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HomeMy WebLinkAbout721 SaugerMr. Fred Sauger Colver, PA 15927 Re: 87 -034 -C Dear Mr. Sauger: RN STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 721 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast James M. Howley Michael J. Washo Date Decided: September 26, 1989 Date Mailed: September 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 not 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: 1. Allegation: That you, a Supervisor of Cambria Township, Cambria County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you received expense payments for attending conferences, seminars and conventions in excess of expenses actually incurred: 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 Mr. Fred Sauger Page 2 of his immediate family, or a business with which he is associated. 65 P.S. §403(a). A. Findings: 1. You have served as a Supervisor of Cambria Township, Cambria County, since January, 1970. a. You have also served as a roadmaster during this period. 2. The Cambria Township Board of Supervisors authorizes supervisors to attend annual conventions of Pennsylvania State Association of Township Supervisors (PSATS) and local seminars and conventions. 3. Cambria Township records disclose that you attended the following PSATS annual conventions: a. 1984, Hershey 1984 to April b. 1985, Hershey 1985 to April c. 1986, Hershey 1986 to April a . Year Date 1984 4 -6 -84 5 -6 -85 Lodge and Convention Center from 11, 1984. Lodge and 24, 1985. Lodge and 23, 1986. Amount Convention Convention b. 1985: 4 -19 -85 $300.00 Per diem 64.80 mileage $364.80 - 50.00 PSATS reg. $314.80 18.35 room deposit $296.45 60.00 Per diem Center from Center from April 8, April 21, April 20, d. 1987, Pittsburgh Hilton Hotel April 12 through 15, 1987. PSATS Convention registration January 5, 1987. 4. Township records confirm the following amounts were paid to you or on your behalf for attending PSATS conventions: $300.00 Per diem $75 x 4 days 64.80 mileage 324 x .20 $364.80 Check No. 5954 6612 6637 Mr. Fred Sauger Page 3 Note: This $60.00 payment was made to you after you learned that per diem allowances were increased from $75.00 to $90.00 per day. c. 1986: 1 -2 -86 $ 50.00 PSATS conventions regis. 7076 Date 4 -15 -86 1 -2 -86 $ 50.00 Room reservation Amount $310.00 - per diem 64.80 - mileage $374.80 Note: Per diem was $90 /day x 4 days. $50 was deducted for convention registration paid on January 2, 1986. d. 1987: Date Amount Check No. 1 -5 -87 $50.00 PSATS 7836 Convention registration 4 -8 -87 $340.00 Per diem 8038 and mileage The $340.00 payment was calculated as follows: $360.00 per diem $90 x 4 days 30.00 mileage 150 x .20 /mile $390.00 -50.00 Registration paid on January 5, 1987 $340.00 Marked Paid Check No. 5954 No other documentation submitted. 7078 Check No. 7294 5. Township records disclose that you submitted the following to the township to obtain payments for attending the PSATS conventions: a. April 6, 1984: On Township letterhead, handwritten. 162 x 2 = 324 mi. x .20 = 64.80 Per diem = $300.00 $364.80 Mr. Fred Sauger Page 4 b. April 19, 1985: On township letterhead, handwritten. $75.00 per diem x 4 days $300.00 324 mi x .20 64.80 $364.80 Registration 50.00 $314.80 Room deposit 18 $296.45 Marked Paid check No. 6612. Delegate attendance certification form signed by you claiming attendance on April 21, 22, 23, 24, 1985 and expenses of $296.45. Handwritten on township letterhead, Fred Sauger. Difference on Per diem (law changed to $90.00). Amount: $60.00. Marked Paid Check No. 6637, signed Fred Sauger. c. April 15, 1986: Handwritten on township letterhead. Convention 1986 under the name of Fred Sauger. 4 days at $90.00 Pre - registration Mileage to Hershey Marked Paid Check No. $360.00 50.00 $310.00 64.80 $374.80 April 14, 1987 Room *meals for (4) 7294, April 15, 1986. Delegate attendance certification form signed by you claiming attendance on April 20 through April 23, 1986 and expenses of $360.00 plus mileage of $64.80. Total claimed $404.80. d. 1987: Delegate attendance certification form signed by you claiming attendance on April 12, 1987 through April 15, 1987 and expenses of $226.52. Noted was that you rode with another person and returned $30.00 for mileage. Receipts - April 13, 1987 - Taxi $ 4.00 April 14, 1987 Restaurant 21.24 Restaurant 12.78 April 15, 1987 15.05 Undated 15.41* April 17, 1987 Taxi 6.00 $ 74.48 83.93 Mr. Fred Sanger Page 5 Undated, handwritten, outlining as follows: 4 days x $90.00 = $360.00 mileage 30.00 $390.00 Total exp. 226.52 $163.48 Return check No. 4826 $133.48 for expense Returned check No. 4827 30.00 rode with another person Total returned: $163.48 6. Prior to the 1987 PSATS convention, Cambria Township has no receipts or other documentation other than the above stated to verify adtual expenses for you for attending the PSATS annual conventions. a. Prior to 1987, you were unaware that receipts for actual expenses should be maintained or that you were not entitled to a flat rate per diem plus mileage. 