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HomeMy WebLinkAbout414-R HermanMr. Robert Herman c/o James Blackwood, Esqut 127 W. Sixth Street Erie, PA 16501 Re: No. 84 -104 -C Dear Mr. Herman: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION June 20, 1986 Order No. 414 -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 February 11 and February 25, 1986, a hearing on this 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, a former Franklin Township Supervisor, violated Section 3(a) of the Ethics Act, 65 P.S. 403(a), which prohibits the use . of public office or confidential information gained through that office by participating in the Township Pension Fund whose entire premiums were paid from public funds; securing the cash surrender value from those insurance plans for your personal use; voting on and /or approving payment of premiums for those plans. A. Findings: 1. You served as a Franklin Township Supervisor from January, 1980 until you resigned in May, 1983. As an elected official, you are subject to the provisions of the Ethics Act. 2. Franklin Township records prior to April, 1978 were destroyed by fire. 3. Township records do not reflect you as being employed by the township as either roadrnaster, laborer, or in any position except as a supervisor during the period from 1974 through 1993. You verified this information in your testimony of Fehruary 25, 1986. You also testified that you road inspections and such things as taking hydraulic hoses to the did roadmaster and helping pull a grader from a ditch. Mr. Robert Herman June 20, 1986 Page 2 4. Township meeting minutes record the following actions relating to appointment of a roadmaster: a. January 2, 1979: Motion by Supervisor Horn, seconded by Ley to appoint Ley as Road Foreman. The motion passed two to one. Ley voted for his appointment. h. Fehruary 13, 197 -9: Supervisor Reck asked Solicitor Rolla whether the Ethics law prohibits Ley from voting for himself. Solicitor comments that it is not wrong because the Ethics Act does not cover that situation. c. January 7, 1980: Motion by you, second by Horn to appoint Ley as Roadmaster. Unanimous vote. Ley voted for his appointment. d. January 5, 1981: No record of any appointment as roadmaster in the organization minutes of the township supervisors. e. January 4, 1982: Motion by Sachar, second by you to postpone appointing a roadmaster until interviews are completed. 5. Minutes of the Franklin Township Auditors' Reorganization meetings record the following actions relating to compensation for road foreman and supervisors working in other capacities: a. January 3, 1979: Supervisors' salary to remain the same - Ley, to receive $6.00 an hour with one week's paid vacation and the township to pay for upkeep and running expenses when Ley's truck is used for township business. Other supervisors were to receive $4.75 an hour. There was no approval for pensions or other benefits. h. January 8, 1980: Ley's salary was raises; to $6.50 an hour and he was given an additional week's vacation. Other supervisors' salaries were raised from S4.45 an hour to $5.0f an hoar. There was no approval for pensions or benefits. March 10, 1980: $25 per month and 17¢ per mile for the use of Ley's personal vehicle instead of the "upkeep." Daily records were required for this reimbursement. d. January 6, 1981: Roadmaster's pay was approved at $7.50 an hour and a 20Q per mile allowance plus a two -week vacation, $25.00 per month for vehicle maintenance was allowed to Ley, other supervisors were paid $5.00 an hour. There was no approval for pensions or henefits. e. Minutes of the auditors' meetings from 1974 through 1978 also do not record approval for pensions or henefits. c . Mr. Robert Herman June 20, 1986 Page 3 6. Mr. Gary Gastemire, an auditor for Franklin Township since 1978, testified that although he was aware the township was paying premiums to Columbia Life Insurance for a pension fund and the auditors did not question these payments, they had never approved payments for any supervisor's inclusion in a pension plan. 7. On July 17, 1978, Edwin T. Kosteva, Columbia Life Insurance Company, wrote to the Franklin Township Board of Supervisors telling them that, "In further review of your file, we,.find there is - no formal documentation of your pension plan ... no formal document governing the provisions of your plan. Without such a formal document, questions can arise ... complicated by litigation against the township. You should have an ordinance or resolution establishing the pension plan and a formal document governing the plan." He said he and agent Frank Gigliotti would work with the solicitor and supervisors to prepare the documents and a resolution. 