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HomeMy WebLinkAbout539 SzymanowskiMr. Joseph J. Szymanowski 2739 South Hill Road McKean, PA 16426 Re: R6- f145 -C near Mr. Szymanowski: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMTSSTON Order No. 53Q DECIDEDNOV 19 1986 MA I L E DEUM6 The State Ethics Commission has received a complaint regarding you and a possihle violation of Act 17ft of 1978. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are hased are as follows: T. Allegation: That you, a Supervisor, Treasurer and Roadmaster in McKean Township, violated Section 3(a) of the Ethics Act which prohihits a puhlic employee or puhlic official's us? of office or confidential information gained through that office to obtain financial gain other than the compensation provided hy law, by being paid for "administrative time not authorized by the auditors in addition to your pay for attending meetings and serving as treasurer and roadmaster. A. Findings: 1. You were elected Township Supervisor in McKean Township in November, 1983, and have served as a Supervisor since that time. 9. You also served as township treasurer in 1984 and in that capacity were responsible for the township's receipt and expenditure of funds. In this respect, you had signature authority for the township checking account. 3. laily time sheets submitted to the township hy you for administrative pay for calendar year 1984, show that you suhmitted evidence of working 334.1 hours on administrative matters during the year. a. You were paid R2,ln4.6O, receiving 81,538.12, after deductions, through township payroll account check no. mil, on January 4, 1485. Mr. Joseph J. Szymanowski Page 2 4. The payroll ledger for the first quarter, 1985, shows that on December 30, 1984, you were paid for administrative pay in 1984, $2,004.60, which after deductions, amounted to $1,538.12. You signed the payroll ledger after that amount. 5. McKean Township payroll account check number 204, dated January 4, 1985 was made payable to you in the amount of $1,538.12. You signed this check. 6. The payroll ledger sheet for the date of September 30, 1984, shows that you were paid for "9 months administrative pay" in the amount of $540.00 fox- which you received a check in the amount of $463.19, after deductions, on that date. This was paid by township check no. 142. You signed this check. 7. The form entitled "Township Weekly, Bi- weekly or Semi- monthly Payroll Report" dated September 28,1984, bears the handwritten information, "Meeting Pay, third quarter, administration pay 9 months by board order September 26, 1984. In the body of the form, it shows that you were paid $540.00, under the heading of administrative pay, and that you received $463.19, after deductions, with check no. 185. 8. The payroll ledger shows that on January 15, 1985, you paid yourself for 10 hours of administrative pay, at $6.00 per hour, $60.00, and after deductions, $53.70. Again, you signed the ledger sheet after that amount. 9. McKean Township payroll account check no. 222, dated January 18, 1985, was made payable to you in the amount of $53.70. You signed this check. 10. You maintain that the auditors approved the administrative pay, and that they have been approving such pay . for a number of years. a. You stated that you would not take the administrative pay or pay that compensation to the other supervisors until you had consulted with Leo LaChance of the Erie office of the Department of Community Affairs, your attorney, the Solicitor, George M. Schroeck, the State Association of Township Supervisors. b. You were advised that you could receive the administrative pay. 11. Mr. Leo LaChance of the Department of Community Affairs, confirmed that he met with you on numerous occassi ons and that he met with the auditors and that he generally counseled you on the compensation allowed for supervisors. He informed you that the supervisors must first create a job description, you must be appointed to the position, records .must be kept of the time worked, money must be appropriated for the position and the auditors must then approve the salary for the position. Mr. Joseph J. Szymanowski Page 3 a. Mr. LaChance provided you with various documents regardi ng the compensation to be paid to township supervisors. These documents included a "Consulting Guide on Payments to Elected Township Supervisors" and "Compensation to Supervisors of Townships of the Second Class." b. These documents clearly set forth the law regarding the compensation to be paid a supervisor and indicate that a non - working supervisor may only receive a statutory fee and working supervisors may only be paid for serving in one of the authorized positions. c. Mr. LaChance advised that compensation could only be paid for performing services in relation to one of statutorily authorized positions. He did not advise that a separate administrative pay was allowed. _ 12. There is no indication that a duties were defined until February 13. In a letter dated October 1, solicitor, referred you to 53 P.S. Code. job description was created or that the 12, 1985. 1984, Mr. George M. Schroek, the township Section 65515 of the Second Class Township a. Mr. Schroeck did not, in this letter, advise that "administrative pay" was appropriate. b. Mr. Schroeck set forth verbatim provisions of the law. 14. Examination of the auditors' meeting minutes show that the auditors have been awarding administrative pay to the supervisors yearly, since 1975. 