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HomeMy WebLinkAbout935 FritzBefore: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Jesse Fritz File Docket: 93- 080 -C2 Date Decided: 09/12/94 Date Mailed: 09/14/94 James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Austin M. Lee Allan M. Kluger The Investigative Division of the State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. §401 et seq. 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 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. §409(e). Fri, 93- 080 -C2 Page 2 I. ALLEGATION: That Jesse Fritz, a public official /public employee, in his capacity-as a Supervisor for Sugarloaf Township, Columbia County, violated provisions of the State Ethics Act (Act 9 of 1989) when he received excess compensation for attending annual conventions of the Pennsylvania State Association of Township Supervisors in 1989, 1990, 1991 and 1992 and participated in approving payments of said compensation. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. 6403(a). II. FINDINGS: 1. Jesse Fritz served as a Sugarloaf Township Supervisor in Columbia County, Pennsylvania, from 1977 to June, 1992. a. Fritz was Chairman of the Board of Supervisors from 1979 to December, 1990 and from August, 1991 to June, 1992. 2. During the period from January, 1977 through January, 1992, Sugarloaf Township Supervisors were routinely appointed either roadmaster or part -time laborers for the Township at annual reorganization meetings. a. Jesse Fritz never served as a roadmaster or part -time laborer from 1977 to June, 1992. b. He never served as an employee of the Township during the period 1977 to June, 1992. 3. At the annual budget meetings in December, the Supervisors approved proposed amounts to be spent on attendance at county and state conventions during the following year. 4. Minutes of the Township Supervisors' meetings reflect no approval for attendance of any persons at a state convention during 1989 to 1992. 5. Jesse Fritz attended conventions of the Pennsylvania State Association of Township Supervisors (PSATS) from 1979 to 1992. a. Fritz attended in his capacity as a Township Supervisor. 6. Fritz was the only Sugarloaf Township Supervisor to attend the Fritz, 93- 080 -C2 Page 3 PSATS conventions from 1979 through 1992. a. The other Supervisors had employment or personal priorities. 7. Fritz attended PSATS Conventions as follows: a. 1989: April 23 to April 26, 1989 at Hershey, PA. b. 1990: April 22 to April 25, 1990 at Hershey, PA. c. 1991: April 7 to April 10, 1991 at Hershey, PA. d. 1992: April 5 to April 8, 1992 at Hershey, PA. 8. Fritz submitted for reimbursement expenses and wages to the township for his attendance at annual PSATS Conventions. YEAR MEALS LODGING MILEAGE WAGES TOTAL a. 1989 $65.85 $137.37 $57.00 $456.25 $713.47 b. 1990 $59.51 $147.44 $65.50 $474.50 $746.95 c. 1991 $58.42 $ 38.93 $84.25 $558.00 $739.60 d. 1992 $65.73 $191.97 $74.25 $511.00 $842.95 9. The wages claimed by Fritz for reimbursement in Finding No. 8 were for the following hours: a. 1989: 73 hrs. x $6.25/hr. = $ 456.25 (4/23/89 to 4/26/89) b. 1990: 73 hrs. x $6.50 /hr. = $ 474.50 (4/22/90 to 4/25/90) c. 1991: 72 hrs. x $7.75/hr. = $ 558.00 (4/7/91 to 4/10/91) d. 1992: 73 hrs. x $7.00 /hr. = $ 511.00 (4/5/92 to 4/8/92) $1999.75 10. The hourly wages claimed by Fritz in 1989, 1990 and 1992 of Finding No. 9 were the wages approved by the Township Auditors for a Supervisor serving in the position of Township laborer. a. The hourly wages claimed in Finding No. 9c was the rate set for a Township Supervisor serving as Roadmaster. b. Fritz did not serve in either of those positions. 11. The hourly wages claimed by Fritz (See Finding No. 9) for attendance at PSATS Conventions were from the time he departed the Township until his return three days later. 12. Payments were made to Fritz from the Township General Fund: Fritz, 93- 080 -C2 Page 4 Year Amount Check a. 1989 $713.47 4306 b. 1990 $746.95 4538 c. 1991 $739.60 4744 d. 1992 $842.95 4927 13. None of the payments to Fritz in Finding No. 12 were listed in the monthly bills to be paid at Township Supervisor's meetings. a. Fritz routinely made motions and voted to approve the payment of bills. b. As a Supervisor, Fritz had the authority to sign Township checks. 14. Fritz signed check no. 4927 dated April 10, 1992 in the amount of $842.95. a. The payee on this Township check was Jesse E. Fritz. b. This check was deposited on the date of issuance, April 10, 1992. c. The Supervisor's meeting of April, 1992 was held on April 13, 1992. d. The amount of $842.95 included $511.00 for hourly wages. 