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HomeMy WebLinkAbout477 JamisonMr. Clair Jamison P.O. Box 176 Clintonville, PA 16372 Re: 84 -39 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION May 2, 1986 Order No. 477 Dear Mr. Jamison: The State Ethics Commission has received a complaint regardin you an. possible violation of Act 170 of 1978. The Comm g y d a investigation. The individual allegations, conclusions�,aandofindiingston which its those conclusions are based are as follows: I. Allegation: That as a Supervisor in Venango Township, 3 a of the Ethics Act, 65 P.S. 403(a), by using p, you u bli ct office or confidential information obtained through such office to secure l � p ersonal gain other than the compensation provided by law by using township r gain supplies, and equipment to improve your personal property byphavingnshale and /or stone delivered, leveled and spread at your property; and to service and repair your personalvehilcles� cut brush on your A. Findings: 1. You served as an elected supervisor in Venango Township, Rutler County, from January 7, 1980 until the date of your resignation, June 4, 1984. As an elected official you were suhject to the provisions of the Ethics Act. 2. Minutes of the township auditors meeting show the following actions: Personal Equipment Date Vehicle Laborers Operator Allowance Wages Wages Mileage - ----- — q Allowance 1/6/81 none 1/5/82 none 85 $6.50 none 1/4/83* $6 $7.00 1/4/84 ** none $6.00 $7.00 none none $4 $5.00 none none Mr. Clair Jamison Page 2 May 2, 1986 *The auditors recommended that supervisors worki ng as laborers sign all worksheets showing time worked. They also requested fuel slips, the amount of fuel used daily and daily odometer readi ngs upon leaving the township and arriving back at the township. * *The auditors specifically noted there would be no or mileage allowance approved for the supervisors. They defined labor as "actual manual labor, actual worked done on a road." 3. Mi nutes of the meeting of the township supervisors di sclosed the fol l owi ng a. Grades established for hau;i erg by the township, use of the township's high-lift ani grader. 1. May 31, 1982 - $2.50 per ton for hauling, $15 per hour for use of the hi jh -lift, and $35 per hour for the use of the grader. 2. July 11, 1983 - $2.50 per ton for hauling, $14 per hour for use of the truck, $18 per hour for use of the loader, and $28 per hour for use of the grader. b. Mileage rates approved: 1. January 31, 1983: 22 and 1/2 cents per mile. 2. April 25, 1983: 22 cents per mile. 3. June 6, 1983: 20 cents per mile. 4. In the spr ;ng of 1983, you had the township rcadmaster drive a township ten ton truck to haul ten tons of limestone to your personal property. a. You assert that the roadmasters wages were included i n the hauling rate. b. Township check receipts show that you reimbursed the township for the limestone for $62.98 end $23.50 for the truck. There is no payment for the roadmaster. 8. Discussion: As a township supervisor you are clearly a public official within the purview of the State Ethics Act. 65 P.S. §402; Sowers, 80 -050. As such, your conduct must conform to the requirements of the Act. Generally, the State Ethics Act provides as follows: Mr. Clair Jamison Page 3 May 2, 1986 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). Within the above provision of law, a public offici al , i ncludi ng a township supervisor, may not use his public position as a supervisor in order to obtain financial gain for himself, a member of his immediate family, business with which he is associated. He may not use confidential information obtained in his public office for similar purposes. A review of the facts, in the instant situation, reveals that you did, in fact, have the township employees utilize township equipment in order to bring materials to your personal property. You did not, however, receive any financial. gain from this transaction and you had reimbursed the township for the use of the township equipment and labor pursuant to the rate established and as set forth in Finding 3 above. As such, we do not believe that you violated Section 403(a) of the State Ethics Act in this situation. C. Conclusion: You did not violate §403(a) of the State Ethics Act when township laborers used township equipment to bring materials to your personal property, in that you had reimbursed the township for the expenses incurred in this situation at the rate established by the township. II. Allegation: That as a Supervisor in Venango Township, you violated Section 3 a of the Ethics Act, 65 P.S. 403(a), by using your public office or confidential information obtained through such office to secure personal gain other than the compensation provided by law by having the township include you on township insurance and hospitalization policies, and having the township pay the premiums for same, without the required approval(s) of the township audi tors. A. Findings: 5. Fi ndi ngs 1, 2 and 4 are incorporated herein by reference. The fol lowi ng payments were made to: a. Provident Indemnity Life Insurance Company: (1) June 15, 1980: $140.12. This is two months premium for the plan effective May 15, 1980. (2) July 15, 1980: $80.26, $75.17 for each month from August 15, 1980 to January 15, 1981 and $94.40 for each month from February 15, 1981 thru September 15, 1981: Provident Total $1,332.20. Mr. Clair Jamison Page 4 May 2, 19R6 b. The Trustees Insurance Fund: (1) Life Insurance: Total payments of $437.59 from April, 1981 thru August 31, 1984. (2) Hospital surgical and medicare supplement insurance: Total payments of $610.88 from April 1, 1981 thru October 31, 1984. (3) Disability Indemnity: Total payments of $427.70 from April 1, 1981 thru January 31, 1985. c. Total Payments to both companies $2,808.27. 