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HomeMy WebLinkAbout809 JulianteIn Re: Jess Juliante STATE ETHICS COMMISSION 308 FINANCE BUILOING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 90- 026 -C2 : 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, Act 9 of 1989, 65 P.S. 401 et. seq. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing waived. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public 'document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be gtanted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(h) of Act 9 of 1989, 65 P.S. 408(h) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). I. ALLEGATION: That you, a Supervisor for Millcreek Township, Erie County, violated Section 3(a) of the State Ethics Act (Act 9 of 1989), when you received compensation not provided for by law in the form of a salary as Supervisor in charge of Administration and Public Safety: II. FINDINGS: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 1. Jess Juliante, III has served as a Millcreek Township Supervisor since January 2, 1990. a. Juliante served as Supervisor for Administration and Public Safety in 1990. b. Juliante was appointed Township Secretary for 1991. 2. Minutes of the Millcreek Township Board of Supervisors' meetings confirm that the practice of supervisors being hired as department heads dates back to January 4, 1954 up to 1990. 3. Millcreek Township has (149) full -time employees. In addition, the township also employs approximately (100) part -time seasonal employees for road work or park and recreation duties. a. In 1990, the Sewer & Water Department had three supervisory employees; the Park & Recreation Department had one supervisor. 1) Supervisor Arthur Detisch had oversight responsibility for these departments. b. In 1990, the Streets Department had five supervisory employees including a road superintendent and three road foreman. 1) Supervisor Paul Martin had oversight responsibility for this department. c. In 1990, the Administration Department had five supervisory personnel including a secretary /treasurer, assistant secretary /treasurer, payroll clerk, engineer and Juliante, 90- 026 -C2 Page 3 zoning administrator. The Public Safety Department had a police chief in charge of police, fire inspection and emergency communication. 1) Supervisor Jess Juliante had oversight responsibility for the Administration and Police Departments. 4. Minutes of the Millcreek Township Board of Supervisors indicate the following action taken relative to the hiri:g of supervisors during 1990: a. January 2, 1990: "Motion by Juliante, seconded by Mr. Detisch, with Martin voting in favor of the following department appointments: J. Juliante, Administration and Public Safety; Martin, Superintendent of Streets; Detisch, Sewer & Wafer, Park & Recreation." Present: Detisch, Martin, Juliante and Solicitor Moffatt 5. Prior to 1991, no job description existed for the position of Superintendent in charge of Administration and Public Safety. a. There was no requirement for physical labor on the township roads. b. No physical labor was performed on township roads. c. Prior to 1991, the duties included overseeing the day -to -day activities of the township office, police department, fire department and ambulance services, emergency communications. 6. The supervisor in charge of Administration and Public Safety had the following responsibilities in 1990: a. Overseeing the daily operation of the following departments: 1) Engineering 2) Building Maintenance 3) Police 4) Emergency Communications Juliante, 90- 026 -C2 Page 4 5) Office of Secretary /Treasurer which includes Payroll and Accounts Payable. 6) Information and Referral 7) Zoning Administration 8) Fire Inspection b. Attend one weekly supervisors' meeting held at 9:30 a.m. 7. The Millcreek Township Board of Auditors took action regarding supervisors' salaries and benefits for calendar year 1990 at their reorganization meeting. a. January 3, 1990: "It was moved by Mr. Wesmiller, seconded by Mr. Volgstadt and unanimously resolved, that the annual base salary of the supervisors will be increased by $1,000.00. Also the longevity pay will be 8% for Mr. Martin and 4% for Mr.-Detisch." Base Supervisor Amount Loncievity Total Paul Martin $32,680 $2,614.00 $35,294.00 Arthur Detisch 32,680 1,307.00 33,987.00 Jess Juliante III 32,680 00 32,680.00 "It was moved by Mr. Volgstadt, seconded by Mr. Wesmiller and unanimously resolved, that supervisors will continue to participate in the township's pension plan, hospitalization, vacation plan and other fringe benefits earned by the township employees." Present: William Volgstadt, Dennis Salisbury and Harold Wesmiller 8. During 1990, in his capacity as Supervisor in charge of Administration and Public Safety, Juliante performed no physical labor on Millcreek Township streets. 9. Supervisors employed by Millcreek Township are expected to work forty hours a week. Juliante, 90- 026 -C2 Page 5 a. There are no official township records of hours actually worked by the supervisors. 