HomeMy WebLinkAbout934 AumanSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: John Auman File Docket: 93- 029 -C2
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 State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, Act 170 of 1978 as
added and amended by Act 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 not filed and a hearing
was deemed waived. The record is complete. This adjudication of
the Commission is hereby issued which sets forth the individual
Allegations, Findings of Fact, Discussion, Conclusions of Law and
Order.
This adjudication is final and will be made available as a
public document fifteen days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
§21.29(b).
The files in this case will remain confidential in accordance
with Act 9 of 1989, 65 P.S. §408(h) during the fifteen day period
and no one unless the right to challenge this Order is waived, may
violate confidentiality by releasing, discussing or circulating
this Order. However, confidentiality does not preclude discussing
this case with an attorney at law. •
Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000
or imprisonment for not more than one year, 65 P.S. S409(e).
Auman, 93- 029 -C2
Page 2
I. ALLEGATION:
That, John Auman, as a public official /public employee in his
capacity as a Supervisor for Spring Township, Centre County,
violated the following provisions of the State Ethics Act (Act 9 of
1989) when he received compensation for performing duties other
than roadmaster, laborer or secretary /treasurer.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest. 65 P.S.
S403(a).
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. S402.
and that, John Auman, as a public official /public employee in his
capacity as a Supervisor for Spring Township, Centre County,
violated the following provisions of the State Ethics Act (Act 170
of 1978) when he received compensation for performing duties other
than roadmaster, laborer or secretary /treasurer and when he failed
to disclose sources of income filed on Statements of Financial
Interests for 1987, 1988 and 1989 calendar years.
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
Auman, 93- 029 -C2
Page 3
II. FINDINGS:
himself, a member of his immediate family, or
a business with which he is associated. 65
P.S. 5403(a).
Section 5. Statement of financial interests.
(b) The statement shall include the following
information for the prior calendar year with
regard to the person required to file the
statement and the members of his immediate
family:
(5) The name and address of any person who is
the direct or indirect source of income
totalling in the aggregate $500 or more.
However, this provision shall not be construed
to require the divulgence of confidential
information protected by statute or existing
professional codes of ethics. 65 P.S.
S405(b)(5).
1. John Auman has served as a Supervisor for Spring Township,
Centre County, Pennsylvania since January, 1984
a. He previously served in this position from January, 1963,
through 1980.
2. At Reorganization Meetings of the Spring Township Supervisors,
from January, 1986, to January 4, 1993, Auman was appointed
the First Assistant to the Supervisor of Highways and Building
Maintenance.
a. At the January 4, 1993, meeting this title was in the
supervisor's meeting minutes as First Assistant to
Supervisor in charge of the Highways, Township Equipment,
Buildings and Facilities.
b. At the board meeting of February N3, 1994, Auman was
appointed the Supervisor in Charge of Highways and
Township Equipment.
1) Auman replaced Supervisor Melvin Zimmerman who died
in January, 1994.
3. Since January, 1984, Auman has also served as the Supervisor
in charge of the Township Police Department.
a. Since January, 1988, he has served as the Supervisor in
Auman, 93- 029 -C2
Page 4
charge of planning and zoning variance matters and the
sewage enforcement officer.
4. Auman's primary duties as a Spring Township Supervisor serving
as First Assistant to the Supervisor of Highways and Building
Maintenance and his position of supervisor in charge of the
police department, planning and zoning, variances and the
sewage enforcement officer included the following:
a. Attending meetings with insurance agents and developers,
meetings of the Joint Spring, Brenner, Walker Sewer
Authority and meetings related to police matters,
planning and zoning.
b. Make trips to meet with representatives of the
Pennsylvania Department of Environmental Resources at
Harrisburg, Clearfield and Williamsport.
c. Travel to Washington, D.C. and Philadelphia to appeal for
funding.
d. Along with the other supervisors, perform other duties
that would normally be the responsibility of a township
manager.
e. Twice yearly, perform road inspections.
f. Perform emergency road work and or snow removal.
5. Auman was paid an hourly rate for performing the duties
outlined in Finding #4.
6. The Spring Township Supervisors have approved, at
reorganization meetings from at least 1986 to 1994, the
following motion permitting supervisors to attend meetings:
a. The supervisors are authorized to attend any and all
meetings in the best interest of the township, and any
seminars or schooling, mileage and related costs, and the
supervisors are authorized to approve the attendance of
all employees, and others as approved by the Board to
attend any and all meetings in the best interest of the
township, and any seminars or schooling, mileage and
related costs be approved by the Board of Supervisors.