8. Franklin Township Supervisors' meeting minutes from May, 1978 through April, 1982 record the following information about the supervisors' pension plan: a. October 10, 1978: Motion by Ley, second by Horn to establish a Defined Contribution Pension Plan, passed unanimously. Criteria and guidelines for the plan were also established by this motion. The plan applied to employees and supervisors but excluded employees worki ng less than 1,000 hours per year. (1) The plan provided that full -time employees and supervisors were eligible to participate but that the employer (township) would contribute $800.00 per year for "... each eligible employee ". (emphasis added) (2) There was no provision for premium payments for supervisors. (3) Solicitor Lawrence Bolla testified that this was "... probably a form resolution presented by Columbia, as I recall ". (4) The effective date of this plan was shown as May 15, 1974. The insurance company did not have a copy of the resolution establishing this plan until September, 1981. (5) There are no signatures on this plan. (6) Except for the township minutes, there were no documents presented to show official notice from the township to Columbia Life Insurance Company authorizing that company to set up the plan and accept payments from the township. A contract was agreed to. (See Finding 16). Mr. Robert Herman June 20, 1986 Page 4 (7) There is no evidence of township action approving a plan or township payments prior to this resolution. (8) There is no evidence that any action was taken to authorize payment of premiums for supervisors. b. May 12, 1981: You asked Solicitor Bolla about the legality of the township paying a pension plan for the supervisors. On motion by you, second by:,Horn with a unanimous vote; bills, with the exception of those for the pension plan for supervisors other than the roadmaster, were approved for payment. In addition, payment of $800 to Columbia Accident and Health Insurance by check No. 1791 was approved. This payment was not for your premium according to your attorney. c. June 9, 1981: Solicitor Bolla reported that only employees of the township can participate in the pension plan. He states that he has confirmed this with Ken Greider of the Pennsylvania State Association of Township Supervisors and the Pennsylvania State Association of Township Supervisors Legal Counsel. He recommends that a letter to request repayment be sent to Columbia Insurance. He adds that the Insurance Commissioner could be asked to help collect the refund if Columbia Insurance Company does not respond favorably. Motion by Horn, seconded by you authorizing the solicitor to request repayment from Columbia Insurance was carried. de July 14, 1981: Solicitor Bolla reports Columbia Life Insurance will return the money for people not working for the township if withdrawal forms are signed. Motion by Ley, seconded by you to table the issue until Horn is at the meeting. Motion carried. e. August 11, 1981: Frank Gigliotti, Columbia Insurance Company, attends and states that the company will refund the money providing they receive a signed form. They will return the money to the individual but not the township. Motion by you, second by Horn to table the issue pending Gigliotti's investigating the files of Columbia Insurance. Motion passes with a unanimous vote. (1) On August 19, 1981 Gail Kipp, Columbia Insurance Pension Department, wrote to Frank Gigliotti as follows: "Please find attached a copy of the letter and the releases that were sent to the township's solicitor. If the supervisors agree to hand the money to the township, then these releases would be Columbia Insurance's protection against any liability to these individuals at a later date. If they do not sign these releases, we can not give the township the money di rectly." Mr. Robert Herman June 20, 1986 Page 5 g. J. • (2) Mr. Frank Gigliotti testified that he was not aware that the supervisors wanted to terminate their pension plans and that he did not remember this memorandum or the August 11, 1981 motion to return to meet with the supervisors after "investigating" the company's files. On September 4, 1981, Ms. Kipp again wrote to Mr. Gigliotti stati ng (3) "Many thanks for the copy of the resolution. They seemed to have followed Ed's rough draft that he had sent them. I noticed on Section 11 that they have a #1 and #2 schedules. They should have had a box before each number and one of the boxes checked. This could be a source of ambiguity; though our copies of federal and state reports support the 100 percent Immediate Vesting Schedule. It would only affect Robert Herman in any case, since he started employment in 1980 whereas Horn and Ley have been there over six years." (4) There is no evidence that you ever received information from Mr. Gigliotti's investigation of the Columbia Insurance files or the above correspondence. f. September 8, 1981: Issue tabled because Mr. Gigliotti was not able to attend the meeting. October 13, 1981: Solicitor Bolla said he would attempt to have the question of insurance put on the agenda of the Erie County Association of Township Officials. He adds that other townships recognize they have the same