HomeMy WebLinkAbout805 SchimonskyIn re: Roy Schimonsky
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
: File Docket: 88 -089 -C
: Date Decided: July 12, 1991
: Date Mailed: July 16, 1991
Before: Robert W. Brown, Chair
Dennis C. Harrington, Vice Chair
James M. Howley
Daneen E. Reese
Roy W. Wilt
Austin M. Lee
The State Ethics Commission received a complaint regarding a
possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S.
401 et. seq. Written notice, of the specific allegation(s) was served
at the commencement of the investigation. A Findings Report was
issued and served, upon completion of the investigation, which
constituted the Complaint by the Investigation Division. An Answer
was not filed and hearing waived. The record is complete. This
adjudication of the Commission is hereby issued which sets forth the
individual Allegations, Findings of Fact, Discussion, Conclusions of
Law and Order.
This adjudication is final and will be made available as a public
document fifteen days after issuance. However, reconsideration may be
requested which will defer public release of this adjudication pending
actin on the request by the Commission. A request for
reconsideration, however, does not affect the finality of this
adjudication. A reconsideration request must be received at this
Commission within fifteen days of issuance and must include a detailed
explanation of the reasons as to why reconsideration should be granted
in conformity with 51 Pa. Code §2.38.
The files in this case will remain confidential in accordance
with Section 8(a) of Act 170 of 1978 and Section 8(h) of Act 9 of
1989 during the fifteen day period and no one unless the right to
challenge this Order is waived, may violate confidentiality does not
preclude discussing this case with an attorney at law.
Any person who violates confidentiality of the Ethics Act is
guilty of a misdemeanor subject to a fine of not more than $1,000 or
imprisonment for not more than one year, 65 P.S. 409(e).
ADJUDICATION
I. ALLEGATION:
That you, a Supervisor for Brownsville Township, Fayette County,
violated the following provisions of the State Ethics Act (Act
170 of 1978), when you received compensation for administrative
duties such as visiting county and state agencies, reading mail,
talking on the telephone and attending county association
meetings:
Section 3. Restricted Activities.
(a) No public official or public employee shall
use his public office or any confidential
information received through his holding public
office to obtain financial gain other than
compensation provided by law for himself, a member
of his immediate family, or a business with which
he is associated. 65 P.S. S403(a).
II. FINDINGS:
1. Roy Schimonsky served as a Brownsville Township Supervisor
from June 17, 1983 through November 1989.
a. Schimonsky was appointed a Brownsville Township
Supervisor on June 17, 1983 to fill the vacancy
caused by the resignation of Thomas Clark.
b. Schimonsky won the November 1983 election and
served an additional elected six year term from
1984 through 1989.
c. Schimonsky also served as Brownsville Township
Auditor in 1982.
2. Schimonsky was appointed Secretary /Treasurer for Brownsville
Township by the board of supervisors at annual
reorganization meetings.
3. Official minutes of the Brownsville Township Board of
Supervisors confirm the following actions regarding the
appointment of secretary /treasurer.
a. January 2, 1984:
Schimonsky was appointed Secretary /Treasurer.
Present: Roy Schimonsky, Jack McCune and John
Patrosky
b. January 2, 1985:
Mr. Roy Schimonsky
Page 3
Schimonsky was appointed Secretary /Treasurer.
Present: Roy Schimonsky and John Patrosky
Absent: Jack McCune
C. January 6, 1986:
Schimonsky was appointed Secretary /Treasurer.
Present: Roy Schimonsky, Jack McCune and Timothy
Scott
d. January 7, 1987:
Schimonsky was appointed Secretary /Treasurer.
Present: Roy Schimonsky, Jack McCune and Timothy
Scott
e. January 4, 1988:
Schimonsky was appointed Secretary /Treasurer.
Present: Roy Schimonsky, Jack McCune and Timothy
Scott
f. February 20, 1988:
1) Jack McCune made a motion that the office of
secretary /treasurer be declared vacant,
seconded by Scott.
Yes: McCune and Scott
No: Schimonsky
2) Jack McCune made a motion that Timothy Scott
be appointed secretary /treasurer, seconded by
Scott.
Yes: McCune and Scott
No: Schimonsky
3) "Schimonsky asked the reason for the change.
Jack McCune brought up the fact that
Schimonsky was being paid hours for filling
out reports, etc."
Mr. Roy Schimonsky
Page 4
Schimonsky stated that "some time was for
making personal contacts for the good of the
township ".
