HomeMy WebLinkAbout976 AkerlySTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Marvin Akerly File Docket: 93- 073 -C2
Date Decided: 05/04/95
Date Mailed: 05/16/95
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Boyd E. Wolff
The Investigative Division of the State Ethics Commission
conducted an investigation regarding a possible violation of the
State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. 8401 et sea.
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 public hearing was held at the request of respondent. 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 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. 8408(h).
Akerly, 93- 073 -C2
Page 2
I. ALLEGATION:
That Marvin Akerly, a public official /public employee in his
capacity as a Supervisor for Harborcreek Township, Erie County,
violated the following provisions of the State Ethics Act (Act 9 of
1989) when he received benefits not offered to other part -time
employees and when he approved payment of the same.
65 P.S. 6403(a).
65 P.S. 6402.
II. FINDINGS:
A. PLEADINGS:
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
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.
1. Marvin Akerly has served as a Harborcreek Township Supervisor
since 1982.
2. Harborcreek Township was divided into two road districts in
January, 1991.
a. Road District #1 includes all roads north of Interstate
90.
Akerly, 93- 073 -C2
Page 3
b. Road District #2 includes all roads south of Interstate
90.
3. Marvin Akerly has been the roadmaster in charge of District #2
since 1991.
4. Supervisor David Bossart is employed as a full -time
roadmaster.
5. Supervisor Donna Mindek is employed as the full -time
treasurer.
6. Marvin Akerly has been appointed as roadmaster during the
annual reorganization meetings of the Harborcreek Township
Supervisors.
a. These appointments were made yearly from 1982 through
1994.
7. Akerly is charged
takes.
8. Marvin Akerly, as
Township's Parks
Sewer Authorities
a.
eight hours per day for each vacation day he
a supervisor, has been responsible for the
and Recreation Department; the Water and
and the Recycling Program.
He has performed these duties since at least 1988.
9. Marvin Akerly, as a township supervisor, has acted as a
liaison between the township and the Harborcreek Sewer
Authority.
10. Marvin Akerly, as .a township supervisor, has acted as a
liaison between the township and the Harborcreek Water
Authority.
11. Akerly spent a number of hours in preparing and developing the
water line system in the East Lake Road area in Harborcreek
Township.
12. The paid benefits Akerly receives include medical insurance
(Blue Cross /Blue Shield); dental; prescription; eye care and
an employee only coverage for life insurance; accidental
death; and weekly indemnity disability.
13. Joanne Puzarowski worked on a part -time basis for Harborcreek
Township from 1983 through 1988.
a. Puzarowski did not receive any insurance benefits during
her employment with the township.
Akerlv, 93- 073 -C2
Page 4
14. Harborcreek Township's health insurance plan (Blue Cross /Blue
Shield) is currently handled through the Manufacturers
Association Insurance Plan.
15. The Travelers Insurance Companies handled the Township's life
insurance, prescription drug, dental, and weekly indemnity
from 1989 through 1991.
a. This insurance coverage was transferred to the Guardian
Life Insurance Company of America in 1991.
16. The Harborcreek Township employees began receiving benefits
for a vision plan in 1991 with the Vision Service Plan.
B. TESTIMONY:
17. Akerly through his counsel moves to dismiss the allegation
that Akerly received benefits not offered other part -time
employees.
a. The averment in the Investigative Complaint that
Puzarowski worked part -time from 1983 to 1988 is argued
to be irrelevant and barred by the statute of
limitations.
(1) The Investigative Division argues that the five
year limitation in the Ethics Law relates to
pursuing conduct of a respondent but not to the
evidence that can be introduced as to an
allegation.
b. The averment in the Investigative Complaint as to
Skarzenski is argued by Akerly to be incorrect in terms
of the time period worked.
(1) The Investigative Complaint lists the work period
from 1989 to 1991.
c .
(2) Akerly asserts that Skarzenski recalls the time
from 1986 to 1988.
(3) Akerly argues that discrimination must be
the last five years.
(4) The Investigative Division argues that
discrimination in favor of the supervisors
shown.
shown in
only a
need be
The averment in the Investigative Complaint as to
Mitcheltree that she was part time through 1991 is argued
to be in error by Akerly.
Akerly, 93- 073 -C2
Page 5
(1) Akerly asserts that Mitcheltree was full time since
1991 so that Mitcheltree may have only been part
time for a short period of time. .
d. Akerly argues that the insurance benefits were granted by
the auditors to the supervisors.
(1) Akerly asserts that there must be a showing of
discrimination through actions of the supervisors.
(2) The Investigative Division argues that auditor
involvement is meaningless because auditor approval
was, not required after 1992.
e. Akerly argues that there are two classes of employees --
salaried and part time.
(1) Akerly asserts that the votes to approve payment of
insurance premiums was by the three supervisors.
(a) Akerly argues that his vote was not
determinative.
18. Robert P. Caruso is the Deputy Executive Director and Director
of Investigations of the State Ethics Commission.
a. Caruso supervises all investigations conducted by the
Investigative Division.
(1) Caruso reviews all complaints as to form and
substance.
(2) After reviewing complaints, Caruso makes a
recommendation to the Executive Director as to
whether a preliminary inquiry should be opened.
(a) Complaints that do not meet the threshold
standard are dismissed.
(b) Complaints meeting the threshold standard are
opened as cases and are assigned a docket that
triggers the time deadlines.
[1] Opened cases are assigned to
investigators who have 60 days to
complete the preliminary inquiry.
[A] Upon completion of a preliminary
inquiry, the case is either opened
as a full investigation or submitted
to the Commission for closing.
Akerly, 93- 073 -C2
Page 6
(3) If preliminary inquiries are opened into
investigations, the respondent is forwarded a
notice of investigation.
(4) Investigations are normally completed in 180 days
subject to applying for two 90 day extensions.
(a) Upon completion of an investigation, the
investigator prepares a findings report.
[1] An Investigative Complaint is then
prepared and issued to the respondent.
(b) The members of the State Ethics Commission
play no part in the investigative process.
(c) The notice of investigation sent to Akerly
delineates the allegations.
[1] The notice dated 12/30/93 was received
1/5/94.
(d) ID 12 contains 90 -day notice letters sent to
Akerly and the complainant.
(e) The docket date for the Akerly case was
11/01/93.
