friday
Friday
Thursday
Friday
Friday
Friday
Total 1991: 8.8
5.8 Trip to Butler to insp.
equipment
.7 CB & 24" pipe Bloomfield
Pkwy
.9 Cinder Zwilling &
Footmill intersections
3.0 Garage and office; plow
snow, Business lunch -
Walsh Equipment RE:
cinder spreaders
2.0 Call in PA Dot Rt 19 -
water on the road
$5.00 /hr
OT $7.50 /hr
$2.50 /hr
(43.9 x $2.50 /hr)= $109.75
3.5 Haul cinders
1.5 Patch on Cherry St.
3.6 Haul patch and road
sweepings
6.8 Footmill Rd. excavator
2.0 Pour concrete Footmill
Rd.
.6 Footmill Rd.
$11.50 /hr
OT $17.25/hr
$ 5.75/hr
(18.0 x $5.75/hr)= $103.50
.7 Bus stuck on Weber Lane
1.0 Plow Lee Rd., Elk Creek
part of Shurnpike
.1 Loader
1.0 New backhoe
1.1 Rt 97 & 90 traffic light
.2 Patch Dorn Rd.
4.7 Pave New Rd., Cherry St.,
move equip.
Wasiela, 89 -003 -C
Page 44
Authorized Rate per hour:
Received Rate per hour: 0T
Unauthorized Rate per hour:
Total Unauthorized rate:
1988
1989
Totals - 1988 - $ 72.80
1989 - $ 109.75
$ 182.55
TOTAL $192.00
04/24/89 PSATS Convention
04/25/89 PSATS Convention
04/26/89 PSATS Convention
TOTAL, $120.00
Totals - 1988 - $ 192.00
1989 - $ 120.00
$ 312.00
1989
03/17/89 Lou Tulio RE: water
(8.8
$12.00 /hr
$18.00 /hr
$ 6.00 /hr
x $6.00 /hr) u $52.80
Totals -
79. Wasiela received compensation both as a township employee
roadworker and laborer for attending the following State
Association Conventions of elected township supervisors:
Roadmaster
Hours Rate of Pay Salary
04/18/88 PSATS Convention 8 $8.00 $5,420/yr.
04/19/88 PSATS Convention 8
04/20/88 PSATS Convention 8
24
March Total
12/06/89 Court hearing (roadmaster pay)
Hours Rate of Pav
8 $5.00
8.
8
24
1990 - $ 103.50
1991 - $ 52.80
$ 156.30
Roadmaster
Salary
$5,420/yr.
80. Wasiela submitted time sheets and received and accepted
compensation as a working township employee for the following
duties which were encompassed within the functions
of an elected township supervisor:
Date Purpose of Meeting No. of Rate
Hours «
3.5
3.5
8.0
$5.00
Total
$ 17.50
$ 17.50
12/07/89
12/14/89
1990
Wasiela, 89 -003 -C
Page 45
Court hearing (roadmaster pay) 8.0
Meet with Craig Markham (attorney) pick up 8.0
and help assy; letter to Judge Joyce;
letter to employees RE: dinner
December Total 24.0 $120.00
1989 TOTAL: 27.5 $137.50
01/23/90 Health insurance 1.7 $11.50
01/24/90 Insurance 1.3
01/30/90 Marriott 2.2
January Total: 5.2 $ 59.80
02/01/90 EMTA 1.5
02/08/90 Huber & Baldwin 2.4
02/12/90 Tim Haaf 2.0
02/13/90 Water Authority 2.5
02/14/90 Sewer lease agreement 2.0
02/15/90 Insurance 2.0
02/16/90 Insurance 1.4
02/20/90 Code enforcement 1.5
02/21/90 Superintendents meeting 1.3
02/22/90 Code enforcement 2.2
02/23/90 Superintendents meeting .5
02/26/90 Superintendents meeting 2.0
02/27/90 Sewer authority lease .5
02/28/90 Supt. Lettering on Water Tank 1.5
February Total: 23.3 $267.95
03/01/90 Andy L. - Water System 1.7
03/02/90 Superintendent meeting 1.8
03/05/90 Wasielewski, subdivision 1.1
03/09/90 Penn Vest loan .7
03/20/90 CDBG Department Community Affairs 1.4
03/21/90 D.O.C. Grant Etc. 1.7
03/22/90 IBM 1.1
03/23/90 Code Administration - Rearrange meeting room 1.8
03/26/90 Sadaler /Kelly RE: Audit 2.4
03/27/90 Superintendent RE: Route 99 Water 1.7
March Total: 15.4 $177.10
04/02/90 A. Glass RE: Water Rt 19 1.6
04/03/90 Debello E.C.P. Transportation Plan 1.7
04/04/90 Review job applications 1.5
04/05/90 Water Authority members 1.3
04/06/90 Insurance agent .7
04/17/90 Coyne Laundry .6
04/18/90 T.C.I. .7
04/19/90 Gus !lathers w /Authy RE: assessment 2.2
ordinance tax collection
04/20/90 Baldwin - Summit Towne Center 1.5
04/26/90 P.S.L.H. D.E.R. insp. school; Heises w/a 1.5
computer sales person
04/27/90 Haibach Subdivision 1.5
04/30/90 Office meeting with Grass .7
05/01/90
05/03/90
05/04/90
05/29/90
05/30/90
05/30/90
05/31/90
Wasiela, 89 -003 -C
Page 46
Work session with McDonald
Marine Bank
Kruegler PEL & East on parks
Meeting Joe Messina and Liz Kelly RE:
Pennvest
Harrisburg trip RE: PENNVEST Loan
Zoning Hearing
Meeting Greg Baldwin /George Willis
April total: 15.5
2.0
1.2
1.1
1.5
12.0
2.0
1.9
May Total: 21.7
06/01/90 Discussion of prescription and medical plan 1.0
06/05/90 (superintendents meeting)
Ken Haibach
06/06/90 Joe Messina - Water System •
.9
06/11/90 Water Authority Transfer Agreement
2.6
Meet with PLCB Officer 2.6
06/22/90 Superintendents Meeting RA Computer 1.6 .6
06/25/90 Meeting with D. Skellie, RE: Tops .2
Unlimited, Etc. I.2
06/26/90 Meeting Tom Copella, Computer software
06/27/90 Meeting with Jim Mach, RE: Employment .4
.9
06/28/90 4
Meeting with Jim Spaulding, Highway Hose Company' RE: .3
June total: 9
07/03/90
07/11/90 Meeting with Richard Hamm, Tops Unlimited
Superintendents Meeting .4
07/I7J90 Rearrange office furniture .5 .6
07/20/90 Meeting with Carl Buetikuffor, RE:
Water Line Assessment .7
07/23/90 Meeting, Baldwin Developer's Agreement,
computer hardware .8
07/24/90 Meeting, storm water, George Willis
07/26/90 Meeting with Brian Peterson, Herman House 1.0
