HomeMy WebLinkAbout667 MyersMr.-Paul Myers
R.D. #1
Bentleyville, PA 15314
Re: 86 -131 -C
Dear Mr. Myers:
A. Findings:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
H A R R I e , p Nly S_Y
Order No. 667
Date Decided: august 18, 1988
Date Mailed: September 13, 1988
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 Supervisor /Roadmaster, in Somerset
Township, 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 by having the township pay for a hospital
insurance plan in which you participated.
1. You serve as a Township Supervisor in. Somerset Township,
Washington County, Pennsylvania.
a. You have served in this position since 1983.
2. Somerset Township had insurance benefits for township
employees.
a. These benefits were obtained through the Trustees'
Insurance Fund, Camp Hill, Pennsylvania.
3. You participated in the benefits program and received at the
township's expense hospitalization benefits.
4. Minutes of the Somerset Township Board of Auditors meetir.7s
from 1970 through and including 1985 do not mention any insurance
benefits as having been approved for township supervisors.
Paul Myers
,. qe 2
the minutes for March 3, 1986 indicate that the
auditors questioned the irregularities of insurance
benefits.
5. .The ; 2inc -t._s of the meetings of the township board of
supervisors provide as follows regarding insurance benefits f;.r
township supervisors.
a. January 3, 1972 - Motion Crumrine, second Cersna,
hospitalization for permanent employees on S.S. applies
to { ",ose hired prior to January, 3rd. Motion c- -ried.
b. January, 1975 - Crumrine Motion, second Lloyd, to give
fringe benefits to full -time operators. Full
hospitalization for full -time employees and dependents•.
c. January, 1984 - Lohr motion, second Brava, to retain
all benefits as present. Full hospitalization same at
last year. Motion carried. Minutes indicated,that you
were present and approved.
d. January, 1984 - - Motion Lohr, second Morrison and
approved by Myers to table any discussion on the
employee benefits now.
e. March 17, 1986 - Auditors request concerning
irregularities on the insurance benefits the
supervisors received in 1984 and 1985. Auditor Chester
advised that the benefits to the supervisors could be
illegal. Solicitor Geary informed the board of the
Ethics Commission ruling that supervisors must work
full -time to receive benefits. Any benefits paid to a
supervisor who is not full -time would be required to
reimburse the township. Auditors recommend that the
money be repaid with interest.
f. April 14, 1986 - Lengthy discussion by Solicitor Geary
and Auditor Chester on insurance benefits for
supervisors. Solicitor Geary referred to Act 82 of
1985 passed on November 29, 1985, a First Class
Amendment that states in order for supervisors to
receive health insurance benefits they must meet the
same requirements as full -time employees. Auditor
Chester stated that the auditors never authorized
Mr. Paul Myers
Page 3
health benefits for supervisors in this township, back
to 1970 there has been no authorization.
6. Premium statements from the Trustees' Insurance Fund, Camp
Hill, Pennsylvania provide the following information regarding
insurance benefits paid by the township for Paul L. Myers.
a. Statement date: August 13, 1985
(i) Type of coverage: Hospital Surgical
(ii) Effective date: August 1, 1985
(iii) Premium insured: $162.50
(iv) Premium Dependents: $384.50
(v) Total premium: $547.00
(vi) This was a pro -rated amount for the period
August 1, 1985 to October 31, 1985.
b. Statement date: September 16, 1985
(i) Premium insured: $635.00
(ii) Premium dependents: $1,523.00
(iii) Total premium: $2,158.00
7. Records of the Somerset Township Road'District checking
account, No. 3200 -2784 -878 at the Charleroi Federal Savings and
Loan Association indicate the following regarding township
expenditures for all township employees /officials participating
in the plan including yourself.
a. Check No. 1320, dated August 19, 1985 payable to
Trustees' Insurance Fund in the amount of $547.00.
(i) This payment was for the August 13, 1985
invoice for your insurance benefits.
(ii) You signed this check as a township supervisor.
b. Check No. 1379, dated October 7, 1985, payable to
Trustees' Insurance fund in the amount of $10,181.70.
(i) This payment was for the September 16, 1985,
invoice for the township insurance and included
payment for your insurance benefits.
(ii) You signed this check as a township supervisor,
ir. Paul Myers
Page 4
8. Your insurance coverage was cancelled by the township
effective January 6, 1988.
a. The township received a refund of $1,611.00 from the
Trustees' Insurance Fund as a result of this
cancellation.
9.' The township expended $2,705.00 on the insurance benefits for
you during the period August, 1985 through and including the time
when the coverage was cancelled.
10. Records of Somerset Township included receipts regarding
reimbursements that you made to the township for your insurance
coverage as follows:
a. Receipt No. 836, dated October 1, 1986 in the amount of
$200 paid by check no. 968.
b.. Receipt No. 874, dated December 1, 1986 in the amount
of $150 paid by check no. 68 -112.
c. Receipt No. 923, dated January, 1987, in the amount of
$100. Paid by check no. 1113.
d. Receipt No. 974, dated April 15, 1987 in the aw'unt. c
$150 paid by check no. 1201.
11. Total restitution personally made by you was $600.70
12. Total restitution to the township including the $600.00 that
you personally paid and the $1,611 refund from Trustees'
Insurance Fund equalled $2,211.
13. The difference between the amount that the township expended
on your benefits and the amount of total restitution you paid to
the township is $494.
14. Yau pravided the following information in relation to this
situation,.
a. At the time that you tcok office in 1983 the two other
supervisors were receiving insurance benefits.