(f) Two 90 day extensions were obtained by the
Investigative Division from the Commission.
[1] The two extensions were requested by the
Investigative Division before the 180 or
270 day periods expired.
(g) In terms of insurance benefits, Caruso
testified that Puzarowski was discriminated
against as to benefits.
(h) A status of investigation is to be sent every
90 days advising the respondent.
[1] The September, 1994 notice to Akerly was
dated 10/03/94 which was untimely.
19. Donna Mindek is a Supervisor and Secretary /Treasurer in Harbor
Creek Township.
a. The other two supervisors are Marvin Akerly and David
Bossart.
Akerly, 93- 073 -C2
Page 7
b. Harbor Creek has employees other than working
supervisors.
c. Akerly and Bossart are roadmasters.
(1) Mindek and Bossart receive the same salary.
(a) Akerly receives a lesser salary because he has
lesser duties.
g-
(1) Such other employees are office employees and road
and garage employees.
(a) There are 27 full -time employees who get
benefits such as vacation, sick time, pension
and insurance benefits as per an Employee
Agreement.
(2) Bossart is in charge of road crew which is
Bossart's primary responsibility.
(3) Akerly is in charge of the equipment and the
garage.
(4) When Mindek began, Akerly's work hours were 7:30 to
12:00 which continued for four or five years.
d. Mindek believes that part -time employees working for the
township do not receive medical, health, accident and
life insurance paid by the township.
e. Summer help who work eight -hour days do not receive any
type of insurance benefits or paid leave.
f. Harbor Creek Township has no written policy regarding
receipt of benefits.
1. Mindek testified that the unwritten policy is that
part -time employees do not get benefits.
(a) Mindek thought that the criteria for receiving
benefits would be working 20 to 35 hours.
2. Akerly receives township provided benefits.
(a) Akerly receives the same benefits provided to
Mindek and Bossart.
Nothing has been determined in the township as to what
"full time" or "part time" means.
Akerly, 93- 073 -C2
Page 8
h. In discussions with the solicitor, the criteria of number
of hours worked was used to determine whether a
particular individual got benefits.
i. Judy Mitcheltree was a part -time employee of the
township.
(1) Mitcheltree received no benefits when she began.
(a) Mitcheltree worked under 20 hours per week.
(2) After Mitcheltree became full time working 40 hours
a week, township benefits began.
Joanne Puzarowski was a part -time employee.
(1) Puzarowski worked less than 20 hours per week
according to Mindek.
(2) Puzarowski never became a full -time employee.
(3) No township benefits were given to Puzarowski.
k. Anne Marie Skarzenski was a Harbor Creek Township
employee.
(1) Skarzenski did not receive township paid benefits.
1. The township was divided into road districts in 1991.
(1) The main concern in the township is the roads.
of doing
township
Mindek and Akerly initiated the process
"in house" road paving in the township.
Most of the repair and maintenance of
equipment is done in house.
Mindek and Akerly were involved in the process of
the "turn -back" of PennDOT roads to the township.
As to road related matters, people call roadmasters
at all times, day or night or weekends, whenever
there are problems associated with township roads.
Akerly has participated in the meetings as to the
East Side Connector road issue.
(7) As to emergency problems like storms, snow storms,
water line breaks, traffic lights, roadmasters are
called at all times.
Akerly, 93- 073 -C2
Page 9
(8) Mindek's observation is that the township roads and
bridges have been maintained while Bossart and
Akerly serve as supervisors.
(9) Akerly, Mindek and Bossart are all salaried.
(10) All three supervisor employees were granted
insurance benefits by the auditors.
(11) Generally, all three supervisors voted to approve
the payment of bills as to insurance and other
benefits.
(12) Mindek and Akerly worked on the township water line
extension project.
m. Judy Mitcheltree was a shared employee with the school
district.
(1) Mitcheltree was hired on an hourly basis.
(2) Mitcheltree became a full -time employee 2/10/91 for
the township and school district.
n. Puzarowski and Skarzenski were hired as part -time hourly
employees.
o. A salaried employee completes the assigned duties and
tasks irrespective of the hours worked.
Mindek does not distinguish between the duties of a
supervisor as an elected official and as a township
employee.
20. Dave Bossart is a Harbor Creek Supervisor and Roadmaster.
a. Bossart receives a salary and benefits fixed by the
auditors.
p.
b. Akerly receives a smaller salary because his road
district is smaller than Bossart's District 1.
(1) Akerly has flexible hours but works 7:30 or 8:00
until noon.
c. Bossart states that he believes Akerly is not part time
but a roadmaster with a reduced responsibilities.
d. Bossart testified that the township does not provide
benefits to part -time employees.
Akerly, 93- 073 -C2
Page 10
e. There are no part -time employees who are salaried; they
are all hourly.
f. Temporary help, such as summer college students, work a
full week but do not get benefits.
g. Bossart states that he thought Akerly worked less in-
house hours at the township but was unaware of how much
time he worked on the roads.
h. Bossart testified that he thought an employee would have
to be a regular employee for 90 days: in order to get
benefits.
i. The Employee Agreement does not apply to part -time
employees or summer help according to Bossart.
4.
The work of roadmaster entails being outside the
municipal building.
(1) Such work entails inspecting roads, ditches and
other road related problems, estimating, setting up
bid specifications, etc.
k. Akerly's road district is more rural than Bossart's
district.
1. As to subdivisions, roadmasters will inspect plans,
specifications, meet with the engineer and inspect
documents and the roads.
m. Roadmasters have to be involved with road cuts made by
utilities.
n. Akerly has performed all of the duties assigned by the
township.
o. Akerly did most of the work building a park road in the
township.
p. Akerly was instrumental as to the township in taking back
certain roads under PennDOT's maintenance.
Auditors have generally unanimously approved salary and
benefits for the supervisors.
21. Frank Battaglia is a Harbor Creek Township Auditor since 1993.
a. As to setting the salaries of the supervisors, Akerly's
salary was about 40% less.
Akerly, 93- 073 -C2
Page 11
b.
c .
d.
e.
f.
g-
h.
i.
j-
Akerly's position was termed part time.
Battaglia is unaware of a township policy about
for regular as opposed to part -time employees.
Data from the surrounding area was reviewed in
fixing compensation.
benefits
terms of
Benefits were not computed by conducting surveys but by
continuing existing benefits.