7. The Spring Township Auditors have approved compensation for
the supervisors as follows:
January 3, 1989 - A wage of $6.50 per hour for supervisor
was approved. Also, $25.00 per attendance at meetings.
Auman, 93- 029 -C2
Page 5
8. John Auman submitted hours for compensation on a monthly basis
as follows:
a. 1990:
January 2, 1990 - Wage $6.50 per hour per supervisor.
Also, $25.00 per meeting attended.
January 7, 1992 - Wage of $6.50 per hour per supervisor.
Also, $25.00 per meeting attended.
January 5, 1993 - After brief discussion it was on a
motion of James Bowmaster seconded by Kenton Dutrow to
increase the supervisors' salary from $6.50 to $7.00 an
hour.
January 8, 1991 - Wage of $6.50 per hour per supervisor.
Also, $25.00 per meeting attended.
Pav Period Ending Hours Rate of Pav Total
01/26/90 58 $ 6.50 $ 377.00
02/23/90 61 $ 6.50 396.50
03/23/90 63 $ 6.50 409.50
04/20/90 72 $ 6.50 468.00
05/18/90 85 $ 6.50 552.50
06/19/90 65 $ 6.50 422.50
07/16/90 61 $ 6.50 396.50
08/14/90 76 $ 6.50 494.00
09/07/90 59 $ 6.50 383.50
10/05/90 70 $ 6.50 455.00
11/02/90 92 $ 6.50 598.00
12/04/90 73 $ 6.50 474.50
12/28/90 62 $ 6.50 $ 403.00
897 $ 5,830.50
b. 1991:
Pay Period Ending Hours Rate of Pav Total
01/25/91 63 $ 6.50 $ 409.50
02/22/91 69 $ 6.50 448.50
03/22/91 78 $ 6.50 507.00
04/19/91 91 $ 6.50 591.50
05/17/91. 73 $ 6.50 474:50
06/14/91 84 $ 6.50 546.00
07/26/91 102 $ 6.50 663.00
08/23/91 94 $ 6.50 611.00
09/20/91 81 $ 6.50 526.50
10/18/91 72 $ 6.50 468.00
11/15/91 85 $ 6.50 552.50
12/13/91 76 $ 6.50 494.00
uman, 93- 029 -C2
Page 6
c. 1992:
$ 6,292.00
Pay Period Endina Hours Rate of Pav Total
01/10/92 80 $ 6.50 $ 520.00
02/07/92 84 $ 6.50 546.00
03/06/92 96 $ 6.50 624.00
04/03/92 86 $ 6.50 559.00
05/01/92 86 $ 6.50 559.00
06/01/92 58 $ 6.50 377.00
06/26/92 78 $ 6.50 507.00
07/24/92 65 $ 6.50 422.50
08/21/92 62 $ 6.50 403.00
09/18/92 65 $ 6.50 422.50
10/16/92 63 $ 6.50 409.50
11/13/92 73 $ 6.50 474.50
12/11/92 67 $ 6.50 435.50
963 $ 6,259.50
c. 1993:
Pay Period Ending Hours Rate of Pay Total
01/08/93 57 42 hrs. @ $ 378.00
02/05/93 86 $6.50 /hr.; 602.00
03/05/93 76 $ 7.00 532.00
04/02/93 86 $ 7.00 602.00
04/30/93 76 $ 7.00 532.00
05/28/93 65 $ 7.00 455.00
06/25/93 40 $ 7.00 280.00
07/23/93 54 $ 7.00 378.00
08/20/93 66 $ 7.00 462.00
09/17/93 59 $ 7.00 413.00
10/15/93 63 $ 7.00 441.00
11/12/93 76 $ 7.00 532.00
12/10/93 70 $ 7.00 490.00
874 $ 6,097.00
9. Township payroll records and W -2 Forms confirm that Auman was
compensated annually as follows for hours submitted.
a. Year Amount After Deductions
1989 6,513.00 5,220.91
1990 5,830.50 4,813.68
1991 6,292.00 5,137.43
1992 6,259.50 5,420.67
1993 6,097.00 5,347.88
$30,992.00 $25.940.57
10. John Auman attended meetings of the Spring, Benner and Walker
Auman, 93- 029 -C2
Page 7
Joint Sewer Authority as a representative of the Township and
was compensated at his hourly rate for such attendance.
a. He received pay of $6.50 per hour during 1989 through
1992 and $7.00 /hour in 1993.