6. There's no record of auditor approval of premium payments for hospitalization, medical, disability indemnity, or other insurance programs. 7. Minutes of the board of supervisors for the March 2, 1981 meeting show that you made a notion and voted to change the hospital insurance from the Provident Indemnity Insurance to the Trustees Insurance Fund of Gettysburg, P'ennsyl varti a. B. Discussion: Once again the Section of the State Ethics Act that must be reviewed in the instant situation is §403(a) of the State Ethics Act. This Commission has on several occasions addressed the question of whether township supervisors may, within the purview of the State Ethics Act, receive township provided life, hospitalization, medical and other insurance. See Krane, 84 -001; Cowie, 84 -010. In these rulings, this Commission has concluded after analyzing the Second Class Township Code, the case law surrounding that Code, certain provisions of the insurance code and recently reported cases that a township supervisor, such as yourself, may not receive at the township's expense, these type of insurance benefits, unless said supervisor is employed by the township and said benefits are fixed by the township board of auditors as part of his compensation. A township supervisor's receipt of these benefits not in accordance with the above, constitutes the receipt of a financial gain other than the compensation provided for by law. See, Hunt, No. 384 -R: Glova, No. 423 -R. This legal theory has been reviewed and approved by the Commonwealth Court of Pennsylvania as well as by various other courts in this Commonwealth. See, McCutcheon v. State Ethics Commission, 477 Pa. Comm. 529, 466 A.2d 28: , (982) ; In re: Appeal of the Auditors Report of Muncy Creek Township, 16 Lycoming Rep. 159, (1985); Conrad v. Exeter Township, 76 Berks L. J. No. 2p 7, (1984). You had received these benefits without such benefits being fixed by the auditors as part of your compensation. As a result of the foregoing, we believe that your receipt and acceptance of these benefits as a township supervisor violated the State Ethics Act. As a result of this violation you received a financial gain in the amount of $2,808.27. This represents the premiums paid by the township for the various 1 i fe, health and medi cal insurance poli ci es set forth i n Fi ndi ng 5 supra. Mr. Clair Jamison Page 5 May 2, 1986 The 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 law, shall pay into the State Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). In addition to the foregoing, the Commission may make recommendations for prosecution by or referrals to the appropriate prosecuting authority, unless the person who is in violation of the State Ethics Act returns any financial gain obtained as a result of such violation. See, McCutcheon v. State Ethics Commission, supra. The Commission does have the authority to offer the individual who receives financial gain in violation of the Act the opportunity to return to his governmental body such financial gain. 65 P.S. §407 9(iii). We believe that this result should be reached in the instant matter. We will not impose the treble damage provisions of Section 409(c). C. Conclusion: You violated Section 3(a) of the State Ethics Act when you, as a township supervisor, received at the township's expense hospitalization, medical, life and other insurance in excess of that compensation provided for by law. Our calculations indicate that the expense to the township for such insurance amounted to $2,808.27. Unless, within thirty days (30) of the date of this order, you forward to the State Ethics Commission payment in the above amount made payable to Venango Township, we will refer this matter to the appropriate law enforcement officer for further review and potential action. III. Allegation: That as Supervisor in Venango Township, you violated Section 3(a) of the Ethics Act, 65 P.S. 403(a), by using confidential information obtained through such office to secure upersonal office gain ot:ier than the compensation provided by law by claiming more in compensation and mileage than approved and by requesting and receiving payment township for hours worked, such as on May 20, 1982 and November24, 1983. A. Fi ndi ngs: 8. Findings 1, 2, 3 and 4 are incorporated here by reference. 9. In May of 1982 you attended a Butler County Supervisors Convention and submitted a time sheet for 8 hours pay. Mr. Clair Jami son Page 6 May 2, 19R6 a. The time sheet said "convention at Butler for TWN -8 hours, 60 mi." b. By township check no. 672 dated June 7, 1982, you were paid $230.70 Of this total, $58.80 was for your convention trip. This included $.18 per mile for 60 miles and $6.00 per hour for eight hours. 10. You charged the township for mileage during 1981, 1982 and 1983 as follows: a. 1981 - $231.40.,for 1330 miles. b. 1982 - $259.20 for 1440 miles. c. 1983 - $568.52 for 2728 miles. 11. The township auditors did not approve mileage reimbursement for the supervisors i n any of these years. 12. You charged the township for use of your personal tractor and for your operation of ttat tractor as follows: a. September 22, 1983, 6 hours at $6.00 per hour for upgrading and $15.00 per hour for rental of the tractor. b. September 23, 1983, 9 hours at $6.00 per hour for operating and $15.00 per hour for rental of the tractor. c. September 26, 1983, 5 hours at $6.00 per hour for operating and $15.00 per hour for rental of your tractor. 