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HomeMy WebLinkAbout709 LillieMr. Robert F. Lillie c/o Ronald Bugaj, Esquire 962 Main Street Honesdale, PA 18431 Re: 88 -057 -C Dear Mr. Lillie: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TICE COMMISSION Order No. 709 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: June 1. 1988 Date Mailed: June 8. 1989 The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was filed and a hearing was waived. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: I. Allegation: That you, a Supervisor for Clinton Township, Wayne County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you submitted and received payment for services other than those of roadmaster, laborer and secretary- treasurer: 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 Robert F. Lillie Page 2 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). A. Findinas: 1. You serve as a township supervisor in Clinton Township, Wayne County, Pennsylvania. a. You have served'in this position since 1981, at which time you were appointed to fill the unexpired term of a former supervisor. b. You were elected to a four -year term in 1983. (1) You indicate that you were elected to a six year term. 2. You worked on a part -time basis for the township during the year 1987. 3. Minutes of the Clinton Township Board of Supervisors reorganizational meeting for January 5, 1987 indicate the following regarding the instant situation: a. Robert L. Lillie nominated for chairman by Francis Lopatofsky. Second by Ronald Poska. b. Ronald C. Poska, nominated for position of vice- chairman by Robert Lillie.` Second by Francis Lopatofsky. c. Lois Terrel nominated secretary - treasurer by Ronald Poska. Second by Robert Lillie. - Ronald C. Poska nominated foreman by Francis Lopatofsky. Second by Robert Lillie. e. Francis Lopatofsky nominated assistant :'=foreman. Second by Ronald Poska. f. All of the above motions were approved. g� A motion was made by Robert Lillie that Francis Lopatofsky could work. h. A motion was made by Francis Lopatofsky, Lillie, that Ronald Poska could work. i.- A motion was made by Francis Lopatofsky, Poska., that Robert Lillie could work. Poska, second by Robert second by Ronald second by Ronald 3 -31 -87 7 -10 -87 Robert F. Lillie Page 3 � All of the above motions were approved. k. Supervisors are authorised to check on all new building within the township to see that a permit has been obtained. 4. Records of Clinton Township forwarded a letter dated March supervisors advising them of the fixed by the township board of employed by the township. a. Road foreman to receive per hour $5.75. b. Each supervisor physically able to receive per hour $5.75. c. Secretary's bond at $60,000. d. Inspection of roads in April and October should be done with the township truck. 5. Clinton Township bi- weekly payroll reports indicate the following regarding work that you performed for the township and for which you were compensated that may not have been related to township roads: Date Hours Worked Comment 3-27 -87 1 hour Signed papers - police reports- pension fund. indicate that the township auditors 4, 1987 to the township board of following compensation that had been auditors in relation to supervisors a. You advise that the date should be March 12, 1987. As to the one hour, you denial avers that half an hour related to administrative duties while the other half hour involved sharpening a chain saw. 1 hour Showed Bill Pykus Guethers Road for bid. a. You deny the above asserting that you showed Bill Pykus a road for bids for which no time is owed. 8 hours Checked on building permits Elk Lake, patched Burriers, 2 loads. 7 -15 -87 Robert F. Lillie Page 4 a. In your denial, you state the correct date is July 8, 1987 and only 15 minutes is owed for checking on the permit. 91 hrs. Talked to guy on P. Dam, patched Brace Brook, hauled two loads of shale, went to Forest City for Lois, helped Ronnie take mower off tract. a. You deny the above averring that you talked about where the roads would go if Prompton Dam was flooded and you do not owe any time. 8 -3 -87 8 hours Met with Kilroe, 1 load of cold patch Posden and Lillie Roads. a. You challenge the above and note that you only spent one half hour with Attorney Kilroe. 8-17-87 11/2 hr. Met with Ron, Francis and Jake on permit. a. Although you admit that you owe 1.5 hours, you deny the above noting that you met with Jake regarding the permit. 8 -20 -87 7 hours Helped Lois with papers and took some to school, went to Browndale on fireman's dev. with Ronnie, Francis guy from Shipstone off. a. In your denial, you assert that you were mowing the roads, met with a consultant as to the development and obtained papers that pertained to the development. 8 -27 -87 3 hours Checked for building permits at Elk Lake and cleaned school. a. You deny the above claiming that you owe only 15 minutes Robert F. Lillie Page 5 relative to checking on the permit. 9 -10 -87 41/2 hrs. Spent the day with Rudy Grubesky, Auditor General's Office. a. In your challenge to the above, you aver that Rudy Grubesky advised that you could get paid for that time. 6. You worked a total of 51.5 hours at a rate of $5.75 per hour for a total compensation of $296.12. a. You deny the above based upon your answer to the commentary in Finding 5. 7. You provided the following information in relation to the instant situation: a. You have served as a township supervisor in Clinton Township since 1981 when you were appointed to that position and were thereafter elected to a full term of office in 1983. b. Your current term expires in December of 1989. (1) You assert your term expires in January, 1990. c. You worked part -time for the township for the year 1987 and were compensated as an assistant foreman at a rate of $5.75 per hour. d. You also had a full -time job in private industry. (1) You assert that the job was only part -time. e. Regarding the work performed on March 27, 1987, you indicate that the time was spent working on general supervisor's activities and that you should have not been compensated for that time. f. Regarding the payment for work performed on March 31, 1987, you indicated that this work was related to your assistant road foreman position. You showed Guethers Road to some individuals for the purpose of receiving a bid on road