07/27/90 3
Meeting RE: computer program I.3
07/30/90 Meeting with Ken Haibach, driveway .4
07/31/90 Computer training .6
. .5
July total: 6.8
08/01/90 Meeting with Attorney Evan Ruder,
08/02/90 Development Agreement, Summit Town Center 1.0
08/03/90 Meeting with Evan Rudder, Summit Town Center 1.7
/ Letter, Elmo & Paul, RE: Trailer on
08/06/90 Johnson Road .3
uamiit Town Center Meeting with Attorney .8
10 g0
08 Messina
I / Meeting with Evan Rudert, Greg Baldwin,
08/12/90 Developers Agreement 1.1
Meeting with John Webb, NFG, John Spaulding,
08/14/90 1.3 Authority 1.3
Superintendents Meeting
08/15/90 Meeting with Don Worst and Bob Everhart .5
(Hagan Business Machine), and Attorney I.4
Joe Messina
August Total:
•
8.1 $ 93.15
S178.25
$249.55
$106.95
$ 78.20
09/04/90 Meeting, agenda, review bills, etc. 1.0
09/05/90 Meeting with Keith Carlson, review water .6
line costs
09/06/90 Meeting with George Willis and Doug Susol, 1.4
RE: Ennis Subdivision
09/10/90 Meeting with Don Busek, Water Authority .8
09/11/90 Meeting with Jim Skellie, Sewer Authority 1.4
and John Spaulding, Water Authority
09/14/90 Meeting RE: Samick Subdivision .7
09/19/90 Meeting with George Willis and Jim Welke, 1.0
Keystone Drive
09/20/90 Meeting with Rick Hahn, Langdon Subdivision 1.2
09/24/90 Meeting with John Spaulding - Water 1.9
Authority, and Jim Skellie - Sewer Authority
09/25/90 Meeting with Attorney Rudert and Messina, 1.5
Summit Town Center
09/26/90 Meeting with Attorney Rudert, Andrus Lane, 1.9
etc.
09/28/90 Meeting with Rick Hamm and Langdons, .8
Andrus and Water View Subdivision
10/01/90 Meet with Baldwin, Urban Engineers, 1.8
Attorneys Messina and Rudder, and review
monthly bills
10/02/90 Work session with Water Authority 2.5
10/04/90 Meeting with John Bonjiono, FAOG Water 1.0
10/09/90 Meeting with R. Heiges, RE: Water tank site .9
and sign monthly checks and bills
10/10/90 Marine Bank pension fund meeting 1.5
10/12/90 Meeting with ADAMACK, Pocono Downs Agreement 1.1
10/18/90 Meeting with John Spaulding from Water 1.8
Authority, discussion RE: Office help
10/19/90 Meet with solicitor, schedules set, work for 2.7
employees
10/22/90 Meeting with Solicitor RE: 1% tax form 1.4
10/23/90 Meeting with Joe Sadler, John Spaulding RE: 1.0
Water Authority Budget and accounts
10/24/90 Meeting with solicitor (superintendents) 3.0
10/25/90 Meeting regarding Summit Town Center RE: .8
Traffic Light
10/26/90 Meeting with solicitor, Meeting with 2.5
Nick Scott - Econo Lodge
10/29/90 Meeting with Harry Highway Hose Co. 1.9
10/30/90 Meeting RE: Summit Town Center traffic light .5
October total: 24.4
11/01/90 Meeting RE: Pace Warehouse ribbon cutting .6
11/02/90 Meeting RE: Troyer Equipment Rental .9
11/05/90 Review bills .7
11/08/90 Meeting with Baldwin RE: Summit Town Center .3
11/12/90 Meeting with Tom Copella RE: Computer Software .8
11/13/90 Meeting with Skellie 1.6
11/21/90 Meet with Bud Wendell, Premier Fastner 1.0
11/30/90 Meeting with inter - governmental task force 2.0
11/30/90 Meeting with Chuck Richert RE: Keystone .2
Township Contractors
Wasiela, 89 -003 -C
Page 47
September total:
14.2 $163.30
$280.60
Wasiela 89 -003 -C
Page 48
November total: 8.1
12/03/90 Review monthly bills
12/06/90 Tom Bean from Marine Bank - pension fund .4
12/07/90 Sewer Authority employee discussion 1.4
12/12/90 Mid month bills, newsletter discussion .3
12!14/90 .8
Meeting with George Willis on Ennis '
Subdivision 1.6
12/20/90 Meeting
12/28/90 Superintendents Meeting, discuss .3
(through lunch) employees 7.2
1991
December total:
1990 TOTAL:
01/07/91 Superintendent's discussion on employees
01/08/91
01/10/91 Meeting with John Spaulding_Water Authority
Meeting Welke Borgio Melina
01/11/91 Meeting Carl Boyes office, Bob McGarvic
01/15/91 R. Eianun Occupancy Permit Superintendents
01/16/91 Meeting J. Merry Rep impact fees
01/17/91 Transportation Plan
01/18/91 Water Authority meeting and meeting with
Water Authority Chairman
1/28/91 Discuss employee code and hours
February Total: 14.0
03/06/91 Meeting with CEO
0
03/07/91 Pocono Downs Road CDBG Fund discussion 1.2
03/08/91 Relco RE: Hershey Road traffic light .3
03/13/91 George Willis RE: subdivision plans Ennis,
Chris Fette, Pocono, Eat n' Park 2.2
03/15/91 Darrell Osborn RE: subdivision Elk Creek Rd
03/20/91 Harold and Darrell Osborn RE: subdivision .4
03/25/91 A. J. Skellie RE: bill to Sewer Authority 1.5
for clean -up Department of Commerce Grant
12.0
164.00
.8
.5
1.9
.8
1.3
1.4
.7
1.8
1.6
January Total: 10.8
$129.60
02/04/91 Ed Chylinski Greenfield Township
02/05/91 Dave Skellie, George Willis .9
Billion dollar bridge prg. 1.1
02/06/91 Oberlander Drilling RE: Fritts Vetter
02/07/91 Elmo Kelly RE: building permits Fritts and .5
02/08/91 Steve Curico PA DER .4
02 / 1 1/91 Rudert Willis Transportation Plan .6
02/13/91 Superintendent's road discussion 1.6
.8
02/14/91 A. J. Skellie newsletter and township 1.0
ft reimbursement for payroll equipment, etc.