15. On October 3, 1993, the Township Auditors wrote Fritz requesting repayment of the wages collected by Fritz for attending the 1989, 1990, 1991 and 1992 PSATS Conventions. The letter provided as follows: a. It has been brought to the attention of the Sugarloaf Township Board of Auditors that only township supervisors who work for the township may get reimbursed for their hourly wages for attending the state convention if authorized by the board of supervisors. Under Section 612 of the Township Code, non - employee supervisors may • only reimbursed for their mileage, registration fees, and other expenses, such as lodging and meals as decided by the township. b. After a careful review of information received from the State Association of Township Supervisors and consultation with the Sugarloaf Township Solicitor, Jack Mihalik of James & Mihalik, we have determined that, since you were not on the township payroll records as an employee during the four years in question and there is not record in the minutes of the township secretary to Fritz, 93- 080 -C2 Page 5 indicate that you were hired as an employee, there is no recourse but to request that the Sugarloaf Township General Fund be reimbursed by you for the following amounts: April 23 thru 26, 1989, 73 hrs. 06.25 per hr. $456.25 April 22 " 25, 1990, 73 " (116.50 " 474.50 April 7 " 10, 1991, 72 " @7.75 558.00 April 5 " 8, 1992, 73 " 007.00 " " 551.00 Total Payments $2,039.75 c. Further review of the minutes of the township secretary during the board of supervisors monthly meetings relative to the four years involved failed to reveal any recording of approval by the board for attendance of any person at the State Convention. d. The letter requested a reply by October 31, 1993. 16. Fritz did not reply and declined to reimburse the Township. 17. Former Supervisor Zane Hartman, who served from 1987 to August, 1991, verbally approved Fritz's attendance at PSATS Conventions. a. He was uncertain as to whether he knew that Fritz was receiving an hourly wage . from the Township beginning with Fritz's departure and until his return from the conventions. 18. Former Supervisor Barbara Niedzwiecki, who served from August, 1991 to December, 1993, verbally approved Fritz's attendance at the PSATS convention of April, 1992. a. At the time, she was not aware that Fritz received an hourly wage from the Township beginning with his departure and until his return from the convention. 19. Sugarloaf Township records reflect that Jesse Fritz filed Statements of Financial Interests for calendar years 1979, 1980, 1991 [sic], 1982, 1983 and 1988. a. These filings were made as a Township Supervisor or candidate for Township Supervisor. b. Fritz's filings reflect his occupation as self - employed. c. Said filings for 1979 and 1983 reflect direct or indirect sources of incomes from Amway Corporation, Ada, Michigan. d. As of July 12, 1994, no filings by Fritz are recorded in Fritz, 93- 080 -C2 Page 6 III. DISCUSSION: Township records for the 1989, 1990, 1991 and 1992 calendar years. As a Supervisor for Sugarloaf Township, Columbia County, Jesse Fritz, hereinafter Fritz, 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 after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. 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 term "conflict of interest" is defined under Act 9 of 1989 as follows: 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 Fritz, 93- 080 -C2 Page 7 to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. The issue before us is whether Fritz violated Section 3(a) of Act 9 of 1989, the conflict provision, by receiving excess compensation for attending annual Pennsylvania State Association of Township Supervisors (PSATS) Conventions in 1989 through 1992 and by approving such compensation. Fritz served as a Sugarloaf Township Supervisor from 1977 to June 1992 and as Chairman of the Board of Supervisors from 1979 through December, 1990 and from August, 1991 to June 1992. During the period of Fritz's service on the Board, the Sugarloaf Township Supervisors routinely appointed township roadmasters or part time laborers at the annual reorganizational meetings. Fritz, however, never served as a roadmaster or part time laborer. The Township Board also approved proposed amounts at the annual budget meetings for attendance at the PSATS Convention. The minutes of those meetings reflect no approval for attendance of any particular person at the PSATS Conventions for the years 1989 through 1992. Fritz attended the PSATS conventions from 1979 through 1992; the other Township Supervisors did not attend since they had employment or personal priorities. For the activity at the April, 1989 PSATS Convention, as to which Act 9 of 1989 does not apply, and for the 1990, 1991 and 1992 Conventions, as to which Act 9 of 1989 does apply, Fritz submitted reimbursement for expenses and wages for his attendance. Fact Finding 8. As to the wages, Fritz submitted a claim for wages for the years 1990 through 1992 totalling $1,543.50. Fact Finding 9b- d. The hourly wages claimed by Fritz were based upon an hourly rate for a township supervisor serving as a roadmaster or township laborer. Fact Finding 10. In addition, Fritz claimed wages for 72 or 73 hours which was computed at the rate of 24 hours per day for the three days of the PSATS conventions. Fact Finding 11. • As to the payments received by Fritz, Fritz routinely made motions and voted to approve the payments of bills. In addition, Fritz had the authority to sign and did in fact sign one Township check made payable to himself. On October 3, 1993 the Township Auditors wrote to Fritz seeking repayment of the wages collected. The Auditors reasoned that since Fritz was not a Township employee, he was not entitled to such wages. Although the Auditors requested a reply by October Fritz, 93- 080 -C2 Page 8 31, 1993, Fritz did not reply and did not reimburse the Township. Former Supervisor Zane Hartman and Barbara Niedzwiecki have stated that they approved Fritz's attendance at the PSATS convention. Hartman gave