HomeMy WebLinkAbout454 AtzMr. Bernard Atz
c/o John F. Wagner, Jr.
Wagner & Macko
Memorial Blvd. & Highland Ave.
Connellsville, PA 15425
Re: 84 -146 -C
Dear Mr. Atz:
f
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
March 3, 1486
Order No. 454
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:
I. Allegation: That you, a supervisor in Luzerne Township, violated Section
3(a) of the Ethics Act, 65 P.S. 403(a), hy using fuel paid for hy the township
in your personal vehicle for personal purposes.
A. Findings:
1. You have served as a supervisor in Luzerne Township since 1479 and are
subject to the requirements of the State Ethics Act (170- 197R).
2. You have also served as a township roadmaster and were appointed as
fol lows:
a. On motion by Yocah and second hy 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.
h. January 5, 1981:
On motion hy Yocahet, and second by Raker, you were appointed roadmaster.
The vote was unanimous and you voted.
Mr. Bernard Atz
Page 2
The zoning concept for assigning supervisors a geographic zone was
continued.
c. January 4 1982:
On motion by Yocahet, s
The vote was unanimous
The zoning concept for
continued.
d. January3,1983:
On motion by Baker and second by Yocahet,
The vote was unanimous and you voted.
e. January 31, 1984:
On motion by Yocabet and 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.
3. The minutes of the township auditors include the following:
a. January 12, 1979:
Compensation for Yocabet as secretary /treasurer was set at $6,600 for a
year.
The daily wage for supervisors
day.
b. January 5, 1981:
Allowance of one day's wages for each semi - annual inspection of bridges,
no more than two days for "total of $80."
There was no provision for o°>ertime.
Two weeks vacation with
approved.
march 3, 1986
econd by Baker, you were appointed as roadmaster.
and you voted.
assigning supervisors a geographic zone was
you were appointed raodmaster.
serving as roadmasters was set at $40 per
pay with a maximum accumulation of two weeks was
b. January 14, 1
There was no provision made for payment of the secretary /treasurer.
►1r. Bernard Atz
Page 3
March 3, 1986
Compensation for supervisors serving as roadmasters was set at $45 per
day.
Allowance of $7 per day for use of personal vehicle.
There was no provision for overtime pay.
Vacation time of 1 1/2 days per month, no accumulation or pay for unused
leave was all owed .
c. January 13, 1981:
There was no provision made for payment of the secretary /treasurer.
Compensation for supervisors serving as roadmasters was set at $62 per
pay.
Each supervisor /roadmaster was to receive 12 paid holidays and would be
paid unused vacation at the end of the year. Prior year approvals did
not provide for payment for unused time.
There was no provision for overtime pay.
d. January 5, 1982:
The salary for secretary /treasurer was established at $6,600 annually.
Supervisors serving as roadmasters were to receive $62 per day.
$7 per day "additional wage" for use of personal vehicle.
Fifteen days vacation were granted and supervisors would be paid for
unused vacation at the end of the year.
There was no provision for overtime pay.
e. January 13, 1983:
The salary for the secretary /treasurer was established at $6,600
annually.
Supervisors serving as roadmasters were to he paid $66.34 per day.
$7 per day "additional wage" for use of personal vehicle.
Fifteen days vacation were allowed and supervisors were to he paid for
unused vacation at the end of the year.
There were no provisions for overtime pay.
Mr. Bernard Atz
Page 4
March 3, 1926
f. January 7, 1984:
The salary for secretary /treasurer was established at $6,600 per year.
Supervisors serving as roadmasters were to he paid $71 per day.
"Car expense" $7 per day.
Fifteen days vacation provided and supervisors were to he paid for unused
vacation at the end of the year.
Overtime wage of $10 per hour for work performed after 8 hours on week
days and for each hour worked on Sundays and holidays was approved.
3. To facilitate the purchase of gas by the employees operating the various
pieces of equipment owned by the township., .;t was customary for the township
to leave a credit card at each of the gas stations where the employees were
authorized to purchase fuel for township equipment.
a. While servi ng as a roadmaster, it is sometimes necessary for you to
re -fuel the particular piece of equipment that you are operating.
4. Among township authorized stations were: Ikes Auto Service, Rt. 1, New
Salem, Pa; Popovich Gas and Oil, Rt. 166, Republic, PA; Marino Auto Supply,
Hiller, PA, later known as Hiller Arco, and Smith and Baxter, Hiller, PA.
