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HomeMy WebLinkAbout812 SmealSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Melvin Smeal : .File Docket: 89 -017 -C : Date Decided: August 23, 1991 ' : Date Mailed: September 3, 1991 Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. 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 was deemed 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 granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 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 Graham Township, Clearfield County, violated Section 3(a) of the State Ethics Act (Act 170 of 1978), when you received compensation not provided for by law in the form of overtime pay as a township road worker without auditor approval: Section 3. Restricted Activities. 1 (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. 5403(a). II. FINDINGS: 1. Melvin Smeal serves as a Graham Township Supervisor. a. He has served in this position since January 1988. 2. Melvin Smeal has been employed by the Graham Township Road Department during 1988, 1989, 1990 and 1991. a. Smeal served as the township roadmaster in 1990 - 1991. b. James Hubler served as township road superintendent during 1988 and 1989, and Mr. Smeal served as a laborer during this time. 3. Minutes of the Graham Township Board of Auditors indicate the following official action was taken relative to the setting of supervisor's wages and overtime pay. a. January 6. 1987: " Roadmaster pay was raised to $7.00 per hour for the supervisors ". No overtime or overtime rate is listed. Present: Lozetta, Smeal and Liptak b. January 5. 1988: "Mayford Rinehart made a motion that working supervisor's wages (B) set at $5.50 an hour regardless of capacity., This is a $.50 increase for working supervisors. Shirley Harvey seconded; all agreed." Smeal, 89 -017 -C Page 3 Present: Shirley Harvey, Hayford Rinehart and Brenda Speigle No overtime provisions were set. c. January 4, 1989: "Per request by Supervisor /Roadmaster, Melvin Smeal, pay raise increase auditors discussed raising his rate from $5.50 to previous roadmasters rate of $7.00 as in 1987. Brenda stated according to the PSATS part -time wage and salary survey in fact that the township has a road superintendent; also that hired workers are paid $5.00 per hour, $6.00 operator. The wage was set the previous year at $5.50 regardless of capacity ". Shirley Harvey made a motion that supervisors pay remain $5.50. Brenda seconded; all in favor ". Present: Brenda Speigle, Mayford Rinehart and Shirley Harvey No overtime provisions were set. d. January 3, 1990: "Supervisor Melvin Smeal was present to request a pay raise after discussing whether his position was as a working supervisor or a roadmaster. Brenda made a motion to write a letter to the township supervisors pointing out Section 514 in the Code Book stating a township may appoint a superintendent or a roadmaster for each district. The operative word being or. Flo seconded, vote yes ". "Brenda also made a motion that the following comment be included in the letter to the supervisors. Responsibility of maintaining roads and running the township lies with the Board of Supervisors, and these responsibilities are compensated for by the regular supervisors pay. Flo seconded, vote yes." "Brenda made a motion that we had the motion that all operators must have a valid and correct class of drivers license as per PennDOT regulations. Flo seconded, vote yes. Brenda made a motion that we suggest in the above letter that the Board of Supervisors, if necessary, make a motion prohibiting anyone Smeal, 89 -017 -C Page 4 without a valid, correct drivers license from operating township equipment in any location. Flo seconded, vote yes. Brenda made a motion that we retain the rate of $5.50 per hour, regardless of capacity for superviors'. Flo seconded, vote yes. Brenda made a motion to pay $5.50 per hour for road inspections. Flo seconded, vote yes. Brenda made a motion to retain mileage at $.20 per mile. Flo seconded, vote yes. Brenda made a motion to not set rates for use of hand tools as it does not seem ne9essary any longer since the township has their own. Flo seconded it, vote yes. Present: Brenda Speigle and Florence Liptak No overtime rate or provision set. e. January 8, 1991: "A letter was received from Melvin Smeal requesting a pay raise and was read by Flo. He included a three page summary of comparable wages from areas with populations of 1,000 to 2,500. Our township has the population of 1,225. The low range was $4.50 and the high range was $13.00 with anlaverage of $7.43. Melvin was asked how