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HomeMy WebLinkAbout384-R HuntMr. Robert W. Hunt R.D. #5, Box 461 Johnstown, PA 15905 Re: 83- 059 -C, Order No. 384 Dear Mr. Hunt: This refers to the above captioned matter in which the State Ethics Commission had previously granted your request for reconsideration. As a result, the Commission has now completed such reconsideration and has issued Order No. 384 -R, a copy of which is enclosed. Pursuant to State Ethics Commission regulations, 51 Pa. Code 2.38(a), that Order and this letter evidencing reconsideration are final and will be made available as public documents three business days after service. Enc. EMS /na Mailing Address. State Ethics Commission 308 Finance Building P. 0. Box 1 1470 Harrisburg, Pa. 17108 -1470 August 23, 1985 Sincerely, dward . Seladonnes Executive Director State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Robert W. Hunt R.D. #5, Box 461 1904 - Rear of E. Dorey Street Ext. Johnstown, PA 15905 Re: 83 -59 -C ORDER OF THE COMMISSION August 23, 1985 Order No. 384 -R STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Dear Mr. Hunt: 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 follow: I. Allegation: That you, as a township supervisor of Upper Yoder Township, used your public office to enter into an agreement to have the township pay for all or portions of your Blue Cross and Blue Shield and that this is a violation of Section 3(a) of the Ethics Act in that it is the use of your public office for personal financial gain. A. Findings: 1. You served as an Upper Yoder Township Supervisor from January, 1967 until the end of December, 1981 and as such are subject to the provisions of the State Ethics Act. 2. You were appointed roadmaster in 1967 and served in that position to the end of 1979. In 1979 you terminated your position as roadmaster but you remained on the board of supervisors. 3. Township minutes indicate the following actions to replace you as roadmaster: a. October 4, 1979: You reported six applications received from an advertisement in the daily newspaper for the position of roadmaster and the board unanimously agreed to call a special meeting on October 9, 1979 to make the final appointment. Mr. Robert W. Hunt _ Page 2 August 23, 1985 b. October 9, 1979: Glova motioned at the time that the Township hire Ronald Meriman and Gillin motioned to hire Russell McCauliff; Gillin and you voted for McCauliff, who was hired as the new roadmaster for November and December. 4. June 18, 1981: Upon receiving a letter of resignation from Russell McCauliff, you made a motion to advertise immediately for a new roadmaster, Glova seconded, motion was carried. a. You made the motion that you would be willing to serve as the township temporary roadmaster until the post is filled and to work a few weeks with the new roadmaster with compensation to be set by the auditors. Eash notes that McCauliff would be willing to discuss part -time service with the township. Motion carried by two -to -one vote, Eash voting no. You voted for your appointment. You were reappointed as roadmaster and served until the end of your term in December 1981. b. July 2, 1981: Upon inquiry, you informed supervisor Eash that the auditors have set your salary the same as the laborers - $6.50 per hour. The township secretary states this rate was approved by the auditors by phone. c. July 22, 1981: Eash made a motion to name Dennis Hartland to fill the roadmaster position; second by Glova, and the motion carried. d. August 20 1981: Hartland, current roadmaster, also appointed as sewer inspector and sanitation officer on motion by Glova, second by you. 5. At the end of your term in December, 1981, you were approached by the new Board of Supervisors, who asked you to consider appointment as the township zoning officer. a. You agreed that you would accept this position if you were given Blue Cross and Blue Shield coverage. The township agreed, but a month later you were told you were not eligible for the township Blue Cross and Blue Shield coverage because you were not a full -time employee. The township supervisors then agreed to pay you $100 a month. b. You served as Upper Yoder Township Zoning Officer from January 1, 1982 to the end of 1983 at a salary of $100 per month. 