Loading...
HomeMy WebLinkAbout710 LopatofskyMr. Francis J. Lopatofsky R.D. #1 Waymart, PA 18472 Re: 88 -058 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TICE COMMISSION Order No. 710 Before: Helena G. Hughes, Chair Robert We Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: June 1, 1989 Date Mailed: June 8. 1989 Dear Mr. Lopatofsky: 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 deemed 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 compensation provided by law for himself, a member Francis J. Lopatofsky Page 2 of his immediate family, or a business with which he is associated. 65 P.S. 5403(a). A. Findinas,: 1. You serve as a .township supervisor in Clinton Township, Wayne County, Pennsylvania. a. You have served in this position from January of 1971 to December, 1976 and from January of 1982 to December of 1987. 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. d. 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, second by Ronald Poska, that Francis Lopatofsky could work. h.' A motion was made by Francis Lopatofsky, second by Robert Lillie, that Ronald Poska could work. i. A motion was made by Francis Lopatofsky, second by Ronald Poska, that Robert Lillie could work. j. All of the above motions were approved. k. Supervisors are authorized to check on all new building - within the township to see that a permit has been obtained. Francis J. Lopatofsky Page 3 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 c. Secretary's bond at $60,000. indicate that the township auditors 4, 1987 to the township board of following compensation that had been auditors in relation to supervisors to receive per hour $5.75. 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 5 -9 -87 4 hour Fire in Browndale dump on old railroad bed. 8-20-87 2 hours Met with Browndale firemen over development. 6. You worked a total of 6 hours at a rate of $5.75 per hour for a total compensation of $34.50. 7. You provided the following information in relation to the instant situation: a. You have served as a township supervisor in Clinton Township, Wayne County, from January of 1971 to December of 1976. b. You also served in this position from January of 1982 to December of 1987. c. On May 9, 1987, you were notified by Fire Chief Dave Richards of a fire in the area of Browndale. Trash was burning along the railroad tracks in a wooded area. d. The fire chief, along with a number of firemen and foresters, were on the scene when you arrived. e. You had discussions with the fire chief about air lifting water into the area so as to prevent the spread the fire to the surrounding forest area. It was decided, at that time, Francis J. Lopatofsky Page 4 that the township could not afford to air lift the water and trees on the perimeter of the fire were cut down so as to let the fire burn itself out. f. Supervisor Ron Poska was also present at the scene and the fire was fought for approximately eight hours. g. You believe that fighting the fire went beyond the work of a supervisor and was more in line with that of a laborer. h. You only decided to put in for four hours pay although you were at the scene for approximately eight hours. i. Regarding the work that you performed on August 20, 1987, you went to .Browndale_.,along with Supervisors Poska and Lillie to look over a development that was owned by the volunteer fire company. The company had obtained a tract of land that they were trying to develop. They wanted the township to review this development _. and to take over the township roads. You were not aware of everything you did in relation to this review but you recall talking to Chief Richards and checking the roads and the sewers. 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. 5402. As such, their conduct must conform to the requirements of the State Ethics Act. See, Sowers 80 -050, Szvmanowski, No. 539. The State Ethics Act provides as follows: 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 which he is associated. 65 P.S. 403(a). Within the above provisions 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. Comm. 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 Francis J. Lopatofsky Page 5 State Ethics Act. See also Yocabet v. State Commw. Ct. 432, 531 A.2d 536 (1987). The Second Class Township Code provides that 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 Ethics Act, 109 Pa. township supervisors 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 axled 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 as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 53 P.S. $65515. 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 Francis J. Lopatofsky Page 6 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 565512, 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 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 roadkaster, 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. 565515; 65531, 65540. Township supervisors may not receive any other compensation except as provided above. This concept has been n - - 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 Francis J. Lopatofsky Page 7 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 the position of assistant foreman which is not one of the enumerated working positions in which a supervisor may be employed. Additionally, the work that you performed did not relate to the functions performed by working supervisors in the above enumerated positions. Thus, the gain you received amounting to $34.50 was unauthorized for two reasons: you were not in one of the allowed working positions and secondly you did not perform services that fall within the duties of those allowable working positions, that is, your appearance and input at the scene of a fire and at a proposed development do not fall within the scope of the functions of employee- supervisors.. You received compensation that was not provided for by law. With relation to the fact that the auditors approved hourly compensation, this Commission has already held that township auditors have not 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). As a result, this Commission finds that you received compensation in the amount of $34.50 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 Francis J. Lopatofsky Page 8 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 F.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 State Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you received compensation for appearing at the scene of a fire and proposed development in the township. 3. The amount of the.financial gain was de minimus and as such no further action will be taken. 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 S2.38. 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 Francis J. Lopatofsky Page 9 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). elena G. Hughes Chair