15. Examination of the auditors' meeting minutes for the year 1984, evidence that on January 9, 1984, the auditors approved a salary of $60.00 per month for the supervisors for administrative duties, defined as township management, cur respondence, attendance at township related meetings, planning commission, and board meetings and a minimum of 4 general administrative hours per month at the township garage. 16. The auditors' minutes show that on March 30, 1984, you questioned the legality of the maximum amount and minimum hours. a. The records show that you wanted a set hourly rate for administrative pay, that you said that the supervisors could keep track of their hours on a time card, and that the hourly rate then in effect for Mr. Joseph J. Szymanowski Page 4 supervisors doi ng road work would be a fair rate for administrative pay. 17. The final report submitted by the auditors for 1983, which is undated, stated in part, that you had questioned the administrative pay rate, and further stated, "Tr further clarify what we stated at the auditors' reorganization meeting, the maximum amount to be paid for administrative work is $60.00 per month with a minimum of 4 hours of administrative duties. 18. In a memorandum, undated, entitled, "Continuation of Final Audit Report," the auditors stated that according to the Department of Community Affairs, they had previously stated that administrative pay was illegal. They then amended the administrative rate previously set on March 30, 1984, and wrote, "The administrative pay rate is $60.00 per month with ten hours administrative duties to be performed per month: We recommend that a time card regarding administrative time be handed in each month stating hours worked and duties performed." 19. Of, November 21, 1984, the auditors wrote that after being questioned by the supervisors about administrative pay, they had to further clarify their report of March 30, 1984. They then stated that "the administrative pay rate for 1984 is $60.00 per month with ten hours of administrative duties to be performeu each month. If a supervisor puts in more than ten hours a month in administrative time, then he is to be paid $6.00 per hour for any time over and above the ten hours required. 20. The payroll ledger for the first quarter of 1985 indicates that on January 15, 1985, you made an adjustment to the ledger by returning the overpayment you made to yourself on December 30, 1984, in the amount of $540.00 which you had already received on September 28, 1984. 21. According to an opinion written by Judge George Levin, Court of Common Pleas, Erie County, you repaid the township the amount of $463.19, as the result of a surcharge action initiated by the auditors. The amount of $463.19 being the $540.00 overpayment referred to in the preceeding paragraph, minus benefits previously deducted. 22. In addition to "administrative pay," you were also paid as an appointed townshi p roadm.aster. 23. In addition to the above, you also received separate payment for attending township meetings. B. Discussion: Township supervisors in townships of the second class are Mr. Joseph J. Szymanowski Page 5 public officials as that term is defined in the State Ethics Act. 65 P.S. §402. As such, their conduct must conform to the requirements of the State Ethics Act. See, Sowers, 80 -050. The State Ethics Act provides as follows: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Within the above provision of law, this Commission has already determined that township supervisors may not approve or accept any compensation for themselves that is not in accordance with the compensation set forth in the Second Class Township Code. This determination has been affirmed by the Commonwealth Court of Pennsylvnaia. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1982). Compensation awarded or received by a township supervisor that is not in accordance with the provisions of law could constitute a violation of the above cited Section of the State Ethics Act. The Second Class Township Code provides that township supervisors shall receive the following compensation: Compensation of Supervisors -- Supervisors may receive from the general township fund, as compensation, an amount fixed by ordi nance not i n excess of the followi ng: Township Population Annual Maximum Compensation Not more than 4,9999 5,000 to 9,999 10,000 to 14,999 15,000 24,000 25,000 to 34,999 Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars Mr. Joseph J. Szymanowski Page 6 Such salaries shall be payable monthly or quarterly for the duties imposed by the provisions of this act. The population shall be determined by the latest available official census figures. 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, simi - mohthly 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 moter truck having a chasses weight of less than two thousand pounds when required and actually used for the transportation of road and bridge laborers and their hand tools and for the distribution of cinders and patching material from stock pile, as the auditors shall determine and aprpove; but no supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 65 P.S. §65515, as amended Act 68, 1985. (Prior to the above amendment, the above provision provided for a set fee of $25 per meeting). In reference to the meetings for which supervisors may receive compensation, the code further provides as follows: The township supervisors shall meet for the transaction of business at least once each month, at a time and