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HomeMy WebLinkAbout719 ParishMr. Stephen Parish c/o Robert L. Ceisler, Esq. 200 Washington Trust Building Washington, PA 15301 Re: - 88 -042 -C Dear Mr. Parish: SLATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 719 Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington Michael J. Washo Date Decided: July 27, 1989 Date Mailed: July 28, 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. Alleaation: That you, a Supervisor in Union Township, violated the following provisions of the Ethics Act (Act 170 of 1978), when you were compensated for duties other than those of roadmaster, secretary, treasurer or laborer including administrative duties: 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. S403(a). Mr. Stephen Parish Page 2 A. Findinas: 1. You served as a Supervisor of Union Township, Washington County, since 1976. a. From 1976 to 1987 you served as a part -time road supervisor and assistant secretary - treasurer. 2. Minutes of the Union Township Supervisors' reorganization meetings disclosed the following: a. January 5, 1981: A motion was made by Nurnberger, seconded by Speer that Stephen J. Parish, Jr. be re- appointed Assistant Secretary for 1981, recommended salary increase of 12 %. Roll call vote: Nurnberger -Aye; Gabig -Aye; Parish - abstained; Spahr -Aye and Speer -Aye. Motion carries. b. January 4, 1982: A motion was made by Speer, seconded by Nurnberger that Stephen J. Parish, Jr. be re- appointed Assistant Secretary for 1982. Bond to be set at $25,000. Roll call vote: Nurnberger -Aye; Gabig -Aye; Parish - abstained; Spahr -Aye and Speer -Aye. Motion carries. A motion was made by Speer, seconded by Spahr and carried unanimously that 5 supervisors be roadmasters for 1982. A motion was made by Nurnberger, seconded by Gabig and carried unanimously suggesting that roadmasters' wages be set at $6.80 per hour for 1982, same as 1980 and 1981. c. January 3, 1983: A motion was made by Gabig, seconded by Spahr and carried unanimously to reappoint Stephen J. Parish, Jr. as Assistant Secretary for 1983. Bond to remain at $25,000.00. A motion was made by Speer, seconded by Spahr and carried unanimously that all five supervisors be appointed roadmasters for 1983. A motion was made by Speer, seconded by Parish that suggested pay to be $6.80 per hour for roadmasters. Roll call vote: Nurnberger -Aye; Gabig -No; Parish Aye; Spahr -Aye; and Speer -Aye. Motion carries. d. January 3, 1984: A motion was made by Speer, seconded by Spahr and carried unanimously that Stephen J. Parish, Jr. be re- appointed Assistant Secretary of the Board of 1984. Bond to be set at $25,000.00. Salary to be established between Mr. Stephen Parish Page 3 Secretary - treasurer and Assistant Secretary. Secretary - Treasurer to pay Assistant Secretary from his compensation. A motion was made by Speer, seconded by Nurnberger and carried unanimously that all five supervisors be appointed roadmasters for 1984. A motion was made by Speer, seconded by Spahr and carried unanimously that suggested pay for roadmaster be $7.15 per hour for 1984. e. January 7, 1985: A motion was made by Spahr, seconded by Nurnberger that Stephen J. Parish, Jr. to reappointed Assistant Secretary of the Board for 1985. Bond to be set at $25,000.00. Salary to be established between Secretary - treasurer and Assistant Secretary. Secretary- treasurer to pay assistant secretary from his compensation. Roll call vote: Nurnberger -Aye; Gabig -Aye; Parish -Aye; Spahr -Aye, Wilson -No. Motion carries. A motion was made by Spahr, seconded by Nurnberger and carried unanimously that all five supervisors be appointed roadmaster /employees for 1985. A motion was made by Spahr, seconded by Parish and carried unanimously that suggested pay for roadmaster employees for 1985 be the same as operators - $9.11 per hour. f. January 6, 1986: A motion was made by Spahr, seconded by Nurnberger that Stephen J. Parish, Jr. be reappointed Assistant Secretary of the board for 1986. Bond to be set at $25,000.00. Salary to be established between secretary - treasurer and assistant secretary. Secretary- treasurer to pay assistant secretary from his compensation. Roll call vote: Nurnberger -Aye; Gabig -Aye; Parish - abstained; Spahr - Aye; and Uremovich -Aye. Motion carries. A motion was made by Spahr, seconded by Uremovich and carried unanimously that suggested pay for roadmaster employees for 1986 be $9.46 per hour (same as operator on township road crew). Minutes reflect that no roadmaster appointments were made. g. January 5, 1987: A motion was made by Spahr and seconded by Nurnberger to appoint Stephen