HomeMy WebLinkAbout615-R Reppert11es'; Ro pert
11 ?C Jacc;_s Street
?A 15.T.
:TE T.THICS COMMS:�I :N
=+08 7:i NANCE BU.LDIN""
H. ISBURa, PENNSYLVANIA 17120
JRDER CF THE COMMISSION
- ;rider No. 615 -R
'-ate ::ecided: June 10, 1988
oFJ- -. Mailed: June 24, 1988
Dear Mr, r nert:
! -,7 Ethics Commission has reviewed the alleg tion(s) ' %1—
°,i, '::te' the Ethics Act, Act 1978 -170. On February 18, :9a8, a it,e • nc; the
rltter :as onducted and relevant. evidence and testimony was presente T'
, mmiss rl as now completed its investigation. The individual a'lec7 ;io',
� , s, and findings on which those conclusions are based are �
fi rl l ows ;
T. g Allegation: That you, a Washington Township Supervisor, violated Section
of the Ethics Act which prohibits a public employee or public offici.al':>
of office or confidential information gained through that office to F'tair,
gain by receiving prescription drugs, health insurance and a l'fe
insurance policy at the township's expense.
Hindu:
You have served as a Washington Township Supervisor since January, 1984,
;s such, you are :subject to the provisions of the State Ethics Act.
`Minutes of reorganization meetings of the township supervisors confirm
si ice 1984, you have annually been appointed township
secretary /treasurer.
a. Y ^u do not work a specific schedule as secretary /treasurer.
b. You maintain your office in your home, rather than the township
building.
. Records of the Washington Township Auditors disclosed the following
•egarding compensation set for the supervisors:
a. January 2, 1984:
Supervisors $6.30 per hour while acting in the capacity of a
Supervisor and a written explanation of work
performed to be submitted before payment is made to
the r,- :retary.
Mr% Ernest Reppes
i'a A ;i
Roadma6`er $500,`'`) per month p'i cs road inspections as code
permit
Sung: intendent-- $335,00 per mo :;L; .
c'; " - l i c e
Sec.;Treas. Co mpensation t., be 4% on all expenditures paid by
you.
b. January 8, 1985:
Supervisors $7.00 per hour while acting in the capacity of a
Supervisor and a written exp anation of work
performed to be submitted before payment is made to
the Secretary.
:'oadnaster $500.00 per month plus road inspections as code
permits.
Supe:"intrndent -- $335.00 per month.
of Roads
Sec /Treas. Compensation to be 4% on all expenditures - -paid by
you.
c. January 7, 1986:
Supervi sors
Roadma seer $500.00 per month plus road inspections as code
permits.
Superintendent -- $335.00 per month.
of Roads
Sec /Treas. Compensation to be 4% of all expen -iitures - -paid by
you.
J. January 6, 1987:
Supervi sors
$7.00 per hour while acting in the capacity of a
Supervisor and a written explanation of work
performed to be submitted before payment is made to
the Secretary.
$7.00 per hour while acting in the capacity of a
Supervi sor and a written explanation of work
performed to be submitted before payment is made to
the Secretary.
Mr. ' rnest
Pac,
;')k rant; plus cad inspf.:c= ions as :ode
permi
Super"
of Roe:
-- 3350"rj ' er
Sera s. Comp . n tion to be $14,75u.00 annual !„
the Columbia Life insurance Company d a scloP »
r °5C : ,ai ij 1 ..;urar::e coverages for you and paymer±ts nude o;.. 3t27 o
i. `on Township:
You were added to the policy effective January, 1934, wit,, ' the
f, ii:.i ng types of coverages: AKME1454 prescription,
i,KSME5262 hospitalization, LKSM5262 life insurance.
Payr nts were made as follows:
Year AKME14 -A AKSM5262 LKSM52e'" - Tot
1,84 $ 15 .95 $ 912.56 $ 81.1..) $1,149
'= 5 $ '' 2.82 $1,006.74 $ 90.50 $1,270.:'
:x:36 $ 213. $1,130.16 $102.60 $1,44C,i.
1987 $ 89.1 $ 470.90 $ 42.75 $ X02,81,
Total $ vP
(To May)
c., i'hese coverages i:!clude both you and your spouse.
5. Willi O'Keefe, Special Investigator for the State Ethics Commission,
testifii a< i lows:
a. .'e interviewed you and you stated that to your knowledge,
the auditors had not approved insurance for supervisors.
'sir, inn was 1 so interviewed who stated that since he received
instance as an auditor, he took it for granted that auditors had
pro -'ed the insurance.
c , In t t , i otervi ew of David Summers, Mr. Summers stated that to his
- •cewledge, the auditors had not approved the insurance.