11. The dates and times of Auman's attendance at meetings are as
follows:
Length of
Date Timeframe Meetings
2/14/89
2/27/89
3/14/89
5/9/89
5/22/89
6/13/89
7/11/89
8/8/89
5/14/90
8/13/90
8/27/90
2/25/91
5/13/91
6/11/91
8/12/91
9/23/91
1/27/92
2/10/92
3/9/92
9/14/92
9/28/92
11/9/92
5/11/93
9/27/93
7:31 to 9:20 p.m.
7:36 to 8:40 p.m.
7:34 to 9:40 p.m.
7:32 to 10:09 p.m.
7:33 to 8:54 p.m.
7:33 to 9:50 p.m.
7:33 to 8:15 p.m.
7:30 to 8:50 p.m.
7:35 to 9:40 p.m.
7:33 to 10:15 p.m.
7:32 to 9:40 p.m.
7:30 to 9:10 p.m.
7:30 to 10:35 p.m.
7:30 to 8:30 p.m.
7:30 to 8:40 p.m.
7:30 to 9:07 p.m.
7:30 to 10:00 p.m.
7:30 to 9:20 p.m.
7:40 to 8:50 p.m.
7:30 to 9:45 p.m.
7:00 to 8:15 p.m.
7:00 to 8:33 p.m.
7:00 to 9:00 p.m.
7:00 to 8:20 p.m.
1:49
1:03
2:06
2:37
1:21
2:17
:42
1:20
2:05
2:42
2:08
1:40
3:05
1:00
1:10
1:37
2:30
1:50
1:10
1:15
1:15
1:33
2:00
1:20
* Auman's time cards reflect 3 hours worked on May 11, 1993,
and 4 hours worked on September 27, 1993.
12. Total paid to Auman for attending authority meetings:
1989 to 1992: 1248.63
1993: 49.00
Total $297.63
13. Prior to January, 1993, the township did not maintain a system
to record and document the hours worked by township
supervisors.
a. Time cards were initiated beginning with the first pay
Auman,, 93- 029 -C2
Page 8
period of 1993.
b. Time cards reflect hours worked but do not record
specific duties.
14. Auman maintains a compilation of hours worked as a supervisor
in his personal notes.
a. At the end of each month, he reports hours worked to an
office secretary at the township.
1. These hours do not reflect specific duties
performed.
2. The office secretary records these hours on a
timecard.
b. He does not keep a record of the type of work he performs
for the township.
c. Auman destroys his personal notes after a brief period of
retention.
d. Auman does not perform work on township roads.
15. Auman and the other township supervisors were compensated for
attending meetings of the township supervisors at a rate of
$25.00 per meeting.
a. The rate was established in accordance with the Second
Class Township Code.
b. A limit of $400.00 per year for each supervisor's
attendance at these meetings was set by the township.
16. Auman believed that he was entitled to receive compensation
for hourly pay listed in Finding 8.
a. He contends that payments were approved by the Auditors
during annual audits of township accounts.
b. Since the township does not have a township manager, the
supervisors are appointed to alternate township roles and
are compensated for these duties.
1) The three supervisors provide input with regard to
all decisions involving the township.
17. In addition to the duties listed in Finding #4, Auman has
performed the following duties since February, 1994.
Auman,, 93- 029 -C2
Page 9
a. Develop budgets for road improvements.
b. Estimate tonnage requirements in making purchases of
curbing, piping and anti -skid material.
c. Estimate hours required to complete a road - related job.
d. Provide input on all decisions made by the supervisors
with regard to township roads and their safety.
18. John Auman filed a Statement of Financial Interests for
calendar year 1987 on March 12, 1988.
a. Lines 9 through 16 were annotated with the word "none"
written across this section of the form.
b. All township statements for this year were either
misplaced or lost.
c. The March 12, 1988 statement was intended to be a
refiling and " none" was intended to give notice that
there were no changes to the original statement filed for
1987.
19. John Auman filed a Statement of Financial Interests for
calendar year 1988 on March 12, 1989.
a. Lines 9 through 16 were annotated with the word "none"
written across this section of the form.
b. All township statements for this year were either
misplaced or lost.
c. The March 12, 1989 statement was intended to be a
refiling and "none" was intended to give notice that
there were no changes to the original statement filed for
1988.
20. John Auman filed a Statement of Financial Interests for
calendar year 1989 on March 12, 1990.
a. Lines 9 through 16 were annotated with the word "none"
written across this section on the form.
b. All township statements for this year were either
misplaced or lost.
c. The March 12, 1990 statement was intended to be a
refiling and "none" was intended to give notice that
there were no changes to the original statement filed for
1989.