Schimonsky added that "all he made in wages
during 1987 was $401.00. An argument
followed ".
Present: McCune, Schimonsky and Scott
4. Schimonsky was also appointed roadmaster by the board of
supervisors in 1986 and 1987.
a. All three supervisors were appointed roadmasters.
5. Official minutes confirm the following regarding
Schimonsky's appointment as township roadmaster.
a. January 6, 1986:
All three supervisors are appointed as
roadmasters.
Present: Roy Schimonsky, Jack McCune and John
Patrosky
b. January 7, 1987:
All three supervisors are appointed as
roadmasters.
Present: Timothy Scott, Roy Schimonsky and Jack
McCune
c. May 4, 1987:
1) Jack McCune made a motion that Roy Schimonsky
be relieved as roadmaster, seconded by
Timothy Scott.
Yes: McCune and Scott
No: Schimonsky
2) Roy Schimonsky made a motion to remove
Timothy Scott as roadmaster. The motion died
due to a lack of a second.
6. Records of the Brownsville Township Board of Auditors
indicate that prior to July 15, 1986, no salaries were ever
set for township supervisors working in the capacity of
Mr. Roy Schimonsky
Page 5
secretary /treasurer.
a. Township auditors were unaware of this
responsibility.
b. This situation was discussed at the Brownsville
Township Board of Supervisors meeting held on
March 26, 1988.
4) Auditor Irene Lowery stated that, it
should be done in the manner prescribed
by law.
7. Official records of the Brownsville Township Auditors
confirm that on July 15, 1988, the township auditors met and
unanimously approved a salary of $6.00 /hour for Supervisor
Timothy Scott serving as secretary /treasurer.
8. Roy Schimonsky submitted the following hours for
compensation while serving as Brownsville Township
Secretary /Treasurer.
a. 1984
1) Supervisor Jack McCune stated that the
wages of a secretary /treasurer should be
set by the auditors.
2) Auditor Donna Cross stated that she did
not know this regulation.
3) Roy Schimonsky, former
secretary /treasurer, stated that he did
not know of this regulation.
Hours
Date Rate of Pav Worked
1/8 $5.00 /Hour 1.5
2/6 5.00 /Hour 2.0 (Meeting)
2/10 5.00 /Hour 1.0
3/1 5.00 /Hour 1.0
3/5 5.00 /Hour 2.0 (Meeting)
3/27 5.00 /Hour 1.0
4/10 5.00 /Hour 1.0
Mr. Roy Schimonsky
Page 6
b. 1985
5/2 5.00 /Hour 1.0
5/18 5.00 /Hour 1.0
5/31 5.00 /Hour 1.0
6/18 5.00 /Hour 1.5
6/27 5.00 /Hour 2.0 (Meeting)
6/29 5.00 /Hour 1.0
7/18 5.00 /Hour 2.0 (Meeting)
7/20 5.00 /Hour 1.0
1984 Totals: 20.0 - $100.00
Hours
Date Rate of Pay Worked
2/1 $5.00 /Hour 2.0
2/11 5.00 /Hour 2.0 (Audit With
Auditor General)
2/25 5.00 /Hour 2.5 (Meeting)
2/27 5.00 /Hour 1.0
3/13 5.00 /Hour 3.0 (Meeting)
3/14 5.00 /Hour 1.0
3/15 5.00 /Hour 3.0 (Sec. Work &
Meetings)
3/28 5.00 /Hour 1.5
3.28 5.00 /Hour 3.0 (Audit)
4/9 5.00 /Hour 1.5
4/12 5.00 /Hour 1.0
4/13 5.00 /Hour 3.0
Mr. Roy Schimonsky
Page 7
c. 1986
4/29 5.00 /Hour
4/30 5.00 /Hour
5/1 5.00 /Hour
5/6 5.00 /Hour
5/13 5.00 /Hour
5/16 5.00 /Hour 3.0
5/17 5.00 /Hour 2.0 (Deliver
Cheese)
5/28 5.00 /Hour 2.0
5/28 5.00 /Hour 3.0 (Meeting)
6/3 5.00 /Hour 1.0
6/4 5.00 /Hour 3.0
6/26 5.00 /Hour 3.0
6/28 5.00 /Hour 3.0
7/2 5.00 /Hour 2.0
7/10 5.00 /Hour 1.0 (Meeting)
7/22 5.00 /Hour 2.0
8/16 5.00 /Hour 1.0
9/30 5.00 /Hour 1.0
