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HomeMy WebLinkAbout605 ClapperMr. David Clapper R.D. #1, Box 327 Bedford, PA 15522 Re: 84- 179 -C, 85 -104 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 605 DATE DECIDED: October 14, 1987 DATE MAILED: October 20, 1987 Dear Mr. Clapper: 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: I. Alle ation: That you, a Supervisor of Bedford Township, are in violation of Section 3 a) of the Ethics Act which prohibits a public official's use of public office or confidential information gained through that office for personal gain because you are being paid by the Township for more hours than you are actually working. II. That you, a Supervisor of Bedford Township, are in violation of Section 3(a) of the Ethics Act which prohibits a public official's use of public office or confidential information gained through that office for personal gain by having the township pay for your insurance even though you do not work the hours required by the insurance plan. A. Findings: 1. You served as a Township Supervisor in Bedford Township, Bedford County, Pennsylvania: a. You have served in this position from May 1984 until December 1985. b. You also served as Chairman of the Township Board of Supervisors. 2. Minutes of the Township Board of Supervisors meetings indicate as fol lows: Mr. David Clapper Page 2 a. May 1, 1984 - You were present as a newly appointed supervisor. (1) The board accepted the resignation of Supervisor Howard -- Reppert. (ii) A motion was made by Supervisor Defibaugh, second by Supervisor Fetter to appoint you as a supervisor. (iii) A motion was made by Supervisor Defibaugh, second by Supervisor Fetter to appoint you as Chairman of the Board. (iv) A motion was made by Supervisor Defibaugh, second by Supervisor Fetter to appoint you as a working employee. (v) A motion was made by Supervisor Defibaugh, second by Supervisor Fetter to hire you as Building Permit Officer. 3. The township "Foreman's Daily Time Reports" for work performed by you indicates as follows: DATE ASSIGNMENT HOURS August 9, 1984 Worked on Road #470 8 August 10, 1984 Blacktop Road #507 8 October 5, 1984 Went to Somerset, Ebensburg 8 and Claysburg. Covered up fuel ditch. October 9, 1984 Install 90 new pipes and 3 one culvert with grate. October 10, 1984 Type of work not indicated. 3 October 11, 1984 Type of work not indicated. 3 October 15, 1984 New grate on Road #469. 4 October 16, 1984 Type of work not indicted. 4 November 1, 1984 21 loads -Ridge gas- Moorhead 6 #888 November 5, 1984 Type of work not indicated. 4 Mr. David Clapper Page 3 DATE December 6, 1984 December 7, 1984 December 10, 1984 December 14, 1984 December 18, 1984 December 19, 1984 December 20, 1984 December 21, 1984 November 7, 1984 November 8, 1984 November 9, 1984 November 13, 1984 November 14, 1984 November 15, 1984 November 16, 1984 ASSIGNMENT Type of work not indicated . December 11, 1984 Work on mill road. December 12, 1984 Clean up brush. i ndi cated . December 13, 1984 Clean grate or fix machinery. .Inspect roads next to Pete Deckers. Work on budget. Other duties - 05109 Other duties - 05109 Met with Bedford sewer and 8 water Committee. Worked on budget. Worked on budget. Worked on budget. Worked on budget. Ash and plow ice 9 condi tions. Repair truck chain 8 Clean truck & cut ma cad em . Cut brush on Road #482. Reline brakes. Went for parts. REG. HOURS 3 8 8 5 8 6 4 6 5 8 8 8 OVERTIME HOURS 6 No work hours were indicated. No work hours were indicated. 8 Mr. David Clapper Page 4 December 26, 1984 Helped Rick reline 7 brakes on 1976 Chevrolet. December 27', 1984 Helped with guard rail 8 on road #721. December 28, 1984 Help with title. 8 December 31, 1984 Work in shop. Clean 8 up garage. Total 192 6 4. Township bi- weekly or semi - monthly payroll reports indicate that you received compensation from the township as follows in 1984: DATE GROSS PAY a. April 22, through May 5, 1984 $ 189.00 May 6, through May 19, 1984 516.25 May 20, through June 2, 1984 607.25 June 3, through June 16, 1984 589.75 June 17, through June 30, 1984 598.50 July 1, through July 14, 1984 518.00 July 15, through July 28, 1984 635.25 July 29, through August 11, 1984 582.75 August 12, through August 25, 1984 570.50 August 26, through September 8, 1984 581.00 September 9, through September 22, 1984 560.00 September 23, through October 6, 1984 587.00 October 7, through October 20, 1984 525.00 October 21, through November 3, 1984 560.00 November 4, through November 17, 1984 577.50 x;197.75 b. You signed these reports as a township supervisor. 5. You provided information from your 1984 work log as follows: a. November 5, 1984 - Work on salt spreader, set up drill press, go for parts. Agenda for meeting, review bills to be paid with Russ and Harold. Clear meeting room, take out chairs, bring in tables for election. 9 Hours. Mr. David Clapper Page 5 b. November 7, 1984 - Bedford Post Office, County Commissioners office to see Jay Cessna regarding liquid fuels funds. Budget work. c. November 8, 1984 - Messiah Church Road to clear brush, post office, shed, meeting re: sewer system, to Bedford to Logues office and County Commissioners office. 