J. Parish, Jr. as Assistant Secretary. He is to assume responsibility in the event the secretary- treasurer is incapacitated and is unable to perform the responsibilities and duties of secretary- Mr. Stephen Parish Page 4 treasurer including the keeping of the minutes. Roll call vote. Nurnberger -Aye; Gabig -Aye; Parish - abstained, Spahr - Aye and Uremovich -Aye. Motion carries. A motion was made by Gabig, and seconded by Spahr that Stephen J. Parish, Jr. be appointed as roadmaster employee for 1987. Roll call vote. Nurnberger -Aye; Gabig -Aye; Parish - declined to vote, Spahr -Aye; and Uremovich -aye. Motion carries. A motion was made by Spahr, seconded by Uremovich and carried unanimously that the suggested pay rate for roadmaster employees for 1987 be set at $9.81 per hour. (Same as operator on township road crew). h. January 4, 1988: A motion was made by Spahr, seconded by Rostosky and carried unanimously to appoint Stephen J. Parish, Jr. as assistant secretary. He is to assume responsibility in the event the secretary is incapacitated and is unable to perform his duties. Parish's bond set at $25.000.00. A motion was made by Smida and seconded by Uremovich that Stephen J. Parish, Jr. be appointed roadmaster- operator- employee for 1988. Roll call vote. Spahr, Uremovich, Smida and Rostosky voted aye. Parish abstained. Motion carries. A motion was made by Rostosky, seconded by Spahr and carried unanimously that the suggested pay rate for roadmasters- operator - employees for 1988 be set at $10.21, the same as an operator on the township road crew and also including time and one half for overtime and fringe benefits as spelled out in the workers' contract. 3. Minutes of the Union Township Board of Auditors' meetings reflect the following regarding compensation for supervisors. a. January, 1981 - Minutes not available. b. January 5, 1982 - compensation for supervisors was set at $6.80 per hour. c. January 4, 1983 roadmasters was d. January 4, 1986 set at $9.41 per - compensation for supervisors acting as fixed at $6.80 per hour. - compensation for roadmaster supervisors hour. Mr. Stephen Parish Page 5 e. January 6, 1987 - compensation was set for roadmaster supervisors who operate equipment at $9.81 per hour and $9.09 for those who do not. g. January 5, 1988 compensation for supervisor roadmasters set at $10.21 per hour with time and one half for work exceeding 8 hours per day or 40 hours per week. (1) George Uremovich and Steve Parrish requested hospitalization insurance for roadmasters /employees working full time or a minimum of 15 hours per week. (ii) The auditors also authorized certain paid holidays for supervisor /employees. 4. Pursuant to a standard procedure, the Union Township Auditors would make a notation as the last item on the annual reorganizational meeting minutes indicating the compensation that had been fixed for the township supervisors. a. These notations indicate as follows: (i) January 5, $6.80 per hour. (ii) January 4, $6.80 per hour. (iv) January 3, 1984 $7.15 per hour. 1981 - wages for 1982 - wages for supervisor - roadmasters, supervisor- roadmasters, (iii) January 3, 1983 - wages for supervisor - roadmasters, $6.80 per hour. - wages for supervisor- roadmasters, (v) January 7, 1985 $9.11 per hour. (vi) January 7, 1986 - wages for supervisor- roadmasters, $9.46 per hour. - wages for supervisor- roadmasters, (vii) January 5, 1987 - wages for supervisor - roadmasters fixed at $9.09 for non - operators and $9.81 for operators. (viii) January 4, 1988 - wages for roadmaster- operator- employee fix at $10.21 /hour. 5. Township records further disclosed that following the audit of the financial records for 1987, the auditors informed the board of Mr. Stephen Parish Page 6 supervisors of four items requiring adjustment, correction and /or attention. a. Item 4. Supervisors acting as roadmasters performing extensive managerial duties not directly related to road maintenance should not be considered for road maintenance. 