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HomeMy WebLinkAbout558 HamptonMr. Joseph E. Hampton R.D. #1, Box 89 Summerhill, PA 15958 Re: 86 -130 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 558 DECIDED - MA 1007 MAILED 1111�'*i1't:7 Dear Mr. Hampton: The 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 /Roadmaster in Summerhill Township, violated Section 3(a) of the Ethics Act which prohibits a public employee or public official's use of office or confidential information gained through that office to obtain financial gain by having the Township pay for a hospital insurance plan in which you participated. A. Findings: 1. You have served as a Summerhill Township Supervisor since 1982; and as an elected public official you are subject to the provisions of the State Ethics Act. 2. Minutes of the board of supervisors' reorganization meetings disclose that from 1982 through 1987 all three township supervisors were appointed roadmasters . a. You are the only supervisor employed as a full -time roadmaster. 3. Minutes of the township supervisors' meetinj's confirmed the following relative to your participation in a hospitalization plan paid for with township funds: a. May 31, 1985: Regular Meeting You requested to be included in the township's hospitalization program. Discussion held. Motion Evancic, second Richardson to approve Hampton for coverage. Motion approved. You abstained. Mr. Joseph E. Hampton Page 2 b. January 11, 1986: Regular Meeting You requested a letter from the board to the auditors suggesting group hospitalization. Supervisors Richardson and Evancic will not get involved in the compensation for supervisors. c. March 1, 1986: Regular Meeting The Board of Auditors, under guidelines of the State Ethics Commission, stipulated that J. Hampton should return to the Municipality General Fund that amount of the hospitalization premium paid in June. This amount must be reimbursed by March 31, 1986. d. March 15, 1986: Regular Meeting You suggested to the board that they approve a letter to the auditors recommending hospitalization for the supervisors. Supervisors Evancic and Richardson state that the first order of business is for Hampton to repay the insurance payment. e. April 19, 1986: Regular Meeting Hampton reimbursed the Municipality for double mileage payment in the amount of $24.86. Hampton stated that the solicitor said to hold off on the Trustees Insurance repayment. f. Auditor Edward Hunter present questioning as to progress on reimbursement of J. Hampton of unauthorized hospitalization premium. J. Hampton said that the opinion of the Township Solicitor is that he should hold off on repayment since Ethics Law is still unclear. He claimed that the Auditor General had told hip to hold off on it and Solicitor Davis had said the same. He questioned why the Board of Supervisors had not sent a written request that he had made for the coverage to the Board of Auditors. Supervisors Richardson and Evancic advised him that the first order of business was to clear up previous problem before any request is made for coverage. He was advised by the Board of Supervisors and Auditors not to use Township Solicitor for opinions. He said this is a Municipal matter and should be handled by Davis but the Boards feel that it is his personal responsibility. Mr. Hunter said that his failure to act leaves no recourse except for the Board of Auditors to file complaint with Clerk of Courts. Hampton informed that his iospitalization was cancelled as of February 1, 1986. Mr. Joseph E. Hampton Page 3 May 17, 1986: Regular Meeting Davis & Davis clarified their legal opinion as to reimbursement that Audit Board had requested from J. Hampton for hospitalization premium. h. January 5, 1987: Reorganization Meeting J. Hampton requested the Board to recommend the Board of Auditors that full -time employees and full-time roadmaster be granted same benefits, such as hospitalization, vacation, personal days. W. Evancic reminded J. Hampton that there had been a problem with approving hospitalization to supervisor Hampton, insurance premium was promised to be repaid by J. Hampton by March 1986. Mr. Hampton stated that he had correspondence from Attorney General stating the case was pending. 4. Summerhill Township records disclosed that you were added to the hospitalization plan administered by Trustees Insurance Fund effective June 1, 1985. g. a. Memo dated June 3, 1985 to Township Secretary Veronica Maslar from Cheryl Simpson, Trustees Insurance Fund acknowledges receipt of application card for you, notes an effective date of coverage of June 1, 1985 and enclosed a premium statement of $267.50 for coverage from June 1, 1985 through October 31, 1985. b. Summerhill Township Board of Supervisors Check No. 10700 dated June 15, 1985 drawn on the General fund in an amount of $267.50 payable to Trustees Insurance. Check signed by all three supervisors including you. c. Trustees Insurance Fund premium statement dated September 16, 1985 listing premium due for you in an amount of $635.00. Total premium due for entire road crew was $1,270.00. d. Township check No. 10820 dated September 28, 1985 in an amount of $1,270.00 payable to Trustees Insurance. Check signed by all three supervisors. e. March 19, 1986 memo from Marlena Rivera, Secretary, Trustees Insurance Fund to Veronica Maslar acknowledging cancellation of insurance coverage for you effective February 1, 1986. The memo also states the amount of coverage between November, 1985 through January, 1986 was $162.50. Mr. Joseph E. Hampton Page 4 5, You were covered by the hospitalization plan administered by Trustees Insurance Fund from June 1, 1985 through January, 1986. Total cost to the township was: a. June 1, :985 to October 31, 1985 -- $267.50 b. January 1, 1985 to January 31, 198E - $162.50 Total $430.00 6. Minutes of the Sumrnerhill Township Auditors meetings for 1985 and 1986 reflect that each year a salary pus vacati -on for roadmasters was set. a. The auditors confirm that a request was never made to approve hospitalization coverage for a supervisor working as roadmaster. b. Hospitalization coverage was not included as compensation in the past, 7. The auditors confirm that following the audit of the 1985 supervisors' accounts it was recommended that you repay to the township the sum of $430.00 to cover the cost of the insurance premiums. (Related to finding 3c and 5a and b). a. The auditors confirm that as of April 2, 1987 you have not made any payments. 