problem. Mr. Gigliotti did not attend the meeting and the minutes give no reason for his absence. h. January 4, 1982: you requested that the solicitor notify Columbia Life Insurance to close out the pension fund and to forward checks. Supervisor Sachar supported this request. i. February 10, 1982: Solicitor Bolla presented forms to the supervisors to be signed to terminate the pension plan. Motion by you, second by Horn to expedite the forms for the supervisors to terminate the pension plan. Unanimous approval. March 10, 1982: Solicitor Bolla reports that the forms for termination of the pension plan had been forwarded to the Columbia Li fe Insurance and the plan will be terminated by the end of the month. k. April 14, 1982: Solicitor Bolla reports that the pension fund is now tenni nated. Mr. Robert Herman June 20, 1986 Page 6 9. Franklin Township auditor records for the past nine years do not record a supervisor's request for the approval of a pension plan. a. Minutes of the township auditors' reorganization meetings from 1974 through 1985 record approval compensation for supervisors employed by the township only for hourly wages, vacation leave, and expenses for use of personal vehicles while on township business. 10. Columbia Life Insurance Company, - Bloomsburg, Pennsylvania, records disclose the following information about the Franklin Township pension plan: a. The plan was administered under a Group Annuity Contract No. DA -164. b. The effective date of the plan was May 14, 1974. c. Eligible participants were defined as full -time employees and supervisors; persons working less than 1,000 hours annually were excluded. d. 100% immediate vesting was included. e. The employer contributed 100% of the premium which was $800 per employee per year. f. Supervisors Beck, Ley, Horn and Township Secretary /Treasurer Diane Horn are listed as the only participants. g. Yearly statements and employee census for 1980 through 1982 list the participants as you and Supervisors Ley, Beck, Horn and Township Secretary /Treasurer Diane Horn. h. This record was not in the insurance company file until September, 1981. 11. Correspondence between the Franklin Township Solicitor and Columbia Life Insurance Company discloses the followi ng: a. June 30, 1981: Letter from Solicitor Bolla to Columbia Life Insurance Company; "I have reviewed the Pennsylvania Second Class Township Code regarding the payment of insurance and annuity benefits to supervisors. 53 P.S. §65713 is the relevant statute governing Franklin Township's contract with your company. That section clearly provides that a second class township may only provide this type of coverage for employees of the township. The supervisors themselves, if they are not employees of the township, are not entitled to any benefits under this section. Please refer to the case of Hendricks v. East Rockhill Township, 1 D. & C. 3rd 763 (1977) for a most recent interpretation of the relevant statute." He added that he had been directed by the township supervisors to demand repayment Mr. Robert Herman June 20, 1986 Page 7 of all funds currently in the pension fund attributed to Robert Beck, Ley, and Horn. He noted that, in Ley's case, they were not requesting return of the amount paid for him as a full -time employee of the township. He also asked for an accounting of all funds paid into the purchase payment fund from the registered date and the interest paid on those funds. b. July 7, 1981: Edwin T. Kosteva, Pension Administrator, wrote to Solicitor Bolla stating that Robert Beck is no longer a supervisor and received his vested benefits February 28, 1980. Kosteva had enclosed authorization for withdrawal of fund forms to be completed and signed and stated that they needed specific information on which of the contributions the township had made for Ley while he was a worki rig supervisor and when Ley was a non - working supervisor. (1) You testified that you were never aware of this letter or its contents. c. July 10, 1981: Solicitor Bolla wrote to Mr. Kosteva stating that one half of the existing contributions were made by the township as a result of Ley's employment as roadmaster with the township. He stated the township intended that this amount would remain in Ley's fund, the balance was to be refunded. (1) You testified that you were unaware of this letter or its contents. d. August 7, 1981: Gail S. Kipp, Pension Manager, Columbia Life Insurance Company, wrote to Mr. Ed Springer, Springer & Perry, asking him to respond to a question raised by Solicitor Bolla by telephone. Solicitor Bolla asked whether there was legal authority for the township to terminate the funds and collect the money if the supervisors do not agree to relinquish the money. Solicitor Bolla had stated that the supervisors were not eligible to participate in the plan. The amounts involved were Horn, $7,318.23; you, $630.00; and Ley $7,718.33. She also noted that former Supervisor Robert Beck had received his vested