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HomeMy WebLinkAbout711 PoskaMr. Ronald C. Poska c/o Ronald Bugaj, Esquire 962 Main Street Honesdale, PA 18431 Re: 88 -059 -C Dear Mr. Poska: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 711 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, 1989 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 Ronald C. Poska Page 2 A. Findinas 1. You serve as a township supervisor in Clinton Township, Wayne County, Pennsylvania. a. You have served in this position since January of 1980. 2. You worked on a part -time basis for the township during the year 1987. 3. Minutes ° meetin for Clinton January Township 198 of 1987 indicate the Supervisors reorganizationa ollowing meeting 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. 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. g • compensation provided by law for himself, a member of his immediate family, or a business with which he is associated., 65 P.S. S4031a). Ronald C. Poska Page 3 4. Records of Clinton Township indicate that the township auditors forwarded a letter dated March 4, 1987 to the township board of supervisors advising them of the following compensation that had been fixed by the township board of auditors in relation to supervisors 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 6 -14 -87 1 hour On phone with Dora Santi and Laguzzi. 7 -6 -87 7 -9 -87 a. You admit the above but assert your paid back the hour. 1 hour Went to Elk Lake, approved plan for Sheik. a. You challenge the above noting that you only looked at the deck for 10 minutes and spent the other 50 minutes cutting a tree that had tipped over onto TR456. 7 hours Checked permits at Elk Lake and patched Burriers Road. a. You deny the above and aver that 10 minutes was spent to check permits and the rest of the time was utilized for patching Route 516. 8-3-87 7h hrs. Went to Kilroe on permits, Keystone for coldpatch, patched Lillie and Posden. Ronald C. Poska Page 4 a. In your denial, you advise that half the time involved meeting with Attorney Rilroe while the other half was : spent obtaining cold patch and filling pot holes on TR464 and 439. 8 -14 -87 21/2 hours Went to Browndale on sewer hookup, N.E. Builders. a. You deny the above and assert that part of the time was spent filling potholes on TR532 and the remainder of the time involved the sewer hookup across and under Martin Street.:which was road related. 8 -17 -87 1h hr. Went to Jakes Elk Lake twice on building permits. a. You challenge the above and state that your expended time on the permit was only half an hour and the remaining hour was spent on changing the oil and greasing the grader. 8 -18 -87 7 hours Went to Browndale on Mateise Permits, to Biono's about loader. Honesdale for cutting edge for grader and Palmers. a. In your denial, you assert that you worked 8 hours, 7h hours of which was road related and the other half hour was permit related which latter time you donated. 8 -20 -87 2 hours Supervisors and Helfrick met with Dave and Jim Richards (Fire Com., Rachel, S. Maclek on Fireman's sts.). a. You challenge the above on the basis that the supervisor's Ronald C. Poska Page 5 visually inspected development streets which was road related. 8-27 -87 2 hours Went to trailer next to Koveleski's and checked on building permit (left note) and swept upstairs of school. a. You deny the above noting that 15 minutes was spent on the permit while the rest of the time was utilized cleaning the meeting room and garage. 9/10/87 6 hours Went to office with Investigator, Auditor General's Office. a. In your denial, you claim the investigator advised you that showing him the roads and material piles was road related for which you could be compensated. 6. You worked a total of 38 hours at a rate of $5.75 per hour for a total compensation of $218.50. a. You deny the above based upon your answers 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 January, 1980. b. You worked part -time for Clinton Township and you consider your position to be foreman of roadworkers. c. You were paid $5.75 an hour for your work with the township during 1987. d. Regarding the work that you performed on June 14, 1987, you advised that you were on the phone for several hours with two individuals discussing various problems. As a result, you missed dinner with your fami and friends. You indicate that your realized it was wrong to submit a request for payment and you have already repaid the township. Ronald C. Poska Page 6 e. Regarding the work that you performed on July 6, 1987, you indicated that this work may have been administrative and would have come under your duties as a supervisor. You do not remember if you did anything as a road foreman on that date. f. Regarding the work that you performed on July 9, 1987, you checked permits at Elk lake while on the way to Bocks Road where you spent the rest of the day working. g. Regarding the work that you performed August 3, 1987, you stopped see the township solicitor while on your way to Keystone Paving. Thereafter, you picked up black top and coldpatch and proceeded to Lillie and Poska Roads where you worked most of the day. h. Regarding the work that your performed on August 14, 1987, you worked on the roads in Browndale and looked at the Sewer hoop -ups. i. Regarding the work that you performed on August 17, 1987, this work -may have come under your function as a supervisor and would thus be considered pay for administrative duties. You did not specifically recall if you performed any other duties on that day. Regarding the work that you performed on August 18, 1987, you did a number of jobs including checking a permit at Mateise. You also went to Biono's garage to check on the loader which was being repaired. You also went to Honesdale to have the cutting edge sharpened on the garden grader and you then drove your pick up to Palmer's garage for repairs. k. Regarding the work that you performed on August 20, 1987, you along with the other supervisors met with the volunteer fireman over their development. You checked the roads for a drainage problem and you also were trying to determine if the township was going to take over the roads. 1. Regarding the work that you performed on August 21, 1989, you checked the_ trailer next to the Koveleski house and notified them that it was in violation of the permit requirements. You then went to the school house where the township meetings are held and cleaned that area. m. Regarding work that you performed on September 20, 1987, you went to Supervisor Lillie's property along with him and a representative of the Auditor General's Office. There, the representative from the Auditor General's Department checked the stone that the township was storing there. It was stone Ronald C. Poska Page 7 that was used on the roads and someone had complained that Mr. Lillie was using it as a fill for his land. The representative of the Auditor General's Department authorized you to claim your pay for the hours which you spent with him. a. You state the current date was September 10, 1987, not September 20, 1987. n. You deny sub Findings d. through m. based upon your answers 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, Sowers, 80 -050, Szvmanowski, Order 539. 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. Comm. 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 Ronald C. Poska Page 8 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 chasses 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. 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 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 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 township is strictly regulated by the Second Class Township Code. A supervisor may only receive compensation, as set forth above, Ronald C. Poska Page 9 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 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. 565515; 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 1 983). 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 foreman which would seem to be the equivalent the enumerated working position of superintendent. The auditors also approved compensation at an hourly rate of $5.75 for working supervisors. We must now determine what amount of the 38 hours for which you were compensated related to your duties as superintendent (foremen). Conversely, any duties you performed that did not relate to the position of superintendent (foremen) would be part of your duties as Ronald C. Poska Page 10 supervisor for which you could not receive compensation at the hourly rate approved by the auditors. As previously the auditors approved hourly compensation; however _ 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 38 hours in question, it appears that 8 hours and 35 minutes related to function you performed in your capacity as supervisor rather than superintendent? (foremen); therefore,, that portion of the compensation was unauthorized. As a result, this Commission finds that you received compensation in the amount of $49.35 (8 hours and 35 minutes 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 wha _.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 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 Ronald C. Poska Page 11 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 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. 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 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). Commission, elena G. Hughes Chair re.Y