J. Selma Russell, Auditor, provided the following testimony:
a. In January, 1986, she began: as an auditor to do the 1985 books.
you told her that she had insurance, she asked if it was lega'.
rRr you said yes.
+r. .dies RR_
p 4
She called t'.- .,tate Panic--; scion and was ad fired that neithv-
avrii tors ncr supervi scr s cu.11 ci get insurance benefits.
d. That when she received prior rulings from the State Ethics Cs
o� nsurance benefits, she gave a copy of those rulings to her fellow
al di!aor, Robert L. Campbell.
e- 17 _ ' hli c meeting, when someone questioned benefits for tie
auditors, she stated that she replied that benef t.s for both auditors
a,.., supervisors were not legal.
f, 1 , =, Campbell wanted to set up a meeting with the supervisors
r .. rdi ng benefits but the supervisors did not get back to h m.
As auditor she acted upon and approved the compensation for the
supervisors in 1986 and 1987 as well as approving the books.
1. She stated that she did not approve insurance benefits.
i . ;;r the 1986 year, she didn't even raise the matter of insurance
:enefits because it was in the hands of the State Ethics Commission
j. She did not file any exceptions in the auditors report that insurance
- c - s improper.
7a Robe °t L. Campbell, Auditor, gave the following testimony:
a . That he was appointed an auditor in 1986.
b. Although he wanted to be an auditor for the insurance <te did not use
*: °e coverage because he found it was illegal.
That he took no action to allow or disallow insurance for the
s' ry so rs because it was in the hands of the State Ethics
T on.
4'-, tried to set up a meeting with the supervisors as to th.2 'regal ':y
;f insurance but they decided not to meet with him.
R . :a March of 1986, he took the State Ethics Commission r rulings
,n insurance to Supervisor Summer's house, gave and. Jiscussed the
documents with him. -
f. .s to the letter from the supervisors regarding compensation, there
Etas no mention of insurance benefits.
g. There were no exceptions by t le new auditors the first time they did
the books because they did not know about insurance benefits.
Mr. r..t-1,,st
►'age
�:. tho� wus �:r. wr °;i F,n oLJectio; or except , and approvals o l
.ei:i al s bb, the audi o.. 'rs in ti;' 1986 and 3287 auditors' report
i. He did not approve health care benefits :or supe;•vi sors.
8. David Surmrs, Supervisor and Roadrraster, provided the following:
The: following information was provided to a State Ethics Comnrissicr
5 : . Best. ator:
(1) pie er ed as a township supervisor for (25) years.
also serves as township roadmaster and receives a monthly salary
':e is on call 24 hours a day, but has never worked full -time hours,
'uch as (35) or (40) hours each week. Neither of the other
. upervi sors fill c t a time sheet to reflect hours or days worked.
(3) Hip duties generally entail going to the township building it the
me =ni nn and advising the road crew of the days activities.
perv; scr Winn also help out. He and Winn come back and check
later ir the day. He comes in when its snowing on an as need '
basis.
(4) The supervisors 'lave had insurance coverages with Provident r ndemnity
Insurance and later with Columbia Insurance Company. He has hnea
i..•rnber of either plan since at least 1979.
(5) He currently receives life insurance and interim insurance for
hospitalization that is not paid by Medicare. Prior to reahing ag
65, he had full hospitalization.
(6) To the best of his knowledge, the auditors have never approved the
insurance for supervisors but they never disapproved it either until
the present.
b. The following testimony was given by David Summers at the hearing:
(1) That he was a roadmaster for 25 years and received the
i nsurance.
(2) That the auditors got insurance and they did not question the
coverage as to the supervisors.
(3) There was no mention of insurance but he believed that the
auditors would have approved it if they were asked to.
(4) Many township roadrrasters receive these benefits.
For. "r° yes Reppert
Faye
(5) He admits thrt he nrht: pie for insurance an his
b :half.
(6) he stated that he did not ask ct,e for apprdvai but
approved the paymen': him::e i' as supr -r 3 sor.
) In terms of restitution, he stated that he only receives
social security of $575 per me nth Fla a pension of $473 per
month but his home is paid for.
9. Vi ricemt G. Winn, Supervisor and Rod Superi me ent, provided
tha fol law4 ng:
( ?,) The following information was provided to :tate Ethics
�onmi ssion i nvestiga tor.
(1; 'ic served as a township auditor for over twenty years.
(2) He w_s elected supervisor in 1986 and subsequently resigned as
a ^ ±di tor. He also is the appointed road superintendent.