6. Minutes of the township auditors' reorganization meetings show the following actions relating to supervisors. a. January 9, 1979: Supervisors will be paid $25 per meeting for attending all regular and special meetings. Mr. Robert W. Hunt = Page 3 August 23, 1985 Supervisors working on the township roads will be paid the same hourly rate as employees doing similar work. Supervisors shall be paid $15 each for semi - annual road inspections. The roadmaster shall be paid $1,300 per month as roadmaster and $100 a month as sanitarian and sewer inspector. b. January 10, 1980: Supervisors will be paid $25 dollars per meeting for attending all regular and special meetings. Supervisors working on the township roads will be paid the same hourly rate as employees doing similar work. c. January 8, 1981: Supervisors will be paid $25 per meeting for attending all regular and special meetings. Supervisors working on the township roads will be paid the same hourly rate as employees doing similar work. d. January 5, 1982: Supervisors will be paid $25 per meeting for attending all regular and special meetings. Supervisors working on the township roads will be paid the same hourly rate as employees doing similar work. e. January 11, 1983: Supervisors will be paid $25 per meeting for attending all regular and special meetings. Supervisors working on the township roads will be paid the same hourly rate as employees doing similar work. 7. Minutes of the Upper Yoder Township Supervisors' meetings also show the following: a. January 2, 1979: Motion by Gillin, second by Glova, you were appointed roadmaster and sanitation officer. b. November 15, 1979: Motion by Glova and second by Gillin with you abstaining that the solicitor he authorized to amend Ordinance No. 139 which had set a mandatory retirement age of 65 for all road employees. The amendment would exclude supervisors from this mandatory retirement requi rement. c. November 15, 1979: Secretary was instructed to check with Blue Cross and Blue Shield to see that you are properly covered under 65 - Special. Mr. Robert Hunt Page 4 August 23, 1985 d. December 6, 1979: Ordinance No. 72, adopted on motion by Glova, second by Gillin with you abstaining, amending Ordinance 139, and allowing Supervisors to work beyond the age of 65 on the maintenance and road force. 8. Upper Yoder Township employees were insured for Blue Cross /Blue Shield Shield coverage under Group No. 072108 -00. 9. Coverage for you was paid by the township at a monthly rate as follows: (a) Invoice dated February 5, 1979 for coverage beginning March 1, 1979. Premiums due for your coverage were $85.79 ($60.34 for Blue Cross, $20 Blue Shield and $5.45 for Major Medical). Premiums paid February 12, 1979 by township Check No. 733. (b) Invoice dated October 5, 1979 for coverage beginning November 1, 1979. Premiums due for your coverage were $86.37 ($60.62 Blue Cross, $20 Blue Shield, $5.75 Major Medical. Premiums paid on October 5, 1979 by township Check No. 1172. (c) Invoice dated July 5, 1980 for coverage beginning August 1, 1980. The premiums due for your coverage were $87.97 ($60.62 Blue Cross, $21.60 Blue Shield and $5.75 Major medical). Invoice paid on July 19, 1980 by township check 1664. (d) Invoice dated October 5, 1980 for coverage beginning November 1, 1980. Premiums due for your coverage were $96.93 ($69.58 Blue Cross, $21.60 Blue Shield, and $5.75 Major Medical). Premiums paid on October 3, 1980 by township Check No. 1825. (e) Invoice dated August 5, 1981 for coverage beginning September 1, 1981. Premiums due or your coverage were $102.13 ($69.58 Blue Cross, $26.80 Blue Shield, and $5.75 Major Medical). Premiums paid on August 7, 1981 by township Check No. 2322. (f) Invoice dated October 2, 1981 for coverage beginning November 1, 1981. Premiums due for your coverage were $123.97 ($89.97 Blue Cross, $26.80 Blue Shield, and $7.20 Major Medical). Premiums paid on October 2, 1981 by township check. (g) You remained covered until the end of February, 1982. The invoice dated February 5, 1982 shows that you were deleted from coverage. 10. On July 2, 1985, the State Ethics Commission issued Order No. 384 which in part concluded that you had violated the State Ethics Act through your approval and receipt of insurance benefits paid for by the township because such benefits constituted financial gain other than compensation provided by law. The Commission concluded that you were required to reimburse the township in the amount of $3,397.00. Mr. Robert Hunt _Page 5 August 23, 1985 11. On July 15, 1985, you requested that the Commission reconsider the aformentioned order in so far as it concerned the above insurance coverage. You asserted as the basis of this request the following: a. The township auditors intended that you receive the insurance coverage. b. This intent was evidenced by the fact that the auditors never surcharged you for this coverage. c. Your receipt of this coverage was not an intended violation of the law but was latter an innocent mistake. 12. On August 14, 1985, the State Ethics Commission granted your request and has reconsidered the original Order. 