Battaglia understood that benefits:: were given to
supervisors as part of the compensation package.
Weekly salaries were set for Akerly, Bossart and Mindek.
Battaglia understood that salaries were not tied to hours
worked.
The supervisors performed their functions.
In setting salary and benefits, the auditors took into
account that the supervisors would have to deal with road
problems after normal business hours.
22. John Pierson was employed by Harborcreek Township from 1979
through 1993 as an equipment operator.
a. For two years, Pierson was road foreman.
b. During winter, Akerly would be the second man on the
truck on an as- needed basis.
(1) During the other months, Akerly did not do any
physical labor with Pierson.
c. Akerly worked in the parks; Pierson and his crew do not
do much work in the parks.
d. Pierson neither saw Akerly, Bossart or Mindek on a day -
to -day basis working on the roads.
e. Pierson was unaware as to what the supervisors were doing
at any given time during the day.
23. Edward Ellwood is an employee in the Parks Department of
Harborcreek Township.
a. Akerly has primary jurisdiction over the Parks
Department.
Akerly, 93- 073 -C2
Page 12
(1) Generally, Akerly arrives at 7:00 a.m. and spends
about fifteen minutes with the Parks Department.
(a) Akerly does not perform any type of work
function with the Parks Department on an every
day basis.
(2) In the past five years, any major projects in the
park have been done by outside contractors.
b. Akerly periodically checks with the road foreman in the
afternoon.
c. Ellwood does not know what the supervisors do on an
hourly basis.
24. Judy Mitcheltree was an employee of Harborcreek Township since
March, 1988.
a. Mitcheltree was part time doing the census.
(1) Generally, Mitcheltree worked 25 hours per week
until she became full time in February, 1991.
(2) No benefits were received by Mitcheltree when she
was part time.
(a) Occasionally, Mitcheltree worked 30 hours per
week.
(3) Mitcheltree also worked part time for the school
district doing the same job.
b. Akerly is in the office daily inquiring about any road
problems.
c. Although Mitcheltree is in the back office and cannot see
people come and go, she believes that Akerly was
generally in the office at 6:00 a.m. and left at 3:00 or
4:00 p.m.
25. Joanne Puzarowski was employed by Harborcreek Township for
approximately two years beginning in 1986 or 1987.
a. Puzarowski was hired as a part -time employee providing
information and referrals for senior citizens.
b. No benefits were received by Puzarowski as a part -time
employee.
c. Puzarowski started working one day a week and worked up
Akerly, 93- 073 -C2
Page 13
26. Susan Butler
receptionist.
a.
to four or four and one half days a week.
is employed by Harborcreek Township as a
The payment made by the township as to insurance benefits
for each employee may be broken down.
(1) As for life insurance, the amount for an employee
is to double the salary and add $10,000.00.
(a) The premium of the township is one bill for
the total employees.
(2)
(b) To determine the premium for any individual,
divide the face amount of the policy by 1,000
and then multiply by .67.
As to accidental death and dismemberment,
(a) The township premium is not broken down per
employee
(b) The premium per employee would be to divide
the coverage by 1000 and multiply by .14,
i.e., the premium is 140 per 1000.
(3) Another category of insurance was weekly indemnity.
(a) There is no employee breakdown of the premium
paid by the township.
(b) The premium per employee is computed by taking
two thirds of the weekly salary times .59.
[1] There is a maximum payout of $300.00 per
week.
(4) Employee dental is $13.55 per employee per month.
(a) Employee dental with dependents is $19.20 per
employee.
(5) Employee prescription drug is $18.84 per employee
per month.
(a) Employee prescription drug with
$25.70 per employee.
27. Sandra Hughes is a member of the Board of
Harborcreek Township.
dependents is
Auditors of
Akerly, 93- 073 -C2
Page 14
a. The auditors set the pay scale for the supervisors.
b. The auditors meet once a year.
c. Setting the pay scale is done by looking at prior years.
d. The supervisors on occasion have held meetings prior to
the auditors meeting to inform the auditors of their
accomplishments.
e. There were one part -time and two full -time supervisors.
(1) Akerly was the part -time supervisor.
(2) Each year two different salary levels were set with
Akerly receiving the lower rate.
f. Hughes does not have independent knowledge of the day -to-
day activities of Akerly.
g. As to township benefits, the auditors used the list of
benefits given to other township employees as a
guideline.
h. As to the supervisors, every year there was a question of
whether a raise should be given.
i. The auditors never set compensation for supervisors in
the form of overtime.
Hourly employees receive "longevity" pay but the
supervisors do not.
k. Hourly employees receive overtime but the supervisors do
not.
1. In the past the auditors judged performance when setting
compensation but now they consider compensation paid for
similar services.
m. Hughes at one point tried to change the supervisors'
compensation to an hourly basis but the other two
auditors disagreed.
(1) According to Hughes, compensation tied into the
number of hours worked would be more fair to the
supervisors.
n. The auditors set the benefit package for the supervisors.
o. Hughes does not have knowledge as to how much time any
Akerlv, 93- 073 -C2
Page 15
supervisor performs on any given function or duty.
p. Hughes believed that she had no discretion as an auditor
as to fixing benefits.
28. Gregory Curran is a special investigator with the State Ethics
Commission.
a. Curran was the case agent assigned to the Akerly case.
b. Exhibit 20 was a chart made by Curran derived from
Exhibit 1 through 6.
(1) The chart was prepared in relation to the
allegation of discrimination in the receipt of
insurance benefits as to part time employees.
(a) Insurance invoices from Manufacturer's
association had a per employee breakdown of
insurance premiums.
(b) The invoices from Guardian Insurance Company
and the Vision Service plan had per employee
premiums.
c. Mitcheltree received benefits since her full -time
employment in 1991.
d. Joanne Puzarowski worked for the township between 1983
and 1988.
29. Vincent Pepicello, III is the garage foreman of Harborcreek
Township since 1979.
a. From 1974 to 1979, Pepicello worked on the road crew.
b. Pepicello has the duty of keeping approximately 100
pieces of equipment running.
c. Pepicello receives instructions from the supervisors
regarding the township equipment.
d. Pepicello meets with Akerly just about every morning to
discuss projects, equipment and repairs.
(1) Akerly usually arrives at the township at 7:00 a.m.
e. Akerly has taken various pieces of township equipment and
re- chromed them at Akerly's business at no charge to the
township.
