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HomeMy WebLinkAbout1046 YetsconishIn Re: John Yetsconish STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 96- 056 -C2 Date Decided: 4/2/97 Date Mailed: 4/7/97 Before: Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn Julius Uehlein This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 gt., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." A letter containing a general denial of the allegation was received from Respondent which letter is deemed an admission of the findings. A hearing was deemed waived. The record is complete. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date 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). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law 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). Confidentiality does not preclude discussing this case with an attorney at law. Yetsconish, 96- 056 -C2 Page 2 I. ALLEGATION: That John Yetsconish (Yetsconish), as a Supervisor for Washington Township, Fayette County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit by submitting hours for compensation as township road superintendent which were not related to his position and when he participated in approving payments to himself. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(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: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that John Yetsconish violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on August 2, 1996. 4. The preliminary inquiry was completed within sixty days. 5. On September 19, 1996, a letter was forwarded to John Yetsconish, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, No. Z 129 438 628. b. The domestic return receipt bore the signature of John C. Yetsconish, with a delivery date of September 23, 1996. Yetsconish, 96- 056 -C2 Page 3 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. Periodic notice letters were forwarded to John Yetsconish in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on March 6, 1997. 9. John Yetsconish has served as a Supervisor for Washington Township, Fayette County, since January 2, 1996. 10. At the supervisor's January 2, 1996, Reorganizational meeting, Yetsconish was appointed to the position of Township Road Superintendent and Vice Chairman of the Board. a. The Washington Township Road Superintendent is a part-time position. b. Yetsconish has full -time employment with Jones Brewing Company. 11. At the January 9, 1996, Reorganization Meeting of the Washington Township Auditors, compensation for the position of Township Road Superintendent was set at $ 10.25 per hour. 12. Between January 2, 1996, and May 7, 1996, Yetsconish was compensated for performing services for the township, including but not limited to book work, flood inspections for grant money, grant applications, recycling, sewage meeting attendance, and road work. a. Yetsconish was also compensated for directing the activities of the township road crew. • 13. Prior to May 7, 1996, the Second Class Township Code contained the following compensable duties of a road superintendent: Section 516. Duties of Supervisors, Township Superintendents, and Roadmasters. - The township supervisors, or the supervisors employed as superintendents or Roadmasters, shall - (par. amended June 21, 1963, P.L. 153, No. 98). (a) Have the general care and superintendence of the improvement of the roads and bridges in the township, except as otherwise specially provided. (b) Cause such roads and bridges to be kept in repair and reasonable free from all obstructions, and give the necessary directions therefor. (c) Inspect all roads and bridges during the months of April and October of each year. Yetsconish 96- 056 -C2 Page 4 (d) Divide the township into as many districts as may be deemed necessary for the maintenance and repair of the roads and the opening of roads obstructed by snow. (e) Employ or hire such persons, as may be necessary for the general conduct of the business of the township, and provide for the organization and supervision of the persons so employe, and work on the roads themselves when directed to do so by the board of supervisors. Records shall be kept, and reports made an filed, giving the names of all persons employed, included supervisors, superintendent or Roadmasters, dates on which work was done, and the number of hours worked with compensation paid to each person and the capacity in which he is employed. ((e) amended April 28, 1961, P.L. 153, No. 75). (f) Construct and keep in repair all sluices and culverts, and keep the waterways, bridges and culverts open. (g) Cause loose stones Tying in the beaten track of every road to be removed. Stones so removed shall be conveyed to some place from which they will not work back or be brought back into the track by other implements used in repairing or maintaining such highways. (h) Attend meetings and conventions if directed to do so by the board of supervisors. Any supervisor, elected or appointed officer or township employ shall, if directed by the board of supervisors, attend any conference, institute or school dealing with the duties and functions of such elected or appointed officers or employees. The expenses for attending the conferences, institutes and schools may be paid by township and shall be limited to the registration fee, mileage going to and returning from such meeting plus all other expenses not to exceed sixty days ($60) per day. (h) Amended March 1, 1982, P.L. 123, No. 39 (i) Perform such other duties and have such other powers