02111/91 Bob Quinn Urban Engineering Joe Kuzma
02/21/91 Recreation Board Meeting RE: DCA 1.5
02/22/91 1
02/25/91
Evan Rudert RE: Erie Water Authority .3
Meet with Solicitor
02 Superintendent's payroll 1.7
02 / 2 8/91 George Willis Urban Engineering RE: .6
traffic light bids impact fee and 1 ' S
transportation fee
$12.00
$168.00
$ 93.15
$138.00
$1.886•00
03/26/91
04/03/91
04/16/91
05/06/91
05/07/91
05/08/91
05/10/91
05/13/91
05 /22/91
05/29/91
05/30/91
06/07/91
06/13/91
06/19/91
06/25/91
06/26/91
Wasiela, 89 -003 -C
Page 49
storm sewer etc.
Elmo Paul Supervisors RE: Leonard .5
March Total: 8.7
Joe Sadler RE: township audit .9
Urban Engineering Commonwealth Utilities 1.8
re: Turnpike light maintenance
April Total: 2.7
George Willis RE: McDonald's 1.0
Tom Picnik PA Dot traffic light .3
Payroll Rose Etzel, Ed Bronakowski .9
PennDOT Summit Town Center Doug Susol Eat n' 1.6
Park traffic light
Discussion paving Picnicanna volley ball court .6
Superintendent's discussion tail ditch 97 .4
and town hall
Penn Valley Publishers RE: Codification 1.2
Superintendent's discussion Eat n' Park .9
roadway
May Total:
Route 97 and 90 traffic light
Dick East RE: Picnicanna Park, Paula Steve
RE: Ordinance violations
Penn Glass RE: Comm. building
Bob Quinn RE: Cherry Street and Ennis
Subdivision, Carol Peasley res.
Bob Quinn Urban Engineering RE:
Cherry Street and Ennis Subdivision
June Total:
07/09/91 Erie AGG. and Ennis Subdivision
07/10/91 Bob Quinn RE: Cherry Street storm lever
07/16/91 Dan Matter RE: 97 and 90 traffic light
and volley ball
07/17/91 Sign payroll checks etc.
July Total:
09/04/91 Supervisor's work
09/05/91 Meet with Sewer Authority
September Total:
10/08/91 Meet with H. Huber RE: Keystone
October Total:
11/26/91 R. Austin Subdivision
11/29/91 Developer from New York
1992:
November Total:
1991 TOTAL:
6.9
1.1
1.0
.7
1.0
.5
$104.40
$ 32.40
$82.80
4.3 $ 51.60
1.0
.7
1.0
.4
3.1 $ 37.20
.8
2.0
2.8 $ 33.60
1.0
1.0 $ 12.00
4.5
2.5
7.0 $ 84.00
61.3 $12.00 $735.60
Wasiela, 89 -003 -C
Page 50
01/03/92 Investigate zoning complaint 99 and Hershey
January Total:
1992 Total:
Total 1989 - $ 137.50
1988:
04/23/88
04/30/88
05/07/88
11/19/88
1989:
1/26/89
2/13/89
2/14/89
2/15/89
2/16/89
2/17/89
2/20/89
2/21/89
2/22/89
2/23/,89
2/24/89
4/15189
4/21/89
4/27/89
81. Wasiela submitted time sheets and received and accepted the
following compensation as a township employed laborer at an hourly
rate for hours during which he did not perform duties as a laborer
but rather performed such actions as a township employed roadmaster
for which he received a fixed yearly salary:
Inspect roads - bridges, etc. Hours R8 5.0 .
Road checks $ 2.0 00
Road checks 4.1 5 $12.00
Budget 4 . 1 $12.00
6 .5 $12.00
1988 Total: 21.1 $233.20
Check roads
Work on road
Work on road
Work on road
Work on road
Work on road
Garage, road
Garage, road
Garage, road
Garage, road
Garage, road
Inspect road
Inspect N.E.
Road checks
and ditches
inventory,
inventory,
inventory,
inventory,
inventory,
inventory,
inventory,
inventory,
inventory,
inventory,
s
gravel pit
(rain storm)
inspect roads
inspect roads
inspect roads
inspect roads
inspect roads
maps, etc.
maps, etc.
maps, etc.
maps, etc.
maps, etc.
, garage
1989 total:
6.0
6.0
6.0 $12.00 $ 72.00
Totals 1990 $1,886.00
1991 $ 735.60
1992 $ 72.00
$2,693.60
Hours
3.0
3.7
8.0
8.0
8.0
8.0
8.0
8.0
8.0
8.0
8.0
5.8
8.0
8.0
•
Rate
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
$ 5.00
100.5 $502.50
$12.00
Rdmaster
Salary
$5,420.00
Rdmaster
Salary
$5,42
$ 72.00
Total -1988 - $233.20
• 1989 - $502.50
$735.70
82. The Investigative Division of the State Ethics Commission concluded
each stage of the investigative process as to Wasiela before
statutory deadlines of Act 9 of 1989, 65 P.S. 408, passed.
Wasiela, 89 -003 -C
Page 51
III. DISCUSSION:
As a Supervisor for Summit Township, Erie County, Thomas R.
Wasiela, hereinafter Wasiela, was a public official as that term is
defined under Act 9 of 1989. 65 P.S. $402. As such, his conduct
is subject to the provisions of the Ethics Law and the restrictions
therein are applicable to him.
Initially, it is noted that Section 9 of Act 9 of June 26,
1989 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 .pu 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 both before and
after the effective date of Act 9 (June 26, 1989), we must apply
the provisions of Act 170 of 1978 and Act 9 of 1989 to determine
whether the Ethics Act was violated.
Under Section 3(a) of Act 170 of 1978 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 the 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).