Akerly, 93- 073 -C2
Page 16
f. As to a township radio communication tower, Akerly had
the tower stripped and sand blasted at no charge.
g. Akerly has an expertise in equipment and repairs.
h. Over the years, Akerly has donated various equipment to
the township.
i. Akerly has run a snow plow, assisted with blacktopping
and traffic control.
One of the roads in the township park was built by
Akerly.
k. When Pepicello meets with Akerly, it can vary from a few
minutes to all day but the latter is very occasional.
(1) Akerly may leave and come back during the day.
30. Mark Corey is the engineer for Harborcreek Township.
a. There is interaction between Corey and the Supervisors as
to developments and roads in the township.
b. Corey usually sees Akerly in the township building
or garage between 7:30 and 8:00 a.m.
c. Although Corey has not seen Akerly working on the roads,
Corey has seen Akerly clearing ditches, cross tubes and
culvert pipes.
d. Supervisors may act in the capacity of elected official
or in the capacity of township employee as to various
matters.
31. Marvin Akerly has been a Harborcreek Township Supervisor since
1982.
a. Since Akerly's election and appointment, the auditors
have provided insurance benefits.
b. Township employees, but not supervisors, get time- and -a-
half for overtime, compensation for the "weekend watch,"
longevity benefit, additional compensation for work on
the second or third shift.
c. As roadmaster, Akerly is involved in checking roads for
potholes, erosion, berms, culverts, sluice pipes,
pavement on roads, bridges, traffic signs, dead animals,
etc.
Akerly, 93- 073 -C2
Page 17
d. Akerly has responsibilities as to the township equipment.
e. Matters concerning water /sewer may also have connection
with roadmaster work.
f. When residents call Akerly about road problems, Akerly
will physically go out to look at the problem.
g. Akerly over the years has provided the township with
various equipment at no charge.
C. DOCUMENTS
32. ID 15 consists of the 8arborcreek Township Auditors Minutes
from 1987 -1993.
a. The board of auditors in part provided that, as to
hospitalization, dental, prescription, life and
disability insurance, all supervisors receive the same
insurance coverage as applies to township employees for
the year 1989.
b. For the year 1990, the board of auditors provided in part
that, as to hospitalization, dental, prescription, life
and disability insurance, all supervisors receive the
same insurance coverage as applies to township employees
for the year 1990.
c. The board of auditors, after having the benefits read as
shown in Exhibit II of the 1991 Auditors minutes,
approved the supervisors benefits for 1991.
Medical Insurance (Blue Cross -Blue Shield);
Dental; Prescription; Eye Care; (include(s]
employee, spouse and family); Employee only
coverage for Basic Life, Accidental Death;
Weekly Indemnity Disability
(1) The minutes reflect inquiries as to what a part -
time supervisor is, what percent a part -time
supervisor should be paid and what the duties of a
part -time supervisor are.
d. For the year 1992, the board of auditors read the
benefits for the supervisors as seen in Exhibit II of the
1992 Auditors minutes and then approved the benefits for
the supervisors:
Medical Insurance (Blue Cross -Blue Shield);
Dental; Prescription; Eye Care; (includes
employee, spouse and family); Safety Glasses,
Akerly, 93- 073 -C2
Page 18
1 pair every 3 years; Employee only coverage
for Basic Life, Accidental Death; Weekly
Indemnity Disability; Pension.
Commentary by Auditor Hughes that job performance must
not be a factor in setting the pay scale for the
supervisors.
e. The board of auditors in 1993 approved the benefit
package as read by the secretary for the supervisors.
Paid benefits listed as:
Medical Insurance (Blue Cross -Blue Shield),
Dental; Prescriptions, eye care, (includes
Supervisors spouse and family), Safety
Glasses; one (1) pair every three (3) years,
Supervisor only coverage for Basic Life,
Accidental Death, Weekly Indemnity,
Disability, Pension.
f. For the year 1994, ID 1, pages 9 -14, the board of
auditors approved benefits for both full -time and part -
time supervisors that were the same benefits as in 1993._
Commentary by Auditor Hughes that, as to the system of
compensating the supervisors, factors such as the duties
and responsibilities of the supervisors are not
considered.
g. The 1989 through 1992 minutes refer to Akerly's position
as "part -time . . . salary."
(1) In 1993, Akerly's position is not referenced other
than a question by Hughes as to "what percentage of
full time is Supervisor Akerly."
(2) In 1994, Akerly's position is not referenced other
than his amount of compensation fixed as a weekly
wage or annual amount.
33. The Harborcreek Township Employees Agreements, ID 16, for
1988, 1989 and 1990 are silent as to paid benefits.
a. The Employees Agreements for 1991, 1992 and 1993 provide
for paid benefits as follows: "Benefits instated when
made permanent."
34. The minutes of the township board of supervisors for 1989
through 1994 reflect three patterns of approval of payment of
a block of bills that included insurance premiums: (a)
approval by 2 -0 with Akerly participating in the vote, (b)
Akerly, 93- 073 -C2
Page 19
approval by 3 -0 with Akerly participating in the vote and
either making the motion or seconding the motion for approval,
and (c) approval by 3 -0 with Akerly participating in the vote
but not making the motion nor seconding the motion for
approval.
a. The following identifies the amount of township -paid
insurance premiums attributable to Akerly where the board
of supervisors approved payment by a 2 -0 vote and Akerly
participated in the vote.
Harborcreek Township
Hoard of Supervisors'
Meeting Dates
10/11/89
12/27/89
Subtotal For 1989:
Subtotal For 1990:
05/08/91
07/10/91
Subtotal For 1991:
03/11/92
04/08/92
05/27/92
07/08/92
10/14/92
Subtotal For 1992:
06/09/93
Amount of
Akerly's
Insurance
Premiums
$269.18
$115.55
$347.45
$476.97
$529.90
$483.99
$ 8.75
$494.28
$355.26
$374.64
$ 384.73
$ 0.0
$ 824.42
$ 1,872.18
Subtotal For 1993: $ 374.64
Grandtotal For 1989 -1993 $ 3,455.97
b. The following identifies the amount of township -paid
insurance premiums attributable to Akerly where the board
of supervisors approved payment by a 3 -0 vote and Akerly
participated in the vote and either made the motion or
Akerly, 93- 073 -C2
Page 20
seconded the motion for approval.