work. g. Regarding the work that you performed and were compensated for on July 10, 1987, approximately ten minutes of this time was utilized checking permits at Elk Lake. You checked Robert F. Lillie Page 6 these permits while on the way to Barriers Road where you spent the remainder of the day working on the road. h. Regarding the work that was performed by you and for which you were compensated on July 15, 1987, you discussed the rerouting of a road with individuals from the Army Corp of Engineers. You also patched Brace Brook Road using two loads of shale. You probably delivered a package for the township secretary on your way to Forrest City, you also helped another supervisor (Poska) remove a mower from the township truck. i. Regarding the work on August 3, 1987, you had a discussion with the township solicitor while on the way to Keystone Paving to pick up black top and cold patch. You then patched Posden and Lillie Roads. Regarding the work performed on August 17, 1987, the meeting that you attended on this day was an administrative matter and you should have not been compensated for your road duties on that day. k. Regarding the work that you performed on August 20, 1987, most of the time was spent at the Firemen's Development in Brownville. You explained that you went to the development to examine the roads and must have done some repair work on them. 1. Regarding the work that you performed on August 27, 1987, you checked on a building permit and then cleaned the garage area and the truck area at the school building which serves as a township building. m. Regarding the work that you performed on September 10, 1987, you indicated that the township stored stone and used this for repair on your property. Someone complained about your using the stone to fill in a portion of your property and the Office of Auditor General came out to investigate this matter. The individual from the Auditor General's Office, with whom you met, authorized you to charge the township for the time that you spent checking the stones. n. You deny sub Findings (e) through (m) based upon your answer to the commentary in Finding 5. B. Discussions Township supervisors in townships of the second class are public officials as that term is defined in the State Ethics Act. 65 P.S. S402. As such, their conduct must conform to the requirements of the State Ethics Act. See, Sowe s, 80 -050, §zymanowski, Order 539. Robert F. Lillie Page 7 Section 3(a) of the Ethics Act quoted above provides in part that a public official may not use public office to obtain a financial gain for himself other than compensation provided by law. Within the above provision of law, this Commission has already determined that township supervisors may not approve or accept any compensation for themselves that is not in accordance with the compensation set forth in the Second Class Township Code. This determination has been affirmed by the Commonwealth Court of Pennsylvania. See McCuthcheon v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1982). Compensation awarded or received by a township supervisor that is not in accordance with the provisions of law could constitute a violation of the above cited Section of the State Ethics Act. See also Yocabet v. State Ethics Act, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). The Second Class Township Code provides that township supervisors shall receive the following Compensation: Compensation of Supervisors -- Supervisors may receive from the general township fund, as compensation, an amount fixed by ordinance not in excess of the following: Township Population Not more than 4,999 5,000 to 9,999 10,000 to 14,999 15,000 to 24,000 25,000 to 34,999 35,000 or more Annual Maximum Compensation Fifteen hundred dollars Two thousand dollars Twenty -six hundred dollars Thirty -three hundred dollars Thirty -five hundred dollars Four thousand dollars Such salaries shall be payable monthly or quarterly for the duties imposed by the provisions of this act. The population shall be determined by the latest available official census figures. The compensation of supervisors, when acting as superintendents, roadmasters or laborers, shall be fixed by the township auditors either per hour, per day, per week, semi - monthly or monthly, which compensation shall not exceed compensation paid in the locality for similar services, and such other reasonable compensation for the use of a passenger car, or a two ailed four - wheeled motor truck having a chassis weight of less than two thousand pounds when required and actually used for the transportation of road and bridge laborers and their hand tools and for the distribution of cinders and patching material from a stock pile, as the auditors shall determine and approve; but not supervisor shall receive compensation Robert F. Lillie Page 8 as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 53 P.S. 565515. In reference to the meetings for which supervisors may receive compensation, the Code further provides as follows: The township supervisors shall meet for the transaction of business at least once each month, at a time and place to be fixed by the board, but they shall not be paid for more than sixteen meetings in any one year, except for any township where, on account of the exercise of governmental functions other than those relating to roads, more meetings are necessary, in which case, the number of meetings for which the supervisors may be paid may be increased to any number, not exceeding fifty meetings in any year which shall include hearings by aggrieved parties under the Pennsylvania Sewage Facilities Act and other hearings by aggrieved parties hearings of a judicial or quasi- judicial nature. Two members of any board of supervisors consisting of three members shall constitute a quorum and three members shall constitute a quorum. Except as otherwise provided in this act, an affirmative vote of a majority of the entire board of any supervisors shall be necessary in order to transact any business. Necessary expenses incurred in such meetings, including office rent, stationery, light and fuel, shall be paid out of the general township fund. 53 P.S. 65512 The duties that a supervisor is responsible for performing are also regulated by statute. As can be seen from the foregoing, the compensation to be paid for a supervisor who is not