HomeMy WebLinkAbout412-R YocabetMr. James Yocahet
c/o James T. Davis, Esq.
Davis & Davis
99 East Main Street
Uniontown, PA 15475
Re: No. 82 -117 -C
Dear Mr. Yocahet:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
March 3, 1986
Order No. 412 -R
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. On November 14, 1985, a hearing on the matter was conducted
and relevant evidence and testimony was presented. The individual
allegations, conclusions, and findings on which those conclusions are based
are as follows:
I. Allegation: That you have used your office and /or confidential
information acquired through that office to realize personal financial gain
other than the compensation provided for by law when, as a township supervisor
in a township of the second class, you were appointed to and voted for your
appointment to the position of township secretary /treasurer and received
payment in that position that was not part of the compensation fixed by the
township hoard of auditors, and that such is in violation of Section 3(a) of
the State Ethics Act, 65 P.S. 5403(a).
A. Findings:
1. You have served as a supervisor in L1lzerne Township since January, 1978
and as such are subject to the requirements of the State Ethics Act.
2. Minutes of the meetings of the township board of supervisors regarding
your appointment as secretary /treasurer indicate the following:
a. January 2, 1979: On motion by Sparvieri and second by Raker, you
were elected secretary /treasurer. The vote was unanimous and you voted.
Mr. James Yocahet
Page 2
March 3, 1986
Motion by Sparvieri and second by Raker. You were appointed roadmaster.
The vote was unanimous and you voted.
b. January 7, 1980: On motion by Atz and second by Baker, you were
elected secretary /treasurer. The vote was unanimous and you voted.
On motion by Atz and second by Raker, you were appointed roadmaster.
The vote was unanimous and you voted.
All three supervisors were elected roadmasters and each was assigned a
geographic zone as their primary responsibility within the township.
c. January 5, 1981: Motion by Atz, second by Baker, you were elected
secretary /treasurer of the board. The vote was unanimous and you voted.
On motion by Atz, and second by Baker, you were named roadmaster. The
vote was unanimous and you voted.
The zoning concept for assigning supervisors a geographic zone was
conti nued.
January 4, 1982: On motion by Baker, second by Atz, you were elected
secretary /treasurer. The vote was unanimous and you voted.
On motion by Atz, second by Baker, you were appointed as roadmaster.
The vote was unanimous and you voted.
The zoning concept for assigning supervisors a geographic zone was
continued.
d. January 3, 1983: On motion by Raker and second by Atz, you were
elected secretary /treasurer. The vote was unanimous and you voted.
On motion by Atz and second by Raker, you were appointed roadmaster.
The vote was unanimous and you voted.
e. January 31, 1984: On motion by Atz and second hy Raker, you were
elected secretary /treasurer. You abstained from the vote.
On motion hy Baker and second by Atz, you were appointed as roadmaster.
The vote was unanimous and you voted.
The zoning concept for assigning supervisors a geographic zone was
continued.
3. Minutes of the meetings of the township hoard of supervisors for the years
1964 through 1984 inclusive contain information relating to the wages and
other benefits requested or fixed by the township hoard of supervisors in
Mr. James Yocabet
Page 3
March 3, 1986
relation to their various positions of employment in the township. The
specific information relating to these wages and other benefits as set forth
in the minutes is contained in a chart which is attached hereto, made a part
hereof, marked as Appendix A.
a. The aboved referenced minutes• indicate that the salary for the
secretary /treasurer during the years 1966 through 1973 inclusive is fixed at
3% of the money paid out by the treasurer.
b. The minutes for 1974 indicate that the salary for the
secretary /treasurer will be set by the Township Board of Auditors.
c. The minutes indicate that the salary for the secretary /treasurer for
the year 1976 will be requested at $7,800.00.
d. The minutes indicate that the salary of the secretary /treasurer for
the year 1977 will be requested at $8,2.00.00.
e. There is no mention in the minutes of the supervisors meetings of the
salary for the secretary /treasurer during the years 1978 through 1984
i nclusive.
