HomeMy WebLinkAbout403 PohlMs. Irene Pohl
227 Harrison Road
Turtle Creek, PA 15145
Re: 85 -05 -C
Dear Mr. Pohl:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
August 14, 1985
Order No. 403
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, a Wilkins Township Commissioner, violated Section
3(a) of the Ethics Act, Act 1978 -170 by having the township pay for a
hospitalization /medical plan in which you participate.
A. Findings:
1. You are an elected public official serving in Wilkins Township; you have
been serving as a commissioner since January, 1984. You are chairwoman of the
Department of Public Works, Roads and Repairs and supervise roadwork and
inspect existing roadways.
2. Wilkins Township has a population of 8,472 (1980 census).
3. You are not employed by the township except in the capacity of
commi ssioner.
4. You received $1,200 salary per year as commissioner.
5. Medical and hospitalization insurance for township employees and
commissioners is administered by the Municipal Employers Insurance Trust,
Administrative Office, 1514 Union Bank Building, Pittsburgh, Pennsylvania
15222. (Hereinafter MEIT),
Ms. Irene Pohl
Page 2
(a) 1984: $273.90 for Dental and Drug Prescription coverage from
February through December.
August 14, 1985
6. MEIT invoices record the following payments for your Blue Cross /Shield
coverage.
(b) 1985: $83.31 for Dental and Drug prescription from January through
March. The township is continuing to make these payments.
(c) The solicitor, John Means, stated that he believes you are entitled
to Blue Cross and Blue Shield coverage according to the Township Ordinance and
First Class Township Code.
7. In 1979 the township auditors questioned the insurance payments but had no
more questions when they were informed of the provisions of Act 72 -1977.
8. On February 13, 1978, Wilkins Township adopted Resolution No. 5 -78
"Authorizing the inclusion of the members of the Board of Commissioners as
subscribers to the Township Group Hospitalization Plan." It stated the
following:
(a) The commissioners were eligible to participate in the township's
Group Hospitalization Plan pursuant to Act 72 of 1977.
(b) Several commissioners had expressed their desire to become
members of the plan.
9. Act 72 -1977, in part, provides that each commissioner shall "receive a
salary of not more than ...twelve hundred dollars per year in townships having
a population of four thousand and not more but less than ten thousand."
10. Act 72 -1977 was signed into law by the Governor on November 9, 1977 and
was effective immediately. It amended Section 703 of the First Class
Township Code as follows:
(a) By removing the phrase as full compensation" from the last
sentence; "Such salaries shall be payable monthly or quarterly [as full
compensation] for the duties imposed by the provisions of this Act.
11. The November 11, 1977 edition of the Legislative Newsletter of the
Pennsylvania State Association of Township Commissioners included the
following Statement:
Township commissioners would be permitted to
receive other forms of compensation in addition
to their salaries under House Bill 571.
Section 203 of the First Class Township Code
would be amended by removing the words as full
Ms. Irene Rohl
_Page 3
13. At the Township regular meeting September 10, 1984, the Secretary
reviewed the following documents concerning medical insurance for the
Commissioners.
h. You chose only Dental and Prescription coverage.
August 14, 1985
compensation" from the paragraph...the amendment
would thus allow among other things township
commissioners to receive such benefits as
health, life insurance, and pensions paid for
by their township.
12. On February 12, 1985, Mr. Wilmer K. Baldwin, Secretary - Manager of Wilkins
Township forwarded a copy of a letter which had recently been received by the
township.
(a) The letter was written by David B. Glancey, Legislative Assistant in
the Pennsylvania Senate and was written to the Honorable Amos K. Hutchinson, a
member of the Pennsylvania House of Representatives.
(b) Mr. Glancey stated that in [his] opinion, (emphasis added) the
effect of the amendment to Section 703... deleting the 'full' before the term
'compensation' will permit compensation for the commissioners to be more -
comprehensive and to include more than mere remuneration for service in the
elected position of commissioner. For example, ...health and life insurance
and death and pension benefits."
(a) The 1984 budget for medical insurance for members of the Board of
Commissioners which was $8,679.
(b) Resolution 5 -78 of February 13, 1978 authorizing participation in
programs based on State Act 72 of 1977 which amended Section 703 of the First
Class Township Code.
(c) Act 72 of 1977 signed by the Governor on November 9, 1977.
(d) Legislative letter No. 13 of November 11, 1977 of the Pennsylvania
State Association of Township Commissioners indicating the intent of
legislation which became Act 72.
14. You admit the township paid the premiums for your Dental and Drug
Prescription prescription coverage.
a. When you were sworn into office you were told the health care package
was available to you
Ms. Irene Pohl
: Page 4
B. Discussion:
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).
The First Class Township Code provides that:
§55703. Compensation.
Each township commissioner shall receive a salary of not
more than eight hundred dollars per year in townships
having a population of less than four thousand, not more
than twelve hundred dollars per year in townships having a
population of four thousand and more but less than ten
thousand, not more. than fifteen hundred dollars per year
in townships having a population of ten thousand and more
but less than fifteen thousand, not more than twenty -four
hundred dollars in townships having a population of not
less than fifteen thousand and not more than twenty -five
thousand, and not more than three thousand dollars in
townships having a population in excess of twenty -five
thousand. Such salaries shall be payable monthly or
quarterly for the duties imposed by the provisions of this
act. 53 P.S. 55703.