5. In 1982/83, a gasoline fuel tank for township equipment was installed at
the township building. You kept the daily logs for gasoline usage from this
tank.
6. On August 21, 1925, you identified your signature on 7 gasoline charge
tickets for purchases of gasoline made during the period 9/19/79 to 12/3/79 at
one of the previously identified private service stations.
a. The total of these purchases amounted to $114.80. Six of the charge
slips had the license Number 92.4 -3311, a Pennsylvania registration
for your private vehicle.
h. These six purchases were as follows:
Date Amount
9/19/79 S11.00
9/26/79 $12.00
10/1/79 $15.00
10/3/79 $21.00
10/5/79 $14.00
11/19/79 522.00
Total $95.00
Mr. Rernard Atz
Page 5
March 3, 1986
c. One of the charge slips had the #5 inserted over the licensed number
to denote a township vehicle.
d. On a charge slip dated 12/3/79, the license number B45027R, a
Pennsylvania registration, was listed and scratched over, the
numeral 9 was inserted over the license number. You said that
number 9 was a township truck.
e. You also received the 57.00 daily allowance for these days and others
as follows:
1. September 1979:. 2.4 days including the 19th and 26th.
2. October 1979: 27 days including the 1st, 3rd, and 5th.
3. November 1979: 22 days including the 19th.
7. You state that on August 2.1, 1985, that you got gasoline for your vehicle
at Hiller Arco and charged it to the township when you were on township
business. You said that you didn't know that the use of township gasoline had
to he approved by the auditors.
a. You said that the township code permitted car allowances for the use
of a personal vehicle in performance for official duties within the
township, but not for use when leaving the township.
b. You also said that you may have used township gasoline once a month,
maybe more often for your private vehicle while it was being used on
township business.
8. Township auditor letters for the period 1979
disclose permission to use your personal vehicle
use township purchased gasoline in your personal
allowance for township supervisors using private
was provided in 1979, 80, 82, 83, and 84.
through 1985, failed to
on towhship business or to
vehicle. A flat daily
vehicles on township business
R. fiscussion: As a township supervisor you are a public official as that
term is defined in the State Ethics Act, 65 P.S. .5402; Sowers, 80 -050.
The Ethics Act provides that:
Section 3. Restricted activities.
(a) No puhlic official or public employee shall use his
public office or any confidential information received
through his holding public office to ohtain 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).
Mr. Bernard Atz
Page 6
Your compensation as a supervisor is generally established by the Second
Class Township Code and provides for the payment of compensation for
attendance at supervisor meetings. 53 P.S. i$65515.
Additionally, you are entitled to other compensation as an appointed
roadmaster. Such compensation must be fixed by the township board of
auditors. 53 P.S. , S65515. This canpensation may include an expense allotment
for the use of a personal passenger car.
In the instant situation, the township hoard of auditors fixed the
allowance for the use of a superviso''s personal vehicle at $7 per day. Not
only did you receive this amount of money for the use of your personal auto,
you also used the township credit card to purchase gasoline for your personal
auto. The evidence indicates that on the six days that such purchase was made
you also collected the approved $7. The use of the credit card for your
personal purchase was not fixed by the auditors as part of your compensation.
Had the auditors intended such use, they would have explicitly so stated. As
the use of the township credit card in this manner was not fixed by the
auditors as part of your compensation, it must be considered a financial gain
obtained in violation of the State Ethics Act. The amount of the financial
gain was $95.00.
The Ethics Act provides that:
Section
. Penalties.
(a) Any person who violates the provisions of Section 3(a)
and (h) is guilty of a felony and shall he fined not more
than $10,000 or imprisoned for not more than five years,
or he both fined and imprisoned. 65 P.S. 409(a).
(c) Any person who obtains financial gain from violating
any provisicn 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).
.fhe Act also provides that:
Section 7. Duties of the commission.
(iii) Initiate an inquiry where an opinion has not been
requested hut where there is a reasonable belief that a
conflict may exist. Such inquiry shall he conducted in
privacy with full respect to the confidentiality of all
the parties inolved in the alleged conflict. If the
March 3, 1986
Mr. Bernard Atz
Page 7
commission finds that there is a conflict, the information
shall be provided for criminal proceedings unless the
alleged offender removes himself from the conflict with
receiving financial gain. 65 P.S. 407(iii).
(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).
March 3, 1986
The Commission may also recommend prosecution if a person in violation of
the Act refuses to return the financial gain obtained in violation of the Act.