4. The township hoard of supervisors generally would forward a letter to the
township board of auditors each year requesting that the auditors fix specific
wages and other fringe benefits for supervisors employed as roadmasters,
laborers or secretary /treasurer.
a. A review of township records indicates that only one of these letters
could be found.
b. This letter was for the year 1981 and does not mention a request for
any compensation for you as Secretary /Treasurer.
c. This letter requested:
$62.00 wages.
18 days vacaction.
10 sick days.
13 Holidays.
3 personal days for family death.
3 personal days for relative death.
Mr. James Yocabet
Page 4
March 3, 1986
5. Auditor minutes were obtained and reviewed for the years 1960 through 1972
inclusive and for the years 1980 through 1984 inclusive. Township records did
not contain any such minutes for the years 1973 through 1979 inclusive. The
minutes ohtained specifically set forth the various wages and other fringe
benefits fixed by the Township Board of Auditors for supervisors who were
employed by the township. The information contained in these minutes is set
forth in Appendix B, which is attached hereto, made a part hereof.
a. The minutes obtained contained no reference to the salary for the
secretary /treasurer until the year 1982. The salary for the
secretary /treasurer for the years 1982 through 1984 inclusive is fixed at
$6,600.00 in each year.
6. After the Township Board of Auditors would fixed the compensation and
other henefits to be paid for supervisors who were employed by the township as
roadmaster, laborer, or secretary /treasurer, the Board of Auditors would
advise the supervisors as to the specific compensation and benefits fixed by
way of letter. Letters of the township audi tors to the members of the board
of supervisors were obtained and reviewed for the years 1966 through 1984
inclusive. The specific information contained in those letters is outlined in
Appendix C, which is attached hereto and, made a part hereof.
a. The compensation to he paid to the township secretary /treasurer is
specifically noted in the auditor letters for the years 1974 and 1975 and such
compensation is fixed at $6,000.00 in each year.
b. The compensation fixed by the township board of auditors for the
secretary /treasurer for the years 1978 and 1979 is noted at $6,000.00 and
$6,600.00 respectively.
c. The compensation to be paid to the secretary /treasurer, as fixed by
the board of auditors for the years 1982 through 1984 inclusive is noted at
$6,600.00 in each year.
d. The letters of the auditors to the supervisors in all other years
reviewed make no reference to the compensation to he paid to the township
secretary /treasurer.
7. Thelma J. Cox served as a township auditor in the years 1980 and 1981.
a. Mrs. Cox testified that the township hoard of auditors, during her
two years in office, were responsible for fixing the compensation and fringe
benefits packages for the township board of supervisors.
b. Mrs. Cox testified that generally township supervisors would request,
in writing, certain wages and benefits and the hoard of auditors would either
approve or disapprove such items.
Mr. James Yocabet
Page 5
March 3, 1986
c. Mrs. Cox testified that she did not know how auditors in the past had
approved or disapproved the supervisor's request.
d. Mrs. Cox testified that in the year 1980 the township board of
auditors discussed whether a salary should be fixed for the township
supervisor who served as secretary /treasurer. She indicated that other
auditors generally believed that the board should approve whatever supervisors
had requested. She testified that they discussed the matter and that after
such discussion, the board of auditors decided not to set a separate salary
for the supervisor who served as secretary /treasurer.
e. Mrs. Cox testified that no additional salary for the position of
secretary /treasurer was approved by the township board of auditors for the
years 1980 and 1981. She indicated that in 1981 there was no discussion on
this matter as there had been in 1980. She indicated that the reason for not
fixing this salary was because the township was employing an office secretary
who performed many of the duties of the township secretary. She testified
that the board of auditors ultimately agreed that one salary was sufficient
for Mr. Yocabet, i.e., as township roadmaster, and therefore, no additional
salary was fixed for his service as secretary /treasurer.
f. Mrs. Cox testified that as an auditor she did not consider past
practices of other boards of auditors when fixing the wage and compensation
packages for the supervisors.
g. Mrs. Cox indicated that she did not audit the cancelled checks or
checking accounts of the township because each auditor was responsible for
performing a different part of the audit and she was not assigned this
function.
h. Mrs. Cox testified that she did not check to see if Mr. Yocabet had
been paid as secretary /treasurer for the years 1980 and 1981.
i. Mrs. Cox testified that the township hoard of auditors generally
initialed their work when they reviewed township related items.
