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HomeMy WebLinkAbout784 NitscheIn re: Jack Nitsche } 4 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 87-145-C : Date Decided: February 14, 1991 : Date Mailed: February 28, 1991 Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington Daneen E. Reese Roy W. Wilt 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 a hearing was 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 the Ethics Act, 65 P.S. 408(a) 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 Bradford Township Supervisor, violated the State Ethics Act (Act 170 of 1978), when you were paid for duties other than roadmaster, superintendent, labor or secretary- treasurer and received mileage reimbursement. II. Findings: ADJUDICATION 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. §403(a). 1. Jack Nitsche served as a township supervisor for Bradford Township, McKean County Pennsylvania. a. Office Supervisor a. He served in said position for twenty -four years having left office in December 1985. b. He has served as secretary /treasurer of the Board of Township Supervisors for approximately eleven years. 2. Bradford Township was not divided into road districts by the Township Board of Supervisors. 3. The Bradford Township Board of Supervisors routinely appointed themselves to various positions of responsibility in addition to that of township roadmaster. 4. Jack Nitsche was appointed to the following positions in addition to that of Roadmaster. b. Member - Senior Citizens Board c. Superintendent of Sewer Department 5. Township supervisors were compensated for service as elected officials for attending township supervisor meetings at a rate of $25.00 per meeting not to exceed 86 meetings per year. 6. Jack Nitsche did not serve as a Township Road Superintendent. Mr. Jack Nitsche Page 2 7. Minutes of the Bradford Township Board of Supervisors indicate the following regarding the appointment of township supervisor Jack Nitsche as roadmaster in 1985. a. January 7, 1985, the reorganization meeting was held and the supervisors present were Francis Wolfe, Jack Nitsche and Earl Burkhouse. Mr. Wolfe was named chairman of the supervisors and all three supervisors were named as roadmasters. 8. Minutes of the township board of auditors meetings indicate the following regarding the compensation of township supervisors for working on township roads: a. January 4, 1984, the auditors present were John DePetro, Harold Krantz and Charles Hewey. It was decided to keep the hourly rate for township supervisors in 1984 the same as it was in 1983 and that was at $6.77 per hour. The mileage rate of .20g per mile was to remain the same as it was 1983. b. January 8, 1985, the auditors present were John DePetro, Harold Krantz and Charles Hewey. It was motioned to increase the hourly rate of the township supervisors by .48g by John DePetro and it was unanimously passed. The new hourly rate was now $7.25 up from $6.77. The mileage rate of .20g per mile was to remain the same it was in 1984. 9. Records of Bradford Township indicate that Jack Nitsche was compensated at an hourly rate by the township for various activities. 10. Records of Bradford Township indicate that various tasks performed by Jack Nitsche for which he was compensated were not related to his functions as a township roadmaster. 11. Nitsche was paid as follows for tasks not related to his functions as township roadmaster: 1984 Description Date Hours of Duties 01 -03 -84 1.5 Office 01 -06 -84 1.0 Office 01 -11 -84 2.0 Office Payroll Mr. Jack Nitsche Page 3 Description Date Hours of Duties 01 -25 -84 3.5 Payroll Committee 01 -30 -84 3.0 Meeting Office 02 -13 -84 6.5 Regular Meeting 02 -27 -84 5.0 Regular Meeting 03 -12 -84 3.0 Regular Meeting 04 -16 -84 7.0 Regular Meeting 04 -30 -84 4.0 Regular Meeting Hearing- Zoning 05 -09 -84 3.5 Meeting Sewer Award 05 -14 -84 7.0 Regular Meeting 05 -29 -84 2.5 Regular Meeting 06 -04 -84 3.0 Special Meeting 06 -11 -84 3.5 Regular Meeting 06 -25 -84 6.5 Regular Meeting 07 -09 -84 3.5 Special Meeting 07 -23 -84 3.0 Regular Meeting 08 -09 -84 6.0 Sewer Authority 08 -13 -84 11.0 Regular Meeting 08 -27 -84 4.0 Regular Meeting 08 -31 -84 3.5 Nursing Home Sewer and Water Bids 09 -04 -84 2.0 Special Meeting 09 -07 -84 2.0 Sewer Bids 09 -10 -84 6.0 Sewer Authority Meeting Mr. Jack Nitsche Page 4 Date Hours 09 -24 -84 6.0 10 -09 -84 4.5 Description of Duties Regular Meeting Sanitary Sewer Meeting 10 -08 -84 2.5 Regular Meeting 10 -22 -84 6.5 Regular Meeting 11 -02 -84 2.0 Sanitary Sewer Meeting 11 -12 -84 6.5 Regular Meeting 11 -26 -84 3.0 Regular Meeting 12 -10 -84 3.0 Regular Meeting TOTAL 137.5 1985 Description Date Hours of Duties 01 -07 -85 1.0 Organizational Meeting 01 -14 -85 3.0 Regular Meeting 01 -28 -85 3.0 Regular Meeting 02 -06 -85 1.0 Sewer Hearing 02 -11 -85 3.0 Regular Meeting 02 -25 -85 5.0 Regular Meeting 03 -10 -85 6.0 Regular Meeting 03 -25 -85 5.0 Regular Meeting 04 -08 -85 6.0 Regular Meeting 04 -20 -85 6.0 Bid Opening Mr. Jack Nitsche Page 5 Description Date Hours of Duties 05 -13 -85 4.0 Regular Meeting 05 -28 -85 3.5 Regular Meeting 06 -07 -85 2.0 Sanitary Sewer Meeting 06 -10 -85 4.0 Regular Meeting 06 -24 -85 7.0 Regular Meeting 07 -08 -85 3.0 Regular Meeting 08 -26 -85 3.0 Regular Meeting 09 -09 -85 5.0 Regular Meeting 09 -13 -85 1.0 Bid Opening 09 -16 -85 4.0 Bid Opening 09 -19 -85 .5 Sanitary Sewer 09 -23 -85 4.0 Regular Meeting 10 -14 -85 2.0 Regular Meeting 10 -28 -85 3.0 Regular Meeting 12 -11 -85 2.0 Regular Meeting TOTAL 87.0 12. The total amount which Jack Nitsche was compensated for performing the functions listed in Findings 11 above was as follows: Rate of Year Pay Hours Total 1984 $6.77 137.5 $ 930.88 1985 $7.25 87.0 S 630.75, $1,561.63 13. The township supervisors maintained their own time sheets and submitted them for payments. Mr. Jack Nitsche Page 6 14. The Second Class Township Code sets forth the duties of Township Supervisors who serve as superintendent or roadmasters as follows: a. Have the general care and superintendence of the improvement of the roads and bridges in the township, except as otherwise specially provided. b. Cause such roads and bridges to be kept in repair and reasonably free from all obstructions, and give the necessary directions therefor. c. Inspect all roads and bridges during the months of April and October of each year. d. Divide the township into as many districts as may be deemed necessary for the maintenance and repair of the roads and the opening of roads obstructed by snow. e. Employ or hire such persons, as may be necessary for the general conduct of the business of the township, and provide for the organization and supervision of the persons so employed, and work on the roads themselves when directed to do so by the board of supervisors. Records shall be kept, and reports made and filed, giving the names of all persons employed, including supervisors, superintendent or roadmasters, dates on which work was done, and the number of hours worked with compensation paid to each person and the capacity in which he is employed. f. Construct and keep in repair all sluices and culverts, and keep the waterways, bridges and culverts open. g. Cause loose stones lying in the beaten track of every road to be removed. Stones so removed shall be conveyed to some place from which they will not work back or be brought back into the track by other implements used in repairing or maintaining such highways. h. Attend meetings and conventions if directed to do so by the board of supervisors. Any supervisor, elected or appointed officer or township employe shall, if directed by the board of supervisors, attend any conference, institute or school dealing with the duties and functions of such elected or Mr. Jack Nitsche Page 7 appointed officers or employees. The expenses for attending the conferences, institutes and schools may be paid by the township and shall be limited to the registration fee, mileage for use of a personal vehicle or reimbursement of actual transportation expense going to and returning from such meeting plus all other actual expenses that the township board of supervisors may have agreed to pay. Every delegate attending the meeting shall submit to the township board of supervisors an itemized account of expenses incurred thereat. The township board of supervisors may authorize township employees to be compensated at their regular employe rate during their attendance at the meeting. i. Perform such other duties and have such other powers with respect thereto as may be imposed or conferred by law or the rules and regulations of the Department of Highways. Report monthly to the board of supervisors, such information as may be required by the Department of Highways, in the form prescribed by the department. k. Inspect all roads and bridges at such time as the township supervisors shall direct, except during the months of April and October. 1. Have power to relocate, widen, deepen, and straighten the channels of streams, and rip, rap, and otherwise protect the banks of streams in order to protect roads, prevent erosion, and prevent floods in the township: Provided, that the consent of the Water and Power Resources Board to any such project has first been secured. m. When authorized to do so by general or special order of the township supervisors, to do or cause to be done all work necessary to carry out the responsibilities imposed upon the township supervisors. 