HomeMy WebLinkAbout609 TantlingerMr. Irvin W. Tantlinger
c/o Murray I. Horewitz, Esquire
C.R.H. Building
1600 Morrell Avenue -Box C
Connellsville, PA 15425
Re: 85 -156 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
Order No. 609
DATE DECIDED: October 14, 1987
DATE MAILED: October 20, 1987
Dear Mr. Tantlinger:
The 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 in Fairfield Township
Section 3 a of the Ethics Act which prohibits a public employee's l or ep public
official's use of office or confidential information gained through that
office to obtain financial gain, when you were paid for services in relation
to budget preparation when you were not employed by the township other than as
a supervisor, and which compensation was not fixed by the township board of
auditors.
A. Findings:
1. You serve as a supervisor of Fairfield Township, Westmoreland County,
Pennsylvania.
a. You were appointed on June 6, 1983, to fill a vacancy.
2. All three Fairfield Township Supervisors were appointed roadmasters at
the January, 1984 reorganizational meeting of the supervisors.
3. Hospitalization, disability /accident, and life insurance for township
employees is administered by the Columbia Life Insurance Company, R.D. #5,
Bloomsburg, Pennsylania, 17815.
4. Columbia Life Insurance Company invoices record the following payments by
the township for your hospitalization, disability /accident and life insurance
coverage:
a. 1983 - $1,749.33, for coverage from June through December.
Mr. Irvin W. Tantlinger
Page 2
b. 1984 - $3,515.48, for coverage January through December.
c. 1985 - coverage cancelled in March.
5. You are employed as a full -time teacher for the Eastern Westmoreland
Vocation School and receive full medical benefits as a result of this
position.
6. Minutes of the Fairfield Township Supervisors' meetings indicate:
a. June 6, 1983 - a letter is read from Judge Richard E. McCormick
appointing you as Supervisor.
b. November 14, 1983 - John St. Clair made motion to pay the bills and
you seconded the motion.
c. January 3, 1984 - reorganizational meeting, the supervisors were all
appointed as roadmasters. Supervisors present: Burkett, St. Clair,
and you.
d. January 3, 1984 - regular meeting. The insurance policies were
discussed. Decision to be given on January 6, 1984, during a
continuation of the regular meeting. Solicitor Welty gave his
approval for this continuation.
January 6, 1984 - continuation of January 3 meeting. Additional
discussion of the township insurances resulted in Burkett making the
motion to accept PNI Insurance company for 1984, you seconded
the motion to accept the insurance and the vote was unanimous,
e. February 4, 1985 - you stated that you had been receiving
certain insurance benefits since you had been appointed supervisor
because it had been the accepted practice in the past. As of March
1, 1985, you stated that you were stopping the benefits due to
questions raised by the Pennsylvania State Association of Township
Supervisors.
Welty stated that you are entitled to a share of the pension
annuity proportionate to the hours you worked for the township.
f. March 4, 1985 - Solicitor Welty spoke in regard to the surcharge
against you for hospitalization insurances and pension annuity
payments.
Mr. Irvin W. Tantlinger
Page 3
g.
1. The supervisors have the power to purchase insurance for
employees and their families.
2. You were appointed roadmaster and did work as roadmaster in
1984.
3. It is the duties of the auditors to set compensation for the
supervisors, roadmasters and employees which they did in 1984.
4. Since the auditors audited the 1983 books, they were aware of the
benefits you were receiving, they therefore approved the
benefits.
5. A letter from the Pennsylvania Department of Community Affairs
was read to support this conclusion.
6. The total of the surcharge against you for hospitalization
insurances and pension annuities was $3,257.74.
May 6, 1985 - you hired your own attorney for the accusations
made against you by the auditors for the surcharges.
h. July 1, 1985 - The supervisors have no documentation for the time
spent in their homes for the audit.
i. December 2, 1985 - Discussion of resolution #7 to hire a special
counsel, Murray I. Horewitz, nunc pro tunc, with regard to the report
of the auditors of Fairfield Township at No. 2097 of 1985 in Court of
Common Pleas of Westmoreland County.