with respect thereto as may be imposed or conferred by law or the rules and regulations of the Department of Highways. The Roadmasters or superintendents or supervisors acting in either capacity, shall - (j) Report monthly to the board of supervisors, such information as may be required by the Department of Highways, in the form prescribed by the Department. (k) Inspect all roads and bridges at such times as the township supervisors shall direct, expect during the months of April and October. (I) Have power to relocate, widen, deepen, straighten' the channels of streams, and rip, rap, and otherwise protect the banks or streams Yetsconish, 96- 056 -C2 Page 5 in order to protect roads, prevent erosion, and prevent floods in the township; Provided, that the consent of the Water and Power Resources Board to any such project his first been secured. (m) When authorized to do so by general or special order of the township supervisors, to do or cause to be done all work necessary to carry out the responsibilities imposed upon the township supervisors be subsections (a), (b), (e), (f), (g) and (i) of this section. 14. Township Secretary/Treasurer Robert Campbell maintains ledgers which reflect total number of hours worked per pay period for township employees. a. This includes hours worked by Yetsconish in his capacity as Road Superintendent. 15. Ledgers confirm that Yetsconish was compensated for a total of 142 hours between January 1, 1996, and May 7, 1996. Township financial ledgers break down the 142 hours per pay period as follows: Week Endina Hours Gross Pay 01/19/96 27 $ 276.75 02/02/96 28 $ 287.00 02/16/96 28 $ 287.00 03/01/96 22 $ 225.50 03/15/96 24 $ 246.00 03/29/96 10 $ 102.50 04/26/93 3 $ 30.75 TOTAL 142 $1,455.50 16. Individual days and hours worked are also documented as part of bi- weekly time sheets. a. Bi- weekly time sheets are completed for all employees, including Yetsconish, by Township Secretary Campbell, based on information furnished to him by the employees and supervisors. b. Road employees identify hours worked on a calendar in the garage area. c. Yetsconish would verbally tell Campbell how many hours he worked. 17. Yetsconish maintained daily work Togs covering the period 01/06/96 through 03/19/95 [sic], for his position of road superintendent. a. These work logs detail the duties performed and hours worked on specific dates. b. _ No work logs were completed by Yetsconish for the period 03/19/96 to 05/07/96. 18. A review of Yetsconish's daily work Togs covering the period 01/06/96 to 03/19/96, reflect 49.0 hours for duties not related to his position of road superintendent. Yetsconish, 96- 056 -C2 Page 6 a. Yetsconish was compensated for an additional 20.5 hours accumulated on seven (7) different days for which duties performed were not identified. 19. Daily work Togs completed by Yetsconish included the following hours worked, not consistent with the statutory duties of a road superintendent: Date 01/08/96 01/29/96 01/31/96 02/01/95 02/05/96 02/06/96 02/08/96 02/09/96 02/12/96 02/13/96 02/15/96 02/19/96 03/05/96 03/13/96 03/18/96 03/19/96 TOTAL Duties Performed Sign check, book work Recycle Work D.E.P. Recycling Randon Grant Sewage Meeting Recycle Work Randon, recycle, phone book Kelly run meeting Recycle paperwork Paper filing CO2 detect Reports on CO2 detect Meeting DEP Uniontown Meeting Kelly Run meeting Kelly Run meeting 20. Yetsconish's work Togs confirm the following dates when hours were claimed for which specific duties were [not] identified. Dates Hours 01/18/96 0.5 02/02/95 0.5 02/20/96 4.0 02/29/96 6.0 03/07/96 4.5 03/08/96 4.0 03/15/96 1.0 TOTAL 20.5 21. Washington Township financial records confirm payments issued to Supervisor John C. Yetsconish for hours claimed as township road superintendent between 01/01/96 and 05/07/96. Date 01/18/96 1977 02/01/96 1997 02/15/96 2017 03/01/96 2018 03/14/96 2037 03/28/96 2065 04/25/96 2119 Hours 1.0 1.0 8.0 3.0 4.0 2.5 1.5 work 1.5 4.0 1.5 4.5 4.5 4.0 1.0 4.0 49.0 mount $ 5.12 $ 5.12 $ 41.00 $ 61.50 $ 46.12 $ 41.00 $ 10.25 210.11 Check No. Amount $203.47 $210.99 $200.99 $165.78 $180.86 $ 75.35 $ 22.61 Arnart $ 1025 $ 1025 $ 82.00 $ 30.75 $ 41.00 $ 25.63 $ 15.37 $ 1537 $41.00 $ 15.37 $ 20.50 $ 46.12 $ 41.00 $ 1025 $ 41.00 $ 56.37 $50223 Yetsconish, 96- 056 -C2 Page 7 a. All seven checks issued to Yetsconish were signed by Supervisors Earnest Legg, John Krempasky, and John Yetsconish. 22. Payments made to Yetsconish were included as part of the supervisor's monthly bill lists. a. Bill lists are voted on in their entirety. b. Actions taken on bill lists which include payments identified in Finding No. 21 were passed by 3/0 vote with Yetsconish voting. c. Washington Township meeting minutes do not include any recorded abstentions from voting on bill lists by Yetsconish. 23. During the April 3, 1996, meeting of the Washington Township Board of Supervisors a motion was approved by a 2 to 1 vote to eliminate the position of superintendent of roads. a. Supervisors Earnest Legg and John Krempasky voted in favor of eliminating the position while Yetsconish voted against the motion. 