10. Jess Juliante maintained a weekly log of hours worked for Millcreek Township. Prior to June 11, 1990, no records of hours worked was maintained. Weekly hours recorded by Juliante are as follows: a. JUNE 6/11/90 - 6/17/90 54 1/2 Hours 6/18/90 - 6/24/90 57 1/2 Hours 6/25/90 - 7/01/90 49 Hours b. JULY 7/02/90 - 7/08/90 45 Hours 7/09/90 - 7/15/90 48 Hours 7/16/90 - 7/22/90 39 1/2 Hours 7/23/90 - 7/29/90 42 1/2 Hours 7/30/90 - 8/5/90 40 1/2 Hours c. AUGUST 8/06/90 - 8/12/90 44 Hours 8/13/90 - 8/19/90 38 Hours 8/20/90 - 8/26/90 40 Hours d. SEPTEMBER 8/27/90 - 9/2/90 42 1/2 Hours 9/03/90 - 9/9/90 43 1/2 Hours 9/10/90 - 9/16/90 40 1/2 Hours 9/17/90 - 9/23/90 43 Hours 9/24/90 - 9/30/90 42 Hours e. OCTOBER 10/1/90 - 10/7/90 40 1/2 Hours Juliante, 90- 026 -C2 Page 6 10/8/90 - 10/14/90 10/15/90- 10/21/90 10/22/90- 10/28/90 f. NOVEMBER 10/29/90- 11/4/90 11/5/90 - 11/11/90 11/12/90- 11/18/90 11/19/90- 11/25/90 11/16/90- 12/2/90 g. DECEMBER 12/3/90 - 12/9/90 12/10/90- 12/16/90 12/7/90 - 12/23/90 12/24/90- 12/30/90 42 Hours 45 1/2 Hours 39 Hours 41 1/2 Hours 35 1/2 Hours 40 1/2 Hours 44 Hours 37 1/2 Hours 42 Hours 43 Hours 43 Hours 41 1/2 Hours 11. W -2 Wage & Tax Statements for 1990 on file in Millcreek Township confirm that Jess Juliante III received $33,145.95 in wages, tips and other compensation. a. $465.95 of the total was a taxable benefit for the use of a township provided vehicle. b. Payroll records confirm that as of April 11, 1991, Juliante has been paid $10,232.37 for 1991. 12. The Millcreek Township Board of Supervisor's restructured at their Reorganizational Meeting of January 7, 1991. The restructuring involved the following board actions: a. "It was moved by Mr. Martin, seconded by Mr. Detisch, to appoint Jess S. Juliante, III as secretary for the year 1991. Vote: Ayes - Martin, Detisch and Juliante; Nays - None" Present: Martin, Detisch and Juliante b. "It was moved by Mr. Martin, seconded by Juliante, 90- 026 -C2 Page 7 Mr. Juliante, with Mr. Detisch voting in favor to appoint Arthur Detisch as roadmaster of District One - all roads East of 1 79." Present: Martin, Detisch and Juliante c. "It was moved by Mr. Juliante, seconded by Detisch, with Mr. Martin voting in favor to appoint Paul Martin as roadmaster of District Two - all roads West of I 79." Present: Martin, Detisch and Juliante 13. Following the Millcreek Township Supervisors' Reorganization Meeting on January 7, 1991, Supervisor Juliante's duties changed. a. Juliante no longer had oversight responsibility over the police department, emergency communications and the fire department. 14. Prior to the Reorganization meeting of January 7, 1991, Millcreek Township employed Gerald Wolf as Secretary /Treasurer. a. Wolf's immediate supervisor was Jess Juliante. b. Wolf's duties included responsibilities for payroll, accounts payable, records of meetings and proceedings, purchases, including bids and contracts, filing of reports and preparation of budget. c. Wolf was re- classified as Township Treasurer following the reorganization. d. The township organizational structure for 1991 reflects Wolf as having similar responsibilities as 1990. 1) This would include duties that Supervisor Juliante would have as township secretary. 15. The Millcreek Township Board of Auditors took the following action relative to the approval of supervisors' salaries for 1991: a. January 8, 1991: "It was moved by Mr. Salsbury, seconded by Mr. Juliante, 90- 026 -C2 Page 8 Wesmiller and unanimously resolved, that the annual total 1991 salary of the supervisors will remain the same as 1990 pending review of job descriptions and responsibilities. The 1990 total salaries are summarized below: Base Supervisor Amount Longevity Total Paul Martin $32,680.00 $2,614.00 $35,294.00 Arthur Detisch 32,680.00 1,307.00 35,987.00 Jess Juliante III 32,680.00 00 32,680.00 Present: Dennis Salsbury, Harold Wesmiller and William Volgstadt "It was moved by Mr. Salsbury, seconded by Mr. Wesmiller and unanimously resolved, that the supervisors will continue to participate in the township pension plan, hospitalization plan, vacation plan, to use township cars while on township business for commuting to and from work, and other fringe benefits earned by other township employees." Present: Dennis Salsbury, Harold Wesmiller and William Volgstadt 16. On January 29, 1991, Millcreek Township Auditors were presented a job description for the position of township secretary which outlined the duties and responsibilities for a supervisor holding this position. a. The job description was submitted by Jess Juliante. 17. The job description for township secretary submitted by Jess Juliante to the Millcreek Township auditors included the following: a. Statutory Duties and Responsibilities (Section 540: 2nd Class Township Code) - Keep a record of all official proceedings of the Board of Supervisors. - Record all court orders. - Keep and preserve the Minute Books, Account Juliante, 90- 026 -C2 Page 9 Books and other financial records of the township. - Prepare and write the annual tax duplicate of the township. - Inform the board members of all functions and meetings of the board, including special meetings. b. Responsible for ministerial aspects of public meetings. - Preparation and distribution of minutes. - Preparation of Agenda. - Distribution of communications. - Publication and posting of