benefits of $5,843.13 on March 5, 1980. You stated you were never given this letter or a copy of it during your tenure as a supervisor or that you were made aware of it contents. e. August 17, 1981: A. J. Carden, Vice President, Columbia Life Insurance Company, wrote to Lawrence C. Bolla. Columbia Life Insurance had been advised by their legal counsel that the most practical manner in which to resolve the Franklin Township pension question would be to have supervisors sign release forms to allow the company to refund the money to the township. He enclosed release forms. You stated you were never given this letter or a copy of it during your tenure as a supervisor or that you were made aware of it contents. _ YEAR BEGINNING BALANCE AMOUNT OF CONTRIBUTION INTERESTS & MISC. CREDITS FEES WITHDRAWALS BALANCE M $22.50 1980 -0- $800.00 I 35.20 $22.50 -0- $835.20 1981 $835.20 -0- I $70.05 -0- -0- $905.25 1982 $905.25 I 8.58 -0- $913.83 -0- $800.00 $136.33 $22.50 -0- Mr. Robert Herman June 20, 1986 Page 8 f. January 20, 1982: Solicitor Bolla wrote a letter to Gail S. Kipp confirming a telephone conversation of that day stating his understandi ng that any of the present or former supervi sors who wi sh to withdraw their assets from the pension plan need only sign the "Authorization for Withdrawal of Funds" form which had been provided. He added the form was to be signed by both the withdrawing employee and by the appropriate township official. The appropriate township official was not identified. _ He noted that he thought the forms could be prepared and signed at the regular township meeting on February 10, 1982. g. March 4, 1982: Gail S. Kipp wrote a letter to Solicitor Bolla enclosing copies of the letter sent tc Horn, you and Secretary /Treasurer Diane Horn, noting that these accounts had been closed and the people paid in full. She also asked for a copy of any resolution that was passed at the February 10, 1982 meeting. You stated you were never given this letter or a copy of it during your tenure as a supervisor or that you were made aware of it contents. 12. Yearly Policy Statements and Plan Account ledgers obtained from Columbia Life Insurance confirmed the fol1owi ng information regardi ng contributions made on your behalf by Franklin Township: a. The plan was effective on May 15, 1974. Your participation began in 1980. TOTAL CREDITS TOTAL DEDUCTIONS 13. Records confirm you endorsed check No. 872 in an amount of $913.83 that was cashed on March 3, 1982. None of that money was returned to the township. 14. You testified that you had decided to turn the proceeds from your pension fund (Finding 13) over to the fire department and took the fol1owi ng actions: Mr. Robert Herman June 20, 1986 Page 9 a. You purchased two portable radios for the use of the fire department. The cost of the radios was $906.50. b. Portable radios are the only communication system for the fire department. These radios are speci al i zed equipment and of little value to the average person. c. That your purchase of the radios for the fire department was confirmed by the minutes of a department meeting on February 4, 1982. (1) Those minutes record the following: "Motion by Dave Bernahardt, second by Bob Laycock to pay bills including Pennsylvania Fire Equipment for C I's (Chief Bob Herman) radio (he will pay for it)." d. You used the radios from their purchase in 1982 until January 1, 1986; when you gave them to the department because you were no longer the fire chief. At the hearing you introduced a letter signed by George McLaughlin, President, and Joyce Berry, Chief of the fire department, stating the followi ng: "On behalf of the Frankli n Township Volunteer Fire Department, thank you for your donation of the Ritron RT -50 S/N 12629 and the Regency BTL -30 4 S/N 216 -B29 587 that you purchased for the department in January, 1982 and returned on January 1, 1986 as out going chief." e. The fire department is a private organization and was not part of the township government. f. Part of the reason that you ran for township supervisor was to have the fire department officially recognized by the township. 15. The Township did not approve the use of your pension proceeds to purchase the radio's for the fire department. 16. You also testified that you began questioning the expenditure for the pension payments when you reviewed preparation of the 1981 township budget. 17. Attorney Bolla, former Township Solicitor, provided the following i nformation: a. You and the other supervisors were coaxed into purchasing the insurance by the Columbia representative. b. He researched the pension issue and found a lower court case in Bucks County. Based on a court ruling, he advised the board of supervisors that the plan obtained from Columbia was inappropriate. Mr. Robert Herman June 20, 1986 Page 10 c. He attempted to have the policies changed but Columbia refused to do so without a release form signed by supervisors. d. No payments for your pension plan were made by the township after 1980. e. You deny the statements in a and c above. 