7. You mistakenly received mileage reimbursement from Cambria Township for attending the annual conventions even though you drove your personal vehicle only in 1986. The mileage you were paid is as follows: a. 1984: $64.80 b. 1985: 64.80 $129.60 8. Cambria Township records disclose that you also attended workshops related to road Maintenance and snow removal sponsored by the Pennsylvanian, an organization which is a subsidiary of various local government groups. a. Street and Road Maintenance Workshop, April 3 - 4, 1986 Sheraton Inn, Greensburg, Pennsylvania. b. Snow and Ice Control Workshop, September 11 - 12, 1986, Holiday Inn, Poconos, White Haven, Pennsylvania. c. Street and Road Maintenance Workshop, March 23 - 24, 1987 at Sheraton Inn, State College, Pennsylvania. 9. Registration form for 1986, held at the Greensburg Sheraton -Inn Workshop disclosed the following costs for attending this workshop. Mr. Fred Sauger Page 6 a. Registration (included dinner, luncheons, materials) - $70.00. b. Room $49 single, $52 double. 10. Township records confirm that the following amounts were paid by the township for your attendance at the April 3 - 4, 1986 workshop: Date Amount Payee Check No. a. 2 -11 -86 $70.00 1/3 of $210.00 7169 Pennsylvania (registration for three including meals and materials) c. 4 -1 -86 $200.00 Fred Sauger 7257 11. Expenses were overpaid by $181.63 for your attendance at the April 3 -4, 1986 seminar at Greensburg. a. This computation is based on the fact that registration costs, lodging and meals had previously been paid by Cambria Township. You did pay 1/3 of $55.12 room costs for lodging at the Sheraton Inn. b. You mistakenly believed that you were entitled to the $200.00 which you received. 12. Township records disclose that the following amounts were paid for your attendance at the September 11 -12, 1986 Snow and Ice Control Workshop: Date Amount Payee Check No. a. 8 -25 -86 $40.00 b. 8 -25 -86 $ 25.00 c. 9 -9 -86 $277.20 1/3 of $120.00 7569 Pennsylvanian (registration for 3 supervisors) Holiday Inn 7568 (2 supervisors) Fred Sauger 7636 13. Expenses were overpaid by $122.20 for your attendance at the September 11 - 12, 1986 seminar at White Haven. Mr. Fred Sauger Page 7 a. You were entitled to receive $90.00 /day, plus registration and mileage. This totalled $220.00. ($180 + $40). b. Expenses made to you or on your behalf totalled: Registration - $ 40.00 Check No. 8008 277.20 1/3 of room costs 25.00 $342.20 14. Township records disclose that the following amounts were paid for your attendance at the March 23, 24, 1987 Road Maintenance Workshop held in State College. Date Amount Payee Check No. a. 2 -10 -87 $70.00 a. Ebensburg to Hershey - 163 miles. b. Ebensburg to Pittsburgh - 77 miles. 1/2 of $140.00 7905 Pennsylvanian (registration for 2 supervisors including meals and materials). b. 2 -10 -87 $ 29.15 1/2 of $58.30 7906 Sheraton Inn c. 3 -17 -87 $154.85 Fred Sauger 8008 15. Expenses were overpaid by $154.85 for your attending the March 23 - 24, 1987 seminar at State College. a. You mistakenly believed that you were entitled to the $200.00 which you received. b. This computation is based on the registration costs. Lodging and meals had previously been paid by .Cambria Township. You did drive your personal vehicle and received mileage of $26.00 (130 miles x .20). 16. Township records disclose that Supervisors are paid $.20 per mile when travelling on township business. 17. Official Commonwealth of Pennsylvania road map discloses the following regarding distances from Ebensburg to the various seminar locations: Mt. Fred Sauger Page 8 c. Ebensburg to Greensburg - 53 miles. d. Ebensburg to White Haven - 195 miles. e. Ebensburg to State College - 65 miles. 