notices for meetings of the Board of Supervisors, public hearings, advertisement for bids, actions taken by the board under the Pennsylvania Municipalities Planning Code, and budgetary procedures. - Proper certification and recording of all ordinances. c. Responsible for filing with certain State and Local governmental agencies. - Filing a copy of the annual budget with the Department of Community Affairs within 15 days after final adoption. - Filing the annual audit report with Department of Community Affairs within 90 days after the close of the fiscal year. - Submit a completed survey of township financial condition to the Department of Community Affairs on or before March 15 of each year. - Filing with the Department of Community Affairs copies of all tax - levying ordinances or resolutions within 15 days after they become effective per the Local Tax Enabling Act. - File with the Department of Community Affairs for approval of municipal borrowing. - Report to the Department of Transportation and County Government the names and official addresses Juliante, 90- 026 -C2 Page 10 of all sworn, elected and appointed officials. - Submit a summary- accounting of State Fund Liquid Fuels expenditures for the year before January 15 of the following year and submit application for County Liquid Fuels allocation to County government. - Notify the County Election Board of all local offices to be filled. - Certify all subdivision plans approved by the Board of Supervisors. d. Responsible for competitive bidding procedure. - Require bid specifications. - Prepare and advertise appropriate notices. - Prepare and distribute invitations and instructions to prospective bidders. - Tabulate bids after public opening. - Notify unsuccessful bidders and return their bid bonds. - Notify the successful bidder. - Arrange for the formal contract and required bonds. e. Responsible for negotiated or non -bid purchases. - Secure necessary quotations on those purchases in amounts requiring such quotations. - Authorizing all purchases made through a purchase requisition procedure. f. Responsible for certain aspects of personnel management. - Carry out decisions of the board relative to the hiring of employees. - Review and keep records of employees' work hours, overtime, vacation and sick days. - Inform employees of fringe benefits. Juliante, 90- 026 -C2 Page 11 g. - Receive and keep all job applications. - Orient new employees. Responsible for communications and information. - Act as liaison with other local, countx. and state agencies. - Inform the board of pertinent information and problems as they arise. - Consult with the solicitor on a regular_ basis and in situations requiring legal advice or assistance. - Handle all communications as directed by the board. - Make all public records available upon citizens' request. - Give appropriate attention to citizens' complaints and requests when they are directed to the secretary. h. Responsible for certain aspects of budget and finance. - Work with the treasurertcomptroller in the budget- making process. - Confer with the board regarding programs and cost estimates to be included in the budget. - Gather information from department heads relative to budget requests. - Present a proposed budget to the board at least 30 days prior to adoption. - Fulfill advertising requirements per the 2nd Class Township Code. - File certified copies of the adopted budget with the Department of Community Affairs within 15 days after adoption. - Preserve account books and financial records of the township. Juliante, 90- 026 -C2 Page 12 18. The result of the restructuring by the township supervisors caused the following changes: a. Jess Juliante assumed part of the duties and responsibilities Gerald Wolf previously had. 1) Wolf formerly was the township secretary /treasurer. 2) Wolf currently is the treasurer /comptroller. b. Paul Martin was Superintendent of the entire Street Department. 1) He split his responsibility with Arthur Detisch. a) Detisch is in charge of all roads East of Interstate 79. b) Martin is in charge of all roads West of Interstate 79. c) With these changes the supervisors theoretically serve as liaisons between the various departments they formerly were heads of and the Township Board of Supervisors. 19. On Tuesday, January 22, 1991, in the presence of Attorney Donald E. Wright, Jess Juliante provided the following information relevant to the instant matter. a. He was elected a Millcreek Township Supervisor on November 5, 1989 and took office effective January 2, 1990. b. Prior to this, he was a licensed insurance agent. c. As a township supervisor, he receives $32,684.00 annual salary, a township provided vehicle, and all other benefits provided to township employees. d. He normally works in excess of forty hours a week. e. He normally arrives at the township office in the mid morning and works until 6:00 or 7:00 PM. Juliante, 90- 026 -C2 Page 13 f. He ran for the position of supervisor with the understanding that he would become a full -time salaried department head if elected. g. During calendar year 1990, he was in charge of Administration and Public Safety. h. His duties as Administration and Public Safety Director include but were not limited to the following: 1) Review various township complaints. 