HomeMy WebLinkAbout373 FitzpatrickMs. Doryta Kay Fitzpatrick
Adams Township Auditor
P.O. Box 233
Dunlo, PA 15930
Re: 83 -142 -C
Dear Ms. Fitzpatrick:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
March 20, 1985
Ordor Ho. 373
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. The Commission has now completed its
investigation. The individual allegations, conclusions, and findings on which
those conclusions are based are as follows:
I. Allegation: That as an Auditor in Adams Township you used your public
office since 1979 to secure compensation in excess of the compensation allowed
by law thereby violating Section 3(a) of the Ethics Act, 65 P.S. 403(a).
A. Findings:
1. a. You served as an auditor in Adams Township, hereinafter, the Township,
since 1977 (when you were appointed to fill an unexpired term) and, having
been elected to a full six -year term in 1978.
b. You currently serve in this capacity and as such you are a "public
official" subject to the provisions of the Ethics Act.
c. As an auditor, you are responsible for auditing the records and
accounts of the supervisors, the township treasurer and tax collector.
d. You do not have the final authority to authorize payment of Township
funds; this authority rests with the supervisors.
Ms. Doryta Kay Fitzpatrick March 20, 1985
Page 2
2. The Township is a second class township subject to the provisions of
the Second Class Township Code, 53 P.S. 65101 et. seq., hereinafter, the
Code.
3. The Township has a population of less than 10,000 persons.
4. The compensation for elected auditors in the Township, under the Code is
as follows:
a. The Code, 53 P.S. 65545, currently in effect, states that auditors in
a township having less than 10,000 in population shall receive from the
township, $30 per diem for each day necessarily employed in official duties
and in no event shall such an auditor receive more than $600 in any calendar
year for their services.
b. The Code, 53 P.S. 66547, currently in effect, also states that
auditors in a township having less than 10,000 in population shall not expend
more than 20 days on auditing and in addition to the time actually spent to
complete the audit, the auditors may expend a total of ten (10) additional
days at a compensation of $30 per day to audit the accounts of any public
official who handles public funds when a vacancy occurs in the office of such
public official.
c. The Code, as cited in a and b above would apply to officials elected
after the effective date of Act 1982 - 77, which was approved on April 8,
1982, to be effective in 60 days.
d. Prior to the passage and effectiveness of Act 1982 - 77, the Code
provided, under 53 P.S. 66545 and 66547, that auditors in townships having
less than 10,000 in population for a per diem payment for auditors of $20, up
to e maximum of $400, plus the compensation for ten (10) additional days at
$20 per day under 53 P.S. 66547.
5. Because you served as auditor as set forth in No. 1, a, above, you were
entitled to be paid for auditing services as follows:
- $20 per day up to $400 per calendar year plus the maximum of 10 days at
$20 per day for audits conducted pursuant to 53 F.S. 65547 as set forth
above.
6. Records of the Township confirm that for your services as an auditor you
were paid the following amounts:
Ms. foryta Kay Fitzpatrick March 20, 1985
Page 3
Gross Net Check Fund Audit -
Date Amount Amount Number Account Type
(1) 2/26/81 $400.00 387.20 719 payroll Supervisors'
accounts for
1980
(2) 7/30/81 200.00 193.60 920 payroll 1/2 year audit
of 1981
Supervisor's
accounts.
Total for 1981 $600.00
(3) 2/12/82 200.00 193.60 1128 payroll Supervisors'
accounts for
1981.
(4) 5/28/82 94.00 90.99 1248 payroll Audit Sec /Treas
accounts due to
resignation
(5) 7/1/82 40.00 38.79 1283 payroll Audit due to
resignation of
Tax Collector
Total for 1982 $334.00
(6) 3/1/84 400.00
Total for 1984 $400.00
643 general Supervisors'
accounts, 1983
7. The Township Secretary, Phyliss Gdula was forced to take an extended leave
of absence in June or July of 1981, due to illness, and the Supervisors', at
her request, authorized an audit of her books and accounts prior to the
appointment of a new secretary- treasurer.
a. Gdula formally resigned her post as of January 20, 1982.
h. The audit performed was as to records of 1981 and from January 1,
1982 to January 20, 1982.
8. The records and minutes of the Township Supervisors' meetings also
disclose that at the meeting of June 15, 1982, the Supervisors authorized an
audit of the books and accounts of Tax Collector, Elizabeth Wissinger.
