HomeMy WebLinkAbout592 BorlandMr. William Borland
9905 Old Ridge Road
Girard, PA 16417
Re: 85 -126 -C
Dear Mr. Borland:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 592
DATE DECIDED: August 31, 1987
DATE MAILED: September 8, 1987
The Ethics Commission has received the allegation(s) that you have
violated the Ethics Act, Act 170 of 1978. The nature of the alleged
violation(s) is as follows:
I. Allegation: That you, a Girard 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 obtained through that office to
secure financial gain, when you were compensated in 1982, 1983, 1984 and 1985
for attending outside meetings other than those at the township board of
supervisors.
A. Findings:
1. You have served as a Girard Township Supervisor since January,
1982, and, as such, you are subject to the provisions of the Ethics Act..
2. Minutes of the Reorganization Meetings of Girard Township Supervisors from
1982 to present disclose that you were appointed roadmaster each year.
3. Minutes of the Girard Township Auditors for the years 1980 through 1987
disclosed the following regarding compensation for township supervisors:
a. January 8, 1980: Part -time supervisor salary set at $5.75 /hour.
$350.00 annual salary set for supervisors attending
outside meetings. Payment to be a non - taxable
reimbursement for traveling expenses. Conventions,
schools, and supervisor meetings shall be paid by
state mandate.
Mr. William Borland
Page 2
b. January 6, 1981: Roadmaster salary set at $7.00 /hour; part -time
supervisor wage set at $6.25 hour.
$350.00 annual pay set for supervisors attending
outside meetings.
c. January 5, 1982: Roadmaster salary set at $13,000.00 /year.
Part -time supervisor wage set at $6.50 /hour.
$400.00 annual pay set for supervisors attending
outside meetings.
d. January 18, 1982: Auditors passed motion that the supervisor keep a
written record of all meetings attended and
location of meetings.
Full -time qualified roadmaster salary,set at
$16,965.00.
e. January 14, 1983: Roadmaster pay set at $17,737.20/year.
Part -time supervisor wage set at $6.80 /hour.
Auditors recommend use of PennDot form MS907 by all
supervisors to substantiate their pay.
Outside meeting pay for supervisors set at the same .
hourly rate as part -time supervisors plus
$.17 /mile. Auditors motion that the supervisors
appoint one person as the delegate and submit a
voucher listing the name, nature of the meeting and
location monthly to the township secretary/
treasurer.
Insurance_ benefits:
Ray Sanders: Life - $21.45 /quarter.
Hospitalization $319.27 /quarter.
Daniel Douglass: Life - $21.45 /quarter
Hospitalization $306.56 /quarter.
William Borland: Life - $21.45/quarter
Hospitalization $426.55 /quarter.
Pension - $500.00 /year.
f. January 4, 1984: Roadmaster pay set at $362.00 /week.
Outside meeting pay set at $7.20 /hour plus
$.20 /mile for use of personal vehicle.
Mr. William Borland
Page 3
Insurance benefits:
Borland - Hospitalization - $498.14 /quarter
Life - $21.45 /quarter
Pension - $500.00 /year.
Sanders - Hospitalization - $473.24 /quarter
Life - $21.45 /quarter
Douglas - Hospitalization - $363.07 /quarter
Life - $21.45 /quarter.
g. January 8, 1985: Roadmaster pay set at $375.00 /week.
Supervisors working part -time - $7.45 /hour.
Outside meeting pay for supervisors designated as
the township representative set at $7.45 /hour plus
$.20 /mile for use of personal vehicle.
Insurance Benefits:
Borland - Hospitalization - $498.14/quarter-
Life - $21.45 /quarter
Pension - $500.00 /year
Sanders - Hospitalization - $473.24 /quarter
Life - $21.45 /quarter
Douglas - Hospitalization - $363.07 /quarter
Life - $21.45 /quarter
h. January 8, 1986: Roadmaster pay and benefits to remain the same as
1985.
No hospitalization or life insurance approved
for non - working supervisors (Douglas, Sanders) per
recommendation of Solicitor Schroeck by letter
dated September 18, 1985.
Supervisors to be reimbursed $.20 /mile for use of
personal vehicle while on township business.
i. January 6, 1987: Roadmaster pay set at $390.00 /week, plus overtime
for overtime over 40 hours. Life insurance and
hospitalization to terminate when full -time
employment ceases pension plan disapproved. Pay for
supervisor working part -time approved at
$7.00 /hour.