8 Hours. d. November 9, 1984 - Help cut brush Messiah Church Road, took Dean to hospital for hurt eardrum. 5 Hours. Afternoon work on budget with Harold and Russ, Bedford errands. 9 Hours. e. November 13, 1984 - 10:00 a.m. meeting, Commissionrs Office. Shed after going to Bedford. Budget discussion with Russ and Harold. Lunch meeting with sewer authority to hear financial status from J B & T Trust officer. Bedford Post Office errands. Budget discussions. 8 Hours. f. November 14, 1984 - Work on budget - home office. 11:30 -6 :00 office, answered calls for township, gathered information for budget. 7:00 meeting in court house on new building. Actually worked 11 Hours, 8 hours changed. g. November 15, 1984 - Budget - home office. 10:00 a.m. shed - helped Rick with pick up under spreader. Eds Steak House to Airport Authority, Bedford Post Office. PennDot - problem at Summerfield Avenue. Budget work. 9:00 to 1:00 a.m. worked at home. 8 hours changed, 14 hours total time. h. November 16, 1984 - Worked on budget. Bedford County Courthouse, Commissioners Office. Shed - post office. Worked on budget at shed to Bedford unemployment office. Re: Dave and Randy, 7:00 - 12:00 5 hours worked on budget. 8 Hours charged. 6. There are no daily time reports indicating that you performed any services in April, May, June, July and September, although you were compensated for working during that time. Mr. David Clapper Page 6 a. While there are Foreman's Daily Time Sheets for the above periods, these sheets do not contain any reference to hours worked by you. 7. When you first began your employment with the township, you informally would advise the township secretary of the hours worked and she would calculate your compenstion accordingly. a. You did not fill out official time reports during that period. b. There is no record of your hours of service or the projects on which you worked. 8. The time sheets for you indicate chat you worked on the township budget and charged the township for such work. a. You claimed 28 hours for working on the budget. b. You received $196.00, compensation as a result thereof. c. This is normally a function that is part of the mandated duties of a tsownship supervisor. 9. Building permit records reflect that you were Building Permit Officer from may 1984 to February 1985. a. The township supervisor you replaced previously held this position. b. Neither he nor you received any specific compensation for performing the duties of Building Permit Officer. 10. Roadmaster Harold Defibaugh advised that during the period May 1984 through November 1984, he did not supervise your work or exercise control over your time on the township payroll. a. Defibaugh related that your predecessor Howard Reppert was not supervised by him nor did he control Reppert's time worked for the township. b. Defibaugh advised that during May 1984 to November 1984, you reported the hours you worked for the township to the former secretary /treasurer. c. He believed that you worked the amount of hours you reported. d. Defibaugh stated that he should have checked the hours worked by you but he did not because of the precedent set in handling Mr. Reppert's hours. Mr. David Clapper Page 7 e. Defibaugh emphasized that both you and Reppert served as Chairman of the Board of Supervisors. 11. You provided the following information in relation to the instant investigation: a. You were appointed to replace Township Supervisor Howard Reppert in May 1984 and assumed the duties previously performed by him. b. You stated that you completed all administrative work, including the township budget, previously completed by Mr. Reppert. c. You also performed road work, road and tar inspections, searched for office equipment, studied township codes, researched solutions to a drainage problem, sought grants, planning duties and worked on the development of community grants. d. You denied that the township paid you for more hours than you were actually working. e. You related that during May 1984 to November 1984, you reported the hours you worked to former Secretary /Treasurer Barbara Casteel. This was described by you as a hostile relationship because of Casteel 's loyalty to your predecessor. f. You stated that the township auditors complained about how you were reporting your hours worked and a change was made in January 1985, which directed Road master Defibaugh to supervise your work. B. Discussion: As a Township Supervisor in Bedford Township, you are a public official as that term is defined under the Ethics Act. Accordingly, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a gain other than compensation provided for by law. Mr. David Clapper Page 8 The compensation which is allowed for a supervisor is strictly regulated by statutory and decisional law. See the discussion under Allegation III infra. Initially, as to the question of whether you were paid for hours that you die not work or that you did not work the requisite