See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283,
(1982). We believe that the three times penalty set forth in Section 9(c)
above is appropriate here.
C. Conclusion: You violated the State Ethics Act when you used a township
credit card to purchase gasoline for your personal auto when the township
auditors had not fixed such use as part of your compensation. This violation
was further occasioned by the fact that you also collected the $7 per day fee
for the use of your personal auto, that had been fixed by the auditors for
days where you used the credit card to purchase gasoline. You must, within 30
days of the date of this order, remit payment to the State Ethics Commission
in the amount of $285.00 made payable to Commonwealth of Pennsylvania, (95.00
x 3) or we will refer this matter to the appropriate law enforcement agency
for further review and possible action.
II. Allegation: That you, a supervisor in Luzerne Township, violated Section
3(a) of the Ethics Act, 65 P.S. 403(a), by not paying your share of the
township pension plan which requires both the township and the supervisor to
pay a portion of the plan. You have not made a payment since 1980.
A. Findings: Findings 1, 2, and 3(a) -(f) are incorporated here by
reference.
9. October R, 1979, you applied for an annuity plan with Franklin Life
Insurance Company. The special requi relent section of the application stated
that billing should he sent to the township of Luzerne, 415 Hoakwell Road,
Brownsville, Pennsylvania 15417.
10. On October 8, 1979, you authorized the township to deduct $83.33 monthly
from your check to pay to Franklin Life Insurance Company $250 quarterly. A
handwritten note "Rill Riley" (I.lil1iam J. Riley, General Agent, 1916 Cheryl
Drive, North Hunti ngdon, Pennsyl vani a 15642) to "Ilnderwriti ng" states "Mr.
Atz's having this money deducted from his pay. Actually, the township is
giving him $1,000 a year to invest as he sees fit in a retirement plan."
11. Records of the Franklin Li fe Insurance Company and the township show the
following premiums for a variable annuity contract insuring you.
lir. Bernard Atz
Page 8
a. February 29, 1980: $1,000. Township check no. 2.32.4, signed by
William Raker and Bernard Atz.
March 3, 1986
b. July 1, 1980: $250. Township check no. 2511, signed by William
Baker and Bernard Atz.
c. September 16, 1980: 250. Township check no. 2618, signed by
William Baker and Bernard Atz.
d. December 31, 1980: $250. Township check no. 2756 signed by William
Baker and Bernard Atz.
e. April 1, 1981: $2.50. Township check no. 2854 signed by William
Baker and Bernard Atz.
f. June 16, 1981: $250. Township check no 2.968 signed by William
Baker and Bernard Atz.
12. On August 29, 1981, you signed, as insured and owner, a request for
payment of the next cash value of policy 8012.2.99. phis request asked that
the amount be paid to Pennsylvania National Life Insurance Company.
September 11, 1981, the Franklin Life Insurance Company issued check
no. 16011278 on policy no. 8012.299 to the Pennsylvania National Life Insurance
Company. The check was in the amount of $2,2.06.85.
13. On August 29, 1981, you applied to the Pennsylvania National Life
Insurance Company for an annuity. The application included the following
i nformation:
a. "Special instructions - IRA rollover."
b. Premiums: Amount payable - $2,206.85.
c. Your signature was directly under a statement saying "I (we) have
paid $2,2.06.85 in application for this annuity."
d. 0n August 26, 1981, you signed IRA disclosure statement on a
form of the Pennsylvania National Life Insurance Company, P.O. Box
399, Harrisburg, Pennsylvania, 31705. The witness was William J.
Riley who also signed as the agent on your application.
14. The Pennsylvania National Life Insurance Company issued policy #50695 to
you as follows :
a. Single premium annuity plan with a premium of $2,2.06.85. This
$2,206 was the cash surrender value for Franklin Life policy
#8012299 for which the township had paid all premiums.
Mr. Bernard Atz
Page 9
h. Amount of insurance - $5,038.94.
c. Annuity $31.75 payahle monthly beginning at age 65.
d. The agent was 1•Jil li am J. Riley.
e. This plan is still in force.
march 3, 1986
15. On October 30, 1981, you filed for an application for an annuity with the
Pennsylvania National Life Insurance Company. The application contained the
number 33212 in the upper right hand corner and contained the following:
a. Special instructions stating "IRA, Bill to Township of Luzerne, 415
Hopewell Road, Brownsville, Pennsylvania, 15417."
h. $250 per quarter premiums.
c. Directrly above your signature was the statement "I (we) have paid
$250 in application for this annuity."
