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HomeMy WebLinkAbout607 VachonMr. Donald W. Vachon 188A Hershey Road Hummelstown, PA 17036 Re: 87 -094 -C Dear Mr. Vachon: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 607 DATE DECIDED: October 14, 1987 DATE MAILED: October 20, 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: I. Allegation: That you, a South Hanover 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, in that you received expense reimbursement for attending a convention of the Pennsylvania State Association of Township Supervisors in Pittsburgh, Pennsylvania, in April, 1987, in excess of expenses actually incurred by you. A. Findings: 1. You have served as a South Hanover Township Supervisor from 1976 to the present date. a. You are, therefore, subject to the provisions of the State Ethics Act. 2. Records of the South Hanover 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. Mr. Donald W. Vachon Page 2 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 12, 1987 to April 15, 1987 at Pittsburgh, Pennsylvania. a. You were paid $90.00 per day for four days attendance less a $43.00 deduction which was indicated as being a "room deduction." You received a round trip mileage expense for travel from South Hanover Township to Pittsburgh, Pennsylvania, of $82.00. This was comprised of 410 miles at $.20 per mile. The total expense was indicated as $399.00. b. The township issued check number 4019 to you on April 28, 1987 in the amount of $399.00. c. Township records disclosed that no listing of actual expenses incurred at the convention was ever submitted by you. d. The township directly paid a convention registration fee of $50.00 for you. 4. Minutes of the township supervisor's meeting of April 28, 1987 reflect an approval to pay the voucher you submitted for attendance at the Pennsylvania State Association of Township Supervisors convention of 1987 was part of the business conducted. a. On motion of Supervisors Mumnagh and Carney, such payment was approved by a unanimous vote. 5. In a letter to the State Ethics Commission dated July 9, 1987, you stated as follows: a. That the expenses allowed the delegates may be in an amount not exceeding $90.00 per day for each delegate for not more than four days including the time employed in traveling there to and there from, together with mileage going to and returning from such meeting. (53 P.S. 65612). b. That the law does not specifically give a definition of type of expenses. You, therefore, assumed that all reasonable and related expenses incurred during the attendance that involved discussion of townships convention business is an acceptable expense. You believed that the necessity of receipts for said expenses is not required. c. That the $90.00 per day amount you received was exceeded by expenses you paid for motel lodging, meals, transportation and municipal related seminars. Mr. Donald W. Vachon Page 3 6. You stated that you are self-employed as a barber and are paid only after providing such services. a. Therefore, you earned no income from your profession on the Tuesday and Wednesday workdays you attended the convention. You advised that Sundays and Mondays are normally your days off. b. You stated that you attended all sessions of your group at the convention. c. You advised that you shared a motel room with another township . supervisor while at the convention. The daily cost for the room was $86.00 and you paid $43.00 of this amount. d. You stated that you traveled to and from the convention in the vehicle of this other township supervisor. e. You received compensation of $82.00 for round trip mileage to the convention even though you traveled in the other supervisor's vehicle and he properly was reimbursed an identical amount. f. You stated your willingness to pay back, to the township, any compensation you are not entitled to. 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. 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 Mr. Donald W. Vachon Page 4 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. This Commission's position in relation to this 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, this Commission 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. The 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, compensation in the form of expense allowances permitted by the Second Class Township Code, must be reivewed. Based upon a determination as to what compensation is permitted, this Commission 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: Mr. Donald W. Vachon Page 5 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. This provision of law is virtually identical to the one that was reviewed in a 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. Although there is insufficient evidence to establish that your actual expenses did not exceed $317.00 ($360 - $43), the claimed mileage expense of $82.00 is not allowable because you traveled to the convention in one of the other supervisor's vehicles. As such, your actions of claiming mileage expense of $82.00 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 Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). Mr. Donald W. Vachon Page 6 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 ci rmi nal action. The financial gain that you received in the instant situation equals $82.00. We also must note that there is no justification whatsoever or reasonable excuse for you requesting and receiving the $82.00 travel expense reimbursement. You clearly did not incur such an expense and, as such, you clearly intended to secure a financial gain for your personal benefit. As such, we believe that the treble damages provisions of the State Ethics Act are appropriate. You must, therefore, forward payment in the amount of $246.00 payable to the Commonwealth of Pennsylvania within thirty (30) days of the date of this order. C. Conclusion and Order: 1. As a Township Supervisor for South Hanover, you are a public official subject to the provisions of the State Ethics Act. 2. There is insufficient evidence to establish that you violated Section 3(a) of the Ethics Act as to actual expenses incurred by you in attending a township supervisors convention. 3. You violated Section 3(a) of the Ethics Act by receiving mileage expenses for attending a supervisors convention which was compensation other than provided for by law, as you did not incur such expenses. 4. You are directed to make payment three times that gain within thirty (30) days by forwarding a check to the State Ethics Commission in the amount of $246.00 which is payable to the order of the Commonwealth of Pennsylvania. 5. Failure to remit the above amount in thirty (30) days will result in the referral of this matter to the appropriate law enforcement authority for civil or criminal action. Mr. Donald W. Vachon Page 7 • 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 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, irrAdrCA. X41/" t G. Sieber Pancoast Chairman