6. Minutes of the Board of Supervisors' meeting of April 6, 1988 disclosed the following regarding the 1987 audit report and the auditors' letter (No. 5): a. A motion was made by Parish, seconded by Rostosky and carried unanimously to accept the audit for 1987 as presented by the township auditors. b. A motion was made by Rostosky, seconded by Parish and carried unanimously instructing the secretary to write to Mr. Donald Bucich, Township auditor, asking them to be more specific about item No. 4 in their comments._ Also, the supervisors would like to have a discussion for clarification at this time. 7. Minutes of the Union Township Supervisors' meetings for February 3, 1988, disclosed the following regarding supervisor- roadmaster attendance at a PennDot seminar. a. A motion was made by Spahr and seconded by Smida authorizing George Uremovich to attend the PennDot Teleconference Workshop on February 23, 1988 at Mon Valley Hospital. Roll call vote. Parish, Spahr, Smida and Rostosky voted aye. Uremovich abstained. Motion carries. b. A motion was made by Smida and seconded by Spahr authorizing Stephen Parish to attend the PennDot Teleconference Workshop on February 23, 1988 at Mon Valley Hospital. Roll call vote. Spahr, Uremovich, Smida and Rostosky voted aye. Parish abstained. Motion carries. 8. Union Township participates in the federal program of dispensing surplus cheese and butter to qualified citizens of the township. a. The board of supervisors is responsible for the distribution of the surplus food items. 9. David Mathies, Union Township Secretary - treasurer, provided the following information: a. The township has participated in the surplus food program for at least the past twenty years. Mr. Stephen Parish Page 7 b. The township supervisors are in charge of the program. Currently, Supervisors Parrish and Uremovich as roadmasters, are in charge of the program. c. When surplus food becomes available, the township will receive notification from Washington County. The township road crew will then pick up the items. d. The township road crew is directed by a road foreman, who is not a supervisor. Supervisor- roadmasters are directed by the road foreman. e. The food distribution occurs at two sites within the township and usually takes the better part of the day to distribute. f. The comments raised at the April 6, 1988 supervisors' meeting regarding payment to supervisors for non -road maintenance work were made regarding the supervisors sitting in the office doing managerial non -road related work. No examples were cited, and the matter was not pursued. 10. Union Township road crew work logs disclose the following regarding hours spent on surplus food distribution and attendance at PennDot seminar: Date Hours Worked Rate of Pav Work Performed a. 12 -15 -87 8 $9.81 /hr. Pick -up cheese, butter and rice in Washington. Work on guard rails, Pleasant view. b. 2 -23 -88 8 $10.21 /hr. PennDot Highway maintenance and liquid fuels. c. 3 -24 -88 8 $10.21 /hr. Cheese, butter and commodities distribution. Mr. Stephen Parish Page 8 Brushing Coal - Bluff Road. d. 9 -22 -88 8 $10.21 /hr Food pick -up and distribution. Work on slide on Gilmore Road install stop signs. 11. You provided the following information to a State Ethics Commission investigator: a. You have been a Union Township road supervisor since 1976, and a roadmaster- operator employee full -time since 1977. b. The township participates in the surplus cheese and butter program. The township supervisors are coordinators for the program. c. The township distributes the food from two sites. The centers are open from 10 a.m. to 3 p.m. on a normal day. d. Normally, there are five employees and two roadmasters (supervisors) who go to the food bank in Washington, Pennsylvania to pick up the surplus food items. It varies, but sometimes they use one truck and occasionally two trucks. The roadmasters (supervisors) sign for the food items, usually Supervisor Uremovich and you. e. The process of picking up and delivering the surplus food usually takes the road crew about two hours. f. Normally, the supervisors have someone at the distribution site to distribute the food, keep the records and complete the tally sheets. On December 15, 1987, the township road foreman directed the entire road crew to go to Washington to pick up the surplus cheese and butter. The items were split up for the two distribution centers. This assignment did not take the entire work day to complete. h. In regards to March 24, 1988 distribution, the volunteer, Mrs. Gabig, who kept the records suffered a heart attack. You then took her place and distributed food and completed records for the rest of the day. i. On September 22, 1988, the entire road crew went to the food bank, picked up the food and delivered it to the Mr. Stephen Parish Page 9 distribution centers. The food crew then went to clear a rock slide on Gilmore Road. The trip to the food bank probably took about two hours. j. The Second Class Township Code authorizes townships to appropriate funds for the storage handling and distribution of surplus foods. k. Every township distributes the surplus food in a similar fashion, and supervisors and /or councilmembers participate in the distribution. 