It was noted in the minutes "Irvin did not participate in voting
on Resolution #7 of 1985.
St. Clair made a motion to accept Resolution #7 of 1985, Burkett
seconded.
7,, Minutes of the Fairfield Township Auditors' meetings show the following:
a. 1982: Wage rate set at $50.40 a day for an eight hour day. Meeting
pay set at $25.00 each.
b. 1983: Supervisors pay raised from $50.40 to $54.40 per day. Meeting
pay remained the same rate of $25.00 each.
Mr. Irvin W. Tantl i nc r
Page 4
c. 1984: All fringe benefits received by the union employees will also
apply to the roadmasters. Sickness and health insurance benefit:, and
pension benefits received during 1983 will be continued at the ?ame
level for 1984.
All fringe benefits received by the union employees will also apply
to the roadmasters.
Sickness and health insurance benefits and pension benefits received
during 1983 will be continued at the same level for 1984.
d. 1985: Supervisor pay raised fifty cents an hour to $7.80 per hour.
Fringe benefits remain the same as contract states for prior years.
Hospitalization remains the same, as do vacations. Holidays to
remain the same as contract states. Road inspections raised to
$62.40 per day.
8. The Fairfield Township auditors surcharged you for the benefits that the
township had paid for in your behalf.
9. A CONSENT DECREE was approved on November 22, 1985, by Judge Charles H.
Loughran which provided as follows: That surcharge No. 2 against Supervisor
Irvin W. Tantlinger has been satisfied in full by the fact that Irvin W.
Tantlinger has caused Life of Maryland to return ONE THOUSAND FIVE HUNDRED
SIXTY -TWO DOLLARS AND SIX CENTS ($1,562.06) from his pension fund account to
the Township of Fairfield and by the fact that he has repaid the sum of ONE
HUNDRED SEVENTY -TWO DOLLARS AND SIXTY -FOUR CENTS ($172.64) for 1984 disability
insurance and SIXTY -ONE DOLLARS AND TWENTY CENTS ($61.20) for 1984 life
insurance to the Township of Fairfield.
a. Township records disclose that $1,562.06 represents payments made on
your behalf to Life of Maryland as follows:
1. May 18, 1984 - $375.00
August 17, 1984 - $375.00
November 23, 1984 - $375.00
$1,125.00
2. An additional $375.00 was paid sometime in 1983 but no records of
payment could be located.
Mr. Irvin W. Tantlinger
Page 5
10. You did repay to Fairfield Township the amounts of $172.64 and $61.20 on
November 22, 1985.
a. Township records indicate that this payment was deposited into - the
Fairfield Township bank account on that date.
b.
The above payments represented the township payment on your behalf
for disability and life insurance.
c. The payment to the township of $1,562 by Life of
a pension program in which you were enrolled.
11. By order of the Court of Common Pleas of Westmoreland
Township paid the attorney fees of your counsel, Murray I.
1984 surcharge action which amounted to $950.00.
12. The township expended a total of $5,264.81 for your hospitalization,
disability and life insurance benefits in 1983 and 1984. (See finding 4).
a. You repaid the township $233.84 for these benefits.
b. The township thus expended $5,030.97 which has not been reimbursed.
c. As a township supervisor, you approved these expenditures.
d. As a township supervisor, you signed several of the checks
representing payments of your insurance and benefits premiums.
13. You were an appointed roadmaster, but due to your full -time employment
a teacher you worked very limited hours for the township.
14. You were not required to repay the township for the hospitalization
benefits provided through Columbia Life Insurance Company due to an agreement
between the attorneys at the time of the surcharge. This was based on the
idea that you could not benefit from this coverage since you were identically
covered in your full -time employment.