Harborcreek Township Amount of
Board of Supervisors' Akerly's
Meeting Dates Insurance
Premiums
09/27/89 $115.55
12/13/89 $269.18
Subtotal For 1989:
01/24/90 $384.73
02/14/90 $384.73
02/28/90 $115.55
03/14/90 $301.99
03/28/90 $127.37
04/11/90 $301.99
04/18/90 $127.37
05/09/90 $301.99
05/23/90 $127.37
06/13/90 $301.99
06/27/90 $127.37
07/10/90 $301.99
07/25/90 $127.37
08/24/90 $127.37
09/12/90 $301.99
09/26/90 $127.37
10/10/90 $301.99
10/24/90 $127.37
11/14/90 $301.99
11/28/90 $127.37
12/12/90 $301.99
12/26/90 $127.37
Subtotal For 1990:
01/23/91 $429.36
384.73
$ 4,876.62
Akerly, 93- 073 -C2
Page 21
garborcreek Township Amount of
Board of Supervisors' Akerly's
Meeting Dates Insurance
Premiums
02/13/91 $301.99
02/27/91 $138.27
03/27/91 $338.70
04/17/91 $476.97
06/12/91 $476.97'
08/14/91 $476.97
09/11/91 $447.02
10/09/91 $338.70
01/23/91 $ 8.75
11/13/91 $473.66
12/11/91 $473.66
Subtotal For 1991: $ 4,381.02
Subtotal For 1992: $ 0.00
01/27/93 $512.61
02/10/93 $147.77
03/10/93 $509.82
03/24/93 $ 9.80
04/14/93 $509.82
05/12/93 $509.82
05/26/93 $ 9.80
06/16/93 $154.78
07/14/93 $519.62
08/11/93 $149.43
09/08/93 $ 9.59
10/13/93 $213.13
11/10/93 $213.13
12/08/93 $213.13
Subtotal for 1993: $ 3,682.25
Akerly, 93- 073 -C2
Page 22
Harborcreek Township Amount of
Board of Supervisors' Akerly's
Meeting Dates Insurance
Premiums
01/19/94 $211.80
02/09/94 $211.80
03/09/94 $210.59
04/13/94 $218.22
05/11/94 $216.63'
06/08/94 $216.63
07/20/94 $216.63
09/14/94 $293.14
Subtotal For 1994: $ 1,795.44
Grandtotal For 1989 -1994 $15,120.06
c. The following identifies the yearly subtotals of
township -paid insurance premiums attributable to Akerly
where the board of supervisors approved payment by a 3 -0
vote and Akerly participated in the vote but neither made
the motion nor seconded the motion for approval.
Harborcreek Township Amount of
Hoard of Supervisors' Akerly's
Meeting Dates Insurance
Premiums
07/12/89 $384.73
08/09/89 $269.18
08/23/89 $115.55
09/13/89 $269.18
10/25/89 $115.55
11/08/89 $269.18
11/22/89 $115.55
Subtotal For 1989: $ 1,538.92
Subtotal For 1990: $ 0.00
Subtotal for 1991: $
0
Akerly, 93- 073 -C2
Page 23
III. DISCUSSION:
Harborcreek Township Amount of
Board of Supervisors' Akerly•s
Meeting Dates Insurance
Premiums
01/22/92 $518.63
02/12/92 $518.63
04/22/92 $ 8.75
05/13/92 $483.99
06/10/92 $502.27
08/12/92 $494.28
09/16/92 $494.28
10/28/92 $139.02
11/11/92 $494.28
12/09/92 $346.51
12/23/92 $ 8.75
12/30/92 $139.02
Subtotal For 1992: $ 4,148.41
02/24/93 $364.84
Subtotal For 1993:
364.84
Grandtotal For 1989 -1993 6,052.17
35. A motion to dismiss by Akerly through his counsel seeks a
dismissal of the allegation as to the insurance benefits for
the years 1992, 1993 and 1994 based upon the following
arguments:
a. The basis for the discrimination is a comparison of
benefits which were not received by township employees
Puzarowski, Mitcheltree and Skarzenski.
(1) The Investigative Division, it is argued, cannot
factually look at any occurrences beyond a five
year period.
(2) There is no documentation that the township had any
other part -time employees after 1991.
Akerly, 93- 073 -C2
Page 24
As a Supervisor for Harborcreek Township, Erie County, Marvin
Akerly, hereinafter Akerly, 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 :
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 above, 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
in the allegations.
The issue before us is whether Akerly as a Harborcreek
Township Supervisor violated Section 3(a) of Act 9 of 1989
regarding his receipt of township paid insurance benefits for the
years 1989 through 1994.
As a preliminary matter, Akerly has filed a number of motions
to dismiss. Generally, the bases for these motions are that either
the activities under review by the Investigative Division are
beyond the statute of limitations in the Ethics Law or secondly,
that the case as viewed either by the pleadings alone or at the
point in time after the Investigative Division presented its case
does not rise to the level of a violation of the Ethics Law as a
matter of law. We must deny such motions.
As to the argument that the Investigative Division was
proceeding beyond the five year statute of limitations in the
Ethics Law, Akerly misperceives the nature of such limitation.
Akerly interprets the statute to impose a five year limitation upon
conducting an investigation and gathering evidence in any time
Akerly, 93- 073 -C2
Page 2S
frame which goes beyond five years even though the actionable
activity is within that five year period. The Ethics Law provides
in part:
65 P.S. 6408(m).
(m) The commission may conduct an
investigation within five years after the
alleged occurrence of any violation of this
act.
In addition, the Regulations of the Commission provide in
§11.3:
511.3. Statute of limitations.
The Commission may investigate a violation of the
act within 5 years of its occurrence. The occurrence
transpires when an act is complete or requires no further
action. This title does not apply to violations
committed prior to the effective date of the act, and
causes of action initiated for the violations shall be
governed by the prior law and title, which are continued
in effect for that purpose as if this title were not in
force. For the purposes of this title, a violation was
committed prior to the effective date of the act if any
elements of the violation occurred prior thereto.