Under Section 3(a) of Act 9 of 1989 quoted in the allegations,
a public official /employee shall not engage in conduct that
constitutes a conflict of interest.
The issues before us are whether Wasiela violated Section 3(a)
of Act 170 of 1978 or Act 9 of 1989 as to the receipt of the
following: overtime at a 150% rate of pay, payments for attending
the Pennsylvania State Association of Township Supervisors (PSATS)
conventions, payments as a township employee for performing
Wasiela, 89 -003 -C
Page 52
administrative duties of an elected township supervisor, double
payments as roadmaster and laborer for performing the same duties
and township paid legal fees and expenses as to a lawsuit filed by
the supervisors against the township auditors on the issue of the
supervisors' compensation as township employees. We also must
determine whether Wasiela violated Section 4(a) of the Ethics Law
regarding the allegation that he failed to file a Financial
Interest Statement (FIS) for the 1987 calendar year.
Procedurally, a signed sworn complaint was received against
Wasiela in January, 1989. Due to a then perceived application of
the Sunset Act for wind up, no action was taken by the
Investigative Division until October, 1989 when a preliminary
inquiry was authorized. Investigations were opened and Hessinger
was notified by letter of August 31, 1990 regarding various actions
which were alleged to be in violation of Act 170 of 1978.
During the course of the investigation, additional information
was obtained as to which Investigative division sent out a second
investigative notice of actions which were alleged to be in
violation of Act 9 of 1989. The second notice was sent on November
10, 1993 which was within the sixty (60) days of obtaining the
additional information. Thereafter, a Findings Report
(Investigative_ Complaint) was issued on January 11, 1994, as
amended on March 11, 1994.
Factually, Wasiela served as a supervisor in Summit Township
from 1986 to 1992. For the years in issue, Wasiela was appointed
to a position of employment with the township. For the years 1988
and 1989, the township auditors approved a yearly salary of
$5,420.00 for supervisors working as roadmasters and also an hourly
rate for a laborer at $8.00 in 1988 and at the rate of $5.00 per
hour in 1989. The board of supervisors passed a motion, with
Hessinger and Wasiela voting in favor of the motion, to institute
suit against the auditors challenging the hourly rate set for the
supervisors in 1989 as working township employees. The legal fees
and expenses for the lawsuit were paid by the township.
The Erie Court of Common Pleas in a
1989, filed at civil docket 1 -A- 1989,
payment system of roadmaster with both
hourly rate of pay as laborer, noted:
decision of December 29,
after reviewing the dual
a yearly salary and an
It is equally clear that the purpo'se in not allowing the
supervisors to set their own compensation is to prevent an abuse of
their authority by arbitrarily setting their own compensation.
However, it appears that certain supervisors /roadmasters have used
their authority as supervisors to set their own compensation by
adjusting their hours to fit their particular schedules, which
resulted in performance of tasks, such as cleaning a storage room,
which are equivalent to that of a common laborer for which they now
expect to be paid a roadmaster wage.
Wasiela, 89 -003 -C
Page 53
This situation is one which the spirit of the code charges the
auditors with avoiding and thus the auditors, in good faith, set an
hourly rate at $5.00 to create a disincentive for this practice.
This point of contention between the parties can be easily
eliminated by precluding a dual compensation system. The code does
not visualize a compensation system of a flat part -time salary
supplemented by an hourly rate for road work. Nor is it appropriate
given the disparities in experience, physical capabilities and
number of hours worked between the supervisors/ roadmasters.
Therefore, upon careful consideration of the differences and a
thorough review of the record, this Court concludes that an hourly
rate is more appropriately set for both a full -time roadmaster and
a part -time roadmaster.
A full -time roadmaster, as the one in Summit Township, must
possess hands -on experience with various equipment and experience in
the maintenance of the roads so as to allow meaningful supervision
of the road crew on a daily basis. An hourly rate commensurate with
such experience and responsibility is $11.50. A part -time
roadmaster will be paid an hourly rate of $8.50. The
township /secretary should also be paid an hourly rate of $8.50. All
of which are consonant with the same. positions in similar size
townships throughout the Commonwealth, as reflected in the 1988 Wage
and Salary Survey compiled by the Pennsylvania State Association of
Township Supervisors. Therefore, an hourly rate which is
commensurate with the work being performed allows an equitable
solution to the conflicting points of view.
This Court would also like to note that, although not an issue
before the Court, the supervisors should not take lightly their
responsibility to employ individuals who are capable of performing
the tasks required of the position. Also, the supervisors, when
billing their hours to the township, should not confuse the duties
of a supervisor with those of a roadmaster.
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 encountered great difficulty.
Each roadmaster /supervisor 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 the Township by the flat salary of $5,420.00, it appears each
roadmaster /supervisor has been paid a wage substantially higher than
that which the Court is now setting, as reflected by the following
table:
Salary Unrecorded Hours Hourly Rate
$5,420.00' + 355.9 hrs. _ $ 15.23
$5,420.00. + 590.5 hrs. _ $ 9.18
$5,420.00 + 600.0 hrs. _ $ 9.04
•
It was suggested by Roadmaster /Supervisor Messinger 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 follow a public servant home, it is this Court's belief that
all public officials, particularly those holding a local public
office such as 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
Roadmaster /Supervisor
Wasiela
Messinger
Haaf
Wasiela, 89 -003 -C
Page 54
uncompensated intrusions on their personal time.
In summary, this Court feels that it is entirely fair and
equitable that the roadmaster /supervisors receive no compensation
for these unrecorded hours other than the salary of $5,420.00 they
received. Further, that this salary offsets any retroactive
increase in the hourly wage paid for recorded hours during 1989.
Slip Opinion at 2,5.
In an Order dated December 29, 1989, the Court ordered the
compensation to be set for 1990 in accord with its opinion with no
retroactive application to 1989. By Order dated January 9, 1990,
the Court denied retroactive application of wages finding "that the
unrecorded hours claimed by the roadmasters to be lacking in
credibility ". Following review of a post trial motion, the Court
by order dated January 10, 1990 modified its prior order whereby
the compensation for 1989 would remain unchanged from the rate as
set by the auditors and the compensation for 1990 would be
recommended at the rate consistent with the Court's opinion.