number of hours as required by the insurance plan, this Commission must find, based upon the information that has been obtained, that there is insufficient evidence to factually determine that a violation of Section 3(a) occurred relative to these allegations. However, this Commission must note that the Foreman's Daily Time Reports reflect that you did do certain work on the budget and received compensation for that amount of time. As per the following discussion under Allegation III, it is clear that any payment for budget work is not authorized compensation because that work is part of your duties as supervisor; consequently, such gain is not compensation provided for by law. Since you have received $196.00 for this budget work, you are not entitled to this amount because it is not compensation provided for by law. Accordingly, you have violated Section 3(a) of the Ethics Act by receiving $196.00 which represents payment for budget work which was part of your existing compensated duties as a township supervisor. However, there is insufficient evidence to establish that you violated Section 3(a) of the Ethics Act regarding the allegations that you were being paid for more hours than you actually worked or that you received insurance coverage at township expense without working the requisite number of hours. III. Allegation: That you, a Supervisor in Bedford Township, violated Section 3(a) of the Ethics Act, 65 P.S. §403(a), which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain other than compensation allowed by law because you continued to have the township pay the total cost of your participation in Blue Cross and Blue Shield, and Eye Glass and Prescription Drug coverage despite an auditor's motion on January 8, 1985, that working supervisors were required to pay 25% of the cost of the program. A. Findings: 12. Finding #1 is incorporated herein by reference. 13. Township minutes of the supervisors' meeting of January 5, 1982, reflect that the annual meeting.of the township auditors was on this agenda. Minutes indicated that 100% of the cost of Blue Cross /Blue Shield coverage was approved as a fringe benefit for calendar year 1982 by the township auditors. a. There was no indication that working township supervisors were required to pay 25% of the cost of Blue Cress /Blue Shield coverage. Mr. David Clapper Page 9 b. There is no township resolution or ordinance confirming approval of this coverage. 14. Minutes of the township auditors' meeting of January 8, 1985, reflect that the auditors' approved a motion to have the township pay 75% of the Blue Cross /Blue Shield premiums for the working township supervisors. This approval was for calendar year 1985. 15. Review of Blue Cross /Blue Shield invoices for the period January 1985 to December 1985 at the township office disclosed the following payments for your medical insurance during 1985: CHECK NO. MONTH AMOUNT 2327 January $ 180.03 2396 February 180.03 2441 March 180.03 2514 April 180.03 2630 May 180.03 Not indicated June 180.03 2751 July 180.03 2868 August 180.03 2932 September 180.03 3009 October 180.03 3089 November 180.03 3163 December 180.03 Total $2,160.36 25% of Total $ 540.09 16. Two former township auditors advised that they initiated suit in the Bedford County Court of Common Pleas to force township supervisors, who accepted 100% of medical insurance coverage during 1985, to reimburse the township for 25% of this cost. a. None of the affected township supervisors have voluntarily reimbursed the township for the contested 25% of 1985 medical insurance costs. 17. You provided the following information in relation to the instant situation: a. You stated that during calendar year 1984, the township auditors had approved payment for 100% of your Blue Cross /Blue Shield coverage. b. You advised that in January 1985, the township auditors changed their stance and voted to have working township supervisors pay 25% of the cost of their medical insurance. Mr. David Clapper Page 10 c. In January 1986, two newly elected and one returning auditor voted to approve a return to the township paying 100% of medical coverage for working township supervi sors. d. You related that an appal of the 1985 township audit, by two former auditors, was pending in Bedford County Court. e. You stated that five township laborers received the benefit of having 100% of their medical insurance paid for by the township and also have a pension as part of their benefits. In comparison, working township supervisors are being told they must be satisfied with a township payment of 75% of their coverage during calendar year 1985. f. You advised that Mariam Naylor, an employee of the Association of Township Supervisor, told you not to pay 25% of your township medical cost because this would be discrimination. g. You did not pay 25% of the cost of your 1985 medical insurance plan. B. Discussion: As previously noted, you are a public official subject to the provisions of the State Ethics Act. Under Section 3(a) of the Ethics Act, 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 superintendent, secretary /treasurer, roadmaster or laborer 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, 93 Pa. Commw. 