18. The record of the township pension plan and your participation is as follows : A. May 14, 1974, Contract DA -164 entered into by the township and Columbia Life Insurance Company. (1) Ley and Supervisor Beck signed as appli cant. Franklin Township was identified as the applicant. (2) The name of the plan was "Franklin Township Pension Fund ". (3) Other than the signatures of Ley and Supervisor Beck, there is no record of township authorization of this plan. B. On October 10, 1978, the township supervisors approved a "Defined Contribution Plan" at the suggestion of Mr. Edwin T. Kosteva, Columbia Life Insurance Company. (See Finding 7). (1) The Columbia Life Insurance Company copy of this plan was the only one presented. (a) It was not signed or dated. (b) It was not received by the insurance company until September 3, 1981. (See Fi ndi ng 8e (3)). (c) The effective date was shown as May 15, 1974 but there was no explanation for the back dating. (d) The township had not identified the vesting option they were choosing. The options were 1: "100% immediate vesting "; 2: "O% for three years. 25% after 3 years employment, with 25% each year thereafter until 6 years ". (See Finding 8e (3)). (1) There was no record as to whether the period for considering either option was May 15, 1974, October 10, 1978 or September, 1981. Mr. Robert Herman June 20, 1986 Page 11 (2) This designation would have affected your vested interest. If option 2 was selected and effective October 10, 1978, you would not have been eligible for full vesting until 1986. C. On February 10, 1982, you signed an "Authorization for Withdrawal of Funds" requesting "... withdrawal and return of all vested assets" for you. The reason for withdrawal was recorded as "Termination of Plan" Supervisor Horn signed as the township official. D. Columbia Insurance Company issued check #00872 dated March 3, 1982, in the amount of $913.83. You endorsed this check on or about April 8, 1982. E. There is no record of official township action to terminate the plan. B. Discussion: As a township supervisor you are a public official as that tens is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct is subject to the requirements thereof. Sowers, 80 -050; Glova, No. 326; Hunt, No. 384 -R. Generally 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). The question of the propriety of pension and annuity plans for supervisors of second class townships has been reviewed by this Commission on many occasions. McCutcheon, No. 127; Hoak, No. 128, Marcello, 85 -003. The Commission determinations in these matters has been reviewed and affirmed by the Commonwealth Court of Pennsylvania. McCutcheon v. State Ethics Commission, 77 Pa. Comm. 529, 466 A.2d 283, (1982). Generally, in situations such as the instant matter, it must be determined whether the official used his position to obtain or secure financial gain other than the canpensation that is authorized by law. It is now clear that pension benefits such as the type of question herein, constitute a financial gain. See, McCutcheon v. State Ethics Commission, 466 A.2d 283, at 288. Mr. Robert Herman June 20, 1986 Page 12 The additional question to be answered is whether such benefits are compensation provided by law. A complete analysis of this exact issue has been set forth in the above authorities. See also; Hendricks v. East Rockhill Township, 1 D & C 3d 763, (1977), Synoski v. Hazel Township, Pa. Commw. , 500 A.2d 1282, (1985). Generally, the compensation to be paid to a township supervisor who serves only in that position is specifically set by Statute. 53 P.S. §65515. A Supervisor who is also employed by the township in one of the positions authorized in the Second Class Township Code, may receive additional compensation. Such compensation, however, in order to be authorized by law, must be affirmatively fixed by the Township Board of Auditors. 53 P.S. §65542. We have reviewed the instant matter in light of these now established concepts of law as well as under the policy pronouncement of the Commission. 51 Pa. Code §7.1. If you had been employed by the township as a roadmaster or laborer you would have been eligible, subject to auditor approval, to participate in the pension program. With relation to your participation in the plan as a non - working township supervisor, clearly in light of the foregoing, you were not entitled to participate in the plan at the township's expense only in your capacity as a supervisor. In addition to the foregoing, we note that you became a township supervisor after the pension program had been initiated. You, therefore, did not technically vote on establishing said plan. In 1981, however, shortly after you took office you questioned the legality of the program. (See Finding 8b). You were advised in June of 1981 by the township solicitor that the plan was not legal for non - working