18. Supervisor John Makosy provided the following information regarding travel to the various conferences and workshops and related expenses. a. All three supervisors generally rode to the conferences in the same vehicle. b. He believed that Supervisor Robert Shook drove to the workshops in Greensburg and White Haven. The supervisors most always went to the conventions in one car. c. On one occasion, Supervisor Sauger also drove to a seminar because he wanted to visit relatives living near Centralia. He was not sure of the date of the convention. d. He could not recall where the 1984 convention was held or where he stayed. e. He was not aware that he had to keep receipts of expenditures when attending conventions. f. All three supervisors usually used the same motel room. g. In 1985, they went to Hershey, and he thought that they stayed at the Host Inn. The supervisors all stayed in the same room, and drove together to the convention. h. In 1986, they stayed at the Brinser Hotel in Hershey. All three stayed in the same room. He drove down with Bob Shook. i. The Pennsylvanian seminar in Greensburg was a two day seminar as was the seminar in the Poconos. They all went to the Poconos in the same car and stayed in the same room. In 1987, they went to the convention in Pittsburgh. They stayed in the same room, but each received individual bills. They all went in one car. They each made a refund to the township after that trip. k. At the 1985 convention, then Governor Thornburgh advised the group that the law had been changed to increase the per diem Mr. Fred Sauger Page 9 by $15.00 and upon returning home each submitted claims for an additional $60.00 ($15.00 x 4 days). 1. The former secretary- treasurer knew that the supervisors should keep expense receipts and claim only expenses but never informed the supervisors. m. If he wanted township money, he could have insisted on being paid for hundreds of hours worked without receiving compensation. n. He only took the per diem money because it was his understanding that he was entitled to $90.00 per day, plus the round trip mileage. 19. Cambria Township Supervisor, Robert Shook, advised as follows: a. He has served as supervisor and part -time roadmaster since 1984. b. In his first year as supervisor, all three supervisors went to the state convention in his personal car. They did not share the mileage, each was paid mileage. They all stayed in the same room at the Host Inn and split the room expenses. c. In 1985, they again went to the state convention in his car and stayed at the Host Inn. He was not certain if you went with him that year. They all received mileage reimbursement, and a $60 per diem adjustment when the rate was raised from $75 to $90. d. He has no receipts from any conventions prior the 1987 convention when he stayed at the Pittsburgh Hilton. e. Until 1987, Supervisor John Makosy made all of the arrangements. When they checked out after a convention, Makosy would tell them what each owned toward the expenses and each would pay their share. f. He was given a check prior to each trip and assumed that he was entitled to it. In 1986, he drove to the state convention and they all stayed at Brinsers Motel in Hershey. He could not recall if they all stayed in one room. h. He also attended two workshops, one in Greensburg and one in g. Mr. Fred Sauger Page 10 the Poconos. He stayed alone in one room at the Poconos. He has no receipts. i. He lost money when he went to conventions because he did not get paid from his regular job when attending. After talking to Marian Naylor of PSATS at the 1987 convention, they began keeping receipts. 20. You provided the following information regarding your attendance at conventions and seminars: a. You have served as a township supervisor since January, 1970. You also have been a township employee for (33) years. b. You have no receipts for your expenses, you always paid cash. c. You could not remember one year from another regarding the various state conventions. d. On one occasion, you and John Makosy both took your wives. You didn't know the year. e. On another occasion the supervisors had to get two rooms because they could not get one room with three beds. f. In 1985, there was an increase in the per diem amount to $60 after the four -day convention. The last time the convention was held in Hershey, you drove yourself and stayed at the Host Inn in Harrisburg. h. You also took your wife to the annual convention at Pittsburgh where you stayed at the Hilton Hotel. i. No one from either the State Association or the township auditors ever told the supervisors to keep receipts. You estimate that 75% of the supervisors in Cambria County do not keep receipts or claim actual expenses. k. The former township secretary was aware of Ethics Commission rulings regarding expenses but withheld that information from the supervisors. 