otherwise employed by the township is strictly regulated by the Second Class Township Code. A supervisor may only receive compensation, as set forth above, for supervisor meetings regarding the transaction of township business. The type of meeting for which a township supervisor may be compensated must be one at which official township business is transacted. Additionally, the township code provides for compensation at the specific meetings outlined in S65512, above. The Code does not appear to permit the compensation of a township supervisor for attending other types of meetings or for performing the administrative functions of his office. Any such other compensation must be earned in and as part of the services performed while serving in one of the statutory authorized positions. Thus, if the township supervisors were to award to themselves compensation for attendance at meetings that are not official township meetings of the board of supervisors, or for performing duties not authorized by law such would violate the provisions of the State Ethics Act as such payment would not constitute compensation provided by law. The above interpretation of the Second Class Township Code is a view that has also been expressed by the State Association of Township Supervisors which Robert F. Lillie Page 9 specifically indicated that supervisors may not be compensated for meetings with engineers, solicitors, planning commissions, authorities, or recreation boards. See Township News, May, 1985, Page 66. The township code sets forth clearly when supervisors may receive compensation other than as set forth above. Generally, township supervisors may be employed by the township as a roadmaster, laborer, or secretary /treasurer. 53 P.S. S65410. The compensation to be paid to supervisors working in such positions is to be fixed by the township board of auditors. 53 P.S. S65515; 65531, 65540. Township supervisors may not receive any other compensation except as provided above. This concept has been upheld by various courts in the Commonwealth. In Coltar v. Warminister Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859, (1973), the Commonwealth Court of Pennsylvania held that a second class township supervisor may not appoint himself to positions other than those set forth in the township code (roadmaster, laborer, or secretary /treasurer), and receive compensation therefore. See also Conrad v. Exeter Township, 27 D & C 3d 253, (Berks 1983). It is clear, therefore, that the duties for which a township supervisor may be compensated are strictly regulated by the code, and when performing in the positions set forth in the Code, the supervisor's pay must be specifically set forth by the township board of auditors. In the instant matter you were nominated to serve in a working position which would seem to be the equivalent to the enumerated working position of laborer. The auditors also approved compensation at an hourly rate of $5.75 for working supervisors. We must now determine what amount of the 51.5 hours for which you were compensated related to your duties as working supervisor (laborer). Conversely, any duties you performed that did not relate to the position of working supervisor (laborer) would be part of your duties as supervisor for which you could not receive compensation at the hourly rate approved by the auditors. As previously noted, the auditors approved hourly compensation; however, this Commission has already held that township auditors have no authority to fix compensation for township supervisors who are performing duties outside of those fixed by law or for working in positions not established in the township code. Nanovic, 85 -005. Thus, even though the auditors may have indicated an approval, such could be of no effect as the auditors did not have the power to fix a compensation that was not allowed by law and that was regulated by statute (compensation as a supervisor). Of the 51.5 hours in question, it appears that 8.5 hours related to function you performed in your capacity as supervisor rather than working supervisor (laborer); therefore, that portion of the compensation was unauthorized. As a result, this Commission finds Robert F. Lillie Page 10 that you received compensation in the amount of $48.88 (8.5 hours x $5.75) that was not in accordance with that set forth by law. 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). (c) Any person who obtains financial gain from violating any provisions 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). Additionally, this Commission may make recommendations 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. See, McCutcheon v. State Ethics Commission, supra; 65 P.S. Section 407(9)(ii). See also Yocabet v. State Ethics Commission, supra. In the instant situation, upon a review of all of the facts this Commission believes that while there was a violation of the provisions of the State Ethics Act, the amount of financial gain that you obtained was de minimus and as such no further action will be taken in relation to this situation. In the future, however, you must not use your position to obtain financial gain in the form of compensation that is not authorized in law. C. Conclusion and Order: 1. As a township supervisor in a township of the second class, you are a public official and subject to the provisions -of the State Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you received compensation which related to duties outside of those fixed by law for a working supervisor. 3. The amount of the financial gain was de minimus and as such no further action will be taken. Robert F. Lillie Page 11 4. In the future, you must not use your position to obtain financial gain other than that compensation that is authorized in law. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending action on your request by the Commission. A request for reconsideration, however, does not affect the finality of this Order. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of your reasons as to why reconsideration should be granted in conformity with 51 Pa. Code 52.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one, including yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. Any person who violates 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, 65 P.S. 409(e). By t - Commiss n, elena G. Hughes 'Chair