HomeMy WebLinkAbout784 NitscheIn re: Jack Nitsche
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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