a verbal approval for the 1989 through 1991 years and Niedzwiecki gave verbal approval for the 1992 year. Lastly, the records of Sugarloaf Township reflect that Fritz has not filed Financial interest Statements (FIS) for the 1989, 1990 and 1992 year. Township records do reflect that he filed for the calendar years 1979, 1980, 1982, 1983, and 1988. The record is unclear as to whether Fritz filed for the 1991 year. In determining whether the action of Fritz violated Section 3(a) of the Ethics Law, we must review the pertinent provisions of the Second Class Township Code. Although we do not have jurisdiction to interpret the provisions of the Second Class Township Code, it is necessary to review those provisions of law in order to make a determination as to whether the pecuniary benefit received was private as unauthorized by law. 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 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. In applying the above provisions of law to the instant matter, we find that Fritz violated Section 3 (a) of Act 9 of 1989 as to the receipt of wages for attending the 1990 through 1992 PSATS Conventions. Fritz used the authority of public office to obtain $1,543.50 in wages which constitute a pecuniary benefit. The foregoing compensation received by Fritz was not authorized under the Second Class Township Code. Two supervisors gave approvals for Fritz, 93- 080 -C2 Page 9 Fritz to attend the PSATS conventions but they did not, nor could not, approve wages for attending the conventions since Fritz was not a working township employee. Hence the pecuniary benefit received_was private. Hessinaer, Order 931. Accordingly, Fritz is ordered to make timely restitution through this Commission payable to the order of Sugarloaf Township in the amount of $1,543.50. Failure to make restitution will result in a directive of the Commission to institute an order enforcement action. We find no violation by Fritz as to the receipt of wages for the 1989 PSATS Convention for the reason that such activity predated Act 9 of 1989. We also find that Fritz violated Section 3(a) of Act 9 of 1989 regarding his participation in approving payments of his own compensation. The record does reflect that Fritz made motions and voted to approve payments of bills to himself; in one case, Fritz signed the check which was made payable to himself. Such actions are a use of authority of office. See Juliante, Order 809. Such uses of authority of office resulted in a private pecuniary benefit to Fritz consisting of the receipt of wages which were not authorized in law; hence such wages were a private pecuniary benefit. Weaver, Order 920. As to the matter of the Financial Interest Statements, it is clear from the record that Fritz did not file FIS's for the calendar years 1989, 1990 and 1992. In light of the above, we accordingly direct Fritz to file FIS's for those years. Parenthetically, the record is unclear as to whether Fritz filed for the calendar year 1991. See fact Finding 19. As to that year, we are limited by the record before us and on that basis we will give Fritz the benefit of the doubt and conclude that a 1991 PIS was filed by him. IV. CONCLUSIONS OF LAW: 1. Jesse Fritz as a Sugarloaf Township Supervisor is a public official subject to the provisions of Act 9 of 1989. 2. Fritz violated Section 3(a) of Act 9 of 1989 by receiving a private pecuniary benefit consisting of the wages for attending 1990 through 1992 PSATS conventions which wages were not authorized in law. 3. The private pecuniary benefit received by Fritz for collecting wages for the 1990 through 1992 PSATS conventions was $1,543.50. 4. Fritz violated Section 3(a) of Act 9 of 1989 by using the authority of office to obtain a private pecuniary benefit for himself in approving his on compensation. Fritz, 93- 080 -C2 Page 10 5. Fritz did not violate Section 3(a) of Act 9 of 1989 regarding the receipt of wages for attending the 1989 PSATS convention in that such activity predated Act 9 of 1989. In Re: Jesse Fritz ORDER PTO. 935 File Docket: 93- 080 -C2 Date Decided: 09/12/94 Date Mailed: 09/14/94 1. Jesse Fritz as a Sugarloaf Township Supervisor violated Section 3 (a) of Act 9 of 1989 by receiving a private pecuniary benefit consisting of the wages for attending 1990 through 1992 PSATS conventions which wages were not authorized in law. 2. The private pecuniary benefit received by Fritz for collecting wages for the 1990 through 1992 PSATS conventions was $1,543.50. 3. Fritz violated Section 3(a) of Act 9 of 1989 by using the authority of office to obtain a private pecuniary benefit for himself in approving his own compensation. 4. Fritz did not violate Section 3(a) of Act 9 of 1989 regarding the receipt of wages for attending the 1989 PSATS convention in that such activity predated Act 9 of 1989. 5. Fritz is directed within thirty (30) days of the date of issuance of this order to make restitution in the amount of $1,543.50 to this Commission payable to the order of Sugarloaf Township. 6. Fritz is directed within thirty (30) days of the date of issuance of this order to file Financial Interest Statements for the 1989, 1990 and 1992 calendar years. 7. Failure to comply with paragraphs 5 and 6 will result in the directive of this Commission to institute order enforcement proceedings. BY THE COMMISSION, JAMES M. HO IR