long it !would be before he received his license back. He replied that he had two months to go. He stated, we now have two full -time and one part - time worker. Last year, there was one full -time and one part -time with occasional extra helpers. All things were considered in our decision. Flo made a motion to raise the pay of a supervisor working as roadmaster to $6.00 per hour, which is roughly a 10% raise. This raise will become effective when Melvin Smeal gets his license back. Helen seconded, vote yes. Helen made a motion to give two sick days and two paid holidays to the roadmaster. The motion died for a lack of a second. Helen made a motion that there would be no paid lunch hours or overtime for supervisors. Flo seconded, vote yes. Present: Helen Turner and Florence Liptak Absent: Brenda Speigle, 4. Minutes of the Graham Township Board of Supervisors indicate Smeal, 89 -017 -C Page 5 the following discussion took place relative to overtime pay. a. March 14, 1988: "All overtime must specify what was done in an emergency, not just say it was an emergency. If it was snow removal, ditch or whatever it is. Martin made a motion that the employees be paid bi- weekly, beginning with February 28, 1988 at 12 :00 a.m. through March 12, 1988 at 12 :00 a.m. We will now give them the pay checks every two weeks once it has started. Melvin said that the pay should be from Friday to Friday. It will be turned in on Friday and be paid the following Monday. Melvin seconded it." Melvin - Yes; Martin - Yes; Lester - Yes b. April 28, 1988: "Special Meeting - Roadmaster overtime: Overtime is set at an emergency over forty hours per week when the roadmaster attends a meeting, it turns into overtime for that week. Melvin Smeal said to pay it this time as it was too late to do anything about it, and all the supervisors will go over and discuss it at the next meeting." Present: Martin Graham and Melvin Smeal c. Mav 9, 1988: "Roadmaster Meeting Pay: Roadmasters are required to be at the meeting to give a monthly report. In order that meeting hours do not cause overtime, Melvin Smeal made a motion to pay roadmaster a set rate of $15.00 per meeting. Lester Smeal seconded it." Lester Smeal - Yes; Melvin Smeal - Yes d. Mav 9. 1988: "Brenda Speigle will write a letter to DCA (Department of Community Affairs) and ask for a written statement back from them concerning overtime pay for supervisors." Present: Lester Smeal and Melvin Smeal Smeal, 89 -017 -C Page 6 5. W -2 Wage & Tax Statements on file with Graham Township indicate the following disbursements were made to Melvin Smeal: a. Calendar Year 1990: $12,310.50 b. Calendar Year 1989: $ 9,927.50:. c. Calendar Year 1988: $ 5,913.76 6. Bi- weekly time sheets filled out by Melvin Smeal indicate Smeal received overtime pay on the following occasions from February 1, 1988 through December 29, 1990: Date Hours Rate Total Reason 2/1/88 12 $8.25 $99.00 Snow Removal 2/16/88 to 9 1/2 8.25 78.38 4 1/2 Hours 2/28/88 Snow 5 Hours Delivering Cheese 7/17/89 to 2 8.25 16.50 Road Work 7/28/89 8/28/89 to 4 8.25 33.00 Road Work 9/8/89 9/11/89 to 2 8.25 16.50 Road Work 9/23/89 12/16/89 to 33 8.25 272.25 Snow Removal 12/29/89 1/2/90 to 12 8.25 99.00 Snow Removal 1/12/90 1/2/90 to 5 8.25 41.25 Repairs to Tools 1/12/90 1/13/90 to 8 8.25 66.00 Snow Removal 1/26/90 1/27/90 to 2 8.25 16.50 Snow Removal 2/10/90 2/25/90 to 18 8.25 148.50 Snow Removal 3/10/90 , 4/7/90 to 4 8.25 33.00 Snow Removal Smeal, 89 -017 -C Page 7 4/20/90 7/15/90 to 3 8.25 7/28/90 7/29/90 to 4 8.25 8/11/90 r 12/2/90 to 2 8.25 12/15/90 12/16/90 to 6 12/29/90 8.25 24.75 Road Maintenance 33.00 Paving 16.50 Snow Removal 49.50 Snow Removal TOTAL: (2/1/88 to 12/29/90) 126.5 8.25 $1,043.63 7. A special audit was conducted May 9, 1988. Said audit indicates a recommendation for Melvin Smeal to make a cash refund to the township in the amount of $60.50. $33.00 of that total was for unapproved overtime during pay period 2/1/88 - 2/15/88; $27.50 was for the delivering of surplus cheese during pay period 2/16/88 - 2/29/88. a. To date no refund was made to the township by Smeal. 