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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