.he auditors did not know it was their job to approve or disapprove
i n' trance coverage for the supervisors.
White serving as auditor he was permitted to participate in the
i.r: .cription and life insurance plans. After being elected
supervisor he was able to obtain the hospitalization coverr:.
(5) He E nd Supervisor Summers get the road crews going in the n: ni ng
and periodically check -up on them during the day. Fe has,
occassion, gone out with the crews when snow plowing needs '.:o be
done, but they usually have enough men for the truc:zs.
(b) The following testimony was given by Vincent G. Winn:
(1) That he received insurance both as auditor and Supervisor
and didn't question it when he was in either position.
(2) The auditors never questioned insurance coverage.
(3) When he was an auditor, he approved what the supervisors
requested and did not think he had to approve health care.
(4) He did not respond to the auditors because he didn't have
to.
(5) He stated that he did not tell the auditors they were
entitled but merely that the auditors got coverage in the
past.
Mr. Ernest eppert
Page
10. ": Ernest Reipert, Supervi .,:,sr f nr Secret: ry , : : e.1 the fol l :.,i ng:
) The fr ' 1'vi nq information was provided Lo a State Ethics Cciumi ss l pn
i rvesY igator:
(1) '. _ s have served as a townshi;, super-:sor since January,
1954. You are -also the appointed wecretary /treasurer.
( 2) Prior to 1987, you were paid on a percentage basis of bills
paid, Now you are paid a salary.
(3) 'lour job is full -time, the township does not have a clerica
pos i tion. Your wife serves as an unpaid assistant treasii er•
(4 Your off;ce is at your residence. You are on call (24)
hcjrs a day and that you work (50) hours a week. You
work more hours around the first of the month when state :',J
federal reports are due.
(5) Tn regards to compensation, each year the supervisors
^re are a letter as a compensation request and send it to t'ie
audit: rs -. The , uditors will sign the letter if they agree and
return the letter to the supervisors.
(`) Insurance coverage has never been mentioned in any of
t hese letters.
(71 You participated in the preparation of these letters.
(4 past years, all of the auditors, the school crossing
gu -rd and part -time custodian, received life and prescri«tion
insurance. The auditors had to know the supervisors were getting
the insurance. The auditors never did anything i previous
years,
You pLt Robert Campbell on as an auditor so that Campbell coulz
receive the coverage. Campbell was ill and had no insurance.
(b) The following testimony was given by you:
1) The auditors did not question insurance - coverage and they, the
auditors, had the benefits.
(2) You did not receive written notice that the coverge was improper.
(3) Prix r to 1988, you never submitted insurance coverage for
audi :;or approval.
Mr.
(4) You did not meet with the auditors because you felt they were
nitpicking and besides, the books were closed.
11. a'renk, former Auditor, gave the following testimony.
a. He ,erved as auditor between 1962 and 1973 and from 1975 through
1979.
b. He was aware of insurance coverage for auditors and supervisors but
was not aware that auditor approval °:vas needed.
c. The supervi sors told him that they were entitled to insnrance
benefits.
do He did not authorize insurance payments.
12. Mr. John Kasuda, a former auditor in Washington Township for the period
bet °seen 1979 and 1984, was interviewed by State Ethics Comm] ssi c.: invess° ca for
Ji i °iam J. O'Keefe in the presence of Attorney Joseph 'ygi el ,' counsel `or• the
resoondents. Mr. Kasuda stated: that he imagined that the supervisors we , e
et.ing insurance benefits; that when he was an auditor, he got prescription
?ns rance and lastly that he did not recall ever being asked to approve the
insurance for supervisors but he would have given such approval it 11 were
asked by the supervisors for it.
13. Solicitor Joseph Rygi el , is of the view that once the auditors approve
the salaries for the supervisors, the supervisors became employees and coul
be afforded the insurance coverage equal to all other employees in the
township as well as for the auditors.
14. House Bill No. 1577 of the 1987 Session was passed by the Genera?
Assembly of the Commonwealth of Pennsylvania and signed into law by the
Governor on March 10, 1988. The foregoing Act provides, in part, amnesty to
non-employee supervisors who received various township paid pension plans or
group life, health, hospitalization, medical service and accident insurance
: ans, as well as to employee supervisors who received such pensi; :n benefits
without auditor approval, but the amnesty covers the period only between
January 1, 1959 and March 31, 1985.
B. Discussion: As a township supervisor, you are a public official as that
arm is defined in the State Ethics Act. 65 P:S. _ §402; Sowers, 80 -050. As
such, you are subject to the provisions of the Ethics Act and the restriction_
therein are applicable to you.