8. Statements of Financial Interests on file with the Graham Township Secretary, Deborah Hubler, include the following filings for Smeal:. a. Calendar Year: 1987 Filed: January 14, 1988 Occupation: Police Officer All Other Financial Interest: None b. Calendar Year: 1988 Filed: January 225, 1989 Position: Township Supervisor Occupation: Security Guard Creditors: Mid State,Bank, No Interest Rate Listed Smeal, 89 -017 -C Page 12 S409 (c). In addition to the above, the State Ethics Act provides that the Commission may forward the results of any investigation to the appropriate prosecuting authority unless the alleged offender removes himself from the conflict of interest by divesting himself of any financial gain received in violation of the State Ethics Act. 65 P.S. §407 9(iii). See also McCutcheon v. State Ethics Commission supra, the Commission may order restitution of financial gains received in violation of the law. As noted in part above, Section 515 of the Township Code sets forth when supervisors may receive compensation. Generally, township supervisors may be employed by the township as a roadmaster, laborer, or secretary /treasurer as noted above. 53 P.S. §65515; 65531; 65540. Township supervisors may not receive any other compensation except as provided above. This concept has been upheld by various courts in the Commonwealth. In Coltar v. Warminster Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859, (1973), the Commonwealth Court of Pennsylvania held that a second class township supervisor may not appoint himself to positions other than those forth in the township code (roadmaster, laborer, or secretary /treasurer), and receive compensation therefore. See also Conrad v. Exeter Township, supra. It is clear, therefore, that the duties for which a township supervisor may be compensated are strictly regulated by the township code; the supervisor's pay must be specifically set forth by the township board of auditors. While Smeal as a roadmaster was eligible to be compensated for services rendered in that position, the overtime pay for which he was compensated had to be approved by the auditors; such approval was lacking and therefore the overtime pay was unauthorized. Smeal thus received compensation which was not provided for by law when he received overtime pay for 126.5 hours in the amount of $1,043.63 at a rate of $8.25 per hour. Since Smeal was only authorized to work at the rate of $5.50 per hour, he received a financial gain of $347.88 (($1,043.63 - (126.5 x $5.50)). As a result, this Commission finds that Smeal received a financial gain in the form of overtime pay which was compensation other than provided by law. The total financial gain received amounts to $347.88. Smeal is directed within thirty days of issuance of this order to forward a check to the Commission in the amount of $347.88 payable to the order of Graham Township. Parenthetically, we note that Smeal filed Financial Smeal, 89 -017 -C Page 13 Interests Statements (FIS's) for the calendar years 1987 through 1989, but failed to list Graham Township as a source of income for those three years. In addition, we note that, as to the 1988 calendar year, Smeal lists Mid State Bank as a creditor but fails to list the interest rate as required by law. Accordingly, we direci Smeal within thirty days of issuance of this order to file amended FIS's for the calendar years 1987 . through 1989, listing Graham Township as a source of income and listing the interest rate paid to Mid State Bank for the 1988 calendar year. Lastly, unless Smeal has already done so, he is also required to file his 19S0 calendar year FIS form. IV. Conclusions of Law: 1. Melvin Smeal, as a Graham Township supervisor, is a public . official subject to the provisions of the Ethics. 2. Smeal violated Section 3(a) of Act 170 of 1978, when he, as a working township supervisor, received overtime pay for performing road work and snow removal in the township without receiving the requisite auditor approval as required by law for such overtime. 3. The financial gain received by Smeal as to the unauthorized rate of overtime pay is $347.88. Smeal, 89- 017 -C Page 14 In re: Melvin Smeal : File Docket: 89 -017 -C : Date Decided: August 23, 1991 , : Date Mailed: September 3, 1991 ORDER No. 812 1. Melvin Smeal, as a Graham Township supervisor, violated Section 3(a) of the Ethics Act when he received, as a working township supervisor, overtime pay without the requisite auditor approval as required by law for such overtime. 2. Within thirty days of the issuance of this order, Smeal is hereby directed to make restitution of the financial gain in the amount of $347.88, by forwarding a check to this Commission payable to Graham Township in the amount of $347.88. 3. Smeal is directed within thirty days to file amended Financial Interests Statements (FIS's) for the calendar years 1987 through 1989, listing Graham Township as a source of income, listing the interest rate for Mid State Bark as a creditor on the 1988 calendar year PIS, and lastly, to file the 1990 FIS, unless he has already done so. E COMMISSION, ‘10i-47f DENNIS C. HABRINGTON, VICE C