51 Pa. Code 611.3.
The five year statute of limitations under the Ethics Law
constitutes a prohibition as to reviewing actionable conduct on the
part of a respondent if such activity occurred beyond the statute
of limitations. It is clear that the Ethics Law and Regulations
imposes a five year limitation as to the occurrence of any
violation but imposes no time limitation as to the evidence
relative to that occurrence. Neither the literal wording nor the
intent of that particular section warrants such a patently
unreasonable interpretation as proffered by Akerly and we
accordingly reject it.
The other general basis for dismissal is that either the
record as comprised of the pleadings or the record as developed by
the Investigative Division in prosecuting its case as a matter of
law does not support a finding of violation. If the averments of
a complaint would not make a case against a defendant even if the
averments are assumed to be true, then a dismissal would be
warranted. A dismissal would have to be granted on the theory that
as a matter of law there could be no violation even if all of the
averments were true. See, Morena v. South Hills Health System, 501
Pa. 634, 462 A.2d 680 (1983). However, in the instant matter, we
cannot conclude as a matter of law that there is no violation of
Akerly, 93- 073 -C2
Page 26
the Ethics Law without reviewing the entire record; on that basis
we deny the motion to dismiss.
Akerly also argues for a finding of no violation on the basis
that the Investigative Division failed to meet a 90 day status
notification deadline of Section 408(c), 65 P.S. §408(c). The
Ethics Law provides in part:
(c) . . The commission shall notify
the complainant within 72 hours of the
commencement of an investigation and,
thereafter, the commission shall advise the
complainant and the person who is the subject
of the investigation of the status of the
investigation at least every 90 days until the
investigation is terminated.
65 P.S. §408(c).
Initially, we note that the above deadline is not one of the
deadlines which limits the investigative process such as the time
period for conducting a preliminary inquiry or for completing the
actual investigation. In contrast, this 90 day provision merely
serves the function of providing the complainant and respondent
with a periodic notification of the status of the investigation.
Although the word "shall" is used as to the 90 day notice of
investigative status, we are aware that the word "shall" does not
always make a provision mandatory. See Com. v. Ferguson, 381 Pa.
Super 23, 552 A.2 1075 (1988).
There is no dismissal sanction imposed as to the failure to
meet the 90 day status deadlines. Clearly no sanctions exist
because the intent is to provide the complainant and respondent
with the status of the investigation. Since we believe that the
actions of the Investigative Division met the purpose behind the
above section, even though one particular 90 day status was a few
days late, we reject Akerly's argument.
As to time deadlines, Akerly also argues that the two 90 day
extensions to the investigations, which may be granted upon a
showing of need, 65 P.S. 408(c), violate his constitutional rights.
Because the Ethics Law provides for the Executive Director to
petition the Commission for two 90 day extensions upon a showing of
need without giving the respondent notice and an opportunity to
contest same, Akerly argues such action has circumvented the
requirement of a speedy determination and has violated the rules
and regulations designed to protect persons under investigation.
Regarding the time deadline issues raised by Akerly, we
believe there has been compliance by the Investigative Division.
Akerly, 93- 073 -C2
Page 27
As to the two 90 day extensions, the crucial element is that the
extension must be applied for prior to the expiration of the 180 or
270 days; if such did not occur until after the time period
expired, the argument would be made that the case would have to be
dismissed because the investigation was not completed in the
statutory time limit. Since the two applications for 90 day
extensions were made before the deadlines expired, there was
compliance with the Ethics Law. Further, the fact that Akerly was
not given an opportunity to contest the granting of the extensions
is not required by the Ethics Law. In this regard, the granting of
90 day extensions is a procedural matter which does not relate to
the substance of an investigation but rather a showing of need as
to the ability to complete any particular investigation within 180
or 270 days. As to the matter of due process, there is no
requirement that a respondent be given notice and an opportunity-to
be heard at each and every stage of a proceeding but merely at the
point prior to the determination on the merits. Baker v. Com., Pa.
Human Relations Com'n., 507 Pa. 325, 489 A.2d 1354 (1985).
Akerly also argues that the late notification both as to the
withdrawal of certain other allegations and the receipt of evidence
and a witness list from the Investigative Division constitutes a
disregard of his due process and constitutional rights. As to the
discontinuance of certain allegations by the Investigative Division
prior to hearing, the Ethics Law imposes no particular time
constraints on that process. 65 P.S. §408(d). Similarly, the
argument by Akerly that he was denied a fair trial and opportunity
to defend in terms of the time he received the witness list and
evidence from the Investigative Division is without merit since the
Ethic Law once again imposes no such time constraints. 65 P.S.
5408(e). If Akerly did not have enough time to prepare, he had the
option of requesting a continuance prior to the hearing.
Finally, we note that Akerly charges a violation of his
constitutional rights because he was not supplied with the identity
of the complainant. Akerly asserts that he has the right to
confront his accuser at the hearing. The Ethics Law imposes a
statutory confidentiality as to the identity of the complainant.
65 P.S. 5408(k). Akerly has no such right other than to confront
or challenge the witnesses and evidence provided by the
Investigative Division. There is a need to preserve the identity
of people who file complaints because the disclosure of their
identities would have a chilling effect upon the willingness to
report possible violations of the Ethics Law. See Commonwealth v.
McCaigue, Opinion filed in Potter Common Pleas Court at Docket No.
26 of 1986 on July 10, 1986. Further, in many instances, people
who report possible violations of the Ethics Law have no personal
knowledge and would not be called as witnesses.
We therefore reject all of the above arguments of Akerly as
having no basis in law or fact.
Akerly, 93- 073 -C2
Page 28
Turning to the substantive facts, Harborcreek Township is a
Second Class Township with a three member board of supervisors.
Currently, the Supervisors are Akerly, Donna Mindek and David
Bossart. Akerly has served as a Supervisor since 1982.
Harborcreek Township is divided into two road districts. Road
District 1 is a larger and more developed district and is assigned
to Roadmaster David Bossart. District 2 is a smaller rural
district and is assigned to Roadmaster Akerly. The township
auditors in setting the compensation for the employee- supervisors
have classified Mindek in her position as Secretary Treasurer as a
salaried full -time employee, Bossart as roadmaster in District 1 as
a salaried full -time employee and lastly Akerly as a salaried part-
time employee in Road District 2. The salary which the auditors
set for Akerly as a township employee was considerably less than
the salaries for Bossart and Mindek. For each and every year in
issue where the auditors set the compensation for the employee -
supervisors, the auditors also approved township -paid insurance
benefits for the supervisors. The benefits which the auditors gave
the working supervisors were basically derived from the benefits
that were given to the full -time township employees. The record
reflects that there was no difference in the kind or number of
insurance benefits among the township employees who received
insurance benefits. Parenthetically, other township employees did
receive some additional benefits, unrelated to insurance, such as
longevity pay and overtime that the supervisor - employees did not
receive. As to insurance benefits, there was only one package with
some employees receiving and others not receiving such benefits.