16. Records of the Pennsylvania National Life Insurance Company and the
township document the following premium payments for policy number 00033212
(IRA) (insured - Bernard Atz).
a. October 30, 1981: $250. Township check no. 3168, signed by William
Baker and Bernard Atz.
b. January 15, 1982: $2.50. Township check no. 3244, signed by William
Baker.
c. April 16, 1982: $250. Township check no. 3340, signed by William
Baker.
d. July 16, 1982: $250. Township check no. 3472, signed by William
Baker and Bernard Atz.
e. October 15, 1982: $250.
Baker and Bernard Atz.
f. January 14, 1983: $250.
Baker and Bernard Atz.
Township check no. 3591, signed by William
Township check no. 372.1, signed hy William
g. May 16, 1983: $2 Township check no. 3874, signed hy William
Baker and Bernard Atz.
h. July 15, 1983: $250. Township check no. 3950, signed by William
Baker.
Mr. Bernard Atz
Page 10
March 3, 1986
i. November 1, 1983: $250. Township check no. 4119, signed by William
Baker and Bernard Atz. This was the last payment made on this
policy.
j. All checks contained the numer 33212; this number is the number on
your October 30, 1981 application for an annuity.
k. This policy remains in force and had a value of $3,074.03 as of
September 30, 1985.
17. Luzerne Township auditor minutes of meetings from January, 1979, through
January, 1983 show that they did not approve payments for supervisors
pensions, annuities, or retiremnt plans.
18. January 1, 1984, "Contract Date" Prudential Insurance Company issued
policy #RA7(42401 to you providing for payments of $500 quarterly. A policy
amendment states that ownership and control belongs to Luzerne Township
Retirement Plan Trustees.
19., On January 7, 1984, the Luzerne Township Board of Auditors approved
payments for a "retirement annuity of $2000 annually" as part of township
supervisors' wages and compensation.
2.0. Township records show the following transactions relating to premiums
paid to the Prudential Insurance Company on your behalf.
a. Billing is made to "Township of Luzerne Roadmasters."
b, Billing is quarterly for premium payments of $15.00 as follows:
Contract Scheduled
Name Numher Payments
B. F. Atz RA7 042 401 $5O(?
J. Yocabet RA7 042. 402 $500
W. Raker RA7 042 403 $500
c. Payments were made as follows:
1. August 16, 1984 $4,500
"Pensions for supervisors township check #4457, signed by
William Raker and Rernard Atz.
2. February 1, 1985 $3,000
"4th Ouarter, 1984 and 1st Ouarter, 1985 - Supervisors Pension"
township check #4589, signed by William Raker and Rernard Atz.
Mr. Bernard Atz
Page 11
march 3, 1986
3. April 1, 1985 51,500
2nd Quarter, 1985, township check #4709, signed by William Baker
and Bernard Atz.
4. July 1, 1985 R1,5n0
"Supervisors Pensions" township check #4835, signed by William
Baker and Bernard Atz.
d. Rill prepared September 15, 1985, for payment due Octoher 1, 1985 for
51,500 including 5500 payment on your policy. There is no payment
record available.
21. There is no township policy or agreement that the supervisors pay a
portion of his or her retirement payments. Supervisor Yocabet states that in
1966, the Pennsylvania State Association of Township Supervisors allowed
township supervisors $5n0 annually for retirement, that this allottment has
not changed, and that any amount over $500 would have to be paid by the
supervisor.
R. Discussion: Generally, the applicable provision of law is Section 3(a) of
the State Ethics Act. Supra.
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. 12.8, 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 compensation that is authorized by law.
It is now clear that pension benefits such as the type involved
herein, constitute a financial gain. See McCutcheon v, State Ethics
Commission, 466 A.2d 283, at 288.
The additional question to be answered is whether such benefits are
compensation provided by law. A ccxnpl ete 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). Generally, the compensation to he paid to a
township supervisor who serves only in that position is specifically set by
Statute. 53 P.S. 665515. 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 he affirmatively fixed by the township hoard of
auditors. 53 P.S. 665514; 665515.
Mr. Bernard Atz
Page 12
We have reviewed the instant matter in light of these now well
established concepts of law as well as under the policy pronouncement of the
Commission. 51 Pa. Code $7.1.
Clearly, in light of the foregoing, you were not entitled to participate
at the township's expense in this plan.