15. Bradford Township employed a township secretary /treasurer. a. Mr. Nitsche did not serve as appointed Township Secretary Treasurer. j Mr. Jack Nitsche Page 8 16. Mr. Nitsche admits receipt of the compensation outlined in Findings No. 11. a. He believed he was entitled to be compensated for these duties. b. c. Payment for these duties had been a past practice in Bradford Township. Former Supervisor, Francis Wolfe, informed Nitsche that he was entitled to this compensation. III. Discussion: Jack Nitsche, hereinafter Nitsche, as a supervisor for Bradford Township was a public official as that term is defined under the Ethics Act. 65 P.S. 402; 51 Pa. Code S1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 5 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 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, Mr. Jack Nitsche Page 9 540 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 Nitsche as a Bradford Township supervisor violated Section 3(a) of the Ethics Act quoted above regarding the receipt of compensation as a road master for activities which are alleged to be within the scope of his duties as an elected township supervisor. Factually, Nitsche served as township supervisor for twenty -four years and left office in December, 1985. In addition to serving as a township employee- roadmaster during the foregoing years, Nitsche also held positions as office supervisor, member of the Senior Citizens Board and Sewer Department Superintendent. Nitsche along with the other supervisors were all appointed roadmasters. The minutes of the township board of auditors for the January reorganizational meetings from 1984 through 1990 reflect the setting of the mileage rate for working supervisors at twenty cents a mile and an hourly rate of pay of $6.77 in 1984, $7.25 in 1985 and 1986, $7.50 for 1987, $7.75 in 1988 and 1989 which was subsequently reset at $8.00 for 1989 and $8.50 for 1990. A review of the records of Bradford Township reflect that for the calendar years 1984 and 1985, Nitsche was paid for functions which did not relate to the working position as township roadmaster. Fact Finding 10. The total compensation received by Nitsche for the two years in question totaled $1,561.63. Nitsche asserts that the compensation was appropriate because he followed the past practice in the township and because the former chairman advised him to claim the hours as compensation. In determining whether the actions of Nitsche violated Section 3(a) of the Ethics Act, we must review the pertinent provisions of the Second Class Township Code. Although we do not have jurisdiction to interpret the provisions of the Second Class Township Code per se, it is necessary to review those provisions of law in order to make a determination as to whether the financial gain was compensation other than provided for by law under Section 3(a) of the Ethics Act. The Second Class Township Code provides that township supervisors shall receive the following compensation: Compensation of Supervisors -- Supervisors may receive from the general township fund, as compensation, an amount fixed by ordinance not in excess of the following: Mr. Jack Nitsche Page 10 Township Population Not more than 4,999 5,000 to 9,999 10,000 to 14,999 15,000 to 24,000 25,000 to 34,999 35,000 or more Annual Maximum Compensation Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars Four thousand dollars Such salaries shall be payable monthly or quarterly for the duties imposed by the provisions of this act. The population shall be determined by the latest available official census figures. The compensation of supervisors, shall be fixed by the township auditors either per hour, per day, per week, semi - monthly or monthly, which compensation shall not exceed compensation paid in the locality for similar services, and such other reasonable compensation for the use of a passenger car, or a two axled four - wheeled motor truck having a chassis weight of less than two thousand pounds when required and actually used for the transportation of road and bridge laborers and their hand tools and for the distribution of cinders and patching material from a stock pile, as the auditors shall determine and approve; but not supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 53 P.S. §65515. In reference to the meetings for which supervisors may receive compensation, the Code further provides as follows: The township supervisors shall meet for the transaction of business at least once each month, at a time and place to be fixed by the board, but they shall not be paid for more than sixteen meetings in any one year, except for any township where, on account of the exercise of governmental functions other than those relating to roads, more meetings are necessary, in which case, the number of meetings for which the supervisors may be paid may be increased to any number, not exceeding fifty meetings in any year which shall include hearings by aggrieved parties under the Pennsylvania Sewage Facilities Act and other hearings by aggrieved parties hearings of a judicial or quasi - judicial nature. Two members of any board of supervisors consisting of three Mr. Jack Nitsche Page 11 members shall constitute a quorum and three members shall constitute a quorum. Except as otherwise provided in this. act, an affirmative vote of a majority of the entire board of any supervisors shall be necessary in order to transact any business. Necessary expenses incurred in such meetings, including