24. Minutes from the Washington Township Board of Supervisor's April 3, 1996, meting, included the following recorded discussion and official action on the position of township roadmaster. "Chairman Legg moved to no longer have the position of Superintendent of Roads, seconded by John Krempasky. Vice Chairman John Yetsconish questioned the reason. Mr. Legg stated he had an opinion from the Township Supervisors Association in Harrisburg which said [ "you must perform the duties of the Superintendent of Roads before one can get paid."] Mr. Yetsconish questioned Mr. Legg if a superintendent had to be physically able to do the job and further questioned if the requirements were the same for the roadmaster, and if these procedures were being followed at the present time. Roadmaster replied "yes." Vote: 2 ayes. Vice Chairman Yetsconish voted nay. 25. The majority of the board of supervisors voted to eliminate the position of Superintendent of Roads because they believed that Yetsconish was submitting and being paid for duties not related to his position of road superintendent. a. The supervisors had received a verbal opinion from the Pennsylvania Association of Township Supervisors indicating that a road superintendent could not be compensated for administrative duties. b. The supervisors believed the duties claimed for compensation by Yetsconish (Finding No. 19) were not related to his road superintendent position. 26. Yetsconish received a financial gain of $502.23 for 49.0 hours he was compensated for between 01/01/96 to 05/07/96, for the performance of duties not related to the position of township road superintendent. (See Finding No. 19). Yetsconish, 96- 056 -C2 Page 8 27. Yetsconish received a financial gain of $210.1 1 for 20.5 hours he claimed he worked, but did not identify any duties performed. (See Finding No. 20). 28. Yetsconish filed a letter in response to the Investigative Complaint consisting of a general denial, offers of explanation, and a statement of his willingness "to work these hours accepting no pay ..." if he received the wages "unlawfully." III. DISCUSSION: At all times relevant to this matter, the Respondent, John Yetsconish, hereinafter Yetsconish, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, ems. The issue before us is whether Yetsconish, as a Supervisor for Washington Township, Fayette County, violated Section 3(a) of the Ethics Law (Act 9 of 1989) as to the allegation that he used the authority of office for a private pecuniary benefit by submitting hours for compensation as township road superintendent which were not related to his position and participated in approving payments to himself. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is also quoted above. Preliminarily, we note that Yetsconish filed a response on March 12, 1997 to the Investigative Complaint which was not an Answer but merely a letter making a general denial and offering certain explanations. Since such a general denial is insufficient under the Ethics Law (65 P.S. §408(e)), Yetsconish is deemed to admit the averments in the Investigative Complaint. Having noted the issues and applicable law, we shall now summarize the salient facts. Yetsconish has served as a Supervisor in Washington Township, Fayette County, since January 2, 1996 when he was appointed to the positions of Township Road Superintendent and Vice Chairman of the Board. The position of Township Road Superintendent is a part-time position for which the compensation is set by the Auditors. Between January 2, 1996 and May 7, 1996, Yetsconish was not only compensated for directing the activities of the Township road crew, but also for doing other work such as book work, flood inspections for grant money, grant applications, recycling, sewage meeting attendance and other duties. The duties and responsibilities for Supervisors, Township Superintendents, and Roadmasters, as set forth in the then applicable Second Class Township Code (Code), are quoted in Fact Finding 13. The Township Secretary /Treasurer maintains ledgers as to the days and hours worked by Township employees. Yetsconish verbally told the Secretary /Treasurer how many hours he worked. Yetsconish maintained daily logs for the period of January 6, 1996 through March 19,1996 for his position of Road Superintendent. However, no work logs were completed by Yetsconish for the period of March 19, 1996 to May 7, 1996. Yetsconish, 96- 056 -C2 Page 9 For the period of January 6, 1996 through March 19, 1996, there were 49 hours of work performed by Yetsconish which did not relate to his position of Road Superintendent (Fact Findings 19, 26). At an hourly rate of $10.25, Yetsconish received $502.23. In addition to the above, there were also 20.5 hours of duties performed by Yetsconish which were not identified (Fact Finding 27). Yetsconish received $210.1 1 for those unidentified services. Both the $502.23 and $210.11 received by Yetsconish were submitted to the Supervisors as part of monthly bill lists and approved on a 3 -0 vote with Yetsconish voting. Lastly, action was taken by the Board of Supervisors to eliminate the position of Superintendent of Roads because of the concern that Yetsconish was submitting and being paid for duties not related to his position of Road Superintendent. During the April 3, 1996 Board meeting, a motion was approved on a 2 -1 vote to eliminate the position with Yetsconish casting the negative vote. Having summarized the above relevant facts, we must now determine whether the actions of Yetsconish violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate fa_ mily, or business with which he or a member of his immediate family is associated. The first allegation concerns whether Yetsconish received a private pecuniary benefit by submitting hours for compensation as a Superintendent of Roads which were not related to his position of employment with the Township. There is a fundamental distinction between a Township Supervisor as an elected public official and as a paid Township employee. The compensation which the Supervisor as elected official receives is limited by the Code. 