1. All of the supervisors put in extra hours work for which • • Mr. Fred Sauger Page 11 they do not claim pay. Why would they try to claim expense money they were not entitled to receive it. m. The supervisors only took the per diem money and travel expenses because they thought that they were entitled to it. You certainly didn't take the money out of malice and greed. 21. Restitution was made to Cambria township through the payment by check in the amount of $588.28. 22. You collected per diem expenses for attending workshops and conventions because you believed the amounts were a flat rate allowance and that you could collect mileage. You were not aware that you were entitled only to actual expenses incurred and that you should keep receipts for expenses. 23. You were acting in good faith and without wrongful intent, you never intended to collect more expense reimbursement than that to which you were entitled to receive. B. Discussion: As a township Supervisor in a township of the second class, you are clearly a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the State Ethics Act and the restricted activities of that law apply to you. See Sowers; 80 -050; Welz, 86 -001. 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 with which he is associated. 65 P.S. §403(a). This Commission, in the past, has reviewed the above provision of law specifically regarding the issue of expense allowances in relation to certain public officials and the retention of excess funds relating to such expense allowances. Generally, in reviewing the county code provisions in relation to expense allotments for officials who attend the annual meeting of the State Association of County Officials, this Commission specifically determined that such officials were only entitled to receive their expense allowances as actually incurred up to and not exceeding certain per diem amounts for Mr. Fred Sauger Page 12 attendance at such meetings. The Commission made this determination based upon a specific review of the county code provisions allocating such expense allowances and under the provisions of the State Ethics Act as applied thereto. The Commission further determined that any funds in excess of this amount, received and retained by said officials through their official positions, would constitute financial gain other than the compensation provided for by law and, thus, be a violation of Section 3(a) of the State Ethics Act. See Bigler, 85 -020. Specifically, the Commission determined that because the municipal code only permitted expense reimbursements for actual expenses or within a certain dollar amount, funds requested and received in excess of the permitted amount through the public official's office and retained by said public official would constitute a financial gain other than the compensation provided by law. Public officials who, through their public positions, receive and retain excess funds would thus be in violation of Section 3(a) of the State Ethics Act. Our position in relation to this analysis was reaffirmed in Hawkins, 368. In Hawkins, this Commission determined that a county sheriff had violated Section 3(a) of the State Ethics Act when, through his position, he requested and received expense allowances for attendance at a state sheriff's convention in excess of that which was permitted by the code. Specifically, the county sheriff received certain funds even though he had not attended the convention. Additionally, he had received funds in excess of that specifically allowed by the county code. Similarly, we determined that county official would nct be permitted to receive reimbursement for attending a convention of the official's organization if such individual did not, in fact, attend. See Shultz, 369. Our analysis in all of these cases was based upon long standing judicial interpretation of these provisions of law. See Bechak v. Corak, 414 Pa. 522, 201 A.2d 213, (1964); Susquehanna County Auditor's report, 118 Pa. Super 47, 180 A. 148, (1935); Walker v. Somerset County, 26 D & C 2d 775, (1961). In the instant situation, in order to determine whether Section 3(a) of the Ethics Act has been implicated through the activity as outlined in the findings of fact, we must first review what compensation in the form of expense allowances is permitted by the Second Class Township Code. Based upon a determination as to what compensation is permitted, we will then be able to determine if you, through your public position, obtained financial gain in the form of excess expense allowances when such was not provided for by law as part of your compensation. The Second Class Township Code provides as follows in relation to Mr. Fred Sauger Page 14 for not more than five years, or be both fined and imprisoned. 