office rent, stationery, light and fuel, shall be paid out of the general township fund. 53 P.S. §65512. The duties that a supervisor is responsible for performing are regulated by statute. As can be seen from the foregoing, the compensation to be paid for a supervisor who is not otherwise employed by the township is strictly regulated by the Second Class Township Code. A supervisor may only receive compensation, as set forth above, for supervisor meetings regarding the transaction of township business. The type of meeting for which a township supervisor may be compensated must be one at which official township business is transacted. Additionally, the Second Class Township Code provides for compensation at the specific meetings outlined in 565512, above. The Code does not appear to permit the compensation of a township supervisor for attending other types of meetings or for performing the administrative functions of his office. Any such other compensation must be earned in and as part of the services performed while serving in one of the statutory authorized positions. Thus, if the township supervisors were to award to themselves compensation for attendance at meetings that are not official township meetings of the board of supervisors, or for performing duties not authorized by law such would violate the provisions of the State Ethics act as such payment would not constitute compensation provided by law. The above interpretation of the Second Class Township Code is a view that has also been expressed by the State Association of Township Supervisors which specifically indicated that supervisors may not be compensated for meetings with engineers, solicitors, planning commissions, authorities, or recreation boards. See Township News, May, 1985, Page 66. The Code sets forth clearly when supervisors may receive compensation other than as set forth above. Generally, township supervisors may be employed by the township as a roadmaster, laborer, or secretary /treasurer. 53 P.S. 565410. The compensation to be paid to supervisors working in such positions is to be fixed by the township board of auditors. 53 P.S. 565515; 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. Warminister 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 set forth in the township code (roadmaster, laborer, or secretary /treasurer), and receive compensation therefore. Mr. Jack Nitsche Page 12 See also Conrad v. Exeter Township, 27 D & C 3d 253, (Berks 1983). It is clear, therefore, that the duties for which a township supervisor may be compensated are strictly regulated by the code, and when performing in the positions set forth in the Code, the supervisor's pay must be specifically set forth by the township board of auditors. In applying the above provisions of law to the instant matter, we find that Nitsche violated Section 3(a) of the Ethics Act. Nitsche used public office to obtain financial gain consisting of the $1,561.63 in payments which constitute a financial gain and which is not compensation provided for by law. The foregoing compensation received by Nitsche was for activities which did not relate to the working position as township roadmaster but rather to the elected position of township supervisor. Accordingly, Nitsche is ordered to make restitution through this Commission payable to the order of Bradford Township in the amount of $1,561.63 IV. Conclusions of Law: 1. Jack Nitsche as a Bradford Township supervisor was a public official subject to the provisions of the Ethics Act. 2. Nitsche violated Section 3(a) of the Ethics Act by receiving $1,561.63 for performing functions which did not relate to the township employee position of roadmaster which is therefore a financial gain other than compensation provided for by law. In re: Jack Nitsche : File Docket: 87 -145 -C Date Decided: February 14, 1991 : Date Mailed: February 28, 1991 ORDER No. 784 1. Jack Nitsche as a Bradford Township supervisor violated Section 3(a) of the Ethics Act by receiving $1,561.63 for performing functions which did not relate to the township employee position of roadmaster which is therefore a financial gain other than compensation provided for by law. 2. Nitsche is ordered to make restitution through this Commission payable of the Order of Bradford Township in the amount of $1,561.63. BY THE COMMISSION, ROBERT W. BROWN, VICE CHAIR Dear Mr. Nitsche: such. JJC /slj cc: Public Binder bcc: Office of Administration STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 March 26, 1991 Mr. John L. Nitsche c/o Robert L. Saunders Mutzabaugh, Mutzabaugh, Saunders & Hattie P.O. Box 342 Bradford, PA 16701 -0342 Re: Order No. 784, File No. 87 -145 -C On March 22, 1991 the State Ethics Commission received your payment for reimbursing Bradford Township as required by Order No. 784. We have forwarded your check in the amount of $1,561.63 to Bradford Township. This letter will be part of the Order and a public record as Si ohn J. • tino Executive Director