168, 500 A.2d 1282, (1985); In re: Appeal of the Auditors Report of Muncy Creek Township, Pa. COMM. Ct. , 520 A.2d 1241, (1987); Hunt, No. 348 -R. The foregoing principle was recently reaffirmed by Pennsylvania Commonwealth Court in Yocabet v. State Ethics Commission, Pa. Commw. A.2d (1987) filed at 834 C.D. 1986 on September o, 1987. In the cited case, the Court held inter alia that a township supervisor violated Section 3(a) of the Ethics Act when he received a salary for the position of secretary /treasurer which had not been set by the auditors. The Court, in affirming the Order of the Ethics Commission which required a restitution of the financial gain, noted on page 5 of its Opinion: Section .7 pf the Ethics Act instructs the Commission to investigate situations where there is a reasonable belief that financial conflict may exist, and if conflict is found, to require the offender to remove himself from the conflict without gain. Mr. David Clapper Page 11 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, 27 D & 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. Commw. 1, 407 A.2d 906, (1979). In the instant situation, while you were a working employee and, therefore, eligible to receive the benefits in question, there would have to be the requisite approval by the township board of auditors for this to be considered part of your authorized compensation. See McCutcheon v. State Ethics Commission, supra. The facts in this case establish that the auditors, for the 1985 calendar year, only approved coverage for working supervisors to the extent that the township would pay 75% of the premiums for the prescription drug, eye glass coverage and Blue Cross and Blue Shield. Your assertion that the auditors may have approved in the prior year and subsequent year a 100% contribution by the township is unavailing since it is clear that the auditors approved only a 75% contribution for 1985. In this regard, it is noted that two former auditors have filed suit against the township supervisors for reimbursement of 25% of the township contribution for the 1985 calendar year. It also should be noted that even if these benefits had been received in good faith, such would not be controlling. Good faith receipt of such benefits, even when based upon a solicitor's advice, w i l l not alleviate the necessity of a public 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, supra; Kestler Appeal, 66 Pa. Commw. 1, 444 A.2d 761, (1982). As a result, this Commission believes 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 the State Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). Mr. David Clapper Page 12 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, supra; the Commission may order restitution of financial gains received in violation of the law. In view of all of the circumstances set forth above, you did receive a financial gain in violation of the Act, totaling $540.09, and that sum must be returned to the governmental body from which it was received. C. Conclusion and Order: 1. As a Township Supervisor in Bedford Township, you are a "public official" subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act by receiving $196.00 for budget work which was not compensation provided for by law because that work is part of your official duties as township supervisor. 3. There is insufficient evidence to establish that you violated Section 3(a) of the Ethics Act regarding being paid for more hours than you worked or regarding working an insufficient number of hours as required by the insurance plan. 4. You violated Section 3(a) of the Ethics Act by receiving, at the township's expense, 25% of the cost of the prescription drug and eye glass coverage and Blue Cross and Blue Shield insurance premiums which gain amounts to $540.09. 5. You are hereby directed to remit to the State Ethics Commission, a check in the amount of $736.09 payable to Bedford Township within thirty (30) days of the date of this order. 6. The failure to remit the check in the amount of $736.09, to this Commission, within thirty (30) days of this order, will result in this Commission's referral of this matter to the appropriate law enforcement authority. Our files in this case wiil 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. Mr. David Clapper Page 13 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 Chai rman Mr. David R. Clapper R.D. 1, Box 327 Bedford, PA 15522 Re: Order No. 605, File No. 84 -179 -C 85 -104 -C JJC /na cc: Public Binder STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 November 17, 1987 Dear Mr. Clapper: On November 17, 1987, the State Ethics Commission received your payment for reimbursing Bedford Township as required by Order No. 605. We have forwarded your check No. 125 dated November 13, 1987, in the amount of $736.09 to Bedford Township. This letter will be made part of the Order and a public record as such. S i n nti Exec - ve Director