13. Neither the township auditors nor the board of supervisors approved the rental of your tractor or your employment as an operator. 14. You state that the use of your tractor was necessary because the township tractor was too small to do the job. 15. You state that there should have been a record in the minutes. 16. Your earnings in the township were: In 1980 - $658.00, 1981 - $1,656.00, 1982 - $1,847.00, 1983- $3,982.00, 1984 - $209.00. B. Discussion: This final allegation must also be reviewed in light of §403(a) of the State Ethics Act which prohibits you as a township supervisor from using your public position in order to obtain any financial gain other than the compensation that is provided for you by law. Within this provision of law, we must decide whether the fees that you received for attendance at the supervisors county convention i n May of 1982 were authorized by 1 aw; Mr. Clair Jamison Page 7 whether the expenses for which you were reimbursed for mileage during 1981 through 1983 was part of that compensation; and whether the funds that you received for the use of your tractor were a part of that compensation provided for by law. With relation to the payment of the county convention expenses, the Second Class Township Code provides as follows: Who to attend; compensation and mileage The supervisors of townships, auditors, assessors, tax collectors, managers, solicitors, engineers, and the secretary of the board of township supervisors, when not a member of the board, shall attend such conventions whenever possible. Each township supervisor, auditor, assessor, tax collector, manager, solicitor, engineer, and the secretary attending such convention shall receive a certificate, signed by the presiding officer and acting secretary of the convention, attesting his presence at the convention. Such certificate shall entitle him to collect from the township treasurer the sum of thirty -five dollars per day for each day's attendance, and mileage at the rate of twelve cents per mile traveled, to be computed by the route usually traveled from his place of residence to the place where the convention is held. No township supervisor, auditor, assessor, tax collector, manager, solicitor, engineer, or secretary shall be paid for more than two days' attendance in any one year. 53 P.S. §65602 The above provision of the Second Class Township Code clearly establishes the rates to be paid a supervisor who attends a county convention of elected officials. This Commission has previously determined that when a public official accepts and receives payment for expenses not in accordance with the provisions of law, such official violates the provisions of the State Ethics Act. See, Bigler, 85 -020. Based upon the above provision of law, you were entitled to expenses as follows: $35.00 for one day attendance, $7.20 for mileage (60 miles x $.12 per mile) Total compensation for attendance $42.20. Our findings have indicated, however, that you received $58.80 for your attendance at the convention calculated as follows. $48.00 claimed as $6.00 per hour for 8 hours. $10.80 mileage ($.18 per mile x 60 miles). Total reimbursement claim, $58.80. May 2, 1986 Mr. Clair Jami son Page 8 May 2, 1986 As a result of the foregoing, it is clear that you received $16.60 more than that to which you were entitled. This receipt constitutes a violation of the State Ethics Act as you received a financial gain in that amount not authorized by law. In addition to the foregoing, you received reimbursement for mileage during 1981, 1982 an.' 1983 . for the use of your personal vehicle as set forth i n Fi ndi ng 10. Cnce agai n, i n order to determi ne whether this fi nanci al gai n is part of the coi.pensation provided for by law, we must refer to the Second Class Township Code. That Code provides as follows: The compensation of supervisors, when acting as superintendents, roadmasters or laborers, shall be fixed by the township auditors either per hour, per day, per week, semi - monthly or monthly, which compensation shall not exceed compensation paid in the locality for similar services, and such other reasonable compensation for the use of a passenger car, or a two -axled four wheeled motor tr'Ack having a chassis weight of less than two thousand pouics and a maximum gross weight of five thousand pounds, or a class 2 truck, having a maximum gross weight of seven thousand pounds when requi red and actually used for the tran.portation of road and bridge laborers and their hand tools and for the distribution of cinders and patching material from a stock pile, as the auditors shall de,:ennii ne and approve. 53 P.S. §65515 as amended, Oct. No. 68, 1985, October 31, 1985. From the above provision of law, it is clear that the expenses incurred for the use of the personal passenger vehicle is part of the compensation that is to be fixed by the township hoard of auditors for the township board of supervisors who are employed by the township. In the instant situation, it is clear that the township board of auditors never fixed, as part of your compensation, any rate of payment for the use of a personal passenger or other vehicle. As such, the reimbursement that you received from the township as set forth in Fi ndi ng 10 above, was a fi nanci al gain not part of the compensation p: ^ovided for by law. As such, your receipt of that financial gain is in violation of the State Ethics Act. Finally, in relation to the compensation that you received for the use of your