15. In 1983, the Fairfield Township weekly, bi- weekly or semi - monthly payroll
show that you were paid for 31 1/4 hours in addition to other means of
compensation provided to a Supervisor in the form of meetings and road
inspections.
Maryland related to
County, Fairfield
Horewitz, in the
16. The pay rate for supervisors in 1983 was established at the F a i r f i e l d
Township auditors reorganizational meeting at $54.40 per day, or $6.80 per
hour.
as
Mr. Irvin W. Tantlinger
Page 6
a. Week of July 16, 1983 - July 29, 1983; 10 1/4 hours; check #7015;
gross $69.70.
b. Week of November 28, 1983 — December 9, 1983; 17 hours; check #7140;
gross - $115.60.
c. Week of December 24, 1983 - December 31, 1983; 4 hours; check #759;
gross - $27.20.
17. According to the Fairfield Township disbursements and expenditure ledgers
for June, September, November and December, 1983, show that the above hours
were charged to department #438 which is work on "maintainence and repairs of
roads and bridges."
18. In a letter which you submitted to the State Ethics Commission, you state
that all work was either actual work on the roads as directed by the other
supervisors or time spent in the township building as directed by the other
supervisors, and that time was completed on township workdays during your time
off from teaching. You submitted with this letter hand sheets of some of the
hours worked in 1983:
a. June 21, 1983 - 2 1/2 hours; meeting with solicitor.
b. June 24, 1983 - 1 hour; planning session.
c. June 28, 1983 - 2 1/2 hours; looked roads with Homer.
d. July 1, 1983 - 1/2 hours; drafted letters.
e. July 12, 1983 - 3/4 hours; Ackney's shell with Spark.
f. July 13, 1983 - 1/2 hours; letter of compliance.
g. July 14, 1983 - 1 1/2 hours; Mosso letter (crime watch).
h. July 26, 1983 - 1 hour; Planning session.
i. December 15, 1983 - 1 hour; township discussion, Burkett and St.
Clai r.
J. •
December 23, 1983 - 3 hours; township discussion, Mosso,
Swartzlander.
This totals 14 1/4 hours.
Mr. Irvin W. Tantlinger
Page 7
19. According to hand written sheets found in the records at the township
building representing hours you worked and signed by you for 1983:
a. October 31, 1983 -
Clai r, Crusan.
b. November 2, 1983 -
c. November 23, 1983
building.
d. November 23, 1983 - 3 hours; discussion at Solicitor Welty's office.
e. November 30, 1983 - 3.5 hours; for work on the budget.
f. December 6, 1983 - 2.5 hours; for work on the budget.
December 7, 1983 - 3.5 hours; for work on the budget and a letter.
h. December 13, 1983 - 1 hours; for a sewage authority meeting.
20. You submitted with your letter to the Commission several type written
sheets of some of the hours worked in 1984:
a. April 6, 1984 - 9 1/2 hours; roads - 439 - 998.
b. May 8, 1984 - 6 1/2 hours; roads 895.
c. July 25, 1984 - 8 hours; roads 862 -863.
d. July 26, 1984 - 5 1/4 hours; roads 437.
e. September 7, 1984 - 7 1/2 hours; roads 448 - 984.
f. November 30, 1984 - 10 hours; roads 986 - 984 -944.
g. December 28, 1984 - 3 hours; roads 984.
21. According to hand written sheets found in the records at the township
building representing hours you worked and signed by you for 1984.
a. July 25, 1984 - 8 hours; no accounting.
b. July 26, 1984 . - 5 1/2 hours; no accounting.
9.
1 1/2 hours; discussion on sewage, Burkett, St.
1 hour; meeting on sewage with Richard Mosso.
- 1 hour; meeting on revenue sharing at township
Mr. Irvin W. Tantl i nge r
Page 8
c. November 12, 1984 - 6 hours; no accounting.
d. November 23, 1984 - 4 hours; no accounting.
e. April 23, 1984 - 2 1/2 hours; state meeting; Lidding procedure.
f. April 24, 1984 - 2 hours; township discussion on motors, trucks, .
flood plain.
g. April 30, 1984 - 7 hours; reviewed bills, discussion of township
matters.