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 the Code. 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 Code. The Pennsylvania State Association of Township Supervisors 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. 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. supra. Pennsylvania Township News, May, 1993 at 82 and April, 1994 at 78. See, also, RH & TW v. SEC, 677 A.2d 1004 (1996). Yetsconish, 96- 056 -C2 Page 10 Although the law is well established that Supervisors may not receive compensation as a township employee for performing administrative functions, that is precisely what Yetsconish did in this case. But for the fact that Yetsconish was an elected Township Supervisor, he could not have been Superintendent of Roads. Yetsconish submitted his hours and received payment. Such actions were a use of authority of office on the part of Yetsconish. The compensation that Yetsconish received was not only a pecuniary benefit but also a private pecuniary benefit because under the Code and derivatively the Ethics Law, Yetsconish could not receive additional payment for services that he performed as an elected Township official. Yetsconish received $502.23 in compensation for duties that were not related to the position of Township Road Superintendent. Accordingly, we find that Yetsconish violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself by receiving $502.23 from the Township as to which he was not legally entitled. We find no violation of Section 3(a) of Act 9 of 1989 as to the receipt of the payment by Yetsconish of $210.11 for the reason that there is not clear and convincing proof that the work that Yetsconish performed did not relate to the position of Township Road Superintendent. In this regard, the record does not reflect the precise nature of the services that Yetsconish performed as to the 20.5 hours of work. Since we will not and cannot presume that such work was administrative in nature, we find no violation of Section 3(a) of Act 9 of 1989 as to that part of the allegation. The second allegation relates to a charge that Yetsconish participated in approving payments to himself. We find a violation of Section 3(a) of Act 9 of 1989 when Yetsconish participated in approving payments to himself as to the $502.23. There was a use of authority of office on the part of Yetsconish by participating and voting on the bill lists which included the payments to himself. Yetsconish as a Supervisor also cosigned checks which were made payable to himself. That use of authority of office by Yetsconish resulted in a private pecuniary benefit to himself consisting of certain compensation to which he was not legally entitled, as noted above. Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /employee has obtained a financial gain in violation of the Ethics Law. In this case, since it has been determined that the financial gain amounted to $502.23, restitution of $502.23 by Yetsconish is warranted. Therefore, Yetsconish is directed to make restitution of $502.23 through this Commission to Washington Township within thirty days of the date of issuance of this Order. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. Parenthetically, we note that Yetsconish has indicated that he would work certain hours without pay if we determine that the wages he received were unlawful. There is no provision under the Ethics Law which would allow a public official /public employee to work off a private pecuniary benefit. The Ethics Law requires a pay back of the financial gain as restitution. Therefore, Yetsconish must make restitution of the $502.23. Lastly, if financial hardship exists such that Yetsconish cannot make restitution of the full amount within thirty days, he may contact the Investigative Division which has discretion, if justification exists, to accept time payments within a reasonable period. Yetsconish, 96- 056 -C2 Page 11 IV. CONCLUSIONS OF LAW: 1. John Yetsconish, as a Supervisor in Washington Township, is a public official subject to the provisions of Act 9 of 1989. 2. Yetsconish violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself in the amount of $502.23 by receiving compensation from the Township to which he was not legally entitled. 3. Yetsconish did not violate Section 3(a) of Act 9 of 1989 as to the receipt of compensation in the amount of $210.11 based upon the lack of clear and convincing proof. 4. Yetsconish violated Section 3(a) of Act 9 of 1989 when he participated in approving payments which resulted in a private pecuniary benefit to himself in the amount of $502.23. In Re: John Yetsconish ORDER NO. 1046 File Docket: - 96- 056 -C2 Date Decided: 4/2/97 Date Mailed: 4/7/97 1. John Yetsconish, as a Supervisor in Washington Township, violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself in the amount of $502.23 by receiving compensation from the Township to which he was not legally entitled. 2. Yetsconish did not violate Section 3(a) of Act 9 of 1989 as to the receipt of compensation in the amount of $210.11 based upon the lack of clear and convincing proof. 3. Yetsconish violated Section 3(a) of Act 9 of 1989 when he participated in approving payments which resulted in a private pecuniary benefit to himself in the amount of $502.23. 4. Yetsconish is directed to pay restitution of $502.23 through this Commission to Washington Township within thirty days of the date of issuance of this Order. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. BY THE CO MISS)