personal tractor as set forth i n Fi ndi ng 10 also appears to be i n violation of the State Ethics Act. This is especially so in light of the fact that as a township supervisor you were responsible for the payment of township bills and obtained these funds even though they had not been approved as part of your compensation by the township board of auditors. The rate of salary that you received, $6.00 per hour, was in fact fixed by the board of auditors as part of your compensation. The auditors, however, did not affirmatively fix any other payment to you for the use of your personal tractor. You have Mr. Clair Jamison Page 9 May 2, 1986 not provided any information as to why you did not seek the approval of the audi tors or supervisors for the use of your tractor. Therefore your and acceptance of this money was a financial gain in violation of the State Ethics Act. Our calculations indicate that the funds received for the use of your personal tractor amounted to the following: a. September 22, 1983, 6 hours at $15.00 per hour - total $90.00. b. September 23, 1983, 9 hours at $15.00 per hour - total $135.00. c. September 26, 1983, 5 hours at $15.00 per hour - total $75.00. Total payment by township for use of your tractor equalled $300.00. Based upon all of the foregoing, it is clear that you violated the State Ethics Act in the three situations evidenced above. Once again, we note that we have set forth the penalties provided for in the Ethics Act on page 6 of this order. We believe that the result reached therein is also appropriate here and, as a result, you must reimburse the township for the amount of financial gain that you received in violation of the State Ethics Act. Our calculations indicate that this financial gain amounted to the following: a. $16.60 - financial gain received as a result of county convention attendance. b. $1,059.12 - financial gain received as a result of township's payment for use of your personal vehicle. c. $300.00 financial gain received as a result of use of your personal tractor paid for by the township. Total financial gain received in violation of the State Ethics Act equals $1,375.72. C. Conclusion: You violated the State Ethics Act when you received financial gain in the of unauthorized convention attendance expense fees, unauthorized mileage reimbursement fees, and unauthorized payment for the use of your personal tractor. The total financial gain amounted to $1,375.72. Unless within thirty days (30)cofvtheadaterofuthis order you remit that amount to the State Ethics Commission made payable to Venango Township, this matter will be referred to the appropriate law enforcement authority for further review and possible action. Upon the receipt of these funds, our files in this matter will be closed. Sum of Conclusions: 1. You did not violate §403(a) of the State Ethics Act when township laborers used township equipment to bring materials to your personal property, and that you had reimbursed the township for the expenses incurred in this situation at the rate established by the township. Mr. Clair Jami son Page 10 May 2, 1986 2. You violated Section 3(a) of the State Ethics Act when you, as a township supervisor, received at the township's expense hospitalization, medical, life and other insurance in excess of that compensation provided for by law. Our calculations indicate that the expense to the township for such insurance amounted to $2,808.27. Unless within thirty days (30) of the date of this order you forward to the State Ethics Commission payment in the above amount made payable to Venango Township, we will refer this matter to the appropriate 1 aw enforcement officer for further review and potential action. 3. You violated the State Ethics Act when you received financial gain in the form of unauthorized convention attendance expense fees, unauthorized mileage reimbursement fees, and unauthorized payment for the use of your personal tractor. The total financial gain received as a result amounted to $1,375.72. Unless within thirty days (30) of the date of this order you remit to the State Ethics Commission a check for that amount made payable to Venango Township, this matter will be referred to the appropriate law enforcement authority for further review and possible action. Upon the receipt of these funds, our files in this matter will be closed. [is a result of the foregoing, you must within thirty days (30) of the date of this order submit to the State Ethics Commission an amount totalled to $4,183.99 represnting the financial gain obtained and as outlined in allegations II and III above. Upon the receipt of these funds, our files in this ratter will be closed. Failure to remit said money to the State Ethics Commission will result in the referral of this matter to the appropriate prosecuti ng authority. 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, i ncludi ng the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, di scussi ng or ci rcul ati ng this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, G. Sieber Pancoast Chai rman EMS /rdp cc: Public Binder STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 23, 1986 Mr. Clair Jamison P.O. Box 176 Clintonville, PA 16372 Re: Order No. 477, File No. 84 -39 -C Dear Mr. Jamison: On May 2, 1986, the State Ethics Commission received your payment for reimbursing the Venango Township as required by Order No. 477. We have forwarded your check in the amount of 54,183.99 to the township. This letter will he part of the Order and a public record as such. Sincerely, c2 , dwar M. Seladones Executive Director