10/15 5.00 /Hour 2.0
11/29 5.00 /Hour 2.0
12/2 5.00 /Hour 2.0
12/31 5.00 /Hour 2.0
1985 Totals: 70.5 - $ 352.50
2.0 (Meeting)
2.0
2.0 (Phone Call)
3.0
1.0
Hours
Mr. Roy Schimonsky
Page 8
Date Rate of Pay, Worked
1/11 $5.00 /Hour 2.0
1/30 5.00 /Hour 2.0
2/4 5.00 /Hour 4.0
2/5 5.00 /Hour 3.0 (Meeting)
2/12 5.00 /Hour 1.0
2/17 5.00 /Hour 2.0
2/18 5.00 /Hour 3.0
2/20 5.00 /Hour 2.0
2/21 5.00 /Hour 2.0
3/7 5.00 /Hour 3.0 (Meeting)
3/13 5.00 /Hour 4.0 (Hearing)
3/19 5.00 /Hour 3.0
3/21 5.00 /Hour 2.0
4/2 5.00 /Hour 2.0
4/5 5.00 /Hour 2.0
4/8 5.00 /Hour 3.0
4/11 5.00 /Hour 4.0
4/17 5.00 /Hour 2.0
4/28 5.00 /Hour 4.0
5/24 5.00 /Hour 1.5 (Supervisor's
Meeting)
6/6 5.00 /Hour 1.0
8/14 5.00 /hour 1.0
9/25 5.00 /Hour. 2.0
10/22 5.00 /Hour 4.0 (Surplus Food)
Mr. Roy Schimonsky
Page 9
d. 1987
11/11 5.00 /Hour 1.0
12/31 5.00 /Hour 1.5
1986 Totals: 64.0 - $320.00
Hours
Date Rate of Pam Wor ed
1/14 $5.00 /Hour 2.0
1/20 5.00 /Hour 1.0
1/27 5.00 /Hour 2.0
2/3 5.00 /Hour 1.0
2/8 5.00 /Hour 1.0
2/17 5.00 /Hour 2.5 (State
Auditors)
3/18 5.00 /Hour 2.5 (State
Auditors)
8/1 5.00 /Hour
8/13 5.00 /Hour
9/11 5.00 /Hour
9/12 5.00 /Hour
9/14 5.00 /Hour
9/21 5.00 /Hour
10 /1 5.00 /Hour
10/22 5.00 /Hour
10/27 5.00 /Hour
11/13 5.00 /Hour
1.0
3.0
1.0
1.0
1.0
1.0
1.0
1.0
0.5
1.0 (Handle
Complaint)
11/18 5.00 /Hour 4.0
Mr. Roy Schimonsky
Page 10
III. pISCUSSION:
e. 1988
12/7 5.00 /Hour 2.0
12/13 5.00 /Hour 2.0
1987 Totals: 33.5 - $167.50
Hours
Date Rate of Pav Worked
1/6 $5.00 /Hour 2.0
1/6 5.00 /Hour 2.0
1/7 5.00 /Hour 3.0
2/2 5.00 /Hour 2.0
2/16 5.00 /Hour 1.0
1988 Totals: 12.0 - $60.00
f. Meetings attended by Schimonsky which were
submitted for compensation are other than regular
board meetings of the township supervisors. These
were meetings with township residents, businesses
and county, state or local agencies.
9. Records on file with the Brownsville Township Secretary
indicate that Roy Schimonsky earned the following wages
between 1984 and 1988 as township secretary /treasurer:
a. 1984 - $100.00
b. 1985 - 352.50
c. 1986 - 320.00
d. 1987 - 167.50
e. 1988 - 60.00
Total 1987 - 1988: $1,000.00
10. The $5.00 /hour rate of pay received by Schimonsky was the
same as the rate of pay paid to the township supervisors
serving as roadmasters.
11. Schimonsky was unaware that the auditors were required to
set a salary for a supervisor holding the position of
secretary /treasurer.
Mr. Roy Schimonsky
Page 11
Ray Schimonsky, hereinafter Schimonsky, as a Brownsville
Township Supervisor, was a public official as that term is defined
under the Ethics Act. 65 P.S. 402; 51 Pa. Code 51.1. As such, he
is subject to the provisions of the Ethics Act and the
restrictions therein are applicable to him.
Initially, it is noted that Act 9 of 1989 provides in part:
"This amendatory act shall not apply to violations committed
prior to the effective date of this act, and causes of
action initiated for such violations shall be governed by
the prior law, which is continued in effect for that purpose
as if this act were not in force. For the purposes of this
section, a violation was committed prior to the effective
date of this act if any elements of the violation occurred
prior thereto."