While you were in fact appointed to the position of roadmaster and were
qualified to receive additional compensation, in order for such compensation
to he authorized by law, it requi red auditor approval . The minutes of the
township board of auditors from 1979 through 1983 confirm that the auditors
never fixed as part of your compensation the pension program in question.
In 1984, the hoard of auditors did authorize a retirment plan and fixed
the rate of contribution for supervisors at 42,000 annually. As of that date,
the plan at the rate of 42,000 was authorized in accordance with the law.
Your participation in the retirement plan and benefits or premiums paid
on your behalf as established by the supervisors without auditor approval
prior to 1984 was in violation of the State Ethics Act.
We note that the plan is still effective and to date, you have not
received the cash value of said plan.
The Act provides that:
Section 9. Penalties.
(a) ;ay person who violates the provisions of Section 3(a)
and CO is guilty of a felony and shall be fined not more
than $10,000 or imprisoned for not more than five years,
or he both fined and imprisoned. 65 P.S. 409(a).
(c) Any person who obtains financial gain from violating
any provi si on of this act, i n 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).
The Act also provides that:
Section 7. Duties of the commission.
(iii) Initiate an inquiry where an opinion has not been
requested but where there is a reasonahle belief that a
conflict may exist.. Such inquiry shal l he conducted in
privacy with full respect to the confidentiality of all
the parties inolved in the alleged conflict. If the
March 3, 1QR6
Mr. Bernard Atz
Page 13
commission finds that there is a conflict, the information
shall be provided for criminal proceedings unless the
alleged offender removes himself from the conflict with
receiving financial gain. 65 P.S. 407(iii).
(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 Commission regulations also set forth that the Commission may in
determining to recommend prosecution; decide not to so recommend if:
$7.16. Options available in the Commission.
(a) The act specifies that:
(2) After inquiry under the act, if the
Commission finds there is a conflict, the information
will be provided for criminal prosecution unless the
alleged offender removes himself from the conflict
without receiving financial gain (65 P.S.
407(9)(iii)).
67.17. Extenuating or mi tigating ci rcumstances.
(a) The Commission may, in deciding whether to
recommend prosecution as set forth in 67.16 (relating to
options availahle to the Commission) decide .not to refer a
matter for prosecution if any of the following events
occur:
(1) The Supervisor removes himself from
inclusion in the plan before receiving any gain as
described in 67.16(h) (relating to options availahle
to the Commission);
(2) The Supervisor removes himself from
inclusion in the plan and refunds to the township any
cost of securing or paying for his inclusion in such
plan or the proportion of such cost of the plan as
can he reasonably calculated as relating to such
supervisor's inclusion therein.
March 3, 1986
We have reviewed similar situations in the past and have determined that
the participation of a supervisor in a retirement plan must he limited to the
extent that auditor approval has heen evidenced. See Marcel lo, 85 -003.
P1r. Rernard Atz
Page 14
March 3, 1986
The auditors approved a pension plan in 1984 for working supervisors in
the amount of $2,000 per year, this resulted in the initiation of the annuity
plan with Prudential . See Findings No. 18 -19. There was no approval for the
payments made from 1979 through 1983, As a result, the Franklin Life Policy
which was subsequently converted into a policy with Pennsylvania National was
paid for by the township without auditor approval. Consistent with our
previous rulings, you must reimburse the township for the funds paid into the
plan on your behalf for the unauthorized years. This would equal $4,500 plus
10% interest. In the alternative, you may terminate the Pennsylvania National
Policy and have the funds from that termination forwarded to the township. In
this way, you need not make a personal cash expenditure. The township, in
this situation, must receive the cash value realized by such surrender and
such must he forwarded to the township treasurer. See Saunders, 85 -006. You
must also supply evidence to the State Ethics Commission of such surrender and
reimbursement.
C. Conclusion: Your participation in the retirement pension plan and the
premium p d on your behalf during the years 1979 through 1983 inclusive was
not approved or fixed as compensation by the township board of auditors. Your
participation in the plan is, thus, in violation of the State Ethics Act.
You must divest yourself of this benefit. You may accomplish this hy
forwarding a check made payable to Luzerne Township in the amount of $4,950
(the premiums paid on your behalf plus 10% interest, see 51 Pa. Code. 717(a))
to the State Ethics Commission within 30 days of this order. In the
alternative, the Pennsylvania National Life policies may be terminated with
the cash value of said plans being forwarded to the township. If the second
option is selected, you must within 30 days of this order, submit proof to the
State Ethics (;ommslssion of said termination and the amount of funds returned
to the township as a result thereof.