place to be fixed by the board, but they shall not be paid for more than sixteen meetings in any one year, except in any township where, on account of the exercise of governmental functions other than those relating to roads, more meetings are recessary, in which case, the number of meetings for which the supervisors may be paid may be increased to any number, not exceedi ng fifty meetings i n any year which shal 1 include hearings by aggrieved parties under the Pennsylvania Sewage Facilities Act and other hearings by aggrieved parties hearings of a judicial or quasi - judicial nature. Two members of any board of supervisors consisting of three members shall constitute a quorum and three members shall constitute a quorum. Except as otherwise provided in this act, an affinnative vote of a majority of the entire board of supervisors shall be necessary in order to transact any Mr. Joseph J. Szymanowski Page 7 business. Necessary expenses incurred in such meetings, i ncludi ng office rent, stationery, light and fuel , shal l be paid out of the general township fund. 53 P.S. §65512. The duties that a supervisor is responsible for performing are also regulated by statute. As can be seen from the foregoing, the compensation to be paid for a supervisor who is not otherwise employed by the township is strictly regulated by the Second Class Township Code. A supervisor may only receive compensation, as set forth above, for supervisor meetings regarding the transaction of township business. The type of meeting for which a township supervisor may be compensated must be one at which official township business is transacted. Additionally, the township code provides for compensation at the specific meetings outlined in §65512, above. The code does not appear to permit the compensation of a township supervisor for attendi ng other types of meetings or for performi ng the administrative functions of his office. Any such other compensation must be earned in and as part of the services performed while serving in one of the statutory authorized positions. Thus, if the township supervisors were to award to themselves compensation for attendance at meetings that are not official township meetings of the board of supervisors, or for performing duties not authorized by law such would violate the provisions of the State Ethics Act as such payment would not constitute compensation provided by law. We note that the above interpretation of the Second Class Township Code is a view that has also been expressed by the State Association of Township Supervisors which specifically indicated that supervisors may not be compensated for meetings with engineers, solicitors, planning commissions, authorities, or recreation boards. See Township News, May, 1985, Page 66. The township code sets forth clearly when supervisors may receive compensation other than as set forth above. Generally, township supervisors may be employed by the township as a roadmaster, laborer, or secretary /treasurer. 53 P.S. §65410. The compensation to be paid to supervisors working in such positions is to be fixed by the township board of auditors- 53 P_S- §65515; :65531; 65540. Township_ supervisors may not receive any other compensation except as provided above. This concept has been upheld by various courts in the Commonwealth. In Coltar v. Warminster Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859, (1973), the Commonwealth Court of Pennsylvania held that a second class township supervisor may not appoint himself to positions other than those set forth in the township code ( roadmaster, laborer, or secretary /treasurer), and receive compensation therefor. See also Conrad v. Exeter Township, 27 D & C 3d 253, (Berns 1983). It is clear, therefore, that the duties for which a township supervisor may be compensated are strictly regulated by the township code, and when performing in the positions set forth in the code, the supervisors' pay must be Mr. Joseph J. Szyma nowski Page 8 specifically set forth by the township board of auditors. While you, as roadmaster, were eligible to be compensated for the , dministrative aspects of that position, this should have been part of your roadmaster pay. Our review of this m tter indicated that the "administrative services' for which you were compensated were not related to your roadmaster position or secretary /treasurer position but were related to the office supervisor. You, thus, received compensation that was not part of that prrrided for by law. With relation to the fact that the auditors approved this compensation, we note that this Commission has already held that township auditors have no authority to fix compensation for township supervisors who are performing duties outside of those fixed by law or for working in positions not established in the township codes Nanovic, 85 -005. Thus, even though the auditors ma; have indicated an approval for this "administrative pay" such was of no effect as the auditors did not have the power to fix a compensation that was not allowed by law and that was regulated by statute (compensation as a supervisor). Finally, you assert that you received the favorable advice of the State Association, your township solicitor, and the Pennsylvania Department of rommurity Affairs prior to obtaining the "administrative pay." We have reviewed the facts of this situation and find that while you may have believed you received the favorable advice of these groups, that clearly, was not the case. A review of the information