supervisors and you were informed by the township solicitor that the plan should be terminated. See Finding 8c). Eventually, on April 14, 1982, the plan was terminated. When the plan was terminated, the Insurance Company requested that each supervisor execute an authorization for withdrawal of funds in order to receive the cash value of the plan. The refunds were then forwarded to each individual supervisor. Records reflect that on March 3, 1982, you cashed a refund check in the amount of $913.83 and retained the proceeds. It may be argued that by not voting for the pension plan and your inclusion therein, that you did not use your office in violation of the Ethics Act. There is no doubt, however, that after you realized said plan was, in fact, not authorized, you clearly accepted and retained the proceeds obtained therefrom. We have ruled that such an acceptance of compensation to which one is not entitled is a use of one's public office in violation of Section 3(a) of the Ethics Act. Huff, 84 -015; Domalakes, 85 -010; Weaver, 85 -014; Blumling, No. 388. Mr. Robert Herman June 20, 1986 Page 13 Some questions have been raised as to whether the township board of supervisors were informed as to the procedure offered by Columbia Life Insurance Company for the termination of the policy. Attorney Bolla testified that two methods of termination were offered. Under the first method, the supervisors would be required to sign a release after which the funds would be transmitted directly to the township. Under the second termination program, the supervisors would sign authorization for withdrawal forms where after the funds would be disbursed directly to the township supervisor. The township board supervisors signed the authorization for withdrawal forms rather than the official releases. However, each member of the township board of supervisors testified that Attorney Bol1a never informed them of the procedure whereby the township would have directly received the money. In any event, even if we, for the sake of this order assume that Attorney Bolla, in fact, never informed the township board of supervisors as to the alternative termination procedure, this nevertheless does not alleviate the fact that you accepted and retained the funds that were received for your own benefit. There is no reason why, even after the funds were released to you as an individual, that you could have not turned over to the township that portion of funds which were paid for your participation in the program as a non - working supervisor. Your acceptance of these funds, after substantial questions as to the legality of the program had been raised, was clearly a violation of the State Ethics Act. It is also important to note, in relation to the foregoing situation, that even prior to the questions that had been raised by you regarding the propriety of the plan, in 1978 the supervisors approved a defined contribution plan at the suggestion of the Columbia Life Insurance representative. Specifically, set forth in that defined contribution plan, was the requirement that the plan was for full -time employees and the township was to contribute $800.00 per year for each eligible employee. While the plan indicated that supervisors were eligible to participate, there was no provision in the plan for premium payments for supervisors who were not emloyees. Thus, as early as 1978, the board of supervisors should have known that the payment for this program by the township, regarding non - working supervisors was questionable. The funds that you received as a result of the termination of the pension plan were used to purchase radio's for the volunteer fire department. While this may indeed be a laudable use of funds, that department was a private organization not part of the township. At the time of this donation, the department was not even recognized by the board of supervisors as the official volunteer fire department. A township supervisor may not, on his own, commit township funds in such a manner. Any expenditure of township funds, i n such a manner, woul d require the approval of a majority of the board of supervisors. Other individuals who made donations to this entity did not use public funds but would rather have had to use private funds for such purpose. Your donation of radios, to the fire department, purchased with township funds, is equivalent to your use of such funds to support any entity in which you had an interest. As noticed, while we do not question that such donation was occasioned by good faith, it Mr. Robert Herman June 20, 1986 Page 14 does not alleviate the fact that you received funds to which you were not entitled and thereafter used them for other than township purchases. As such, we believe that your receipt of those funds to which you were not entitled violates the State Ethics Act. Such an acceptance of a gain or of compensation to which an employee is not entitled is a use of one's public office not in accord