The Harborcreek Township Employee Agreements for 1991 through 1993
provided that "Benefits instated when made permanent." There is
nothing of record to indicate how the term "permanent" is defined.
There is no question in this case that Akerly and the other
two supervisors performed their duties as working township -
employees. There is some variance in the testimony of how many
hours Akerly worked in terms of performing his duties as a
roadmaster. That number of hours cannot be determined from the
record for two reasons. First, it appears that, between the time
Akerly walked into the township building in the morning and the
time he left in the afternoon, he came and went to an extent.
Thus, we believe as a rule that Akerly's workday was not entirely
confined to the township building. The record does not permit us
to determine how much time Akerly spent working in the township
building. Second, the record supports a finding that Akerly, like
the other two supervisors, worked after hours and on weekends
responding to various citizen complaints regarding the roads and
other matters.
Although Akerly is classified as a salaried employee, he is
designated part -time by the auditors. However, we note from a
review of the record that the township has no written policy on
Akerly, 93- 073 -C2
Page 29
what constitutes part -time employees. In addition, the record
reflects no consistency as to the witnesses who testified as to
what criteria is used to determine part time versus full time.
Mindek testified that she thought benefits entitlement depended
upon the number of hours worked, which could be anywhere from 20 to
35 hours. Bossart testified that full -time status occurred for a
regular employee after 90 days of employment. Even the auditors
themselves noted in their minutes that they did not know what a
part-time supervisor - employee was.
Although Akerly received the township -paid insurance benefits
as & salaried part -time supervisor, it is equally true that certain
part -time hourly employees did not receive such benefits. In
particular, Judy Mitcheltree was a shared employee of Harborcreek
Township and the School District since March, 1988 who did not
receive benefits as a part -time employee. In addition, Joanne
Puzarowski who was employed for approximately two years beginning
in 1986 or 1987 was a part -time employee and did not receive such
benefits.
The question before us is whether Akerly's receipt of these
township - paid insurance benefits as a supervisor and salaried part -
time employee - roadmaster of the township violated Section 3(a) of
Act 9 of 1989 because Mitcheltree and Puzarowski as part -time
hourly employees did not receive such benefits.
In applying the provisions of Section 3(a) of the Ethics Law
to the above facts, it is clear that Akerly received a pecuniary
benefit consisting of the township -paid insurance benefits. The
issue is whether such pecuniary benefit was authorized in law and
hence not a private benefit or whether it was not authorized in law
and hence a private pecuniary benefit contrary to the Ethics Law.
See, Hessinger, Order 931. In order to determine whether the
pecuniary benefit received by Akerly was authorized in law, it is
necessary to review the applicable provisions of the Second Class
Township Code (Code). Review of the Code is crucial because the
basis of the allegation against Akerly is that the benefits he
received as a part -time, salaried employee, which were not offered
to part -time, hourly employees, were contrary to law because it
constituted an improper discrimination in favor of Akerly under the
Code.
It is necessary to review the Code provisions both prior to
and subsequent to a 1992 amendment since the benefits which Akerly
received and the Investigative Division questioned covered a time
span from 1989 through 1994. Instead of quoting the applicable
provisions of the Code both as it appeared prior to and subsequent
to 1992, we will quote the relevant subsection of the Code before
and after the 1992 amendment with additions appearing with
underlining and deletions appearing with otrikcout. The Code
provides:
Akerly, 93- 073 -C2
Page 30
(c) . . . supervisors while in office or while in the
employ of the township may be eligible for inclusion in
township -paid insurance plans, as follows:
(1) Supervisors and t it
dependents shall be eligible for in lu-
sion in group life, health, hospitaliza-
tion, medical service and accident insur-
ance plans paid in whole or in part by
the township. . . . Participation by
supervisors shall not
require auditor approval. 6epeemeieee—
cmployca oligiblo for incluoion in ouch
other cmployco of the townohip who aro
cligiblc to participato in an insurancc
plan. Cuch plane ohall not improperly
fie- Such insurance shall be uni-
formly applicable to those covered and
shall not improperly discriminate in
favor of supervisors.
53 P.S. §65515(c).
A review of the above provisions of the Code both before and
after 1992 is necessary to determine whether Akerly received
benefits that were not authorized in law. Although this issue
would appear to be straightforward, it is one of first impression.
We are unaware of any decision of this Commission or of any court
which has interpreted this provision of the Code as it relates to
the specific issue before us.
Prior to the December 1992 legislative amendment to the Code,
supervisors were permitted to receive township -paid insurance if
three conditions were met: (1) supervisors must be township
employees, (2) supervisor - employees must meet the same eligibility
requirements as other township employees, and (3) insurance plans
must not "improperly discriminate in favor of supervisor- employes."
After the 1992 amendment, the supervisors were permitted to receive
township -paid insurance if two conditions were met: (1) insurance
plans must be "uniformly applicable" to those covered and (2)
insurance plans must not "improperly discriminate in favor of
supervisors." The 1992 amendment removed two conditions: the
requirement that supervisors had to be township employees and the
requirement that supervisors had to meet the same eligibility
requirements as other township employees.
The parties focus upon the phrase "improperly discriminate in
favor of supervisors" and disagree as to the significance of
Akerly's status as a part -time, salaried employee who received
Akerly, 93- 073 -C2
Page 31
benefits while part -time, hourly employees did not. Akerly also
claims to be a full -time employee.
We believe that all relevant phraseology in the Code is
crucial on the issue of whether Akerly received a private pecuniary
benefit. Thus, the pre -1992 amendment term "eligibility," the
post -1992 amendment term "uniformly applicable" as well as the pre -
and post -1992 term "improperly discriminate in favor" are all
critical in understanding the applicability of this section of the
Code.
On the issue of whether the record supports a conclusion,
based on clear and convincing proof, that Akerly's insurance
benefits were not authorized by the Code, the first condition of
the pre -1992 version of the Code requires that the supervisor must
also be a township employee. Clearly, Akerly meets that condition.