In the event that you do not comply with the terms of this order, we will
refer this matter to the appropriate law enforcement authority for further
review and possible action.
III. Allegation: As a supervisor in Luzerne Township, you violated Section
3(a) of the Ethics Act, 65 P.S. 403(a), hy using township equipment and
employees to clean and haul waste ends of rough -cut lumber from Frey Lumber
Company and then using this material for your personal purposes.
A. Findings: Findings 1 and ? are incorporated here hy reference.
22. Mr. Kenneth Rank received a load of firewood from the township about two
years ago hut has not received any since.
23. Luzerne Township has no contracts with Frey's Lumher Company.
Mr. Bernard Atz
Page 15
March 3, 1986
24. You hauled firewood with township equipment to people in the township and
did not have supervisor permission to do the hauling.
2.5. It is not common practice to provide township citizens with firewood
hauled in township equipment by township employees.
26. James Frey, owner of Frey's Lumber Company, stated that a Luzerne
Township high lift and truck have loaded in his yard several times. He
donates the wood to the community for people who cannot afford to buy firewood
and does this anytime a supervisor asks for the wood.
R. fliscussion: While there is evidence that you did use township equipment
to haul firewood, there is no evidence that you did this for your own personal
use or that you obtained any financial gain therefrom. As such, we find no
violation of the Ethics Act.
C. Conclusion: We find no violation of the Ethics Act where you did not use
township equipment to haul firewood for your own henefit or financial gain.
Summary of Conclusions:
I. You violated the State Ethics Act when you used a township credit card to
purchase gasoline for your personal auto when the township auditors had not
fixed such use as part of your compensation. This violation was further
occasioned by the fact that you also collected the $7 per day fee for the use
of your personal auto that had been fixed by the auditors, for days where you
used the credit card to purchase gasoline. You must, within 30 days of the
date of this order, remit payment to the State Ethics Commission in the amount
of $285.00 made payable to Commonwealth of Pennsylvania, (95.00 x 3) or we
will refer this matter to the appropriate law enforcement agency for further
review and possible action.
II. Your participation in the retirement pension plan and the premiums paid
on your behalf during the years 1979 through 19R3 inclusive was not approved
or fixed as compensation by the township hoard of auditors. Your
participation in the plan is, thus, in violation of the Ethics Act.
You must divest yourself of this henefit. You may accomplish this by
forwarding a check made payable to Luzerne Township in the amount of $4,950
(the premiums paid on your behalf plus 10% interest, see 51 Pa. Code. 717(a))
to the State Ethics Commission within 30 days of this order. In the
alternative, the Pennsylvania National Li fe policies may he terminated wi th
the cash value of said plans being forwarded to the township. If the second
option is selected, you must within 30 days of this order, suhmit proof to the
State Ethics Commi ssion of said termination and the amount of funds returned
to the township as a result thereof.
Mr. Bernard Atz
Page 16
March 3, 1986
In the event that you do not comply with the terms of this order, we will
refer this matter to the appropriate law enforcement office for further review
and possible action.
III. We find no violation of the Ethics Act where you did not use township
equipment to haul firewood for your own henefit or financial gain.
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
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 S1,000 or
imprisoned for not more than one year or both, see 65 P.S. 409(e).
83 the Cgifnission
erber�C onner
Chaff an
Mr. Bernard Atz
c/o John Wagner, Jr.
Wagner & Macko
Memorial Blvd & Highland Ave.
Connellsville, PA 15425
Re: Order No. 454
Dear Mr. Atz:
JJC /na
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
February 24, 1987
This acknowledges receipt of a check in the amount of $285.00 which will
be forwarded to the State Treasury of the Commonwealth of Pennsylvania as well
as proof of payment of $4,950.00 to Luzerne Township on February 11, 1987 in
compliance with Order No. 454.
As you are aware, the aforementioned Order was issued on March 3, 1986.
You, thereafter, requested reconsideration of that order which was granted.
During the pendency of the Commission's reconsideration of the above order,
you informed the Commission that you would comply with the terms and
conditions of that order. As a result, our files in this matter will be
closed and no further action will be taken.
The original order in this matter and this acknowledgement will be made
available as a public document five (5) business days from the date of this
letter.
Very"Cruly yours,
John . Contino
Ex ut i ve Director