13. The township board of auditors never recorded their approval fixed as part of your compensation the life, health or medical insurance coverage. a. The auditors stated that they never included non - working supervisors to have such coverage. b. A majority of the auditors stated that, as a working supervisor, you would have been entitled to such coverage. B. Discussion: As a township supervisor, you area public official as that term is defined in the State Ethics Act. 65 P.S. §402; Sowers, 80 -050. Your conduct as such an official must conform to the requirements of the Act. The Ethics Act provides, in part, 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 Commission has previously determined that within the above restriction, a township supervisor may not receive, at the township's expense, health and medical insurance benefits, when such supervisor acts only in the capacity of a supervisor. Krane, 84 -001. Additionally, even if such a supervisor is employed by the township as a roadmaster in accordance with the Second Class Township Code, such benefits are considered compensation and must therefore be fixed as such by the Township Board of Auditors. Nanovic, 85 -005. Any benefits received other than as provided for above would constitute financial gain obtained in violation of the Ethics Act. Mr. Robert'W. Hunt _ Page 6 August 23, 1985 You served as a township roadmaster until the end of 1979. (See finding No. 2). You also served in that position for the last six months of 1981. (See Finding No. 4). The Township paid for your medical and health insurance beginning in March, 1979. This coverage continued until February, 1982. You assert that when the auditors set the compensation for supervisors working on the roads, they indicated that such compensation was to be the same hourly rate as employees doing similar work. This you assert was intended by the auditors to include the insurance benefits herein question. This position does not, however, alter the fact that you received most of your benefits not as a working supervisor but when you were acting only in the supervisor capacity. Clearly, under all existing law, a non - working supervisor may not recieve such compensation. Our calculations indicate that the township paid benefits during that period amounted to $2,654.01. In addition, the auditors have confirmed that they never intended any non - working supervisor to receive that benefit. The fact the township auditors never surcharged you for this unauthorized receipt of benefits has been held not to constitute approval. See McCutchen v. State Ethics Commission, 466 A.2d 283 At 281, (1981). With relation to the period of time during which you in fact were a working supervisor, i.e., June 1981 through December 1981, the township paid $742.99 in premiums. A majority of the board of auditors have indicated that while such was never recorded, you were entitled and they intended that you have such benefts while you were a working supervisor. Our order will be amended to so reflect this fact. Finally, you assert that your receipt of this financial gain was done without intent to violate any law and was innocent in nature. While this may be so, the Commission may require one to divest oneself of any financial gain obtained in violation of the Act. The fact that such was obtained without corrupt intent has been held not to be determinative. See Warminster Township Appeal, 56 D. & C.2d 99, (1971), at 123; Hendricks v. Coast Rockhill Township 1 D. & C. 3d 763, (1977), at 774. Based upon the foregoing your approval, as a supervisor, of the payment of the premiums from township funds and your receipt of these benefits constitute a violation of the State Ethics Act. Mr. Robert W. Hunt - Page 7 The Ethics Act provides that: August 23, 1985 Section 9. Penalties. (a) Any person who violates the provisions of Section 3(a) and (b) is guilty of a felony and shall be fined not more than $10,000 or imprisoned for not more than five years, or be both fined and imprisoned. 65 P.S. 409(a). (c) Any person who obtains financial gain from violating any provision of this act, in addition to any other penalty provided by law, shall pay into the State Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). Additionally, the Commission may make a recommendation for prosecution by the appropriate prosecuting authority unless the person who is in violation of the Act returns any financial gain obtained in violation of the Act. See McCutcheon /Hoak v. State Ethics Commission, 77 Pa. Comm. 529, 466 A.2d 283, (1982). We believe that this result should be reached in the instant matter. • The amount of financial gain obtained in violation of the Ethics Act is $2,654.01. (See findings 8(a) - (g)). C. Conclusion: You violated the State Ethics Act when you, as a township supervisor, approved the payment of medical and health insurance coverage for yourself, without such compensation being fixed by the Township Board of Auditors. The financial gain realized therefrom was $2,654.01, the amount paid by the township for the premium regarding the coverage. Unless, within thirty days of this Order you remit a check to the State Ethics Commission in the amount of $2,654.01 made payable to Upper Yoder Township, we will refer this matter to the appropriate law enforcement official. II. Allegation: That in 1981, you named yourself roadmaster and took a salary from the township even though the township auditors never established the salary for your position as roadmaster and that this is a violation of Section 3(a) in that you used your public office for personal financial gain and /or Section 3(c) in that you contracted with your own governmental body without the required open and public process. A. Findings numbered 1, 4a, b, c, d, and 6 are incorporated here by reference. B. Discussion: Once again, the relevant portion of the Ethics Act is Section 3(a) which prohibits a public official from using his public office to obtain financial gain other than compensation provided by law. _Mr. Robert W. Hunt Page 8 August 23, 1985 In June 1981, the roadmaster then employed by the township resigned from his position. At this time, you offered to act as a temporary roadmaster until the position was filled. You voted to appoint yourself to this posiion. The vote on this matter passed two -to -one. You served in this position until December, 1981. During the June 1981 meeting you, as supervisor, moved to publicly advertise for anew roadmaster. The auditors, on January 8, 1981, had fixed the compensation for supervisors working on the township roads, generally, at the same rate per hour as other employees doing similar work. The Commission has ruled on various occasions that a public official may not participate or vote as such an official for his own appointment to a compensated position without violating the Ethics Act. Flood, 83 -010. While your action in so voting for yourself to become township roadmaster in 1981 constitutes a technical violation of the Ethics Act, we believe that this was done in a good -faith attempt to insure that the township had an experienced roadmaster during this transition period. The compensation for working supervisors had been set generally by the Board of Auditors on January 8, 1981. Under these circumstances, we will take no further action with relation to this matter. C. Conclusion: While there may have been a technical violation of the Ethics Act when you voted to appoint yourself township roadmaster, such was done during an emergency situation and we will, therefore, take no further action in that matter. III. Allegation: That after you left office as township supervisor, you were appointed to other positions in the township, some of which were compensated and that this is a violation of Section 3(e) of the Ethics Act which prohibits representation before your former governmental body for a period of one year after you leave that body. A. Findings numbered 1 and 5a, b, are incorporated here by reference. B. Discussion: The portion of the State Ethics Act relevant to the above stated allegation provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e) . Mr. Robert W. Hunt Page 9 JJC /rdp erb: Z B. Conner Ch man August 23, 1985 The Ethics Commission has generally determined that this Section would not restrict or prohibit a public official or public employee from obtaining subsequent employment with another governmental body or on a different level of a governmental body. Hagan, 34 -019; Pinto, 84 -021. By obtaining a position as township zoning officer after your term as township supervisor expired, you remained in the employment of the township. There is no evidence that you voted to appoint yourself to this position or were a participant in that matter. As such, we find no violation of the Ethics Act in that situation. C. SUMMARY OF CONCLUSIONS: 1. You violated the State Ethics Act through your approval and receipt of insurance benefits paid for by the township when such was not approved by or fixed as compensation by the Township Board of Auditors. You must, therefore, act in accordance with the conclusion set forth on page 7. 2. There was a technical violation of the Ethics Act when you voted to appoint yourself as township roadmaster in 1981. Under the circumstances herein present, however, we will take no further action. 3. You did not violate the Ethics Act when you accepted a position as township zoning officer after the expiration of your term as township supervisor. 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 3 business 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 3 -day period, no one, including the Respondent unless he waives his right to challenge this Order, 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). By the ►om fission, Mr. Robert W. Hunt R.D. #5, Box 461 Johnstown, PA 15905 EMS /rdp Madmg Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 September 23, 1985 Dear Mr. Hunt: I acknowledge receipt of your check no. 1137 in the amount of $2,654.01 payable to Upper Yoder Township. This check meets the requirements of Order No. 384 -R of the State Ethics Commission. As of August 27, 1985, Order No. 384 -R became a public record. A copy of this letter will be made a part of that record. Our files will be closed in this matter. Sincerely yours, /.1 -64■>./.,0. Edward M. Seladones Executive Director State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania