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HomeMy WebLinkAbout788 WilmotIn re: Kenneth Wilmot STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 88 -022 -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 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 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). ADJUDICATION 1. Allegation: That you, a Supervisor of Sterling Township, Wayne County, violated the following provisions of the State Ethics Act (Act 170 of 1978), when you were compensated for attending supervisors meetings in excess of that allowed by the Second Class Township Code: 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. 5403(a). II. Findings: 1. Kenneth Wilmot served as Township Supervisor in Sterling Township, Wayne County, Pennsylvania from January 1982 until resigning in April of 1988. 2. At the reorganizational meetings of the Sterling Township Board of Supervisors held in 1985, 1986, 1987 and 1988, approval was given to motions authorizing all supervisors to be classified as working supervisors. a. January 7, 1985 - Reorganizational Meeting The supervisors were Kenneth Wilmot, Michael Burke and Edward Blasko, and a motion to approve all supervisors as working supervisors passed unanimously. b. January 6, 1986 - Reorganizational Meeting The supervisors were Kenneth Wilmot, Michael Burke and Edward Blasko, and a motion to approve all supervisors as working supervisors passed unanimously. c. January 5, 1987 - Reorganizational Meeting The supervisors were Kenneth Wilmot, Joseph Mozaleski and Edward Blasko, and a motion to approve all supervisors as working supervisors passed unanimously. d. January 4, 1988 - Reorganizational Meeting The supervisors were Kenneth Wilmot, Janet Olsommer and Edward Blasko, and a motion was passed approving Blasko and Wilmot as working supervisors. Mr. Kenneth Wilmot Page 2 3. Kenneth Wilmot worked part -time as a road worker in 1985, 1986, 1987 and 1988. 4. The Township's Bi- Weekly or Semi - Monthly Payroll Report (form MS -907), containing the signatures of the Township Supervisors indicating their approval, shows that Wilmot worked the following number of hours: a. 1985 - 535 Hours b. 1986 - 479 Hours c. 1987 - 279 Hours d. 1988 - 178 Hours 5. At the Sterling Township Board of Auditors annual meetings, the auditors approved an hourly rate to be paid to working supervisors, along with compensation for the use of certain equipment. a. At the Board of Auditors 1985, the Auditors set a working supervisors. b. At the Board of Auditors 1986, the Auditors set a working supervisors. c. At the Board of Auditors 1987, the Auditors set a working supervisors. meeting held on January 8, rate of $8.00 per hour for meeting held on January 7, rate of $8.00 per hour for meeting held on January 6, rate of $8.00 per hour for 6. The minutes of an April 29, 1988 Board of Auditors meeting indicate the Auditors referred to the January 5, 1988 meeting and stated the salaries of working supervisors were approved at that time. The Auditors decided to have the working supervisors' salaries and benefits remain "as is" for 1988 with a complete re- evaluation made at the January 1989 Auditors meeting. 7. At the December 2, 1986 regular meeting of the Sterling Township Board of Supervisors, Kenneth Wilmot, along with Township Supervisor, Edward Blasko, voted to approve Sterling Township Ordinance #86 -1. 8. The ordinance set the compensation paid to supervisors for attending meetings at $50.00 per meeting, not to exceed $1,500 per year. Mr. Kenneth Wilmot Page 3 a. The ordinance was to take effect on the 5th day after its passage. b. The ordinance is dated December 2, 1986 and contains Kenneth Wilmot's signature, along with that of Supervisor Edward Blasko. 9. The Sterling Township payroll records contained on the Bi- Weekly or Semi- Monthly Payroll Report (form MS -907) confirm that Kenneth Wilmot was paid for attending supervisors meetings: a. 1986 - 13 Meetings at $25.00 a Meeting For a Total of $325.00. b. 1987 - 15 Meetings at $50.00 a Meeting For a Total of $750.00. 10. Kenneth Wilmot took office for his first full term as Sterling Township Supervisor in January of 1982. a. He was reelected to a second term in November of 1987 and started the term in January of 1988. b. Wilmot approved Township Ordinance #86 -1 on December 2, 1986 which was drafted by Township Solicitor, Wendell Kay, and increased the Supervisors' pay, for attending meetings, from $25.00 to $50.00. c. Wilmot was unaware that he was prohibited from receiving the increase in pay, for attending supervisors meetings, until after he was reelected. d. The matter was discussed with Solicitor Kay at a supervisors meeting, and he advised that Supervisors were eligible for the increase. 11. Wendell Kay served as the Sterling Township Solicitor. a. He was Township Solicitor during the time Edward Blasko and Kenneth Wilmot served as Supervisors and advised them on the matters in question. b. He wrote Ordinance #86 -1 authorizing Sterling Township Supervisors to receive an increase in pay for attending supervisors meetings. c. He researched the legality of the supervisors receiving the increase after Ordinance #86 -1 was Mr. Kenneth Wilmot Page 4 passed. He received conflicting opinions from the Department of Community Affairs and the State Association of Township Supervisors. d. He provided the supervisors with a written opinion stating they were entitled to the increase in pay. 1) No written opinion is on file with the township. III. Discussion: As a supervisor in Sterling Township, Kenneth Wilmot (Wilmot), was a public official as that term is defined under the Ethics Act and the Regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 51.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable him. Initially, it is noted that Section 9 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, 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. Mr. Kenneth Wilmot Page 5 In the instant matter we must determine whether Wilmot when he served as a township supervisor violated Section 3(a) of the Ethics Act by being compensated for attending supervisors meetings in excess of the amount allowed by the Second Class Township Code. Wilmot served as a township supervisor in Sterling Township from January 1982 until his resignation in April of 1988. During the annual reorganizational meetings of the Sterling Township Board of Supervisors from 1985 through 1988, Wilmot was appointed as a working supervisor. Further, his compensation as a working supervisor was set by the Auditors during their annual reorganizational meetings. The Sterling Township Board of Auditors in their annual meetings also approved the compensation for working supervisors. In a December 2, 1986 meeting of the Sterling Township Board of Supervisors, Wilmot along with the other two supervisors voted to approve Sterling Township Ordinance 86 -1, effective on the 5th day after passage, which raised the compensation of supervisors attending meetings to $50 per meeting not to exceed $1500 per year. The December 2, 1986 ordinance contains Wilmot's signature along with that of supervisor Edward Blasko. In the year 1986 Wilmot received a total of $325 for meeting pay and in 1987 Wilmot received a total of $750 for meetings during that year. In applying the provisions of Section 3(a) of the Ethics Act quoted above to the instant matter, there was a use on the part of Wilmot as to voting for this ordinance which raised the compensation for the supervisors. In addition such was a financial gain; however, the compensation was provided for by law as per §515 of the Second Class Township Code, 53 P.S. 65515. Accordingly, Wilmot did not violate Section 3(a) of the Ethics Act regarding the receipt of compensation for attending supervisors township meetings since such was a financial gain which was compensation provided by law. IV. Conclusions of Law: 1. Kenneth Wilmot as a Sterling Township Supervisor was a public official subject to the provisions of the Ethics Act. 2. Wilmot did not violate Section 3(a) of the Ethics Act regarding compensation for attending supervisors meetings which was compensation provided for by law. In re: Kenneth Wilmot : File Docket: 88 -022 -C : Date Decided: February 14, 1991 : Date Mailed: February 28, 1991 ORDER No. 788 1. Kenneth Wilmot as a Sterling Township Supervisor did not violate Section 3(a) of the Ethics Act regarding compensation for attending supervisors meetings which was compensation provided for by law. BY THE COMMISSION, ROBERT W. BROWN, VICE CHAIR