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HomeMy WebLinkAbout568 HornerMr. Tim L. Horner 3435 Susquehanna Trail York, PA .17402 Re: 87 -037 -C Dear Mr. Horner: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 568 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, a Manchester Township Supervisor, 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 a Manchester Township Supervisor from 1972 to the present date. 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 townshjp 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 following 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. Mr. Tim L. {-iorner Page 2 a. You were paid $90.00 rer day for four days attendance plus $12.00 for roundt ri p mileage for your car from York, Pennsyl vani z to Hershey, Pennsylvania. This was comprised of. 60 riles travelee at $.20 per mile. The total expense was indicated as $372.00,. U. The township is:,ucd check number 8568 to you on April 28, 1986 in the amount of $372.00. c. Township records disclosed that no listing of actual expenses incurred at the convention was ever submitted by you. 4. Minutes of the township supervisors' meeting of May 13, 1986 reflect an :4pproval to pay the voucher you submitted for attendance at the Pennsylvania State Association of Township Supervisors convention of 1986 was vrt of the business conducted. a. Township Supervisor Grim made a motion and Supervisor Post seconded this motion to approve such payment. The motion carried with three affirmative 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 stated that you were not employed during April 1986. a. Therefore, during the three weekdays of the convention you received only social security payments. b. You stated that you attended ali sessions at the convention, because of your desire to learn all that you could about township business. 7 On April 16, 1987, you voluntarily presented a check to Manchester Township in the amount of $310.00, 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 $50.00 and the mileage to and from Hershey in the amount of $12.00. 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. Mr. Tim L. Horner Page 3 d. You stated that you accepted the $90.00 per day for attending the convention because you believed you were entitled to it. 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 Statc- 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. Tim L, Horner Page 4 Our position in relations to this analysis v:as reaffirmed in Hawkins, 368. Li Hawkins, this Commission determined that a. county sheriff had violated "ection 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 did 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 l aw . 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 dais including the time employed in traveling thereto and therefrom together with mileage going to and returning from such meeting. 53 P.S. §65612. Mr. Tim L. Horner 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 lodgi=ng costs. As such, your actions 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 finanndial gain that you received in the instant situation equals $310.00. "Mr. Tim L. Horner Page 6 Upon notification of the instant allegation, you made payment to Kc nchester Township in the amount of $310.00 as reimbursement for the excess expense money that you received. Based upon this, we believe that no further action 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 expehse 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 $310.00, 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 rnd 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 v:,0 violates the confidentiality of a Commission proceeding is -ui ity of a mi sdcmeanor and shall be fined not more than $1,000 or imprisrned for not mure than one year or both, see 65 P.S. 409(e). By the Commission, 45( ,efittufr G. Sieber Pancoast Chairman •