HomeMy WebLinkAbout567 RaverMr. David A. Raver
725 Woodberry road
York, PA 17403
Re: 87 -036 -C
Dear Mr. Raver:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 567
DECIDED: May, 26, 1987
MAILED: June 2, 1987
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:
A. Allegation: That you, Manchester Township Manager, violated Section 3(a)
of the Ethics Act which prohibits a public employee's or public official's use
of office or confidential information gained through that office to obtain
financial gain, when you received reimbursement for expenses for attending a
State convention in April of 1986 in excess of expenses actually incurred by
you.
B.
Findings:
1. You have served as Manchester Township Manager from 1976 to the present
date.
a. From 1976 to 1980 you served on the Spring Garden Township Planning
Commission.
You are therefore subject to the provisions of the State Ethics Act.
•
2. Records of the Manchester Township Manager's office confirmed that the
township has authorized the attendance of township officials at the annual
convention of the Pennsylvania State Association of Township Supervisors.
a. This practice has been in effect since at least January 1979.
3. Township records disclosed the fgllowing payments were made on your behalf
to attend the annual convention of the Pennsylvania State Association of
Township Supervisors held from April 20, 1986 to April 23, 1986 at Hershey,
Pennsylvania.
f;r- David A. Raver
Page 2
a. You were paid $90.00 per day for four days a:'.t ndance plus $14.80 for
roundrip mileage for your car from York, Pennsylvania to Hershey,
Pennsylvania. This was comprised of 74 mile traveled at $.20 per
mile. The total expense was indica';ed as $374.80.
b. The township issued check number 8571 to you en April 28, 1986 in the
amount of $374.80.
c. Township records disclosed that no listing of actual expense:;
incurred at the convention was ever submitted by you
4. Minutes of the township supervisors' meeting of May 13, 1983 reflect an
approval to pay the voucher you submitted for attendance at the Pennsylvania
Sta';e Association of Township Supervisors convention of 1386 was part of the
business conducted.
Township Supervisor Grim made 1 motion and Supervisor Post seconded
this motion to approve such payment. The motion car,ied with three
afinmative votes and no negative votes.
5. You commuted on a daily basis during the time of the convention and
incurred no expenses as a result of any hotel stays.
6. You received your pay as township manager for the th-ee weekdays of the
convention.
a. Yc a sated that you faithfully attended all sessions, workshops and
forums at the convention, becz.se o your desire to learn all that
you could about township business.
7. On April 14, 1987, you voluntarily presented a check. to Manchester
Township in the amount of $300.00, as a repayment of expense money you
received for attending the convention.
a. Therefore, the only expenses you then accepted reimbursement for,
were the registration fee of $60.00 and '.he mileage to and from
Hershey in the amount of $14.80.
b. Your mileage reimbursement was the result of driving your personal
car to Hershey and back on Sunday, April 20, 1986.
c. On the following three days of the convention, you commuted daily
with other township officials in a township vehicle.
d. You stated that yuu accepted the $90.00 per day for attending the
convention because you believed you were entitled to it.
Mr. David A. Raver
Page 3
e. You stated that you made an error in judgment when you read the
delegate certification which indicated that you may, rather than
shall, receive $90.00 per day reimbursement.
B. Discussion:
As a Township Supervisor in a township of the second class, you are
clearly a public official as that term is defined in the State Ethics Act. 65
P.S. §402. As such, your conduct must conform to the requirements of the
State Ethics Act and the restricted activities of that law apply to you. See
Sowers; 80 -050; Welz, 86 -001. 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).
This Commission, in the past, has reviewed the above provision of law
specifically in relation to the issue of expense allowances in relation to
certain public officials and the retention of excess funds relating to such
expense allowances. Generally, in reviewing the county code provisions in
relation to expense allotments for officials who attend the annual meeting of
the State Association of County Officials, this Commission specifically
determined that such officials were only entitled to receive their expense
allowances as actually incurred up to and not exceeding certain per diem
amounts for attendance at such meetings. The Commission made this
determination based upon a specific review of the county code provisions
allocating such expense allowances and under the provisions of the State
Ethics Act as applied thereto. The Commission further determined that any
funds in excess of this amount,. received and retained by said officials
through their official positions, would constitute financial gain other than
the compensation provided for by law and, thus, be a violation of Section 3(a)
of the State Ethics Act. See Bigler, 85 -020. ,
Specifically, the Commission determined that because the municipal code
only permitted expense reimbursements for actual expenses or within a certain
dollar amount, funds requested and received in excess of the permitted amount
through the public official's office and retained by said public official
would constitute a financial gain other than the compensation provided by law.
