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HomeMy WebLinkAbout85-006-R SaundersDear Mr. Saunders: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 June 11, 1985 OPINION OF THE COMIMISSION Robert L. Saunders, Esquire Mutzabaugh, Mutzabaugh, Saunders & Mattie P.U. Box 342 236 - 237 South Penn Building 52 Boyleston Street Bradford, PA 16701 -0342 85 -006 -R RE: Pension Plan, Township Supervisors; Retroactive Approval by Township Auditors; Reconsideration I. Issue: Reconsideration of the Commission Opinion, 85 -006, regarding the propriety of a pension program covering township supervisors. On March 20, 1985, the State Ethics Commission issued Opinion 85 -006. The issue involved in that matter concerned the propriety, under the State Ethics Act, of a pension program adopted by the township board of supervisors for Lafayette Township. That plan, which included a certain supervisor, was originally adopted in 1980. The facts as originally submitted to the State Ethics Commission, indicated that at the time that said plan was adopted there was no evidence that the auditors of the township approved participation of any supervisor - employee in the pension program as part of the compensation fixed for such persons. The minutes of the meeting of the board of township auditors for January 3, 1983 did evidence an approval of the program at that time. These minutes purported to approve the program retroactively to the date of its initiation in 1980. Based upon the evidence that had been supplied by Mr. Anthony Alfieri, Esquire, the original attorney for the township in this matter, the Commission concluded that there was no evidence that the township board of auditors in 1980 fixed or approved as compensation for the working supervisors particpaition in the pension program. The Commission further concluded that the auditors did not have the authority to retroactively approve said pension program participation as compensation. The Commission finally determined that the program, as approved in 1983, was in accordance with the State Ethics Act. Robert L. Saunders, Esquire June 11, 1985 Page 2 On April 1, 1985 you forwarded a letter to the Chairman of the State Ethics Commission requesting that the Commission reconsider this opinion. You indicated in that letter that you would produce the testimony of the township auditors and supervisors who would provide further information of this matter. Subsequent to this request, you forwarded to the Commission the affidavits of the three township auditors who served in office in September 1980, the date of the original initiation of the program. These affidavits indicated that the auditors reviewed the pension program for the particular supervisor invovlved, approved said program, and established the program as additional compensation as of 1980, Based upon the submission of these affidavits, you have asked the Commission to reconsider the original opinion. III. Discussion: At the outset we note that we will not reiterate here the content of our opinion of March 20, 1985, but will incorporate said opinion herein by reference. We further believe that the reasoning and conclusions set forth therein were appropriate as applied to the facts as originally presented to the Commission. Generally the regulations of the Ethics Commission provide that: §2.15.Reconsideration of opinions. Any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. 51 Pa. Code 2.15. Additionally, the Commission has adopted the long established concept that granting reconsideration is within the sound discretion of the reviewing body" and is generally granted to afford an opportunity to adduce testimony or evidence not offered at the original proceeding because it was not available. Douglas v. WCAB, 32 Pa. Cmwlth, 156, 377 A.2d 1300 (1977). Rehearing should not be allowed solely for the purpose of strengthening a weak case or proof or for the purpose of hearing testimony which may be cumulative. Pennsylvania Glass - Sand Corp v, WCAB, 46 Pa. Cmwlth. 377, 407 A.2d 76 (1979). See Coyle, 83 -002; Keener- Farley, 84- 005 -R. We must note that while you have produced certain affidavits that would be important in reviewing the merits of this matter, we see no reason why these statements could not have been provided at our original hearing. Robert L. Saunders, Esquire June 11, 1985 Page 3 Indeed the initial request for an opinion was forwarded to the Commission on April 11, 1984, more than a year ago. By letter dated June 20, 1984, we, in fact, through our General Counsel, requested these exact affidavits. Said documents were never provided. Based upon the general standards to be applied, we believe that we could deny this request. In the interest of fairness, however, and so as not to adversely impact upon the parties of interest who are not responsible for the substantial delay in this matter, we will grant your request and reconsider this matter. As noted in our previous opinion in this matter, there is no doubt that pension program or benefits constitutes deferred compensation which must be fixed by the auditors for supervisors who serve the township as roadworkers, a orers, etc. See Hoak and McCutcheon v. State Ethics Commission, 77 Pa. Cmwlth. 529, 466 A.2d 283 (1983). As in Hoak, the actions of a supervisor to secure and benefit from a pension program paid for by the township are questionable under the Ethics Act where the plan is established without the oversight and approval of the township auditors. Additionally, we note that in response to the Court ruling in Hoak, this Commission, on December 19, 1983, adopted a Statement of Policy by which to guide our review of cases similar to the situation raised in Hoak. See 51 Pa. Code §7.1. When reviewing your request, we have utilized this Statement of Policy as a guideline. Of particular importance in this review is the affirmative action of the township auditors. In Hoak, the Commonwealth Court specifically ruled that township supervisors have no authority, in the absence of affirmative action by the township auditors, to purchase pension policies for themselves. Such was beyond the statutory authority of the supervisors. See Hoak, 466 A.2d 283 at 288. The State Ethics Commission has previously determined that affidavits of township auditors of the type submitted here were deemed an acceptable recordation of the events that originally occurred but were not properly recorded. Kiniry, 84 -008. We believe that under the facts as now established the participation of the particular supervisor involved herein was approved and established as compensation by the township board of auditors as of 1980. IV. Conclusion: Given the statement that the auditors apparently approved the participation of Mr. Wingard in the trust /pension (annuity) program discussed above, his acceptance of benefits thereunder is not violative of Section 3(a) of the Ethics Act. Our original Opinion is hereby modified in accordance herewith. Robert L. Saunders, Esquire June 11, 1985 Page 4 Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts ccmplained of in reliance of the advice given. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. JJC /rdp This letter is a public record and will be made available as such. By the Commission, Dr. Leon L. Haley Vice - Chairman