8. By correspondence dated May 14, 1986 Solicitor Lawrence Davis advised the supervisors that reimbursement of the premiums be made. That letter in part, states: a. I have reviewed the notes from your Minutes of April 19, 1986 showing Mr. Hampton's statement that I said to hold off on Trustee's Insurance Repayment. This, no doubt, came about from a conversation Mr. Hampton and I had concerning the disallowance of payments of insurance premiums by the Township for coverage of the individual supervisors. At the time, I advised Mr. Hampton that there were legislative proposals before the General Assembly addressing these matters. However, at that time of our conversation, I was not aware of any fonnal request having been made for reimbursement. Under the circumstances, I would not want to advise making a bad situation worse. I would, therefore, suggest that the reimbursement be made and if appropriate legislation were to be enacted, Mr. Hampton might then ask for a refund. 9. You stated that prior to 1985 you Were covered by your wife's hospitalization plan and did not need township coverage. In 1985 you were no longer covered by your wife's hospitalization and requested the board to approve coverage. Mr. Joseph E. Hampton Page 5 a. You stated you abstained from voting on this matter. b. You felt you were entitled to this coverage as a full -time employee. c. You state you were unaware that such coverage required auditor approval. d. You initially did not refund the township because the solicitor advised you of pending legislation which would not require auditor approval. e. You stated that you have not yet made repayment because you have done nothing wrong. B. Discussion: As a township supervisor, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402; Sowers, 80 -050. Your conduct as such an official must, therefore, conform to the requirements of the State Ethics Act. Generally, 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 previously determined that a township supervisor may not receive at the township's expense, health, hospitalization, medical and life insurance benefits when such supervisor acts only in the capacity of a supervisor. Krane, 84 -001; Cowie, 84 -010. Additionally, even if such a supervisor is employed by the township as a roadmaster in accordance with the. Second Class Township Code, such benefits are considered compensation and must, therefore, be fixed as such by the township board of auditors. See Synoski v. Hazle Township, Pa. Comm. , 500 A.2d 1282, (1985); In re: Appeal of the Auditors Re ort of Muncy Creek Township, Pa. Commw. Ct. , 520 A.2d 1241, (1985 ; Hunt, No. 348 -R. Any benefits received other than as provided for above, would constitute a financial gain obtained in violation of the State Ethics Act. See, McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1983); Conrad v. Exeter Township, a7 & C 3d 253, (1983). These principles of law are now well settled and constitute the law under which this situation must be reviewed. See, In Re: Report of Audit of South Union Township, 47 Pa. COMM . 1, 407 A.2d 906, (1979). Mr. Joseph E. Hampton Page 6 In the instant situation„ while you were an appointed township roadmaster and therefore eligible to receiv; thE question benefits, such required approval by the township board of auditors in order to be considered part of your authorized compensation. See, McCutcheon v. State Ethics Commission, supra. The facts in the instant situation clearly reveal that the auditors never fixed as part of your compensation these benefits. In fact, the auditors had requested reimbursement of township funds that had' been allocated to obtain such benefits. To date, no such reimbursement has been made. It also should be noted that even if these benefits had been received in good faift, such would not be controlling. Good faith receipt of such benefits, even when based upon a solicitor's advice, will not alleviate the necessity of a : pu! l i c official reimbursing his governmental body for the receipt of a financial gain for which he was not entitled. See Allegheny County v. Grier, 179 Pa, 639, 36 A. 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, (1982). As a result, we believe that you must reimburse the Township for this financial gain. 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 law, shall pay into thekState Treasurey 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 State Ethics Act provides that the Commission may forward the results of any investigation to the appropriate prosecuting authority unless the alleged offender removes himself from the conflict of interest by divesting himself of any financial gain received in violation of the State Ethics Act. 65 P.S. §407 9(iii). See also, McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283, (1983), Commission may order restitution of financial gains received in violation of the law. In view of all of the circumstances set forth above, we believe that you did receive a financial gain in violation of the Act, totaling $430.00 (Finding 5) and that such must be returned to the governmental body from which it was received. Mr. Joseph E. Hampton Page 7 C. Conclusion and Order: You, as a Township Supervisor in Summerhill Township, violated Section 403(a) of the State Ethics Act when you actively sought and received through that public office, hospitalization benefits at the township's expense, without such benefits having been fixed by the township auditors as part of your lawful and authorized compensation. The financial gain that you received as a result of the foregoing, equaled $430.00. This gain was not part of the compensation provided by law. You are hereby ordered to remit to the State Ethics Commission, within thirty (30) days of the date of this order, the amount of $430.00 made payable to Summerhill Township as restitution for the financial gain that you received. Failure to comply with the provisions of this order will result in a referral of this matter to the appropriate authority for further civil or c ri mi nal proceedi ngs. 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 $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). By the Commission, if 1 p G. Sieber Pancoast Chai rman •