9.a. You were also paid, as follows, for attendance at conventions or
training:
Ms. Iloryta Kay Fitzpatrick March 20, 1985
Page 4
Gross Net Check Fund
Date Amount Amount No. Account Item
(1) 1980 $334.58 - -- - -- - -- School
(2) 1982 85.64 - -- County convention
b. These figures do not reflect which amounts were paid for per diem.
9.c. The Code, 53 P.S. 65602, provides that auditors may attend conventions of
county associations as provided for in the Code, 53 P.S. 65601 and after
attending shall receive a certificate and be entitled to collect from the
Township Treasurer the sum of $35 per day for each day's attendance and
mileage at the rate of twelve (12) cents per mile traveled, but not to exceed
payment for more than two days attendance in any one year.
10. The Township solicitor issued an opinion that the payments and
reimbursements you received as found above, did not exceed the limits of the
Code.
11. One of the auditors in the Township made an inquiry about certain
matters, including the question of the maximum compensation payable to an
auditor, to the Department of Community Affairs (DCA).
a. David A. Noble, Municipal Finance Consultant of DCA's Bureau of
Local Government Services, responded with a letter of January 19, 1983.
b. This letter in pertinent part concluded:
Second, you question the area of maximum compensation. Your
letter makes reference to the fact that in 1981 the
secretary- treasurer became ill and you did an interim audit as a
result. In townships having a population of ten thousand (10,000)
or less, maximum compensation was to be fixed, at that time, at
twenty days times $20.00 per day, or $400 for time actually worked.
An additional ten (10) days, at the same rate, could have been
expended upon vacancy (death or resignation) or the office of your
secretary- treasurer. It does not appear from your letter that a
vacancy occurred in the office of Secretary - Treasurer in 1981.
Maximum compensation for 1981 would then have been the fee for your
1980 audit which was $400. In 1982, however, it appears that your
fee was based upon the additional $200.00 received in 1981, and a
fee of $200.00 for your 1981 audit (which was conducted in 1982).
If you actually expended twenty (20) days on the 1982 audit, it
would not appear that you were over - compensated. The proper time to
Ms. Doryta Kay Fitzpatrick March 20, 1985
Page 5
have conducted the 1981 audit would have been, however, in
1982 and not one -half in 1981 and one -half in 1982. The
code uses the phrase "In no event shall any auditor . . .
be entitled to receive more than $400.00 for any calendar
year." This phrase implies "earnings" rather than actual
payment within a calendar year.
B. Discussion: As an elected auditor in the Township you are a "public
official" and are required to conform your conduct to the Ethics Act. The
most pertinent provision of the Ethics Act to these proceedings is Section
3(a) of the Ethics Act, which states as follows:
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.
The main questions in determining whether Section 3(a) has been violated
are (1) what compensation is allowed by law and (2) whether you used your
office to secure financial gain in excess of said compensation. The
compensation allowed by law for you as an auditor is as found in Nos.
4, 5 and 9 above. You received compensation as found in Nos. 6 and 9 above.
The "problem" area in this case appears to center around the payments to you
for 1981 and 1982. It is clear that in 1981 you received an amount which
exceeded the maximum set in 53 P.S. 65545 ($400, at the time). However, the
Code 53 P.S. 65547 also allowed payment of an additional $200.00 for audits
which required 10 days of work at the rate of $20 per day as a result of the
vacancy in an office audited by the auditors.
We believe you were entitled, as set forth above, to receive the
additional $200 for audits connected with the accounts of the
secretary /treasurer and tax collector. The only question was the timing ;,f
the conduct of these audits and of your payment for performing same. As
discussed in the letter from DCA (Finding No. 11, above) the performance and
payment for these audits should probably have been handled better. however,
under these circumstances and especially where you have no final authority to
approve payments from Township funds (See No. 1, d, above) to yourself for
auditing services, we find no violation of Section 3(a) of the Ethics Act.
`;ou cannot be said to have used your public office to obtain financial gain
other than the compensation allowed by law;
Ms. Doryta Kay Fitzpatrick March 20, 1985
Page 6
C. Conclusion: Under these circumstnaces, we find no violation of Section
3(a) the Ethics Act.
Our files in this case will remain confidential in accordance with
Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final
and will be made available as a public document 15 days after service (defined
as mailing) unless you file documentation with the Commission which justifies
reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code
2.38. During this 15 -day period, no one, including the Respondent unless he
waives his right to challenge this may violate this confidentiality by
releasing, discussing or circulating this Order.
Any person who violates the confidentiality of a Commission proceeding
is guilty of a misdemeanor and shall be fined not more than $1,000 or
imprisoned for not more than one year or both, see 65 P.S. 409(e).
HBC /na
By the C. mission,
erbe•' B. Conner
Chai .an