Mr. Paul Myers
Page 5
b. In August, 1985 you were laid off from your job in
construction and at that time the township secretary
asked you why you didn't enroll in the township plan
advising that you were entitled to it.
c. At that time you had no benefit coverage and because of
your family you considered this offer attractive.
d. You never knew you were not entitled to these benefits
until the auditors advised you of such in December,
1985.
e. The supervisors cancelled their membership in the plan
immediately thereafter.
f. You made restitution to the township in the amount of
$1,100 in several payments.
g-
You still owe the township about $300.
h. You did not make this payment because legislation
regarding insurance for supervisors was pending in the
General Assembly.
8. Discussion: As a supervisor in Somerset Township, you are a
"public official" subject -to the provisions of the Ethics Act and
the restrictions therein are applicable to you. 65 P.S. 402;
Sowers, Opinion 80 -050; Syzmanowski, Order 539. Section 3(a) of
the Ethics Act provides:
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) specifically provides in part that a public
official may not use his public office or confidential
Mr. Pau: Ayers
Page 6
information to obtain gain for himself other than compensation
provided for by law.
The compensation which is allowed for a supervisor is
strictly regulated by statutory and decisional law.
Under Section (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. Kane, Opinion 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 Cocoe, 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, Order 348 -R. The
foregoing principle was recently reaffirmed by Pennsylvania
Commonwealth Court in Yocabet v. State Ethics Commission, Pa.
Commw. , 531 A.2d 536 (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 539
of its Opinion:
Section 7 of the Ethics Act instructs tks--
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.
Any benefits received other than as provided for above, w
constitute a financial gain obtained in violation of the rate
Ethics Act. See McCutcheon v. State Ethjcg Commission, 77 Pa.
Commw. 529, 466 A.2d 283, (1983); Conrad v. Exeter Tvjnshie, 27 D
& C 3d 253 (1983). These principles of law are now well settled
and constitute the law under which this situation must be
revewed. See In Re: Report of Audit of South Union Township
47 Pa. Commw. 1, 407 A.2d 906, (1979). 7urther, the right to sue
for the restitution of the financial gain obtained in violation
Mr. Paul Myers
Page 7
of the Ethics Act has been upheld by Commonwealth Court in Fee v.
Commonwealth of Pennsylvania and Township of Union, filed at 1932
C.D. 1987 on December 1, 1987.
In the instant matter, you were a working supervisor/
roadmaster and were enrolled in an insurance plan at township
expense during the period between August, 1985 and January, 1988.
Since you were a working supervisor and since there was no
auditor approval, you could not, under the Second Class Township
Code, be legally entitled to receive the insurance benefits that
werb paid at township expense. Further, Section 1(c)(2) of House
Bill 1577 of 1987, Act 41 of 1988, which was signed into law on
March 30, 1988, provides amnesty for working and non-working
supervisors regarding pension and insurance benefits that were
received at township expense between January 1, 1959 and March
31, 1985. Since the benefits which you received were after the
amnesty period, Act 41 of 1988 has no application to the instant
matter.
This Commission finds that you did violate Section 3(a) of
the Ethics Act when you received the insurance benefits at
township expense during the period between August, 1985 to
January, 1988. The gain that you received amounted to $2,705.
However, the foregoing amount, must be reduced by a refund of
$1,611 made to the township as well as by your partial
restitution of $600.
As a result, this Commission finds that you received
compensation that was not in accordance with that set forth by
law. Generally, the State Ethics Act provides as follows:
The State Ethics Act provides as follows:
Section 9. Penalties.
(a) Any person who violates the provisions of
Section 3(a) and 3(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
Mr , Pu�j 1 Nyer
Page 8
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 recommendation to
appropriate law enforcement authorities for the initiation of
criminal charges or the dismissal of such charges rising out of
violations 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.
McCutcheon v. State Ethics Commission, supra; 65 P.S.
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 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. Therefore, you are directed
within thirty (30) days of the date of this Order to forward a
check to the State Ethics Commission payable to the Order of
Somerset Township in the amount of $494 which represents the
balance remaining between the gain of $2,705 less the refund of
$1,611 and the partial restitution you have already made in the
amount of $600. Failure to comply with the foregoing will result
in the referral of this matter to the appropriate law enforcement
authority for review and appropriate action.
C. Conclusion and Order:
1. As a Township Supervisor in Somerset Township, you
are a "public official" subject to the provisions
of the Ethics Act.
You violated Section 3(a) of the Ethics fact wt..—
received hospital insurance benefits at township
expense without auditor approval during the period
between August, 1985 and January, 1988.
3. The amount of the net gain you received amounts to $494
which represents the balance remaining between the gain
of $2,705 less the refund of $1,611 and the partial
restitution of $600.
Mr. Paul Myers
Page 9
4. You are hereby directed within thirty (30) days of the
date of this Order to forward a check in the amount of
$494 to the State Ethics Commission payable to the
Order of Somerset Township.
5. Failure to comply with paragraph 4 above will result in
the referral of this matter to the appropriate law
enforcement authority for review and appropriate
action.
Our files in this case will remain confidential in
actbrdance 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,
Joseph W. Marshall, III
Chairman
Mr. Paul L. Myers
R.D. 1, Box 314
Bentleyville, PA 15314
Re: Order No. 667, File No. 86 -131 -C
Dear Mr. Myers:
On October 14, 1988, the State Ethics Commission received
your payment for reimbursing Somerset Township as required by
Order No. 667.
We have forwarded your check No. 667 dated October 11, 1988
in the amount of $494.00 to Somerset Township.
This letter will be part of the Order and a public record as
such.
JJC /na
cc: Public Binder
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
October 14, 1988
Si ,
n
Jo ino
Executive Director
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