2) Have daily meetings with the police chief. 3) Respond to citizens complaints and concerns over public safety issues. 4) Go over requests for police training.. 5) Sign all purchase requisitions. 6) Discuss budget matters with police chief. 7) Handle personnel problems. 8) Coordinate special events with the police department. 9) Spend at least five hours on patrol with each officer observing and making follow -up recommendations to the chief. 10) Arranging for new traffic control devices in highly traveled areas. 11) Handle problems associated with flooding in the township. i. He does no physical labor on the township roads. j. Township supervisors being employed as department heads have been a long standing practice in Millcreek Township. This dates back to approximately 1954. k. He took the position as a department head assuming that is was legally correct. Juliante, 90- 026 -C2 Page 14 III. DISCUSSION: 1. He did not review the Second Class Township Code prior to receiving a letter from the State Ethics Commission. m. Township Solicitor, Charles Moffatt, never informed the supervisors that their organizational structure may not be in compliance with the Second Class Township Code. n. The supervisors reorganized differently in 1991 in an attempt to come in compliance with a strict interpretation of the Second Class Township Code. o. The 1991 reorganization caused the supervisors to change from being employed as.department heads as was the case between 1954 and 1990 to the positions they currently hold. p. Jess Juliante is the Township Secretary. Paul Martin is in charge of the1roads West of Interstate 79, and Arthur Detisch is in charge of the roads East of Interstate 79. Jess Juliante, hereinafter Juliante, as a Millcreek Township Supervisor, 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. Under Section 3(a) of Act 9 of 1989 quoted above, a public official shall not engage in conduct that constitutes a conflict of interest. The following terms are defined under Act 9 of 1989: 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 Juliante, 90- 026 -C2 Page 15 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 or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. The issue before us concerns whether Juliante violated Section 3(a) of Act 9 of 1989 regarding receiving a salary as a township supervisor for performing duties relative to administration and public safety. Factually, Juliante has served as Millcreek Township Supervisor since January, 1990 and was appointed Township Secretary in 1991. Since 1954, it had been the practice in Millcreek Township to hire supervisors as department heads. As to Juliante specifically, he had oversight responsibility in 1990 for administration and the police department. On January 2, 1990, the Township Board, upon a motion by Juliante, unanimously appointed Juliante to administration and public safety, Martin to superintendent of streets and Detisch to sewer and water and park and recreation. As to Juliante's position relative to administration and public safety, no job description existed. The job did not entail any physical labor on township roads and in fact no such labor was performed by Juliante. Prior to 1991, Juliante's duties included overseeing the day to day activities of the township office, police department, fire department, ambulance service and emergency communications. In 1990, the Millcreek Township Board of Auditors took action whereby the supervisors' salaries would be increased $1,000.00 per annum which in the case of Juliante translated into a salary of $32,680.00. Millcreek Township supervisors are expected to work forty hours a week. In the case of Juliante, the weekly recorded hours from June through December of 1990 reflect, on average, a weekly work schedule which exceeded the forty hour requirement (Fact Finding 10). In January 7, 1991 the Millcreek Township Board of Supervisors restructured at their organizational meeting whereby Juliante was appointed Secretary for the 1991 calendar year through unanimous action by the board. Thereafter, Juliante no longer had oversight responsibility as to the police department, emergency communications and the fire department. When Juliante assumed the Secretary position which was formerly held by Gerald Wolf, the appointed Secretary /Treasurer, Wolf was reclassified as Township Treasurer. Thereafter, the Township Board of Auditors at the January 8, 1991 Juliante, 90- 026 -C2 Page 16 meeting set the salary for the supervisors at the same level as the prior year. On January 29, 1991 the auditors received a job description for the position of township secretary which Juliante submitted and which outlined his duties and responsibilities. Finally, Juliante asserts that when he was elected supervisor in November of 1989, he did so with the understanding that he would become a full -time salaried department head which was consistent with the township practice as far back as 1954. Further, Juliante indicates that he believed that he could be paid as a department head since the solicitor did not advise him otherwise and that in 1991 the supervisors