8. Ann Orbash served as a township auditor for the years 1980 and 1981.
a. Mrs. Orbash initially testified that she could not remember if the
township board of auditors had decided to pay a salary to the township
secretary /treasurer for the year 1980.
b. She also testified that the township hoard of auditors discussed
salaries and fringe benefits but she could not remember if they discussed not
paying the township secretary /treasurer.
c. She later testified that she thought the township secretary /treasurer
was being paid for services rendered in that position.
Mr. James Yocabet
Page 6
d. Mrs. Orbash further testified as follows:
0. Was there ever any discussion in 1981 among the
auditors to not pay the township's secretary- treasurer?
A. I don't know.
Q. Did you say you don't remember?
A. I don't remember.
Q. Did you ever decide to change the practice -- did you
personally ever decide or want to change the practice of
not paying the township secretary- treasurer?
A. In 1981?
Q. In 1980 or 1981?
A. I don't know, we talked about different things
about the salaries and the fringe henefits so --
Q
Q. Okay, go ahead.
A. I don't know.
Q. Mrs. Orbash, it's my understanding from your testimony
that you did assume that the township secretary - treasurer
would he paid in 1980 and 1981. Is that true?
A. I don't know because we had discussed not paying him,
probably -- I, can't remember.
Q . W e l l , you said earlier that- -
A. I don't really know.
Q. So you don't know whether he was to be paid or not?
A. (No response.)
Q. Ma'am?
A. I can't honestly s_ay
Q. Do you know whether or nct he was in fact paid?
March 3, 1986
Mr. James Yocabet
Page 7
A. I assumed he was, I think he was.
Q. And when you audited the records for 1980, did you know
he had been paid?
A. Yes.
Q. So my question is then did you assume that he would be
paid in those two years?
12. Tanya Capuzzi is employed as the Luzerne Township bookkeeper.
March 3, 1986
A. At least one year.
Q. In 1980?
A. Yes.
Q. How about in 1981?
A. I don't know about that, what the others said.
Q. I'm sorry, would you repeat that answer?
A. I don't know what the other auditors said.
0. But you personally wanted to pay him in both years you
personally? I'm not tal ki ng about the other two audi tors
A. Yes.
9. Kenneth Taylor, the third auditor in the years 1980 and 1981 is deceased.
a. A cancelled township check representing the pay to ,lames Yocabet was
initial ed by Kenneth Taylor. This check did not specifically indicate on its
face whether it was payment for your compensation as roadmaster or
secretary /treasurer.
b. A cancelled township check, regarding the entire township payroll
also contained the initials of Kenneth Taylor. This check did not
specifically indicate that it included your pay as secretary /treasurer.
10. The township board of auditors for the years 1980 and 1 consisted of
Thelma Cox, Ann Orhash, and Kenneth Taylor. Prior to that year Mrs. Cox and
Mrs. Orhash did not serve as auditors.
11. For the year 1982 the composition of the township hoard of auditors
changed and Mr. Taylor was the only previously serving auditor to continue
serving as an auditor.
Mr. James Yocabet
Page R
March 3, 1986
a. She testified that Kenneth Taylor, a former auditor, came into the
township offices nearly everyday in 1980 and in 1981 to review township books
and records. She further indicated that he initialed any document that he
reviewed including cancelled checks with the initials K.L.T.
b. Capuzzi testified that you were paid by separate checks for your
salary and compensation as roadmaster and secretary /treasurer.
c. Capuzzi testified that she attended all the auditors meetings in 1981
and that she never heard any discussion regarding the salary or compensation
for the secretary /treasurer.
d. Capuzzi testified that pursuant to the past practice of the township
board of supervisors that if the supervisors did not request a raise over the
previous year compensation, the supervisors would not ask the auditors for a
specific salary in their letter and the auditors would not discuss the
matter.
e. Capuzzi testified that she continued to issue a payroll check to you
as secretary /treasurer because no one told her that the salary had not been
approved.