Mr. William Borland
Page 4
4. Township payroll records disclose that you were paid the following
amounts for outside meeting pay:
a. 1982: $400.00
Check #4025 - $200.00 semi - annual pay
No record of other $200.00 being paid to you.
b. 1983:
April 22, 1983, Check #4207 - $54.40, net $49.02
3 meetings, 8 hours:
3 -6 -83 - Planners 2 1/2 hours.
3 -15 -83 - Futures Committee - 3 hours.
3 -20 -83 - Planners - 2 1/2 hours.
May 20, 1983, Check #4235 - $142.80, net $122.66.
5 meetings, 21 hours:
4 -4 -83 - Planners
4 -13 -83 - N. West Sewer
4 -26 -83 - Futures Committee
4 -27 -83 - N. West Sewer -
4 -30 -83 - Planners Meet & School
3 hours.
3 hours.
2 1/2 hours.
2 1/2 hours
- 10 hours.
June 17, 1983, Check #4272 - $54.40, net $49.02
2 meetings, 8 hours:
5 -26 -83 - Exeuctive Meeting Anity Township - 5 hours.
6 -9 -83 - Erie County Planning Committee - 3 hours.
October 21, 1983, check #4401, $52.70, net $47.16.
2 meetings, 6 hours, 45 miles at .17 miles:
10 -13 -83 - Testify Leg. Com. Landfill - 3 hours.
10 -13 -83 - Erie County Planning Committee - 3 hours.
mileage 7.65
4 -4 -83 - Planners - 3 hours.
4 -13 -83 - N. West Sewer - 3 hours.
4 -26 -83 - Futures Committee - 2 1/2 hours.
4 -27 -83 - N. West Sewer - 2 1/2 hours
4 -30 -83 - Planners Meet & School - 10 hours.
December 16, 1983, check #4450 - $54.40, net $49.02.
Mr. William Borland
Page 5
3 meetings, 8 hours.
c. 1984:
10 -13 -83 - Leg. Com. Re: Landfill - 3 hours.
10 -13 -83 - Erie County Planning Committee - 3 hours.
. 10 -27 -83 - Park Committee - 2 hours
September 21, 1984, check #4738, $280.00, net $238.32 (includes
$75.00 for regular meeting pay).
7 meetings, 17 hours, 40 miles at .20 miles ($8.00)
9 -5 -84 - Park Committee - 2 1/2 hours
9 -4 -84 - Park Committee - 3 hours
9 -12 -84 - Park Committee - 2 1/2 hours .
9 -11 -84 - Penelec Adv. Committee - 1 1/2 hours
9 -12 -84 - Penelec Adv. Committee - 1 1/2 hours
9 -13 -84 - Park Committee - 2 1/2 hours
9 -25 -84 - Erie County Planning Committee - 3 hours (40 miles)
9 -5 -84 - Park Committee - 3 hours
December 28, 1984, check #4837 - $21.60, net $17.26.
1 meeting 13 hours
12 -18 -84 - Solid Waste Management, Erie County - 3 hours.
d. 1985:
March 22, 1985, check #4924.- $48.43 (for 2 meetings) total check
$223.43 included 7 regular meetings.
2 meetings, 6 1/2 hours:
12- 18 -84 - - Solid Waste Management - 3 hours.
1 -30 -84 - Solid Waste Management - 3 1/2 hours.
June 28, 1985, check, #5029 - $134.11 gross, (6 meetings). "Total
check $259.11 includes 5 regular meetings.
6 meetings, 18 hours:
2 -14 -85 - Erie County Planning Committee - 2 1/2 hours.
3 -27 -85 - Solid Waste Management - 3 1/2 hours.
4 -3 -85 - Park Committee - 3 hours.
4 -17 -85 - Park Committee - 3 hours.
4 -24 -85 - Park Committee - 3 hours.
5 -16 -85 - Park Committee - 3 hours.
Mr. William Borland
Page 6
5. Outside meeting pay was overpaid for three dates which were duplicated on
a second check:
a. October 13, 1983 - Legislative Erie Courthouse, 3 hours was paid to
you on October 21, 1983, check #4401 and on December 16, 1983, check
#4450.
b. October 13, 1983 - Erie County Planners 3 hours was paid to you on
october 21, 1983, check #4401 and on December 16, 1983, check #4450.
c. December 18, 1984 - Solid Waste Attendance, 3 hours was paid to you
on December 28, 1984, check $4837 and on March 22, 1985, check
#4924.