65 P.S. $409(a). The Act further provides: Section 9. Penalties. (c) Any person who obtains financial gain from violating any provision 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). The State Ethics Commission also has the authority to make an affirmative recommendation to an appropriate law enforcement authority for the initiation of criminal charges pursuant to the above provision of law or for the dismissal of charges depending upon factual circumstances. This Commission has also been granted the authority to offer the opportunity to an individual who has obtained financial gain as a result of a violation of the State Ethics Act the opportunity to divest himself of said gain. See McCutcheon v. State Ethics Commission, 77 Comnnv. Ct. 529, 466 a.2d 283, (1983). The Commission has, on a number of occasions, offered individuals the opportunity tc divest themselves of the gain received and thereafte., recommended no further criminal action. The financial gain tha•: ycu received in the instant situation equals $ 588.28. You have made payment tc Cambria Township iii the amount of $588.28 as reimbursement for the excess expense money that you received. You ha re thereby zemoved you: :self from the conflict by making restitution, and hence rlo 2urther action will be taken. C. Conclusion and Order : 1. You, as a Township Supervisor are a public official subject to the provisions of the State Ethics Act. 2. You violated Section 3(a) of the Ethics Act by receiving a financial gain other than compensation provided by law when you received payments in excess of those authorized in law for attending PSATS conventions, workshops or seminars. Mr. Fred Sauger Page 13 expenses for the attendance of township supervisors at annual association conventions: The supervisors may designate one or more of the following elected or appointed officials of the township to attend the annual meeting of the State association: supervisors, township secretary and /or township manager. Said convention shall be held in the Commonwealth in accordance with the procedures adopted byu the State association. These delegates expenses shall be paid by the respective townships out of the township general fund. 53 P. S. §65611. The expenses allowed the delegates attending the annual meeting may be in an amount not exceeding ninety dollars per day for each delegate for not more than four days including the time employed in traveling thereto and therefrom, together with mileage going to and returning from such meeting. 53 P. S. §65612. This provision of law is virtually identical to the one that we have reviewed in our previous opinion. Based upon that review as applied herein, a township supervisor may not use his position to obtain a financial gain in the form of excess expense allowances. The above expense allowance provision as noted would require reimbursement for actual expenses not to exceed $90 per day. Your reimbursed expenses relative to the PSATS Convention were unauthorized to the extent that you received mileage totalling $129.60 when you did not drive in 1984 and 1985. In addition, you received excessive reimbursements as to an April, 1986 township seminar amounting to $181.63 as to registration costs, lodging and meals previously paid by Cambria Township. As to a September, 1986 seminar you were overpaid by $122.20 beyond the per diem and registration to which you were entitled. Lastly, you were overpaid by $154.85 for a March 1987 seminar based upon registration costs, lodging and meals paid by the township. Generally, 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 Mr. Fred Sauger Page 15 3. The financial gain referenced in paragraph two amounts to $588.28. 4. Since you have removed yourself from the conflict by making full restitution, no further action will be taken. 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 §2.38. 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). 3ie Commssi , t %/ eZie, f 2 2 ��-/ elena G. Hughes J Chair