with the State Ethics Act. Huff, 84 -015, Bomalakes, 85 -010, Weaver, 85 -014, Bl uml i ng , No. 388. Generally, the State Ethics Act provides as follows: 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 1 aw, 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 addition to the above, the Act provides that the Commission may forward the results of any investigation to the appropriate prosecuting authority, unless the alleged offender removes himself in the conflict of interest by divesting himself of any financial gain received in violation of the State Ethics Act. 65 P.S. §4079(iii). This principle has been upheld by the Commonwealth Court of Pennsylvania in McCutcheon v. State Ethics Commission, supra. In addi.tion to the following, the Commission regulations also set forth that the Commission may, in determining to recommend a prosecution, decide not to recommend such prosecution if: §7.17. Extenuating or mitigating circumstances. (a) The Commission may, in deciding whether to recommend prosecution as set forth in §7.16 (relating to options available to the Commission) decide not to refer a matter for prosecution if any of the following events occur: (3) The Supervisor, if gain has already been secured as a result of inclusion in a plan, remits and refunds the gain, as determined by the Commission, to the plan, the township or the State Treasury as appropriate; or Mr. Robert Herman June 20, 1986 Page 15 (4) The Supervisor, i f gain has al ready been secured as set forth in paragraph (3) refunds, in addition to the amount determined thereunder, an additional 10% thereof per annum so that any benefit derived from the gain associated with the plan is negated. 51 Pa. Code 7.17(a). As a result of the foregoing, the_ Commission may offer a person who has obtained financial gain -in violation of the State Ethics Act, the opportunity to divest himself of that financial gain. In addition to the following, we note, that even if you were to have received your pension program and the financial gain resulting therefrom, in good faith and based upon the advice that you had received from others including your solicitor, such good faith receipt of benefits or financial gain to which you are not entitled, would not alleviate you from the duty of returning such gain to the governmental body from which it was received. Good faith reliance upon a solicitor, has been held not to constitute just cause for retention of a financial gain to which one was not entitled. See, Allegheny County v. Grier, 179 Pa. 639, 368. 353, (1897); McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1983); Kestler Appeal, 66 Pa. Commw. 1, 444 A.2d 761 (1981). We believe that this result is appropriate and, therefore, we will offer you the opportunity to divest yourself of the financial gain that was received in violation of the State Ethics Act. We will also impose the 10% interest requirement as set forth in the regulations of the State Ethics Act. 51 Pa. Code 7.17(a), (4). The amount of financial gain which we have determined to have been obtained in violation of the State Ethics Act, would be the amount of funds expended by the township on your behalf in your capacity as supervisor. The total amount expended by the township, on your behalf, was $800.00, with accrued credits and interest. obtained through the pension program a total amount which you received as a result of your termination of the program was $913.83. This amount plus the 10% penalty equals $1,005.21. C. Conclusion: You violated the State Ethics Act when you, as a township supervisor, received, accepted and retained the proceeds from a township - provided pension plan to which you knew you were not entitled. Unless, within thirty (30) days of the date of this order you remit to the State Ethics Commission a check made payable to Franklin Township in the amount of $1,005.21. In the event that you do not make such restitution, we will refer this matter to the appropriate law enforcement authorities for further review. 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 5 days after service (defined as mailing) unless you file documentation with the Commission which justifies Mr. Robert Herman June 20, 1986 Page 16 reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 5 -day period, no one, i ncludi ng 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 proceedi ng 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). Ly the Commission, G. Sieber Pancoast Chairman Mr. Robert L. Herman 10738 Eureka Road Edinboro, PA 16412 EMSJna cc: Public Binder STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 15, 1986 Re: Order No. -R Dear Mr. Herman: On July 9, 1986, the State Ethics Commission received your payment reimbursing Franklin Township as required by Order No. 414. We have forwarded your check in the amount of $1,005.21 to the township. This letter will be part of the Order and a public record as such. Si ncerely, Edwar M. Seladones Executive Director