On or about January 26, 1990, the supervisors passed a motion
to appeal the above decision which motion passed with Hessinger and
Wasiela voting in favor of the motion. Once again the legal fees
and expenses as to the appeal. to Commonwealth Court were paid by
the township. Commonwealth Court affirmed the lower court decision
by Order of November 16, 1990 filed at Docket 221 CD 1990.
The total amount of legal fees paid by the township for the
supervisors amounted to $12,514.44 with $7,341.03 attributable to
the action in Common Pleas and $5,200.41 attributable to the appeal
to Commonwealth Court.
During 1988 and 1989 when the "dual compensation system" was
in place, a review of the record reflects that Wasiela did perform
road related duties for which he received the yearly roadmaster
salary but nevertheless billed the township through time records
for those same functions as a laborer. Thus in addition to the
roadmaster salary, Wasiela received payments totaling $735.70 as a
laborer in 1988 and 1989 for performing roadmaster duties.
We also note that Wasiela billed the Township as per time
records for varied activities which are clearly not related to the
position of a working township employee but rather to the position
of elected township supervisor. We find these activities which are
delineated in Fact Finding 80 to be administrative duties.
As to the matter of the annual convention of PSATS, Hessinger
and Wasiela were authorized delegates to the yearly conventions.
For the years 1988 and 1989, Wasiela received double payment for
attending the convention consisting of the yearly salary of
roadmaster plus payment at the hourly rate for a township employee
Wasiela, 89 -003 -C
Page 55
laborer.
Finally, Wasiela received payment for overtime work at a rate
of 150% of the yearly hourly rate set by the auditors. The
township board of auditors did authorize overtime under certain
circumstances, such as in emergency situations for the years 1991
through 1993. However, except for 1992, the auditors did not raise
the rate for overtime but merely authorized the working of
additional hours beyond the standard work day or week at the
authorized flat rate. The particulars of the overtime which
Wasiela received are delineated in Fact Finding 78.
Having highlighted the facts and issues, we must preliminarily
address a motion filed by Wasiela. Wasiela has filed a Motion to
Terminate and Dismiss Investigation wherein the following five
issues are raised: sunset, compliance with time deadlines of Act 9
of 1989, hearing in Pittsburgh, due process and laches.
Sunset is no longer a viable issue since the Pennsylvania
Supreme Court declared that Act unconstitutional in West Shore
School District v. Pa. LRB, _ Pa. _ , 626 A.2d 1131 (1993).
Without the Sunset Act in existence, any argument about the
application of that Act fails. See also Zontek et al v. SEC, filed
in Pennsylvania Supreme Court at 82 M.D. 1992 on February 15, 1994.
As to due process, there has been notice and an opportunity to
be heard at the hearing which occurred in Pittsburgh. See Baker v.
HRC, 507 Pa. 325, 489 A.2d 1354 (1985).
As to the matter of a hearing in Pittsburgh, that and other
issues were raised in John Doe 1 and 2 v. SEC filed by Hessinger
and Wasiela in Commonwealth Court at 120 M.D. 1994. Said issues
were resolved by Order dated March 10, 1994 by Senior Judge Delia
Porta.
Regarding laches there has not been a showing of an
inexcusable delay by the Investigative Division which resulted in
prejudice or injury to Wasiela. See Loverich v. Warner Co., 118
F.2d 690 (1940), cert. den. 313 U.S. 577 (1940); Bianco v. Pullo,
195 Pa. Super 623, 171 A.2d 620 (1961); Rebottini et al v. SEC, _
Pa. Commw. Ct. _ , 634 A.2d'743 (1993).
The main thrust of the Motion is developed as to the Act 9
time deadlines and is based upon the general premise that these
time deadlines relate back and have application to those actions
which are governed by Act 170 of 1978. The theory is that when Act
9 of 1989 amended and added Act 170 of 1978, the time constraints
of Act 9 applied to the prior Act, Act 170 of 1978. The argument
is spurious for two reasons. First, Act 9, as quoted above,
directs that it has no application to violations committed prior to
the effective date of Act 9 and the prior law, Act 170 of 1978,
Wasiela, 89 -003 -C
Page 56
continues in effect as if Act 9 were not in force.
and explicit language of Act 9 defeats the argument. Second,csuch ear
a construction would result in an ex post facto application.
Therefore, since the arguments in the Motion have no validity,
we deny the Motion.
The first question we must address in applying the Ethics Law
concerns the appropriate application of Act 170 of 1978 or Act 9 of
1989 as to the foregoing' chronology of events which have a time
span between 1988 and 1993. We are concerned about the amendatory
language of Section 9 of Act 9 of 1989 vis -a -vis any ex post facto
application to Act 170 of 1978 relative to violations committed
prior to the effective date of the Act.
Although such a decision
may be extremely difficult in cases on the issue of whether any
element of the violation occurred prior to the effective date of
Act 9 of 1989, such is not the case in the instant matter for the
following reason. In January of each year, a second class township
will have a reorganizational meeting of the supervisors (and
auditors) wherein any new officials will take office followed by
appointments to working township employee positions with an hourly
rate as set by the auditors. The supervisors will operate
accordingly during the remainder of that particular year. Hence,
in this case, it is clear that the activities in 1988 and 1989 were
governed by Act 170 of 1978 while the activities for the years 1990
and following are governed by Act 9 of 1989.
In determining whether the actions of Wasiela 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 make rulings under 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
1978 or a private pecuniary benefit under Act 9 of 1989. Act 170 of
The Second Class Township Code, as amended, 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:
Township
Not more
5,000 to
10,000 to
15,000 to
25,000 to
35,000 or
Population
than 4,999
9,999
14,999
24,999
34,999
more
Such salaries
Annual Maximum Compensation
Fifteen hundred dollars
Two thousand dollars
Twenty -six hundred dollars
Thirty -three hundred dollars
Thirty -five hundred dollars
Four thousand dollars
shall be payable monthly or
Wasiela, 89 -003 -C
Page 57
53 P.S. §65515.
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 any year which shall include
hearings by aggrieved parties under the Pennsylvania
Sewage Facilities Act and other hearings by aggrieved
parties, hearings of a 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. §45512.
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
Wasiela, 89 -003 -C
Page 58
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
meetings 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 provisions of the State Ethics Law as
such payments would not be authorized in law. The above
interpretation of the Second Class Township Code is a view that has
also been expressed by PSATS which specifically indicated that
supervisors may not be compensated for meetings with engineers,
solicitors, planning commissions, authorities, or recreation
boards. See, Townshi Dews, 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. §65410.