Mr. Er ' rep
Page
the . ±F.f as follows:
.ction 3. .st.icte: act;v;ties.
(a) No fjublic official or public employee shall use his
pc° . 15c nffice or any confidential informatics: ece;vecl
through his holding public office to obtain: financial gain
It:.nr than compensation provided by law for himself, E
m 5er of his immediate family, or a busi::ess with which
i:, associated. 65 P.S. 403(a).
' °i hi n the above provision of law, this Commission has previ cA sl •
determined that a township supervisor may not receive at the township's
expense, health, hospitalization, medical and life insurance ben; why
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 i
accordance with the Second Class Township Code, such benefits are considered
cT•roensation 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 1232,
''85); In re: Appeal of the Auditors Report of Muncy Creek Township, Via.
- w, Ct. , 520 A.2d 1241, (1987); Hunt, No. 348 -R. The foregoing
•ir+ciple was recently reaffirmed by Pennsylvania Commonwealth Court in
Y v. State Ethics Commission, Pa. Commw. A • 2d (1987)
'sled at 834 C.D. 1986 on September 18, 1987. In the cited case, the Court
liter al is that a township supervisor violated Section 3(a) of the Ethics
Ac; when he received a salary for the position of secretary /treasurer which
ha l not been set by the auditors., The Court, in affirming the Order of the
Ectir:s Commission which required a restitution of the financial gain, noted .wr
n e 5 of its Opinion:
Section 7 of 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
t; conflict without gain.
is enef its received other than as provided for above, would constitute a
`i nanci al gain obtained in violation of the State Ethics Act. See,
M;;,utchenn v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283,
_
onrad v. Exeter Township, 27 0 & C 3d 253, (1983) . - These principles
of maw are now well settled and constitute the law under which this situation
-rus: be reviewed. See In Re: Report of Audit of South Union Township 47 Pa.
Com.1 , 1, 407 A.2d 906, 1979 .
age iC
i rstant situation, while you were an rppointed :,c:.retary /treasurer
aid, ':1ere'ore, eligible to receive the in question benefits., there would h< >ve
'3 Je the requisite approval by the township board of auditors for this to be
rsidered part of your authorized compensation. See McCutcheon v. State
:hies Commission, supra.
The facts in this case establish that the auditors did not give the
approval. The testimony of Auditors Selma Russell, Robert L.
Campbell and former Auditor William Treck establish that there was nr auditor
approval for these benefits. This is also corroborated by the statement of
Ka Buda . Not only do the facts establish that the auditors never approved
ns Ence coverage for supervisors, they also indicate that you had knowledge
3 oth o' this Commission's decisions on insurance coverage which you ignored.
Las:1y, you and the other supervisors failed to attend a meeting called by the
Idi tors regardi ng health insurance coverage.
You raise the legal issue that if the audit,xs did not make an exception
o ei r audit or if they did not disapprove the insurance benefit, then they
must be considered as having approved the benefits. The foregoing argument
been addressed and rejected by the courts. See Hendricks v.
:c4 Rockhill Township, 1 D & C 3rd 763 (1977):
The mere fact that the auditors never affirmatively
objected to the purpose of the pension plan is not
tantamount to the affirmative action of the auditors in
fixing the compensation for the supervisors and
roadma sters additionally to the compensation already
fixed at $5 and later $6 per hour. Therefore, we can only
conclude that the supervisors exceeded their authority in
adopting and purchasing a pension and annuity plan for
their own benefit as additional compensation for their
services as either supervisors or as
supervi sor- roadmasters. See Commonwealth v. Manzi ck,
supra. Id. at. 771, 771.
Similarly, Commonwealth Court in McCutcheon, supra specifically noted
that the auditors must take affirmative action in order for working
supervisors to receive such benefits:
The undoubted power of the supervisors under Section 702
to enter into insurance contracts for the township.
"i nsuri ng its empl oyees ... or any class or classes
thereof," i s not sufficient to legitimatize supervisors'
actions in purchasing these policies for themselves, in
the absence of affirmative action by the township auditors
under Section 515. Id. at 538.
Ent Re.. , rt
P?ge x"
"i nce both the testimony of the three auditors and supervisors in this
case reflect that there was no affirmative approval of insurance benefits by
auditors for the supervisors, the requisite "affirmative action" was
lacking and hence, you, as a supervisor were not entitled to these benefits.
Additionally, you argue that the Pennsylvania Insurance Code expressly
authorizes coverage for elected officials as a class for whom health care
insurance may be provided. This precise argument was made and rejected by the
court in Exeter Township, supra.