Auman, 93- 029 -C2
Page 10
III. DISCUSSION:
As a Supervisor for Spring Township, Centre County, John
Auman, hereinafter Auman, is 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 purposes of this
section, a violation was committed prior to
the effective date of this act if any elements
of the violation occurred prior thereto.
Since the occurrences in this case transpired 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 9 of 1989 quoted above, a public
official /employee shall not engage in conduct that constitutes a
conflict of interest.
Under Section 3(a), of Act 170 of 1978 quoted above, this
Commission has determined that use of office by a public official
to obtain a financial gain for himself or a member of his immediate
family or a business with which he is associated which is not
provided for in law transgresses the above provision of law. Thus,
use of office by a public official to obtain financial gain which
is not authorized as part of his compensation is prohibited by
Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa.
Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics
Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly,
Section 3(a) of the .Ethics Act would prohibit a public
official /employee from using public office to advance his own
financial interests; Koslow v. State Ethics Commission, 116 Pa.
Commw. Ct. 19, 540 A.2d 1374 (1988).
Section 5(b)(5) of Act 170 of 1978, a Financial Interests
Statement (FIS) disclosure provision, requires that a public
official /employee list the name and address of any direct or
indirect source of income totalling in the aggregate of $500.00.
Auman, 93- 029 -C2
Page 11
The issue before us is whether Auman violated Section 3(a) Act
170 of 1978 or Act 9 of 1989 by receiving compensation as an
employee- supervisor for Spring Township, Centre County and second
whether he violated Section 5 of Act 170 of 1978 by failing to
disclose sources of income for the calendar years 1987 through 1989
on his FIS's.
Auman has served as a Spring Township Supervisor since
January, 1994 with prior service from 1963 to 1980. At the January
reorganizational meetings, Auman was appointed to such positions
as: First Assistant to Supervisor in charge of the Highways,
Township Equipment, Buildings and Facilities; Supervisor in Charge
of Highways and Township Equipment; Supervisor in charge of the
Township Police Department; the First Assistant to the Supervisor
of Highways and Building Maintenance; and Supervisor in Charge of
planning and zoning variance matters and the sewage enforcement
officer. The above positions were not those which are enumerated
and allowed under the Second Class Township Code: superintendent,
roadmaster, secretary /treasurer or laborer.
The township board of supervisors authorized the attendance at
meetings by employees and others with the costs subject to approval
by the board of supervisors. Fact Finding 6.
The township auditors at their January reorganizational
meetings set the meeting pay for the supervisors and also set an
hourly wage "per supervisor." Fact Finding 7. Auman performed
services and received compensation. Fact Finding 9. Auman
believed that he was entitled to receive compensation listed on the
theory that the payments were approved by the auditors. In
addition, Auman attended certain municipal authority meetings as a
representative of the township and received compensation of $297.63
for the year 1989. Fact Findings 10 -12.
As to the FIS issue, Auman did file FIS's in the calendar
years 1987 through 1989 but listed "None" in all financial interest
categories on the theory that "None" meant no changes from a prior
filing. Fact Findings 18.C, 19.0 and 20.C.
In determining whether the actions of Auman violated Section
3(a) of the Ethics Law, we must review the pertinent provisions of
the Second Class Township Code. Although we do not have
jurisdiction to interpret the provisions o, the Second Class
Township Code, it is nedessary to review those provisions of law in
order to make a determination as to whether the financial gain was
compensation other than provided for by law under Section 3(a) of
Act 170 of 1978 or a private pecuniary benefit under Act 9 of 1989.
The Second Class Township Code provides that township
supervisors shall receive the following compensation:
Auman, 93- 029 -C2
Page 12
53 P.S. §65515.
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 Population
Not more than 4,999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,99
25,000 to 34,999
35,000 or more
OOP MIN
Annual Maximum Compensation
Fifteen hundred dollars
Two thousand dollars
Twenty -six hundred dollars
Thirty -three hundred dollars
Thirty -five hundred dollars
Four thousand dollars
Such salaries shall be payable monthly or
quarterly for the duties imposed by the
provisions of this act. The population shall
be determined by the latest available official
census figures. The compensation of
supervisors shall be fixed by the township
auditors either per hour, per day, per week,
semi- monthly or monthly, which compensation
shall not exceed compensation paid in the
locality for similar services, and such other
reasonable compensation for the use of a
passenger car, or a two -axled four - wheeled
motor truck having a chassis weight of less
than two thousand pounds when required and
actually used for the transportation of road
and bridge laborers and their hand tools and
for the distribution of cinders and patching
material from a stock pile, as the auditors
shall determine and approve; but no supervisor
shall receive compensation as a superintendent
or roadmaster for any time he spends attending
a meeting of supervisors.