1980.
f. Capuzzi testified that she performs the following functions:
1. Enters checks received into a ledger.
2. Issues all checks upon direction.
3. Prepares the payroll and treasurers account hook.
4. Keeps minutes, books, and records of other proceedings that
occur in the township including accounts, the general fund and
al l miscellaneous accounts.
5. Receives money paid into the township and deposits said monies
into appropriate hank accounts.
6. Keeps distinct accurate accounts of all sums received from taxes
and other sources that might cone into the township, such as
real estate taxes.
g. Capuzzi testified that she was not present during auditor meetings in
h. Capuzzi testified that the supervisors would only make recorded
notations of the request for compensation and salaries made by them to the
board of auditors when they were, in fact, requesting a raise in the previous
years compensation or benefits. She testified that she did not know, however,
from first hand knowledge that the supervisor request letter was only intended
for such wage increases.
Mr. James Yocabet
Page 9
March 3, 1986
13. You were never surcharged by the township hoard of auditors for your
receipt of compensation as secretary /treasurer in the years 1980 and 1981.
14. Ronald Dellarose has served as a Luzerne Township Auditor since 1982.
a. Dellarose testified that he was of the belief that the compensation
and salary for working supervisors need not be specifically placed in the
auditor minutes or auditor letters to the supervisors unless the compensation
for the supervisors had increased from the previous years compensation.
b. Dellarose testified that even if the auditors approved the payment of
such compensation, if there was not an increase from prior year payments, the
specific compensation would not be set forth in the auditor minutes or
1 etters.
c. Dellarose testified that this was the past practice of the township
board of auditors according to his belief.
d. Dellarose testified that to the best of his knowledge a review of all
of the auditor minutes and auditor letters from 1959 to the present would
indicate that unless the compensation paid to supervisors increased, it would
not be specifically set forth in those documents.
15. Bernard Atz is a Township Supervisor and has served in that capacity
since 1979.
a. Mr. Atz testified that the township board of auditors never informed
him that the secretary /treasurer was not to he paid.
b. Mr. Atz testified that he attended the township meetings of auditors
in 1980 and 1981 and there was no discussion of the compensation for
secretary /treasurer at such meetings.
16. You have indicated the secretary /treasurer salary was not set forth
in the supervisors letters to the auditors in 1980 and 1981 because you were
not seeking a raise from your previous year compensation. You also believed
that you were entitled to the salary because you were not surcharged for your
receipt of this salary after the conclusion of the annual audits.
17. William Baker served as a member of the hoard of township supervisors
since 1968.
a. Raker testified that the auditors never informed him that the
township secretary /treasurer was not to be compensated.
b. Raker testified that former auditor, Kenneth Taylor, came to the
township building everyday. He indicated that Taylor was retired and would
come to the building, not in his official capacity, but in order to talk with
his friends.
Mr. James Yocabet
Page 10
c. Baker indicated that Kenneth Taylor did not look at checks and
perform official functions when he came to the township building everyday.
d. Raker testified that his belief as to why the auditor letters did not
contain a specific reference to the compensation for the supervisors serving
as secretary /treasurer was because the auditors would not place such items in
the auditor letters if the salary or compensation had not increased from the
previous year. The item would only he mentioned in the auditor minutes and
auditor letters, according to Baker's belief, if compensation was increased
frcm the previous year.
e. Baker indicated that the past procedure of township auditors, whereby
only increases in compensation are included in the auditor minutes and auditor
letters, is not only the past practice in relation to the salary of
secretary /treasurer but is also the past practice in relation to the salary of
all supervisors serving in positions of employment with the township such as
laborers or roadmasters.
18. Township payroll records, in part, indicate that you were paid
compensation as follows:
a. 1980: Secretary /treasurer salary
Roadmaster pay
Total gross pay
b. 1981: Secretary /treasurer pay
Roadmaster pay
Total gross pay
$ 6,600.00
$14,760.00
$21,360.00
$ 6,600.00
$20,522.00
$27,127.00
March 3, 1986
B. Discussion: As a supervisor in a township of the second class, you are a
public official within the purview of the State Ethics Act and subject,
therefore, to the requirements of that Act. See Sowers, 80 -050; Pennsylvania
State Association of Township Supervisors v. Thornburgh, 45 Pa. Commw. 361,
405 A.2d 614; Affirmed pur curiam 496 Pa. 324, 437 A.2d 1, (1981).
The Ethics Act provides 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 fancily, or a business with which
he is associated. 65 P.S, 403(a).