The compensation to be paid to supervisors working in such
positions is to be fixed by the township board of auditors. 53
P.S. §S65515, 65531, 65540. Township supervisors may not receive
any other compensation except as provided above. In Colter v.
Warminister Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859 (1973),
the Commonwealth Court 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 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.
The Second Class Township Code,. as amended, provides as
follows regarding the expenses and mileage and compensation a
township supervisor may receive for attending the PSATS convention:
The expenses allowed the delegates attending the annual
meeting shall be limited to the registration fee, mileage for use of
a personal vehicle or reimbursement of actual transportation expense
going to and returning from such meeting plus all other actual
Wasiela, 89 -003 -C
Page 59
expenses that the township board of supervisors may have agreed to
pay. Every delegate attending the annual meeting shall submit to
the township board of supervisors an itemized account of expenses
incurred thereat. The township board of supervisors may authorize
township employees to be compensated at their regular employee rate
during their attendance at the annual meeting. No delegate shall
receive expenses for more than four days including the time employed
in traveling thereto and therefrom, together with mileage going to
and returning from such meeting.
53 P.S. 65612.
We will now consider seriatim the above five issues in the
context of the conduct of Wasiela to determine whether the payments
he received were authorized in law so as to be in compliance with
Sections 3(a) of the Ethics Law, Act 170 of 1978 and Act 9 of 1989.
In applying the above provisions of law to the instant matter,
we find that Wasiela violated Section 3(a) of the Ethics Law as to
all of the above issues, except as to the FIS issue. Wasiela used
the authority of public office to obtain payments which constitute
a private pecuniary benefit and a financial gain other than
compensation provided by law. The foregoing payments received by
Wasiela were not authorized under the Second Class Township Code.
The lack of any authorization in law for the payments Wasiela
received as to the five areas in issue is clear.
As to the first issue of the township paid legal fees and
expenses as to the lawsuit filed by the supervisors against the
auditors regarding the hourly rate which was set for the
supervisors as township employees, it is clear that such legal
representation was not on behalf of the three supervisors as
elected public officials but as township employees. The foregoing
statement is significant because litigation involving the
supervisors acting in their official capacity as elected public
officials, with no element of wrongdoing, warrants representation
at township expense. See Kuhlman, Order 752. See also , Silver v.
Davis, 493 Pa. 50,425 A.2d 359 (1981). However, when a supervisor
is not acting in the capacity of elected public official but is in
fact acting as a township employee to challenge the hourly pay
set by the auditors, such action is private in nature and not
entitled to paid township legal representation unless expressly
ordered by Court. The•Erie Common Pleas Court did order that the
• legal fees of the township auditors be paid in the amount of
$5,488.00. See Svnoski v. Hazle Township, _ Pa. Commw. Ct. ,
500 A.2d 1282 (1985). See Szymanowski, Opinion 87 -002; Borland,
Order 785 - R; Sanders, Order 786 -R. See also In re: Roofner's
Appeal, 81 Pa. Super 482 (1923).
Since the supervisors in this case obtained township paid
legal representation to challenge the hourly rate of wages as
township employees, such action was a use of office to obtain a
Wasiela, 89 -003 -C
Page 60
financial gain other than compensation provided by law. Therefore,
the action taken by Wasiela to institute the lawsuit in 1989 in
Erie Common Pleas Court violated Section 3(a) of Act 170 of 1978.
Haaf, Order 914.
After the decision of the Erie Common Pleas Court was issued
in December, 1989 and post trial notices were filed, the
supervisors then took another separate action to appeal that
decision to Commonwealth Court. That appeal would not have been
filed but for the action of the supervisors. Wasiela voted in
favor of the motion on January 26, 1990 to authorize the filing of
that appeal. Once again, the township paid the legal expenses and
fees incurred in prosecuting that appeal before Commonwealth Court
which affirmed the decision of the Erie Common Pleas Court. The
use of authority of office by Wasiela resulted in a pecuniary
benefit to the extent that Wasiela had no out of pocket expenses as
to the appellate ligation which were paid by the township. The
pecuniary benefit was private in that the action, as noted above,
involved the supervisors in a private capacity challenging their
wages as township employees. The private pecuniary benefit
received by Wasiela:. and the other two supervisors amounted to
$5,200.41. One third of that amount or $1,733.47 was received by
Wasiela. Such action constituted a violation of Section 3(a) of
Act 9 of 1989.
The second issue concerns the receipt by Wasiela of double
pay, both as a roadmaster for which a yearly salary was received
and also as a laborer paid at an hourly rate, for performing road
related work. In the years 1988 and 1989 Wasiela received a yearly
roadmaster salary plus an hourly rate for working as a laborer.
Fact Finding 81 reflects that Wasiela performed road related duties
for which both the roadmaster salary and laborer hourly rate was
received for performing the same duties. The turning in of the
time cards and acceptance of the double payment by Wasiela was a
use of office to obtain a financial gain. The said financial gain
was compensation other than provided by law because the auditors
did not authorize the supervisors to receive compensation twice as
working township employees. What the auditors authorized was a
yearly salary for roadmaster work and an hourly rate for laborer
work which by definition is separate from roadmaster related work.
Obviously, if a working supervisor would perform laborer work which
was road related, he could not receive an hourly rate of pay since
he would be receiving his yearly salary as roadmaster for such
work. In this case, Fact Finding 81 reflects the instances where
Wasiela received and accepted payment at an hourly rate for
roadmaster work which was not authorized by the auditors; such
compensation was other than provided by law. Wasiela violated
Section 3(a) of Act 170 of 1978 in receiving double payment as a
salaried roadmaster and as an hourly paid laborer for performing
road related work. Cohen, Order 610 -R. The amount of financial
gain received by Wasiela on this issue in those two years amounted
Wasiela, 89 -003 -C
Page 61
to $735.70.
The third matter involves the payments received by Wasiela as
to administrative supervisor duties. There is a fundamental
distinction which exists between a township supervisor in the
capacity as an elected public official and as a paid township
employee. The compensation which the supervisor as elected
official receives is limited by Section 515 of the Township Code,
supra. As noted above, any legislative or administrative duties
are encompassed within the duties of elected supervisor for which
the supervisor may not receive any additional compensation from
that authorized in Section 515. As a working township employee,
the supervisor may be compensated at the hourly rate or salary set
by the auditors for performing duties which are employee related.