1. You are employed full -time as a road worker, and you work as directed by the road foreman who is not a supervisor. m. You believe that supervisors should not be discriminated against when they are working under the direction of a road foreman. n. The wages paid to you on February 23, 1988 . to attend a seminar were approved by the board of supervisors. You were directed to attend this PennDot seminar on highway maintenance and liquid fuels by the board. While at the seminar, the officials were told that they would be compensated for attending. o. The entire complaint is nothing but a political vendetta. There is no evidence of fraud at the township. 12. Township records confirm that on June 4, 1989, you voluntarily repaid $60.46 to the township by personal check No. 1851. a. This amount represents the six hours pay you received from cheese and butter distribution on December 15, 1987, March 24, 1988 and September 22, 1988. B. Discussion: 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, Order No. 539. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date Mr. Stephen Parish Page 10 of this act, and cause of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act 'was violated. Under Section 3(a) of the Ethics Act quoted above, 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 McCutcheon v. State Eth,.cs Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1982); Yocabet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A. 536 (1987). 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. 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 34,000 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 Mr. Stephen Parish Page 11 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 axle four - wheeled motor truck having a chases weight of less than two thousand pounds when required and actually used for the transportation of road and grudge 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 no supervisor shall receive compensation as a superintendent or roadmaster for any time he spends attending a meeting of supervisors. 65 P.S. S65515. 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 in any township where, on account of the exercise of governmental functions other than those relating to roads, more meetings are necessary, in 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. S65512. 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, Mr. Stephen Parish Page 12 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 Code provides for compensation at the specific meetings outlined in S512, above. The Code does not appear to permit the compensation of a township supervisor for attending other types of meetings 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 the supervisors may not be compensated for meetings with engineers, solicitors, planning commissions, authorities, or recreation boards. See Township News, May, 1985, Page 66. The 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. Warminster 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, (Berke 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. The "administrative services" for which you were compensated were related to the office supervisor. In this case, you received $60.46 in "administrative services pay" for cheese and butter distribution which was other than compensation provided by law. Mr. Stephen Parish Page 13 It is clear that the auditors did not approve this compensation; even if they had, 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, Opinion 85 -005. As a result, this Commission finds that you violated Section 3(a) of the Ethics Act when you received compensation in the form of administrative pay that was not in accordance with that set forth by law. However, since you have already made a voluntary repayment of $60.46 to Union Township, this Commission will take no further action. C. Conclusion and Order: 1. As a township supervisor in Union Township, you are a public official subject to the provisions of the State Ethics Act. 2. You violated Section 3(a) of the State Ethics Act by using public office to obtain a financial gain which was not compensation provided by law when you were paid for distributing cheese and butter. 3. The amount of gain received by you referenced in paragraph 2 amounts to $60.46. This amount has already been paid by you to the township and, as such, we do not believe that any further action should ensue. 4. Since you have already made restitution of the $60.46 to Union Township, this Commission will take no further action. 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. Hr. Stephen Parish Page 14 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). Commis on, e ena G. Hughes Chair