We are now called upon to review the facts presented in this matter to
deterrii ne i f your conduct i s or was i n violation of that provision of law.
11r. James Yocabet
Page 11
Initially, it is clear that as a member of the township board of
supervisors, you were appointed to serve as the township secretary /treasurer.
You participated in that appointment. Additionally, you received compensation
for serving in that position. In the first two years that you so served, 1978
and 1979, your salary was fixed by the township board of auditors. Evidence
of this fact was presented through the introduction of the auditor letters to
the township board of supervisors, wherein your salary was specifically noted.
(See Appendix C). Auditor minutes for this particular period of time were not
provided and were not available for review as they could not be found by any
of the parties hereto. You additionally received a salary in the amount of
56,600.00 per year in 1980 and 1981. No reference was made to this salary in
either the auditors letters to the supervisors, the auditor minutes, or the
minutes of the meetings of the township supervisors. In 1982 through 1984,
you received this same salary for your service as secretary /treasurer. The
approval of this salary is specifically noted in the auditor minutes and the
auditor letters covering that period of time. The specific issue with which
we are confronted is whether the financial gain that you received in 1980 and
1981 was part of the compensation provided for by law. There is no doubt that
you participated in appointing yourself as secretary /treasurer and that in
that position you accepted and received the above referenced financial gain.
Such participation in appointing yourself is a use of public office within the
purview of Section 3(a) of the State Ethics Act. See King, 85 -025. The sole
determination, thus to be made, is whether the funds received an 1980 and 1981
by virtue of this appointment were part of the compensation provided for by
law or whether this financial gain was not part of such compensation.
The compensation to he paid for a township supervisor who serves only in
that capacity is specifically set by the Second Class Township Code. 53 P.S.
65515. As amended by Act 18 of 1985. Additionally, that Code provides that
a township supervisor may be employed by the township in the position of
secretary /treasurer. 53 P.S. §65410(b). The Second Class Township Code,
however, further provides in relation to the compensation to he paid a
supervisor serving as secretary /treasurer that:
Treasurer
Secretary
Except as otherwise provided in section 540 hereof,
the amount paid to the treasurer as treasurer and
secretary, shall he determined by the hoard of
supervisors, except that where a supervi so is serving as
secretary and /or treasurer the auditors shall fix the
compensation. 53 P.S. 65531.
The amount paid to the secretary and treasurer as
salary, wages or other canpensation for services shall he
determined by the board of supervisors, except that where
a supervisor is serving as secretary and /or treasurer the
auditors shall fix the compensation, 53 P.S. X65540.
March 3, 1986
Mr. James Yocabet
Page 12
March 3, 1986
Thus, it is clear that while a township supervisor may serve in the capacity
of secretary /treasurer and receive compensation, therefor, such compensation
must be fixed by the township board of auditors. In the instant situation, we
must determine whether the compensation that you received for the years 1980
and 1981 was in fact fixed by the township board of auditors and, thus,
qualifies as compensation provided for by law. During the proceedings we
heard testimony from two of the members of the township board of auditors who
served in the years 1980 and 1981. One of these auditors, Thelma Cox,
testified specifically and unequivocally that the township board of auditors
did not fix the salary for you in the years in question. She specifically
indicated that this was a conscious decision and that the reason for such
decision was based upon the fact that the township had employed a bookkeeper
who was performing many of the services of the township secretary /treasurer.