Since the occurrences in this case transpired prior to the
effective date of Act 9 (June 26, 1989), we must apply the
provisions of Act 170 of October 4, 1978, P.L. 883 to determine
whether the Ethics Act was violated.
Under Section 3(a), quoted above, this Commission has
determined that use of office by a public official to obtain a
financial gain for himself or a member of his immediate family or
a business with which he is associated which is not provided for
in law transgresses the above provision of law. Thus, use of
office by a public official to obtain a financial gain which is
not authorized as part of his compensation is prohibited by
Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa.
Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics
Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987).
Similarly, Section 3(a) of the Ethics Act would prohibit a public
official /employee from using public office to advance his own
interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct.
19, 540 A.2d 1374 (1988). Likewise, a public official /employee
may not use the status or position of public office for his own
personal advantage; Huff, Opinion 84 -015.
In the instant matter, we must determine whether Schimonsky
as a township supervisor violated Section 3(a) regarding the
receipt of compensation for administrative duties including but
not limited to visiting county and state agencies, reading
correspondence, performing telephone functions and attending
county association meetings.
Factually, Schimonsky served as Brownsville Township
Supervisor from June 17, 1983 through November 1989. At the
township annual reorganizational meetings, Schimonsky was
appointed secretary /treasurer for the years 1984 through 1988.
Mr. Roy Schimonsky
Page 12
However, at a February 20, 1988 meeting, a motion was made to
declare the office of secretary /treasurer vacant. Following the
passage of the foregoing motion, Supervisor McCune was appointed
secretary /treasurer which was followed by a disagreement among
the supervisors regarding the new appointment and the reason for
that appointment. In 1986 and 1987, Schimonsky, along with the
other two supervisors, were appointed roadmasters. At a May 4,
1987 meeting, Schimonsky was relieved as roadmaster by the passage
of a motion made by the other two supervisors. The records of the
Brownsville Township Board of Auditors reflect that no salaries
were set for the township supervisor working in the position of
secretary /treasurer. The record reflects that the auditors were
unaware of their responsibility to set the hourly rate of
compensation for a supervisor working in the secretary /treasurer
position. The compensation which Schimonsky received between 1984
and 1988 is reflected in Fact Finding 9. The compensation was
based upon rate of hourly pay of $5.00 /hour which was the same
rate paid to the township supervisors as working roadmasters.
Finally, the record reflects that the services performed by
Schimonsky appear to be within the scope of the functions related
to the secretary /treasurer position.
In applying the provisions of Section 3(a) quoted above to
the instant matter, we find a technical violation of Section 3(a)
of the Ethics Act regarding the receipt by Schimonsky of
compensation relative to performing the services in the position
of secretary /treasurer without the requisite salary approval by
the township board of auditors. In this regard, we find the
requisite use of office in light of the fact that Schimonsky, as
elected township supervisor, accepted the position of
secretary /treasurer and performed various duties and
responsibilities attendant with that position. Albeit small, the
compensation that Schimonsky received for the years in question
was a financial gain. Lastly, the financial gain is other than
compensation provided for by law, since the requisite auditor
approval in setting the working hourly rate for the position of
secretary /treasurer was absent.
However, given the totality of the facts and circumstances
in this case, no further action will be taken and the matter will
be closed.
IV. CONCLUSIONS OF LAW:
1. Roy Schimonsky, as a Brownsville Township Supervisor, was a
public official subject to the provisions of the Ethics Act.
2. A technical violation of Section 3(a) of the Ethics Act
occurred when Schimonsky was compensated for performing the
duties of secretary /treasurer without receiving the
Mr. Roy Schimonsky
Page 13
requisite auditor approval as to the hourly rate of pay.
In re: Roy Schimonsky
: File Docket: 88 -089 -C
: Date Decided: July 12z 1991
: Date Mailed: July 16, 1991
ORDER Np. 805
1. A technical violation of Section 3(a) of the Ethics Act
occurred when Roy Schimonsky, as a Brownsville Township
Supervisor, received compensation for performing the duties
of secretary /treasurer without receiving the requisite
auditor approval as to the hourly rate of pay.
2. Based upon the totality of the facts and circumstances of
this case, the Commission will take no further action.
BY THE COMMISSION,
/ 44-1/42.4u.. , ,
ROBERT W. BROWN, CHAIR