provided from your solicitor indicates that nowhere did he indicate at any time that the administrative pay that you received was authorized by law. In fact, in a letter dated October 1, 1984, the township solicitor referred you to the pertinent sections of the Second Class Township Code. Nowhere in this letter did this solicitor advise that administrative pay was appropriate. Additionally, we have reviewed the information supplied to you by the Pennsylvania Department of Community Affairs. This information specifically set forth the law in relation to the compensation that is to be paid to township supervisors. The packet of i r:formati on and documents supplied to you clearly indicates that a township supervisor may only receive compensation as we have set forth in this order. There is no indication in any of the materials that have been provided to you be the Department of Community Affairs that "administrative pay" was authorized by law. We also note that the individuals you dealt with at the Department of Community Affairs were technical advisors and not advisors regarding statutes or issues of law. Additionally, while we have not had access to any of the information that has been provided to you by your state association, we note that even if such Mr. Joseph J. Szymanowski Page 9 information had been favorable in nature and even if you had sought that advice from qualified sources, prior judicial decisions clearly determined that the receipt of unauthorized compensation by a township official, even though such is received on the advice of his solicitor or association, does not became legitimate compensation simply because of that advice. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283, (1982). Clearly, even good faith reliance upon the advice of such individuals does not permit a public official to retain public funds, to which he was not entitled. Kestler appeal, 66 Pa. Commw. Ct. 1, 444 A.2d 761, (1982). As a result, we believe that you received compensation in the form of administrative pay that was not in accordance with that set forth by law. 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(0. (c) Any person who obtains fi nanci al 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. Additionally, this Commission may make recommendations to appropriate law enforcement authorities for the initiation of criminal charges or the dismissal of such charges rising out of violations of the State Ethics Act. Prior judicial decisions have also determined that this Commission may offer an individual who has obtained a financial gain in violation of the law the opportunity to divest himself of financial gain prior to the issuance of a recommendation to a law enforcement authority. See, McCutcheon v. State E Lifts Comission, Styr d, 65 P.S. S ectiun 4fr7(9)(ii). In the instant situation, upon a review of all of the facts, we believe that this result is appropri ate. Thus, we believe that i f the f i nanci al gain obtained i n violation of the State Ethics Act plus 10% is returned to the governmental body from which it is obtained, you will have removed yourself from a violation of the Act without having received a financial gain. In this respect, our calculations indicate that you received financial gain in the form of administrative pay as follows: Mr. Joseph J. Szymanowski Page 10 Year Amount 1. 1984 $1,538.12 2. 1984 $463.19 3. 1985 $53.70 We also note that you reimbursed the township for the funds that were received in 1984 as indicated in the second item above. Thus, any financial gain received would be based upon the items 1 and 3 above. Our calculations indicate that you, thus, received $1,591.82 in financial gain that was not part of the compensation authorized by law this amount plus 10% equals $1,751. Upon the return of this financial gain to McKean Township, we will take no further action in this matter and our files will be closed. C. Conclusion: Your receipt of administrative pay and your position as a township supervisor was not part of the compensation provided for be law. As such, your actions were not in accord with the State Ethics Act and you received a financial gain in violation thereof. We will, however, offer you the opportunity to divest yourself of the financial gain received in violation of the Act plus 10 %. Upon the transmission of payment in the amount of $1,751 to the State Ethics Commission made payable to McKean Township, we will terminate this matter and take no further action. If, however, within 30 days of the date of this order, we do not receive set reimbursement, we will refer this matter to an appropriate law enforcement authority for further review and appropriate action. 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 this5rder, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, JV • G. Sieber Pancoast Chairman Mr. Joseph J. Szymanowski 2739 W. South Hill Road McKean, PA 16426 Re: Order 539, File 85 -116 -C EMS /na cc: Public Binder Mailing Address State Ethics Commission 304 Finance Bu i l.d i nc1 P. 0. Box 11470 Harr i sburci, Pa. 17108 - -1470 December 22, 1986 Dear Mr. Szymanowski: On December 22, 1986, the State Ethics Commission received your payment for reimbursing the State Ethics Commission as required by Order 539. We have forwarded your check in the amount of $1,751.00 to the township. This letter will be part of the Order and a public record as such. Sincerely, Edward M. Seladones Executive Director State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania