Loading...
HomeMy WebLinkAbout385 McCutcheonMr. Edward tcCutcheon R. D. #5 Leechbury, PA 15656 Re: No. 83 -78 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION July 2 1985 Order No, 385 Dear Mr. McCutcheon: 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: 1. Allegation: That as a township supervisor in Allegheny Township you accepted wages or payments for working on township roads when you, in fact, did not perform said work and that you used your office as supervisor to obtain such payment thereby violating Section 3(a) of the Ethics Act, 65 P.S. 403(a) A. Findings: 1. You served as an elected supervisor in Allegheny Township, Westmoreland County, at least frc,.r May, 1973 to February, 1981. 2. Allegheny Township, Westmoreland County, is a township of the second class. 3. At the annual reorganization meetings of January 3, 1979, January 7, 1980, and January 5, 1981, you were appointed as township roadmaster and police commissioner. a. In 1979, motions for these appointments were made by Supervisor Hoak, seconded by you and passed. b. At the 1980 meeting, you were appointed police commissioner on a motion by Sheetz and a second by Hoak. All supervisors were appointed roadmasters on a motion by you and a second by Sheetz. Both motions passed unanimously. Edward f lcCutcheon July 2 1985 Page 2 c. At the 1981 meetiny, on a motion by you and a second by Sheetz, all supervisors were appointed roadmasters, on a motion by Hoak and a second by Sheetz, you were appointed police commissioner. The motions passed but the minutes do not reflect the votes of each supervisor. 4. The township auditors approved compensation for supervisors as follows: a. January 4, 1979: . $2.75 per hour for annual road inspections. . $4 per hour for supervisor workiny township. . $5.50 per hour supervisor filling in for roadmaster. There is no definition for "supervisor working township" in the minutes. b. On January 1, 1980: . $3 per hour for annual road inspections. . $4 per hour for supervisor working township. . $5.50 per hour supervisor filling in for roadmaster. There is no definition for "supervisor working township" in the minutes. c. In 1981: . $3.10 per hour for road inspection. . $4 per hour for supervisor workiny township. . $5.50 per hour supervisor filling in for roadmaster. There is no definition for "supervisor working township" in the minutes. d. In 1982: . $3.35 per hour for road inspection. . $4 per hour for laborers. . $5.50 per hour for actiny as a roadmaster. 5. Allegheny Township Police Department time sheets for calendar years 1979, 1980, and 1981 show the following: Edward McCutcheon Page 3 July 2. 1985 a. For calendar year 1979, you were paid $773.30 for 209 hours at $3.70 per hour. b. For calendar year 1980, you were paid $778 for 210 hours at $3.70 per hour. c. For calendar year 1981, you were paid $51.80 for 14 hours at $3.70 per hour. d. Chief of Police, Merle Lowman, approved all of the above time sheets. 6. You stated that this pay was related to your responsibilities as Police Commissioner which consisted of securing additional funds to expand the police force and arranging for training and schooling. 7. This pay was not related to your appointment as roadmaster. IV. Discussion: The Ethics Act provides that: 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). As an elected supervisor in a township of the second class, you are a public official as that term is defined in the State Ethics Act and therefore, subject to the requirements imposed thereby. 65 P.S. §401. The township minutes show that as a township supervisor you participated in your appointment as both roadmaster and police commissioner. Generally, an elected supervisor in a township of the second class may not hold any other elective or appointed township office other than township roadmaster, superintendent, laborer or secretary- treasurer. 53 P.S. §65514 and §65410. Additionally, any compensation paid to a supervisor who is employed in such an authorized capacity must be affirmatively fixed by the Board of Township Auditors. 53 P.S. §65515. Here, not only were you serving in a township position for which you were not eligible, even if you were allowed to serve in such position, there is no evidence that the Township Board of Auditors affirmatively fixed your compensation in relation thereto. Edward McCutcheon Page 4 July 2 1985 We do not take issue with the authority of supervisors to assign various functions to themselves for effective management of the township but compensation can be paid only as allowed by the Code and approved by the auditors. We also find no hourly rate of $3.70 approved for any position which might be occupied by the supervisors. You appointed yourself to receive payment for work in a position which was not authorized by the township code and for which no compensation was established by the township auditors. While you were also appointed ►oadmaster, you received the aforementioned township compensation as police commissioner rather than for working on the township roads. See Coltar v. Warminster Township, 8 Cmwlth Ct 163 (1973). Therefore, you received financial gain not authorized by law and violated Section 3(a) of the Ethics Act by using your public position to secure such gain. Penalties for violating this section are cited in Section 9(c) of the Ethics Act as follows: Section 9. Penalties. (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). In considering the penalties to assess, the Commission has an obligation to review all factors which might be pertinent to the case. In your case, the solicitor did state - although not in writing - that you were eligible to be compensated for your work as police commissioner and you acted on this advice. However, the Courts have ruled that acting in good faith on the advice of the solicitor is not sufficient cause to absolve one from penalties of the law see Hoak /McCutcheon v. State Ethics Commission 77 Cmwlth. Ct. 529 (1982), Cotlar v Warminister Township, 8 Cmwlth. Ct„ 163 (1973). C. Conclusion: In light of the foregoing, you must divest yourself of all financial gain obtained in violation of the State Ethics Act. Our calculations indicate that this would be an amount of exactly $1603.10. We will not, because of mitigating factors, impose the sanction set forth in Section 409(c) or take any other action in this matter. Upon receipt by the State Ethics Commission of a check made payable to Allegheny Township, we will close our files in this matter. 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 Edward McCutcheon Page 5 2.38. During this 15 -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). EPIS /na By the Commission, v Dry. Leon L. Haley Vice-Chai rman July 2 1985