In reference to the meetings for which supervisors may receive
compensation, the Code further provides as follows:
•The township supervisors shall meet for
the transaction of business at least once each
month, at a time and place to be fixed by the
board, but they shall not be paid for more
than sixteen meetings in any one year, except
for any township where, on account of the
exercise of governmental functions other than
those relating to roads, more meetings are
necessary, in which case, the number of
Auman, 93- 029 -C2
Page 13
53 P.S. 565512.
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.
The duties that a supervisor is responsible for performing are
regulated by statute. The compensation to be paid for a supervisor
who is not otherwise employed by the township is strictly regulated
by the Second Class Township Code. A supervisor may only receive
compensation for supervisor meetings regarding the transaction of
township business. The type of meeting for which a township
supervisor may be compensated must be one at which official
township business is transacted. Additionally, the Second Class
Township Code provides for compensation at the specific meetings as
outlined in 565512 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 payment would not constitute compensation provided by law.
The above interpretation of the Second Class Township Code is a
view that has also been expressed by the State Association of
Township Supervisors which specifically indicated that supervisors
may not be compensated for meetings with engineers, solicitors,
planning commissions, authorities, or recreation boards. See,
Township News, May, 1985, Page 66. In the Township News, June,
1993, page 90, it is stated that supervisors may not be compensated
for time spent responding to citizen concerns, phone calls, and
such administrative functions. Further, a supervisor- employee may
not use "employee" time to deal with official supervisory duties on
Auman, 93- 029 -C2
Page 14
non -road- related activities.
The Second Class Township Code sets forth clearly when
supervisors may receive compensation other than as set forth above.
Generally, a township supervisor may be employed by the township as
a roadmaster, laborer, or secretary /treasurer. 53 P.S. 565410.
The compensation to be paid to supervisors working in such
positions is to be fixed by the township board of auditors. 53
P.S. 5565515, 65531, 65540. Township supervisors may not receive
any other compensation except as provided above. In Coltar v.
Warminister Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859 (1973),
the Commonwealth Court of Pennsylvania held that a second class
township supervisor may not appoint himself to positions other than
those set forth in the township code (roadmaster, laborer, or
secretary /treasurer), and receive compensation therefore. See
also, Conard v. Exeter Township, 27 D &C.3d 253 (Berks 1983). It is
clear, therefore, that the duties for which a township supervisors
may be compensated are strictly regulated by the Second Class
Township Code, and when performing in the positions set forth in
the Code, the supervisor's compensation must be specifically set
forth by the township board of auditors.
As to Section 5(b)(5) of Act 170 of 1978, that FIS filing and
disclosure requirement directs the disclosure of sources of income,
direct or indirect, totalling in the aggregate of $500 or more.
As to the FIS issue, Auman took the position that "None" meant
no change from a prior filing. It is clear under the Ethics Law
that each year is a separate filing for the financial interests in
the prior calendar year. Thus, a reporting in a particular
category or for a particular year does not provide an excuse for
the failure to report a given financial interest. Lewis, Orders
876, 876R, affirmed Lewis v. SEC, filed in Commonwealth Court at
1282 C.D. 1993 on June 22, 1994.
Therefore, Auman violated Section 5(b)(5) of Act 170 of 1978
when he failed to disclose his sources of income in the 1987
through 1989 calendar years. Auman is directed within thirty (30)
days of issuance of this order to file amended FIS's for the
calendar years 1987 through 1989 listing his sources of income.
Failure to comply will result in the institution of an order
enforcement action.
•
Turning to the matter of the compensation issue under Section
3(a) of Act 170 of 1978 and Act 9 of 1989, we are compelled by the
Code which only allows a supervisor to be an employee as a
superintendent, roadmaster, secretary /treasurer or laborer but not
a First Assistant Supervisor or Supervisor in charge. We are
equally compelled by the facts of record which reveal that the
auditors erred as to the parameters under which they set the
compensation. First, it is not a function of the auditors to set
Auman, 93- 029 -C2
Page 15
meeting pay which is done by ordinance within the compensation caps
of Section 515 of the Code. Second, the auditors should have set
an hourly wage or wages for the enumerated working positions but
instead set a wage "per supervisor."