August 14, 1985
The State Ethics Commission has previously reviewed the question of
whether these type of insurance coverages constitute financial gain within the
above provision of law. See Krane, 84 -001 and Davis, 84 -012. In Krane and
Davis the Commission determined that such benefits constituted financial gain.
We will adopt the analysis in those Opinions as applicable here and move to
the question of whether these coverages are "provided by law" to be paid for
by the Township.
We have previously considered this issue specifically within the purview
of the First Class Township Code. See Dodds, 84 -011. In Dodds, we concluded
that a Commissioner in a Township of the First Class could not receive or
secure for himself through his office, compensation, whether considered
monthly payments, salary or the value of insurance premiums paid for by the
township in excess of the compensation allowed and limited by law.
Ms. Irene Pohl
_Page 5
August 14, 1985
Additionally, the Code provides:
§55603. Compensation.
Elected officers of townships shall receive such salary,
compensation or emoluments of office as may from time to
time be fixed by ordinance of the township in accordance
with provisions of section 703. Any change in salary,
compensation or emoluments of office shall become
effective at the beginning of the next term of the elected
officer. Appointed officers and employes of the township
shall receive such compensation for their services as the
township commissioners shall prescribe. 53 P.S. 55603.
While the Township Code contains a general power to contract for
insurance 53 P.S. §56523, it also limits the "compensation" allowed for
commissioners. See 53 P.S. 55703. This limitation, when read in conjunction
with the mechanism prescribed in the Township Code (53 P.S. 55603) for
increasing the "salary, compensation and emoluments of office" as may be fixed
by ordinance, evidences the intent of the Legislature to limit and fix such
payments. We must also note that pursuant to Section 55603 of the First Class
Township Code the compensation of elected township officials, including the
compensation paid to commissioners pursuant to Section 55703 must be fixed by
township ordinance. In the instant situation, the inclusion of the township
commissioners was effected by a resolution rather than by ordinance. Thus,
even if such compensation, in the form of insurance coverage, were authorized
the mechanism through which it was obtained may be defective. See Eme rt et.
al. v. Hatfield Township et al., 74 Montg. Co. L.R. 249, (1957); Richland
Township v. Breiner et ux., 8 Bucks Co. L. Rep. 107, (1958). Additionally, we
must note that Section 55603 mandates that any change in compensation or
emoluments of office "shall become effective at the beginning of the next term
of the elected officer." Resolution 5 -78 granting group insurance benefits to
the township commissioners was effective "as soon as possible."
In this Commission's opinion in Dodds, while we did not pass upon the
propriety of obtaining insurance coverage, at the expense of the township for
officials as opposed to employees, we did note that the Township Code appears
to limit such coverage only to employees. 53 P.S. §56523. See e.g.
Domalakes, 85 -010.
It should be noted that you have submitted a letter from a former
legislative assistant indicating that the deletion of the term "as full
compensation" from the last sentence of Section 55703 above, now allows the
purchase of insurance coverage for Commissioners as a form of compensation.
Ms. Irene Pohl
Page 6
Even assuming this is a correct interpretation of the first class
township code, there was no indication in that letter that the combined
compensation, i.e., insurance coverage plus monetary salary could exceed the
dollar limits as specifically set forth in Section 55703, in this case $1,200.
Here as in Dodds, we believe it could not. Thus, even if such coverage was
authorized for officials pursuant to the code, your receipt of such resulted
in a salary in excess of the amount provided for by law, i.e. $1,200. You
received $1,200 as a Commissioner in addition to the benefit of having the
township pay for the insurance premium. These payments totaled $357.21 for
the years 1984 -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).
August 14, 1985
Additionally, the Commission may make 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. Commw. 529, 466 A.2d 283,
(1982). We believe that this result should be reached in the instant matter.
C. Conclusion: You violated Section 3(a) of the State Ethics Act when you,
as a township commissioner, received at the township expense, hospitalization
and medical insurance in excess of that compensation provided by law. Our
calculations indicate that the expense to the township for such insurance
amounted to $357.21. Unless within thirty (30) days of this Order you forward
to the State Ethics Commission a check in the above amount, made payable to
Wilkins Township, we will refer this matter to the appropriate law enforcement
officer for appropriate action.
Upon the receipt of said check, we will take no further action 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
Ms. Irene Pohl
Page 7
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).
JJC /sfb
the om, ssion
erbe B. Conner
Cha man
August 14, 1985
EMS/rdp
Ms. Irene J. Pohl
227 Harrison Road
Turtle Creek, PA 15145
Dear Ms. Pohl:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
September 10, 1985
I acknowledge receipt of your Check No. 263 in the amount of $357.21
payable to Wilkins Township. This check meets the requirements of Order No.
403 of the State Ethics Commission. For the record, I also want to note your
statement in your cover letter that you accepted this insurance coverage from
the township because you were informed it was not improper but that you have
now told the township to cancel the coverage because of your desire to "serve
[your] community in an honest and efficient manner ".
Our files will be closed and Order No. 403 will be a public record as of
the date of this letter. A copy of this letter will be made a part of that
record.
Sincerely yours,
Edward M. Seladones
Executive Director