Public officials who, through their- "public positions, receive and retain
excess funds would thus be in violation of Section 3(a) of the State Ethics
Act.
Mr. r .vt d A, Raver
rage 4
Our position in reia::iun to tc:;s analysis was reaffirmed in Hawkins, 368.
In Hawkins, this Commission determined that a county sheriff had violated
Section 3(a) of the State Ethics Act when, through his position, he requested
and received expense allowances for attendance at a state sheriff's convention
in excess of that which was permitted by the code. Specifically, the county
sheriff received certain funds even though he had not attended the convention.
Additionally, he had received funds in excess of that specifically allowed by
the county code. Similarly, we determined that a county official would not be
permitted to receive reimbursement for attending a convention of the
official's organization if such individual Aid not, in fact, attend. See
Shultz, 369. Our analysis in all of these cases was based upon long standing
judicial interpretation of these provisions of law. See Bechak v. Corak, 414
Pa. 522, 201 A.2d 213, (1964); Susquehanna County Auditor's report, 118 Pa.
Super 47, 180 A.148, (1935); Walker v. Somerset County, 26 D & C 2d 775,
(1961).
In the instant situation, in order to determine whether Section 3(a) of
the Ethics Act has been implicated through the activity as outlined in the
findings of fact, we must first review what compensation in the form of
expense allowances is permitted by the First Class Township Code. Based upon
a determination as to what compensation is permitted, we will then be able to
determine if you, through your public position, obtained financial gain in the
form of excess expense allowances when such was not provided for by law as
part of your compensation.
The Second Class Township Code provides as follows in relation to
expenses for the attendance of township supervisors at annual association
conventions.
The supervisors may designate one or more of the
following elected or appointed officials of, the township
to attend the annual meeting of the State association:
supervisors, township secretary and /or township manager.
Said convention shall. be held in the Commonwealth in
accordance with the procedures adopted by the State
association. These delegates expenses shall be paid by
the respective townships out of the township general fund.
53 P.S. §65611.
The expenses allowed the delegates attending the
annual meeting may be in an amount not exceeding ninety
dollars per day for each 'delegate for not more than four
days including the time employed in traveling thereto and
therefrom, together with mileage going to and returning
from such meeting. 53 P.S. §65612.
Mr. David A. Raver
Page 5
This provision of law is virtually identical to the one that we have
reviewed in our previous opinion. Based upon that review as applied herein, a
township supervisor, may not use his position to obtain a financial gain in
the form of excess expense allowances. The above expense allowance provision
as noted would require reimbursement for actual expenses not to exceed $90 per
day.
The findings indicate that you incurred no expenses other than the
registration fee and mileage. You received, however, the $90 per day even
though you incurred no subsistence or lodging costs. As such, your acting
would not have been in accord with the State Ethics Act.
Generally, the State Ethics Act provides as follows:
Section 9. Penalties.
(a) Any person who violates the provisions of Section 3(a)
and (b) is guilty of a felony and shall be fined not more
than $10,000 or imprisoned for not more than five years,
or be both fined and imprisoned. 65 P.S. §409(a).
The Act further provides:
Section 9. Penalties.
(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
Treasurey a sum of money equal to three times the
financial gain resulting from such violation. 65 P.S.
§409(c).
The State Ethics Commission also has the authority to make an affirmative
recommendation to an appropriate law enforcement authority for the initiation
of criminal charges pursuant to the above provision of law or for the
dismissal of charges pending upon factual circumstances.
This Commission has also been granted the authority to offer the
opportunity to an individual who has obtained financial gain as a result of a
violation of the State Ethics Act the opportunity to divest himself of said
gain. See McCutcheon v. State Ethics Commission, Commw. Ct. 529, (1982). The
Commission has, on a number of occasions, offered individuals the opportunity
to divest themselves of the gain received and thereafter, recommended no
further criminal action. The financial gain that you received in the instant
situation equals $300.00.
Mr. David A, Paver
rFge 6
Upon iiotificaticn of the Instant allegation, you male payment to
:" ° :chester Township in the amount cf $300.00 reimbursement for the excess
Expense money that you received. Based upon this, we believe that no further
-c;tion should be taken.
C. Conclusion: You, as a township Supervisor are a public official subject
to the provisions of the State Ethics Act.
Your receipt of township expense funds, in your public position in excess
of that provided for by law, was a financial gain other than the compensation
provided by law and was, thus, received in violation of the State Ethics Act.
After notification of this allegation, you reimbursed Manchester Township in
the amount of $300.00, representing the financial gain received in violation
of the Act and as such, we will take no further action in this matter.
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,
G. Sieber Pancoast
Chairman
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