The above distinction between the dual roles of the supervisor
is delineated in the Township Code and in decisional law as noted
above. In fact, even PSATS acknowledges that a supervisor may not
claim a pecuniary gain as a township employee for administrative
duties of an elected township supervisor. The Pennsylvania
Township News has provided the following commentary:
"However, it is not appropriate for a supervisor employed
as a roadmaster to use. "employee" time to receive or
respond to official supervisory duties on non -road-
related activities.
supra,.
Supervisors may not be compensated as employees for
duties related to their elected role and may only be
compensated for their elected duties as outlined in
Section 515 of the Township Code."
Encompassed within such administrative duties for which a
supervisor may not be compensated are attending various board and
commission meetings and spending time on local agency business.
Pennsylvania Township News, May, 1993 at 82 and April, 1994 at 78.
It is not a question of the obligations of the supervisorq or
the delegation of duties by the supervisors to themselves as
township employees but rather a question of what is allowable as
compensation to supervisors as working township employees. We
expressly reject the view that the duties of a supervisor are
identical to that of a roadmaster. Further, a supervisor as a
township employee may only be compensated for working as a
superintendent, secretary /treasurer, laborer or roadmaster and
nothing else.
Although the law is well established that supervisors may not
receive compensation as a township employee for performing such
Wasiela, 89 -003 -C
Page 62
administrative functions, that is precisely what Wasiela did in
this case. Matters such as consulting with the solicitor or
engineer, meetings with constituents, attending meetings of other
municipal bodies, and similar matters are administrative functions.
All of the administrative functions, encompassed within the duty
an elected public official for which Wasiela received compensation
as a township employee, are enumerated in Fact Finding 80.
Therefore, Wasiela violated Section 3(a) of Act 170 of 1978
for the year 1989 and Section 3(a) of Act 9 of 1989 for the years
1990 through 1992 when he received compensation as a township
employee for performing administrative duties which payments were
not authorized in law in that such duties were encompassed within
the functions of elected township supervisor. Henderson, Order
818. On this issue, the financial gain realized by Wasiela in
violation of Section 3(a) of Act 170 of 1978 was $137.50; the
private pecuniary benefit realized by Wasiela in violation of Act
9 of 1989 was $2,693.60. See Fact Finding 80.
Parenthetically, as to the time records which are in some
instances difficult to discern, we have attempted to resolve any
questions in favor of Wasiela. For example, as to the time
allotments for administrative activities performed, a proffered
lengthier time was rejected while a proffered shorter time was
accepted.
The fourth issue concerns attendance at the annual PSATS
conventions for which Wasiela received payment. As quoted above,
Section 612 of the Township Code does empower the board of
supervisors to authorize township employees to be compensated at
their regular employee rate during attendance at the PSATS
convention. However, what occurred in this case was that Wasiela
in the years 1988 and 1989 was doubly for attending the
convention in that he received his annual salary as a roadinaster
lus the hourly rate for a township laborer. Fact Finding 79.
Such double compensation was not authorized in Section 612 of the
Township Code and hence was compensation other than authorized by
law; consequently, the receipt of such compensation was violative
of Section 3(a) of Act 170 of 1978. Mathis, Order 911. On this
issue, the financial gain received by Wasiela in violation of
Section 3(a) of Act 170 of 1978 amounted to $312.00. , See Fact
finding 79.
The fifth issue before us involves the of overtime
received by Wasiela. The issue is not whether the auditors did or
did not authorize overtime in certain years but rather what was the
hourly wage rate and the overtime rate when and if set by the
auditors. From the minutes of the meetings of the board of
auditors, it is clear that in the years 1991 and 1993 the auditors
took action to authorize overtime which, according to the auditors,
meant that the supervisors, as township employees, could receive
Wasiela, 89 -003 -C
Page 63
compensation at an hourly rate beyond a normal work day or normal
work week under certain conditions. Parenthetically, we raise
question about limitations imposed by auditors as to the number of
hours worked; we have no such concerns about auditors setting
limitations on the hourly rate of pay. The auditors did not set a
different rate for overtime, such as time and a half or double
time, for 1991 and 1993; hence the overtime rate for these two
years was at the flat rate. The auditors did authorize a rate for
overtime in the 1992 calendar year at time and one half.
This is not an issue of what the Board of Supervisors
established in the Personnel Code for other township employees but
of what the auditors authorized as a rate of pay for the
supervisors as working township employees. However, what Wasiela
did was to compensate himself at a rate of one and one half the
rate authorized by the auditors. Since such a rate was not
authorized by the auditors, as evidenced in the minutes, the
receipt and acceptance by Wasiela of "overtime" at an unauthorized
higher hourly rate of pay was contrary to law and in violation of
the Ethics Law. In particular Wasiela violated Section 3(a) of Act
170 of 1978 for receiving "overtime" at a rate of one and one half
the rate set by the auditors for the years 1988 and 1989 and
violated Section 3(a) of Act 9 of 1989 for similarly receiving
"overtime" at that higher unauthorized rate for 1990 and 1991.
Smeal, Order 812. On this issue, the financial gain received by
Wasiela in violation of Section 3(a) of Act 170 of 1978 amounted to
$182.55; the private pecuniary benefit received by Wasiela in
violation of Act 9 of 1989 amounted to $156.30.
The minutes of the board of auditors rather than the
recollection or commentary of the auditors is the best evidence of
the hourly pay rate which was approved by the passage of motions by
the auditors. As noted above, compensation and in particular
overtime is not a question of authorizing hours of work but is a
question of an authorized rate as approved by the board of
auditors. Any other result leads to the conclusion that elected
supervisors may set their own compensation as working township
employees which is contrary to the Second Class Township Code, the
Ethics Law and the long standing common law that an elected public
official may not set his own compensation.
Having dealt with the above five issues, we will now consider
the issue of restitution. For cases or issues that are controlled
by Act 170 of 1978, there is currently a question as to whether the
Commission has the power to impose restitution. Commonwealth Court
in Rebottini et al v. SEC, supra, held that this Commission has no
statutory power to impose restitution under Act 170 of 1978. A
petition for allocatur from that decision is currently pending in
the Pennsylvania Supreme Court. Of course, under Act 9 of 1989,
the statutory authorization for restitution is clear and explicit.
65 P.S. 407(13).
Wasiela 89 -003 -C
Page 65
by the township auditors in the calendar years 1990 and 1991.
a. The private pecuniary benefit received by Wasiela
as to overtime at a rate, which was 50% higher then
the rate set by the auditors, was $103.50 in 1990,
and $52.80 in 1991, with a total for the two years
of $156.30.
4. Wasiela violated Section 3(a) of Act 170 of 1978 when he
received double payment as a salaried roadmaster and as a paid
laborer at an hourly rate for attending the PSATS' s Convention
in 1988 and 1989.
5. Wasiela did not violate Section 4(a) of Act 170 of 1978 in
that he timely filed a Financial Interests Statement with
Summit Township for the 1987 calendar year.
6. Wasiela violated Section 3(a) of Act 170 of 1978 for receiving
payment, at the hourly rate set by the township board of
auditors for a working township employee, as to duties which
were encompassed within the functions of elected township
supervisors for the calendar year 1989.
7. Wasiela violated Section 3(a) of Act 9 of 1989 for receiving
payment, at the hourly rate set by the township board of
auditors for a working township employee, as to duties which
were encompassed within the functions of elected township
supervisors from January 1990 to January 1992.
a. The private pecuniary benefit received by Wasiela in 1990
was $1,886.00.
b. The private pecuniary benefit received by Wasiela in 1991
was $735.60.
c. The private pecuniary benefit received by Wasiela in 1992
was $72.00.
d. The total private pecuniary benefit received by Wasiela
for the years 1990 through 1992 for being paid at an
hourly rate for performing administrative duties of.
elected supervisor amounted to $2,693.60.
8. Wasiela violated Section 3(a) of Act 170 of 1978 in 1988 and
1989 when he received double payment as a salaried roadmaster
and as a laborer at an hourly rate for performing road related
duties.
9. Wasiela violated Section 3(a) of Act 170 of 1978 when he acted
to cause the filing of a lawsuit, with the legal fees and
expenses paid by the township, against the township auditors
2710,111 89 -003 -C
Page 66
to challenge the hourly rate set b
supervisors as working township o the auditors for the
P em P Yes .
10. Wasiela violated Section 3(a) of Act 9 of 1989 when he acte
to cause the filing of an appeal, with fees on anc3
expenses paid by the township, to Commonwealth Court e
decision of the Court of C from the
lawsuit filed ommon Pleas of Erie County on the
by the supervisor to challenge the hourly rate
set by the auditors for the supervisors as working township
employees.
a. The private pecuniary benefit received b
as to the Commonwealth Court a Y the epervis
appeal
amounted to $5,200.41. paid by the township p
b. The private pecuniary benefit received by Wasiela as one
of the three supervisors amounted to $1,733.47.
In Re: Thomas R. Wasiela File Docket: 89 -003 -C
Date Decided: 06/23/94
Date Mailed: 06/30/94
ORDER NO. 932
1. Thomas R. Wasiela, as a Summit Township Supervisor, violated
Section 3(a) of Act 170 of 1978 when he received overtime at
the rate of 150% of the hourly rate set by the township
auditors in the calendar years 1988 and 1989.
2. Wasiela violated Section 3(a) of Act 9 of 1989 when he
received overtime at the rate of 150% of the hourly rate set
by the township auditors in the'calendar years 1990 and 1991.
a. The private pecuniary benefit received by Wasiela
as to overtime at a rate, which was 50% higher then
the rate set by the auditors, was $103.50 in 1990
and $52.80 in 1991 with a total for the two years
of $156.30.
3. Wasiela violated Section 3(a) of Act 170 of 1978 when he
received double payment as a salaried roadmaster and as a paid
laborer at an hourly rate for attending the PSATS's Convention
in 1988 and 1989.
4. Wasiela did not violate Section 4(a) of Act 170 of 1978 in
that he timely filed a Financial Interests Statement with
Summit Township for the 1987 calendar year.
5. Wasiela violated Section 3(a) of Act 170 of 1978 for receiving
payment, at the hourly rate set by the township board of
auditors for a working township employee, as to duties which
were encompassed within the functions of elected township
supervisors for the calendar year 1989.
6. Wasiela violated Section 3(a) of Act 9 of 1989 for receiving
payment, at the hourly rate set by the township board of
auditors for a working township employee, as to duties which
were encompassed within the functions of elected township
supervisors from January 1990 to January 1992.
a. The private pecuniary benefit received by Wasiela in 1990
was $1,886.00.
•
b. The private pecuniary benefit received by Wasiela in 1991
was $735.60.
c. The private pecuniary benefit received by Wasiela in 1992
was $72.00.
d. The total private pecuniary benefit received by Wasiela
for the years 1990 through 1992 for being paid at an
hourly rate for performing administrative duties of
elected supervisor amounted to $2,693.60.
7. Wasiela violated Section 3(a) of Act 170 of 1978 in 1988 and
1989 when he received double payment as a salaried roadmaster
and as a laborer at an hourly rate for performing road related
duties.
8. Wasiela violated Section 3(a) of Act 170 of 1978 when he acted
to cause the filing of a lawsuit, with the legal fees and
expenses paid by the township, against the township auditors
to challenge the hourly rate set by the auditors for the
supervisors as working township employees.
9. Wasiela violated Section 3(a) of Act 9 of 1989 when he acted
to cause the filing of an appeal, with the legal fees and
expenses paid by the township, to Commonwealth Court from the
decision of the Court of Common Pleas of Erie County on the
lawsuit filed by the supervisor to challenge the hourly rate
set by the auditors for the supervisors as working township
employees.
a. The private pecuniary benefit received by the supervisors
as to the Commonwealth Court appeal paid by the township
amounted to $5,200.41.
b. The private pecuniary benefit received by Wasiela as one
of the three supervisors amounted to $1,733.47.
10. Wasiela is directed within thirty (30) days of the date of
issuance of this Order to submit restitution in the amount of
$4.583.37 to this Commission payable to the order of Summit
Township.
11. Failure to comply with Paragraph 10 will result in the
institution of an order enforcement proceedings.
BY THE COMMISSION,
JAMES M. HOWLEY, C R
Commissioner Austin M. Lee abstained as to the decision of this
matter.