Further, it has been settled by the courts that insurance benefits are a
form of compensation. See Edinger v. Upper Makefield Township, 25 D & C 3rd
512 (1983).
Finally, a specific statutory exclusion of health care premiums under the
IRC has no relevance in determining whether such benefits are financial gain
under the Ethics Act. Further, Commonwealth Court has determined in
McCutcheon, supra that such benefits are compensation.
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
ecessity of a public official reimbursing his governmental body for the
eceipt of a financial gain for which he was not entitled. See Allegheny
.:ount v. Grier, 179 Pa. 639, 36 A. 353, (1897); McCutcheon v. State Ethics
omm ssion, 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,
ur 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).
age
:n additio�-f t, the L, e,, . h,_ State Ethics Act provides t! the
emission T,;ay furw „rd th re;tft, of any investigation to the a; ;propriat-.
- secuting authority unless th^ ;1eged offender removes himself from the
�onf ?ict ?:f interest by divesting himself of any financial gain
the State Ethics . ",ct. 65 P.S. §407 9(i ii ). See also McCutchen1
, :i `.thics Commission, supra, the Commission may order restitution. of
.:mrial gains received in violation of the law.
The last matter which must be addressed by this Commission concer -,s House
, 16 ,;' 1987 which was signed into law on March 30, 1988 as Act 4 ". rf
( '„
- atnough Section C of Act 41 addresses the questions of amnesty as to
- s?;rance benefits that were received by non - employee supervisors and he. ce
;e� not address the question of insurnce benefits that were received by
snp" ;yee supervisors who did not get auditor approval, it is noted tha';
:ection 2 of the Act provides for a blanket amnesty to "elected officials,
;accept township supervisors who are provided for in Section 515, [Section C]
end appointed township officials who are not employees of the township."
;ince °Nerking employee supervisors are elected officials ard since this
catego y of supervisors was not provided for in Section 515, Section 2 is thee.
applicable : +hich provides:
"Any such insurance coverage contract entered into by a
township between January 1, 1959, and March 31, 1985, that
includes or provides coverage for elected officials,
except as provided in section 515, or appointed township
officials who are not employes of the township, shall not
be void or unlawful solely because such inclusion of such
officials was subsequently found to be without lawful
authority. No penalty, assessment, surcharge, forfeiture
or disciplinary action of any kind may occur as a result
of participation by such officials.”
Therefore, under the above provision of law, the insurance benefit that
you received between Janaury 1, 1959 and March 31, 1985 would not violate
S ction 3(a) of the Ethics Act but the receipt of said insurance benefits
after March 31, 1985 would transgress Section 3(a). In this case, you
received a financial gain of $3,002.07 for the period of April 1, 1985
forwa ^d. The foregoing amount must be returned to your governmental body,
Washington Township.
C i :onclusion and Order:
1. As a Township Sub ..rvisos• in Washington Township, you are a "public
4ti i and as such, are subject to the provisions of the Ethics
A- ,t .
Mr. Ernest Eeppert
Page 13
2. You did not violate Section 3(a) of the Ethics Act when you received
various insurance benefits for the period up to March 31, 1985 since
House Bill 1577 of 1988, which was sign ^d into law on March 10, 1988,
provides amnesty as to the receipt of those benefits. _
3,. You violated Section 3(a) of the Ethics Act when you received a gain
through public office consisting of prescription drugs, health
insurance and a life insurance policy at the township's expense,
which gain is not compensation provided for by law in that such
benefits had not been fixed and approved by the township auditors as
part of your lawful and authorized compensation for the period April
1, 1985 forward.
4, The financial gain which you received and which was not part of the
canpensation provided for by law amounts to $3,002.07.
5. You are hereby ordered to remit to the State Ethics Commission,
within thirty (30) days of the date of this order, the amount of
$3,002.07, made payable to Washington Township as restitution for the
financial gain that you received.
6. Failure to comply with the provisions of this order will result in a
referral of this matter to the appropriate law enforcement authority
for further civil or criminal proceedings.
0,r files in this case will remain confidential in accordance with
c °-.tfor 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final
• nd wi be made available as a public document 5 business days after servic
dfined pis mailing),
A` Y per..on who violates the confidentiality of a Commission proceeding
Is guilty of a misdemeanor and shall be fined not more than $1,000 or
- ipr•!soned for not more than one year or both, see 65 P.S. 409(e). The
;.onfl provision does not restrict respondents consultation with
:ega` counsel.
By the Commission,
Joseph W. Marshall, III-
Chairman