did reorganize so that they would be in strict compliance with the Second Class Township Code. In determining whether a violation of Section 3(a) of Act 9 of 1989 occurred in this case, we must reference the Second Class Township Code in order to determine whether the compensation received by Juliante for performing duties relative to administration and public safety was authorized in law; if not, such would then be a private pecuniary benefit contrary to Section 3(a) of the Ethics Law. Although the Second Class Township Code does allow for a supervisor to serve as Secretary /Treasurer (53 P.S. S65511) and further allows supervisors to be employed as either a superintendent, roadmasters or laborers (53 P.S. S65514), there is no provision in the Second Class Township Code which would allow a supervisor to be compensated for performing duties relative to administration and public safety. See, Confidential Opinion 91 -001. Since Juliante received a private pecuniary benefit for himself consisting of the compensation he received for performing the duties of administrator‘ and public safety, the only remaining question is whether there was a use of authority of office on his part. A review of the term "authority'of office" quoted above indicates the term extends to all of the tasks needed to perform the functions of a given position. The words, "authority of office or employment" mean the actual power provided by law which must be exercised, and the term "unique" applies to the duties and responsibilities of that position. Thus, the "authority of office or employment" is the actual power provided by law which must be exercised to perform the unique duties and responsibilities of any given position. The "actual power provided by law" encompasses every facet of that position. As in Cappabianca, Opinion 89- 014 -R2, we find a clear use of authority of office in this case. Therefore, based on the above, it is clear that there was a use of authority of office by Juliante which resulted in a private pecuniary benefit consisting of the compensation he received which was not authorized in law. Accordingly we find a violation of Section 3(a) of Act 9 of 1989. Act 9 of 1989 provides in part: "Issue findings reports and orders relating to investigations initiated pursuant to section 8, which set forth the alleged Juliante, 90- 026 -C2 Page 17 violation, findings of fact and conclusions of law. An order may include recommendations to law enforcement officials. Any order resulting from a finding that a public official or public employee has obtained a financial gain in violation of this act may require . the restitution plus interest of that gain to the appropriate governmental body. The commission or the Office of Attorney General shall have standing to apply to the Commonwealth Court to seek enforcement of an order requiring such restitution. This restitution requirement shall be in addition to any other penalties provided for in this act." 65P.S. S407(13). Since this Commission has specific statutory authority to impose restitution, we believe, given the totality of the facts and circumstances in this case, that restitution in the amount of $2,000.00 is appropriate. Accordingly, we hereby direct Juliante to make restitution to the township in the amount of $2,000.00 by forwarding a check to this Commission payable to the order of Millcreek Township within thirty days of this Order. In such case, Juliante will then have removed himself from the conflict and we will take no further action. However, failure to pay the ordered restitution will result in the referral of this matter to the appropriate law enforcement authority for an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Jess Juliante, III as a Millcreek Township Supervisor is a public official subject to the provisions of Act 9 of 1989. 2. Juliante violated Section 3(a) of Act 9 of 1989 when he received a salary as a supervisor in charge of administration and public safety which is a private pecuniary benefit to himself in that there is no authorization in the Second Class Township Code for a supervisor to work and be compensated in such a position. In Re: Jess Juliante : File Docket: 90- 026 -C2 : Date Decided: July 12, 1991 : Date Mailed: July 16, 1991 ORDER No. 809 1. Jess Juliante, III as a Millcreek Township Supervisor violated Section 3(a) of Act 9 of 1989 when he received a salary as a supervisor in charge of administration and public safety which is a private pecuniary benefit to himself in that there is no authorization in the Second Class Township Code for a supervisor to work and be compensated in such a position. 2. Juliante is ordered to make restitution in the amount of $2,000.00 by forwarding a check to this Commission payable to the order of Millcreek Township within thirty days of the issuance of this order. Failure to comply with the restitution will result in the referral of the matter to the appropriate law enforcement authority for an order enforcement action. 3. Based upon the totality of the facts and circumstances of this case, this Commission will take no further action as to the violation of Section 3(a) of Act 9 of 1989. BY THE COMMISSION, p4oLi ROBERT W. BROWN, CHAIR