22. Township weekly, bi- weekly or semi- weekly payroll report indicate that
you did not sign in for hours that you claimed you worked for the following
dates:
a. Pay period March 26, 1984 - April 6, 1984; check #7296, gross
- $69.35, net - $61.61, for 9 1/2 hours you claimed you were working
on roads #998, department 439.
b. Pay period May 5, 1984 - April 18, 1984; check #7338, gross - $47.45,
net - $42.59, for 6 1/2 hour you claimed you were working on roads
#895.
23. The pay rate for supervisors in 1984 was established at the Fairfield
Township auditors reorganizational meeting at $54.90 per day, and road
inspections at $58.40. You received compensation in the amount of $365.00 in
1984.
a. April 3, 1984; 9 1/2 hours; check #7296; gross - $69.35.
b. May 8, 1984; 6 1/2 hours; check #7338; gross - $47.45.
c. July 20, 1984; 13 1/2 hours; check #7466; gross - $98.55.
d. September 7, 1984; 7 1/2 hours; check #7524; gross - $54.75.
e. December 28, 1984; 3 hours; check #7677; gross - $21.90.
f. November 30, 1984; 10 hours; check #7618; gross - $73.00.
24. You have stated that all work and services rendered was assigned by the
other two supervisors and was work you actually performed on the roads or in
the township building related to the roads.
Mr. Irvin W. Tantl i nger
Page 9
a. That you perceive that there is a difference between the duties of
roadmaster and the duties of a supervisor.
b. You claim that you did work on the budget on the instruction of the
other two supervisors.
c. That the time you spent working on the budget, was all related to the
budget for the roads and, therefore, comes under the duties of a
roadmaster.
d. You have stated that you never charged the township for preparation
of the budget not connected with the roads.
e. Things that pertained to the budget for the roads were those dealing
with supplies needed for a particular project such as asphalt, gravel
etc.
f. That you did perform work as a roadmaster, cleaning up roads, etc.
That while you may not have actually touched the budget, you went out
on the road and talked about what would be needed next year, and
what would have to be allowed for in next years budget, with the
direction of the other supervisors.
h. That the three supervisors decided that you should spend time
relative to the budget and the other two supervisors recommended that
you turn in your hours.
i . That the other supervisors didn't want anything to do with the
budget, and that the township secretary had always done the budget in
previous years.
g.
J.
That you worked on the township budget many hours and did not charge
the township for them.
k. You stated that you only used the township medical insurance coverage
a few times in the form of the Prescription benefit.
1. You stated that when you questioned the township paying for medical
benefits for you since you were already covered in your full -time
employment, the other supervisor told you to accept it since they
wanted it to be there for the next person in office.
Mr. Irvin W. Tantl i nger
Page 10
25. Supervisor St. Clair stated that it was his opinion that you w ^re, in his
opinion, doing work on the whole budget.
a. That you were the only supervisor who got paid for this work
because they threw this all at you and told you to work it out.
b. That his definition of the budget is "what you did get in, what you
anticipated getting in - that's the budget."
c. That you did work on the roads with him sometimes doing tree
removals, etc.
26. Supervisor Burkett stated that all three supervisors agreed that you
should be paid for your time of working on the budget.
a. That it was the only time you were paid for the budget in December,
1983, as far as he recalls.
b. That he was not sure what account the budget work was charged to,
probably some type of roadwork such as snow removal.
c. His definition of budget is the township budget which includes where
they hope to spend money and what they have spent, which is worked on
in September and October to be finished by December for the following
year.
d. That everybody worked on the budget together, and that he has always
had a part in it.
e. He thinks the work that you did on the budget was in regard to the
roads, although he was not positive.
f. The supervisors did appoint you to work on the budget and agreed to
pay you for that work.
g. That the budget was worked on several times a year for the roads;
they would look at each project and determine whether it was going
to cost what they had originally planned that it would.
h. That you did work on the roads when there had been high winds and bad
rains and snowstorms, and there was alot of work to do.