She initially testified that while the other two township auditors were of the
opinion that you should receive compensation for services rendered as
secretary /treasurer, the ultimate result of their discussions in 1980 was that
no such salary would he approved. She testified that she did not consider the
past practices of other hoards of auditors when considering whether or not to
fix compensation for you in the position of secretary /treasurer. We
specifically note that the composition of the township board of auditors had
changed from the previous years in which your salary had been approved. In
1980, two new township auditors began service. These two new auditors served
in 1980 and 1981 and left office after that year. The records of the
township, including the township auditor letters and auditor minutes, appeared
to indicate that it was during these two years that no specific salary was
fixed for you as township secretary /treasurer. We also heard the testimony of
the second auditor who served in those two years, Ann Orhash. Mrs. Orhash's
testimony as evidenced by the findings of fact appears to he inconsistent in
several respects. Mrs. Orbash had initially testified that she could not
remember if the township board of auditors had ever decided or discussed
whether or not to pay you as a township secretary /treasurer for the year 1980.
Her same testimony, however, indicated that the township hoard of auditors
discussed salaries and fringe benefits and that the auditors had discussed not
paying the township supervisor who served as secretary /treasurer. She
indicated that she was of the opinion that you should receive such salary hut
that this was her personal opinion and that the decision would have to be made
by the majority of the hoard of auditors. She also testified that she assumed
you had been paid in one year. Certainly, from the testimony of Mrs. Orbash,
it is apparent that she did not specifically remember what decision had been
made by the township board of auditors regarding whether or not you were to
receive the salary as secretary /treasurer. The third auditor who served in
the years 1980 and 1981 is deceased.
In determining whether or not the township board of auditor's
specifically decided not to compensate you for the position of
secretary /treasurer, we are called upon to determine the credihi1ity of these
two witnesses. In an effort to do this, we have reviewed all of the testimony
and evidence received and have relied upon this evidence to make this
determination. The factors that we have considered in this matter included
the following:
Mr. James Yocabet
Page 13
March 3, 1986
Thelma Cox testified unequivocally and without reservation that the
salary was not to be paid to you as secretary /treasurer.
Ann Orhash could not recall, with any specificity, the final decision
reached by the township board of auditors in relation to this matter although
she did testify that the auditors did discuss not paying the
secretary /treasurer.
Thelma Cox had testified that the reason for not payi ng you this salary
was based upon the fact that the bookkeeper for the township, Tanya Capuzzi,
performed many of the services of secretary /treasurer. The testimony of Ms.
Capuzzi, in this respect, seems to verify this statement by Mrs. Cox.
Speci fical ly, Capuzzi testified that she performed the services outlined in
finding 12f. These are the exact same functions and duties of the
secretary /treasurer that are statutorily set forth in the Second Class
Township Code. See 53 P.S. 4565530; .565540.
Testimony was provided by Ms. Capuzzi that the third auditor, Kenneth
Taylor, had initialed all of the checks that he reviewed in his role as
auditor and that he, in fact, reviewed a substantial number of checks in
relation to township business. One check bearing the initials of Mr. Taylor
represented one of the by- monthly payroll checks that you received in your
position as secretary /treasurer. There is no indication, however, on the face
of the check that it was specifically marked as your pay as
secretary /treasurer. Additionally, while it was testified that Mr. Taylor
reviewed a substantial amount of checks, the check provided to this Commission
was the only check relating to your salary as secretary /treasurer that was
specifically initialed by Mr. Taylor. Additionally, while it was testifed
that fir. Taylor would appear at the township building every day in order to
perform services as an auditor on behalf of the township, subsequent testimony
by a member of the township hoard of supervisors indicated that Mr. Taylor
would not be performing services as an auditor when he came to the township
building. Rather, it was testified that he was there in an unofficial
capacity in order to socialize with many of his friends who were working at
the township building.
Rased upon all of the foregoing factors and considerations, we have
determined that the township board of auditors in the years 1980 and 1981, did
not fix the salary that you received as part of the compensation for your
services as secretary /treasurer. In reaching this determination, we have
considered a number of arguments that have heen presented on your behalf.
Initially, you have asserted that the township hoard of auditors did in
fact approve the compensation that you received in your position as
secretary /treasurer. In support. of this argument, you referenced to the past
practice of former township officials in relation to how they would
specifically note the salary that was to be paid to the secretary /treasurer.