6. You provided the following information to a State Ethics Commission
i nvestigator:
a. You were elected supervisor in 1982 and became roadmaster at that
time.
b. You were given a lot of responsibilities by the supervisors, and at
that time, compensation was given to supervisors serving on
committees. You were not aware there was compensation related to the
additional duties that you were given when elected.
c. The auditors authorized attending meetings that pertain to township
business but were not regular supervisors' meetings.
d. There were times when there were two separate meetings on the same
day at the township building within minutes of each other..
Supervisors attending would collect pay for both.
e. You were a member of the Executive Board of Township Supervisors and
Girard Township Planning Committee. You also appeared to testify
about a hazardous waste dump, as instructed by the Board of
Supervi sors.
f. You did not question the pay since it was handled by the auditors.
You have not collected outside meeting pay in some time. You could
not remember when you found out that was it disallowed.
h. You did not use your office for financial gain and do not believe
that any financial gain was realized by you in any years you received
the outside meeting pay.
g •
Mr. William Borland
Page 7
B. Discussion: Township supervisors in townships of the second class are
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 superviors 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 Pennsylvania. 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 ordinance not in excess of the
following:
Township Population
Not more than $,9999
5,000 to 9,999
10,000 to 14,999
15,000 to 24,000
25,000 to 34,999
Annual Maximum Compensation
Fifteen hundred dollars
Two thousand dollars
Twenty -six hundred dollars
Thirty -three hundred dollars
Thirty -five hundred dollars
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,
Mr. William Borland
Page 8
per day, per week, semi - monthly or monthly, which
compensation for the use of a passenger car, or a two
axled four - wheeled motor truck having a chassis 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 a stock pile, as the auditors
shall determine and approve; 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 $50 per meeting).
In reference to the meetings for which supervisors may receive
compensation, the code, as applied for the time period in question further
provided 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 necessary, in which
case, the number of meetings for which the supervisors may
be paid may be increased to any number, not exceeding
fifty meetings in any year which shall include hearings of
a judicial or quasi - judicial nature. Two members shall
constitute a quorum. Except as otherwise provided in this
act, an affirmative vote of a majority of the entire board
of supervisors shall be necessary in order to transact any
business. Necessary expenses incurred in such meetings,
including office rent, stationery, light and fuel, shall
be paid out of the general township fund. 53 P.S. §65512.
(The above provision was amended in 1985)
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 meetings for which a
township supervisor may be compensated must be one at which official township
business is transacted. Additionally, the township code provides for
Mr. William Borland
Page 9
compensation at the specific meetings outlined in §65512, above. The code
does not appear to permit the compensation of a townshp supervisor for
attending other types of meetings or for performing the administrative
functions of his office. Any other compensation must be earned in and as part
of the services performed while serving in one of the statutory authorized
positions. 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. 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; §65410. 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 & D 3d 253, (Berks 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
specifically set forth by the township board of auditors. This Commission's
review of this matter indicated that the "outside meetings" for which you were
compensated were not related to the roadmaster position but were related to
the office supervisor.- See Sanders, No. 572.
You, thus, received compensation that was not part of that provided for
by law.
With relation to the fact that the auditors approved this compensation,
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
code. Nanovic, 85 -005. Thus, even though the auditors may have indicated an
approval for the "outside meetings" 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).
M. William Borland
Page 10
As a result, this Commission finds that you received compensation in the
form of "outside meeting" pay that was not in accordance with that set forth
by law. Generally, the State Ethics Act privides 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).
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 violatios 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
Ethics Commission, supra; 65 P.S. Section 407(9)(ii). In the instant
situation, upon a review of all of the facts, the latter course may be
appropriate. Thus, if the financial gain obtained in 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, this Commission's
calculations indicate that you received financial gain in the form of "outside
meeting" pay as follows:
Year Amount
1. 1982 $400.00
2. 1983 $316.88
3. 1984 $180.58
4. 1985 $182.54
This Commission's calculations indicates that you, thus, received
$1,080.00 in financial gain that was not part of the compensation authorized
by law. The aforesaid amount plus 10% equals $1,118.00. Upon return of this
financial gain to Girard Township, no further action will be taken in this
matter and the files will be closed.
Mr. William Borland
Page 11
C. Conclusion and Order: As a township supervisor in a township of the
second class, you are a public official and subject to the provisions of the
State Ethics Act.
Your receipt of "outside meeting pay" in and through that position was a
violation of the State Ethics Act. As such, you used your public office to
receive a financial gain other than the compensation provided by law.
The amount of gain received total $1,118.00.
You are hereby ordered to remit to the State Ethics Commission, within
thirty (30) days of the date of this order, the amount of $1,118.00 made
payable to Girard 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
crimi 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,
G. Sieber Pancoast
Chairman