B. Discussion: As a Township Supervisor in Fairfield Township, you are a
public official as that ,term is defined under the Ethics Act. Accordingly,
Mr. Irvin W. Tantlinger
Page 11
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.
The compensation which is allowed for a supervisor is strictly regulated
by statutory and decisional law. See the discussion under Allegation III
infra.
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.
Commw. 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 18, 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 of the Ethics Act instructs the Commission
to investigate situations where there is a reasonable
Mr. Irvin W. "Pant l i nger
Page 12
belief that financial conflict may exist, and if conflict
is found, to require the offender to remove himself from
the conflict without gain.
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 an appointed township roadmaster
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.
In 1984, the auditors, in fact, did fix insurance pension and
hospitalization benefits as part of the compensation for working supervisors.
For this year, there would have been no violation of the State Ethics Act.
For the year 1983, the auditors make no mention of these benefits and thus,
such would not have been receiveable through your public position. The amount
of benefits paid out by the township for that year totaled, $1,749.33.
We must note that for that year, you were surcharged and thus repaid the
township $1,795.84. Thus, while there may have been a violation of the State
Ethics Act, we do not believe that any further action should ensue in relation
to your receipt of these benefits.
We now must turn to your receipt as a "supervisor" of payments from
township funds for work other than that relating to the township roads. Once
again, referring to the foregoing "compensation analysis" it is clear that a
supervisor, while eligible to be compensated for work relating to the position
of roadmaster, may not receive compensation other than that specifically
outlined in the law for performing the duties of an "elected supervisor."
Here the findings show that in 1983, you claimed and were reimbursed for 28.5
hours for working on such things as the budget, meeting with the solicitor,
discussions with other supervisors and correspondence. (Finding 18, 19). In
1984, you similarly received compensation for 7 hours for reviewing bills and
discussions. (Finding 21g). Your rate of pay, at that time, was $54.40 per
day or $6.80 /hour. You,_thus, used your position to receive $241.40 in
compensation not provided by law.
Mr. Irvin W. Tantl i nge r
Page 13
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, will 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. Comm. 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).
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. Yocabet v. State Ethics
Commission, Supra.
In view of all of the circumstances set forth above, you did receive a
financial gain in violation of the Act, totaling $241.40, 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 Fairfield Township, you are a "public
official" subject to the provisions of the Ethics Act.
Mr, Irvin. W, Tantlinger
Paget /4
2. 'NO violated Section 3(a) of the Ethics Act by receiving $241.40 for
work which was not compensation provided for by law because
that work, was part of your official duties as township supervisor.
3. There was no violation of Section 3(a) of the Ethics Act regarding
the insurance benefits as such were approved by the auditors in 1984.
4. While there was a violation for 1983, you did reimburse the township
for that year and as such, we will take no further action in this
matter.
5. You are hereby directed to remit to the State Ethics Commission,
a check in the amount of $241.40 payable to the order of Fairfield
Township within thirty (30) days of the date of this order,
6. The failure to remit the check in the amount of $241.40, 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 will remain confidential in accordance with
Section t8(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,
t J.444„ -O
G. Sieber Pancoast
Chairman
Mr. Irvin W. Tantlinger
R.D. 1, Box 215
Bolivar, PA 15923
JJC /na
cc: Public Binder
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
November 10, 1987
Re: Order No. 609, File No. 85 -156 -C
Dear Mr. Tantlinger:
On November 6, 1987, the State Ethics Commission received your payment
for reimbursing Fairfield Township as required by Order No. 609.
We have forwarded your check No. 5180 dated November 2, 1987 in the
amount of $241.40 to the Fairfield Township.
This letter will be made part of the Order and a public record as such.
cerely
S
n .nt
Exec ve Director