The conflicting aspects of the case must be and are resolved
according to the law. Thus, Auman did violate Section 3(a) of Act
170 of 1978 and Act 9 of 1989 by receiving compensation which was
not obtained by being in one of the enumerated allowable working
positions. However, given the extraordinary circumstances of the
case, we will exercise our discretion and not impose restitution as
to the receipt of such compensation.
As to the matter of the compensation for attending the
meetings of the municipal authority as the township's
representative, we do find violations of Section 3(a) of Act 170 of
1978 and Act 9 of 1989 because that particular activity is clearly
within the province of the administrative duties of Auman as an
elected public official. Auman under no circumstances could
receive compensation as a township employee performing such
administrative duties. The fact that the board of supervisors took
action to authorize attendance and cost payments for such meetings
is unavailing to themselves because such action constitutes public
officials setting their own salary which is contrary to decades of
judicial precedent, statutory law, the Code and Ethics Law. We
accordingly find violations of Sections 3(a) of Act 170 of 1978 and
Act 9 of 1989 and impose restitution of $297.63. Fact Finding 12.
Accordingly, Auman is directed within thirty (30) days of issuance
of this case to make restitution through the Commission to Spring
Township in the amount of $297.63. Failure to comply will result in
the institution of an order enforcement action.
As to Auman, we do not believe that there was any intent on
his part to violate the Ethics Law. Auman is nevertheless reminded
that the public office is a public trust so that care must be taken
by him in his future actions so that the above situations do not
reoccur. As to Auman and the township auditors, we remind and
suggest that consideration be given to attending various seminars
that are periodically held by the Department of Community Affairs,
by this Commission or by their respective associations which will
educate them on the complexities of these areas of law.
IV. CONCLUSIONS OF LAW: •
1. John Auman, as a Spring Township Supervisor, is a public
official subject to the provisions of Act 170 of 1978 as added
and amended by Act 9 of 1989.
2. Auman violated Section 3(a) of Act 170 of 1978 and Act 9 of
1989 when he used the authority of office to obtain a private
pecuniary benefit and a financial gain other than compensation
Auman, 93- 029 -C2
Page 16
provided by law as to services which he performed in positions
which were not within the enumerated working positions under
the Second Class Township Code.
3. Auman violated Section 3(a) of Act 170 of 1978 and Act 9 of
1989 when he received a financial gain /private pecuniary
benefit for attending meetings of the municipal authority as
a township representative in that such administrative duties
were encompassed within the functions of an elected township
official.
4. Auman violated section 5(b)(5) of Act 170 of 1978 when he
failed to list his sources of income in the aggregate of $500
or more on his Statements of Financial Interests for the
calendar years 1987 through 1989.
5. The financial gain /private pecuniary benefit Auman received as
to the violation referenced in paragraph 3 totalled $297.63.
In Re: John Auman File Docket: 93- 029 -C2
. Date Decided: 06/23/94
. Date Mailed: 06/30/94
ORDER NO. 934
1. John Auman, as a Spring Township Supervisor, violated Section
3(a) of Act 170 of 1978 and Act 9 of 1989 when he used the
authority of office to obtain a private pecuniary benefit and
a financial gain other than compensation provided by law as to
services which he performed in positions which were not within
the enumerated working positions under the Second Class
Township Code.
2. Auman violated Section 3(a) of Act 170 of 1978 and Act 9 of
1989 when he received a financial gain /private pecuniary
benefit for attending meetings of the municipal authority as
a township representative in that such administrative duties
were encompassed within the functions of an elected township
official.
3. Auman violated section 5(b)(5) of Act 170 of 1978 when he
failed to list his sources of income in the aggregate of $500
or more on his Statements of Financial Interests for the
calendar years 1987 through 1989.
4. The financial gain /private pecuniary benefit received by Auman
as to performing administrative duties of attending municipal
authority meetings as the township representative amounted to
$297.63.
5. Auman is directed within thirty (30) days of issuance of the
order to file an amended Financial Interest Statements for the
calendar years 1987 through 1989 listing his sources of income
totaling in the aggregate of $500.00 or more.
6. Auman is directed within thirty (30) days of the date of
issuance of this Order to submit restitution in the amount of
$297.63 to this Commission payable to the order of Spring
Township.
7. Failure to comply with Paragraphs 5 and 6 will result in a
directive of this Commission to institute order enforcement
proceedinngs .
BY THE COMMISSION,
JAMES M. HOWLEY, C IR