Generally, you have indicated that it has been the steadfast practice of the
Mr. James Yocabet
Page 14
March 3, 1986
township only to make note of the salaries to be paid for the supervisors who
serve in positions of employment in the township when the salaries have
increased over the preceeding year. During the proceedings before this
Commission, a number of individuals testified that if, in fact, we reviewed
the many documents that have been provided in relation to
the compensation paid to township supervisors, we would find that this
practice would be supported in fact. In an effort to review this position, we
have conducted a thorough review of the minutes of the township board of
supervisors, the minutes of the township auditors, and the auditor letters
that had been submitted to the supervisors indicating what salaries are set.
We capsulized the information contained in these documents in the appendixes
of this report. We have also combined this information into a comparison
chart for reference. (See appendix D). Review of these documents clearly
indicates that this past practice did not, in fact, exist. Specifically, we
note that auditor minutes would frequently contain the salary to be paid to
the township supervisors serving as laborers or roadmasters even when such
salary did not change. Specifically, from 1960 through 1963, there was no
change in the township supervisors salary or in any of the other benefits.
Yet, i n each year, the auditor specifically noted in their minutes the fixing
of this salary. Similarly, from the years 1965 through 1966 the salary
remained the same and was noted in each year. This is also true for the years
1968 and 1969. In other years, while the salary did increase, other benefits
did not, yet these other benefits were specifically referenced to in each of
the years.
Additionally, we note that the auditor letters reveal this same
situation. Salaries are noted even though they do not change in successive
years. Other fringe benefits also were specifically referenced to in each
year even though there were no changes in these benefits. For example, the
auditor letters indicate that in 1967 supervisors were to receive two weeks
vacation. In each of the subsequent years, through and including 1979, a
period of twelve years, the audi tors in their letters specifically referenced
to the fixing of this fringe benefit as part of the compensation package to
the supervisors even though there was no change in these benefits. Indeed,
specifically with relation to the salary of secretary /treasurer, as early as
1974, the board of auditors in their auditor letters specifically noted their
authority to fix the canpensation of supervisors serving as
secretary /treasurer. In two successive years, 1974 and 1975, they fixed and
noted the salary in their letter even though the salary did not change. The
supervisors themselves, as evidenced by the township supervisors minutes in
1974, specifically noted that the salary to be paid to the secretary /treasurer
would he set by the township hoard of auditors. E_
The superviors minutes, from the years 1966 through 1973 in each year
referenced to the salary fixed for the secretary /treasurer. This salary is
specifically noted in the supervisors minutes as 3 percent. We note for the
sake of this opinion, however, that during that period of time there was no
1 egal requirement that the salary of the secretary /treasurer be fixed by the
Mr. James Yocahet
Page 15
March 3, 1986
township board of auditors. Our reading of the law during that period of time
specifically indicates that it was the duty of the board of supervisors to fix
that salary. The important aspect of this 8 year continuous notation is that
it is in complete contrast to much of the testimony that the supervisors would
only make written note of the salary if it were to constitute an increase over
prior years.
Our review of the documents in this matter clearly indicate that the
contention that the township hoard of auditors and the township board of
supervisors would only note the salary in their respective puhlic documents
when such salary was to increase, is not supported by those documents. In
fact, the documents appear to specifically contradict that contention.
You have also asserted the fact that the township hoard of auditors have
never surcharged you for the receipt of this salary and, thus, such lack of
surcharge is an indication that the salary was approved. This specific issue
has been addressed by the courts on many occasions and the decisions have been
clear that the failure of the board of township auditors to initiate a
surcharge action against supervisors does not and can not constitute required
auditor approval or fixing of the salaries received. See McCutcheon v. State
Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1982); Hendricks v. East
Rockh`ill Township, 1 Il & C 3d 763, (1977).
Finally, you have asserted that the Second Class Township Code provides
that the township board of auditors "shall fix the compensation" of the
secretary /treasurer when he is a township supervisor. You argue that the term
"shall" is required to he read as must and that, therefore, the township board
of auditors have no discretion in fixing the salary for this person. You
indicate that as a result, the board of auditors abused their discretion if in
fact they did not fix a salary for a secretary /treasurer. Assuming arguendo,
that this legal theory is correct and that the township hoard of auditors must
fix some salary for the supervisor who serves as secretary /treasurer, the
failure of the auditors to exercise this duty does not authorize the township
supervisor to establish his own salary in the absence of such affirmative
action by the auditors. Other avenues are availahle to a township supervisor
who believes that the auditors have abused their discretion. See Festa v.