The question becomes whether Akerly did not meet the second
condition or whether the insurance plans did not meet the third.
The second condition provides that supervisor - employees must
meet the same eligibility requirements as other township employees.
We construe the term eligibility to mean the entitlement to
participate in a benefits plan. The record does not clearly
establish what criteria the township used to determine employee
eligibility for insurance plan participation. The Harborcreek
Township Employee Agreements for several years merely stated that
benefits would be initiated when an employee was "made permanent."
There is nothing of record to show how "permanent" employment
status was defined or determined. The record also does not
establish what criteria the auditors used to determine Akerly's
eligibility for insurance plan participation. Once again it is
only clear that the auditors gave Akerly the benefits along with
the other supervisors; it is unclear as to how the auditors came to
that determination. We suspect that the auditors provided
insurance benefits as a continuation of a prior practice.
Therefore, because the record does not show by what criteria
employees become eligible nor does it show by what criteria Akerly
became eligible, the record does not establish that Akerly did not
meet the same eligibility requirements as other employees.
The third condition requires that insurance plans must not
"improperly discriminate in favor of" a supervisor - employee. To
contravene this condition, an insurance plan must "discriminate,"
such "discrimination" must be "improper" and such "improper
discrimination" must be "in favor of a supervisor - employe." Since
everyone in the township who is eligible to receive insurance
receives the same thing, the insurance plan does not distinguish or
differentiate and therefore does not "discriminate." See
Commonwealth v. Kramer, 474 Pa. Commw. Ct. 378 A.2d 824 (1977) .
Since the insurance plan does not discriminate, the questions of
whether such "discrimination" is "improper" and whether such
Akerly, 93- 073 -C2
Page 32
"improper discrimination" is "in favor of" supervisor - employees are
not reached. It should be noted that the "improperly discriminate"
condition refers to the distribution of benefits among individuals
who are eligible for insurance and does not refer to whether an
individual is eligible for insurance. To equate discrimination
with eligibility would render the latter term meaningless
surplusage.
The record does not establish by clear and convincing proof
that Akerly did not meet the same eligibility requirements as other
employees, nor does it show that the insurance plans improperly .
discriminated in favor of supervisor-employees. are unable to
conclude that Akerly's insurance benefits were unauthorized by the
Code in its pre -1992 form.
The Code as amended in 1992 does not prohibit township paid
insurance benefits for supervisors. In fact the current provision
in the Code permits supervisors, whether they are township
employees or not, to receive township -paid insurance if two
conditions are met: the insurance plans must be "uniformly applica-
ble" to those covered and the insurance plans must not "improperly
discriminate in favor of" supervisors.
We believe that the term "uniformly applicable" means that the
insurance plans must be capable of being applied alike to all
within a class. The insurance plan in this case is "uniformly
applicable" because all those who are eligible for insurance get
the same thing. The "improperly discriminate" condition is the
same before and after the 1992 amendment; therefore, any analysis
before and after the amendment must be the same. The insurance
plan does not distinguish or differentiate among individuals who
are eligible to receive insurance and, therefore, does not
"discriminate." Since the insurance plan does not discriminate,
the questions of whether such "discrimination" is "improper" and
whether such "improper discrimination" is "in favor of" supervisors
are not reached. We believe that the "uniformly applicable" and
"improperly discriminate" conditions refer to the distribution of
benefits among individuals who are eligible for insurance and do
not refer to whether an individual is eligible for insurance.
We are compelled to the above result when the provisions as to
eligibility are read together with the phrases "uniformly
applicable" and "improperly discriminate in favor of supervisors."
The Code provides that a supervisor is eligible for benefits even
if he is not an employee. The Code also requires that insurance
plans shall be "uniformly applicable" and shall not "improperly
discriminate," which must also have a meaningful application. As
to a township where there is one benefit package for all who are
eligible, the above interpretation must be reached in order for
both of the above two provisions to be operative. If we conclude
that a supervisor, be he full time, part time or nonemployed, is
Akerly, 93- 073 -C2
Page 33
not entitled to benefits in a township where there is only one
benefit package for eligible participants, we would negate the
provision in the Code that allows "Supervisors . . .(to be]
eligible for insurance plans paid in whole or in part by the
township . . ."
If there are two or more plans in a township with one of the
plans providing quantitatively or qualitatively better benefits to
the supervisor so that there is a discrimination which is improper
in favor of the supervisors or is not uniformly applicable as to
those who are eligible, then we believe under such facts that those
types of plans would be contrary to the Code and the Ethics Law.
Because the record does not support a conclusion based on
clear and convincing proof that Akerly's receipt of township -paid
benefits was contrary to the Code, we must conclude that the record
fails to show that Akerly received a private pecuniary benefit.
Parenthetically, we note that a private pecuniary benefit is
but one of the elements needed to establish a violation of the
Ethics Law. There must also be a use of the authority of office by
the public official in order for a violation to occur. The
township board of supervisors in this case voted on blocks of bills
which contained insurance bills for the employees and the
supervisors. In many instances, Akerly was not the deciding vote
on blocks of bills which included the insurance premiums that were
uncontested. See Shea, Order 921.
Therefore, we find that Akerly did not violate Section 3 (a) of
Act of 1989 regarding his receipt of township -paid insurance
benefits for the years 1989 through the years 1994 on the basis
that there is not clear and convincing proof to establish a use of
authority of office for a private pecuniary benefit under Section
3(a) of the Ethics Law.
IV. CONCLUSIONS OF LAW:
1. Marvin Akerly as a Harborcreek Township Supervisor is a public
official subject to the provisions of Act 9 of 1989.
2. Akerly did not violate Section 3(a) of Act 9 of 1989 as to the
receipt of township -paid insurance benefits in that there is
not clear and convincing proof to establish a violation.
In Re: Marvin Akerly
ORDER NO. 976
File Docket: 93- 073 -C2
Date Decided: 05/04/95
Date Mailed: 05/16/95
1. Marvin Akerly as a Harborcreek Township Supervisor did not
violate Section 3(a) of Act 9 of 1989 as to the receipt of
township -paid insurance benefits in that there is not clear
and convincing proof to establish a violation.
HY THE COMMISSION,
00 etaLd
DANEEN E. REESE, CHAIR