Derry Township, 49 Pa. Comm. 297, 411 A.2d 904, 1980. You, however, would
have this Commission rule that the failure of the township auditors to fix
such a salary is an authorization for a puhlic official, such as a township
supervisor, to allocate to himself whatever salary he deems appropriate. Such
is not the law. To the contrary, the law of this Commonwealth is clear and
has been enunciated on many occasions. That law indicates that it is against
puhlic policy for a puhlic official to act in a matter in which he has a
precuniary interest. Indeed, the Second Class Township Code specifically sets
an independent body, the hoard of auditors, as the specific body which will
set the salaries and compensation for township supervisors when they serve in
positions of employment with the township. This requirement can not be
Mr. James Yocabet
Page 16
March 3, 1986
avoided. See Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303, (1951);
Commonwealth v. Radenbush, 249 Pa. 86, 94 A. 555, (1951); Henricks v. East
Rockhil I Township, supra, In re: Appeal of the Auditors Report of Muncy Creek
Township, 16 Lycoming Reporter 159, (1985); Reckner of the German Township
431, Pa. 375, 19 A.2d. 402, (1941).
Based upon all of the facts and applicable law, we have determined that
financial gain that you received in 1980 and 1981 was not part of the
c anpensation provided for you by law. Your vote to appoint yourself as
secretary /treasurer in the township, and your subsequent receipt of
compensation in that position that was not specifically approved by the
township hoard of auditors, is a violation of the State Ethics Act Section
3(a). See King, 85 -025.
The penalties for violating Section 3(a) of the Ethics Act are as
follows:
Section 9. Penalties.
(a) An y person who violates the provisions of Section 3(a)
and (b) is guilty of a felony and shall he fined not more
than 510,000 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
Treasurey a sum of money equal to three times the
financial gain resulting from such violation. 65 P.S.
409(c).
In addition, the Commission may:
Section 7. Duties of the commission.
(11) Make recommendations to law enforcement officials
either for criminal prosecution or dismissal of charges
arising out of violation of this act. 65 P.S. 407(11).
The Commonwealth Court of Pennsylvania has upheld the authority to
require persons in violation of the Act to return any financial gain obtained
therefrom. McCutcheon v. State Ethics Commission, 77 Cmwlth. Ct. 52.9, 406
A.2d 2.80, (1981). We note that this restitution requirement is appropriate
under the law even where the financial gain received has been done so in good
faith. A public offical may not retain public funds that have not been
received in accordance with the. law. Allegheny County v. Grier, 179 Pa. 639,
36 A.2d 35 3 (1897); Kestler Appeal , 66 Pa. Commw. 1, 444 A.2d 761, (1982).
Mr. James Yocabet
Page 17
C. Conclusion: You have violated the State Ethics Act as outlined above.
The Commission has determined that you must divest yourself of the financial
gain obtained in violation of the law. In this case, that gain was the
compensation that you received in 1980 and 1981 without such compensation
being fixed by the township auditors. This gain totals $13,200.
You must remit to the State Ethics Commission a check made payable to
Luzerne Township within thirty days of this Order. Upon receipt of this
check, we will close our files in this matter. Failure to divest yourself of
the financial gain as outlined above, will result in the referral of this
matter to appropriate law enforcement authorities.
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).
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 Co7ission,
H rber
Chairman
. Conner
March 3, 1986
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cc: Public Binder
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
November 17, 1987
Mr, James T. Yocabet
c/o James T. Davis
Davis & Davis
107 East Main Street
Uniontown, PA 15401
Re: 82- 117 -C, Order No. 412 -R
Dear Mr. Yocabet:
On November 16, 1987, the State Ethics Commission received your payment
for reimbursing Luzerne Township as required by Order No. 412 -R.
We have forwarded your check No.. 1394 dated November 11, 1987, in the
amount of $13,200.00 to Luzerne Township.
This letter will be made part of the Order and a public record as such.
Sin
n
Execut ' Di rector