HomeMy WebLinkAbout722 MakosyMr. John M. Makosy
668 Highland Avenue
Revloc, PA 15948
Re: 88 -110 -C
A �
ss
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
•
ORDER OF THE COMMISSION
Order No. 722
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
Dear Mr. Makosy:
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:
I. 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. John M. Makosy
Page 2
of his immediate family, or a business with which
he is associated. 65 P.S. 5403(a).
A. Pinc4ings :
1. You have served as a Supervisor of Cambria Township, Cambria
County, for at least the past fifteen years.
a. You have also served as a part -time 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
1986 1 -2 -86
1 -2 -86
d. 1987, Pittsburgh
1987.
e.
a .
b.
1988, Hershey Lodge and Convention Center, April 17 to
April 20, 1988.
4. Township records confirm the following amounts were paid to you or
on your behalf for attending PSATS conventions:
Year
1984
1985
Date Amount
4 -6 -84
4 -19 -85
Lodge and Convention Center
11, 1984.
Lodge and Convention Center
24, 1985.
Lodge and Convention Center
23, 1986.
$ 50.00 PSATS conventions regis. 7076
$ 50.00 Room reservation 7078
Hilton Hotel, April 12, 1987 to April 15,
$300.00 Per diem $75 x 4 days
64.80 mileage 324 x .20
$364.80
$300.00 Per diem
64.80 mileage
$364.80
- 50.00 PSATS reg.
from April 8,
from April 21,
from April 20,
Check No.
5953
Nr. John M. Makosy
Page 3
$314.80
18.35 room deposit Unk.
$296.45 6611
5 -6 -85 60.00 Per diem 6639
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 Convention 7076
registration
1 -2 -86 50.00 -Room reservation 7078
4 -15 -86 $310.00 - per diem 7294
64.80 - mileage
$374.80
50.00 - room deposit paid on 1 -2 -86
$324.80
Note: Per diem was $90 /day x 4 days. $50 was
deducted for convention registration paid on
January 2, 1986.
d. 1987, Pittsburgh Hilton Hotel April 12 through 15, 1987.
PSATS Convention registration January 5, 1987.
Date Amount Check No.
7836
1 -5 -87 $50.00 PSATS
Convention
registration
1 -5 -87 85.00 Room registration Unk.
4 -8 -87 $255.00 Per diem 8037
and mileage
The $255.00 payment was determined as follows:
$360.00 per diem ($90 x 4 days)
30.00 mileage (150 x .20 /mile)
$390.00
-50.00 Registration
$340.00
- 85.00 Room reservation
$255.00
e. 4 -15 -88 $500.00
8846
Mr. John M. Makosy
Page 4
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
Less room reservation 35.00
$309.80
Marked Paid Check No. 5953
No other documentation submitted.
b. April 19, 1985: On township
$75.00 per diem x 4 days
324 mi x .20
Registration
Room deposit
Marked Paid check No. 6611.
letterhead, handwritten.
$300.00
64.80
$364.80
50.00
$314.80
18.35
$296.45
Delegate attendance certification form signed by you
claiming attendance on April 21, 22, 23, 24, 1985 and
expenses of $296.45.
Undated handwritten on township letterhead, John Makosy.
Difference on Per diem (law changed to $90.00).
Amount: $60.00. Marked Paid Check No. 6639, signed John
Makosy.
c. April 15, 1986: Handwritten on township letterhead.
Convention 1986, charged to under name of John Makosy.
4 days at $90.00 $360.00
Pre - registration 50.00
$310.00
Mileage to Hershey 64.80
$374.80
Less hotel reservation 50.00
$324.80
Marked Paid Check No. 7295, 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 $324.80.
Mr. John M. Makosy
Page 5
d. 1987: Delegate attendance certification form signed by you
claiming attendance on April 12, 1987 through April 15, 1987
and expenses of $390.00. Noted on the reverse side of form
was an itemization of expenditures:
$390.00 - Per diem, plus $30.00 mileage
-85.00 - Less Room Reservation
305.00
-50.00 - Less Registration
$255.00 - Amount of Check #8037 from township
-67.33 - Receipts
187.67 - Excess
30.00 - Mileage returned
$217.67 - Amount returned to township.
Personal check #5091.
e. 1988: Delegate Attendance Certification form signed by you
listing total expenses of $267.47.
Expense Report Listing amount received of $500.00, expenses
of $272.77. Reimbursed to the township by personal check
#5412 - $227.23
6. Prior to the 1987 PSATS convention, Cambria Township has no
receipts or other documentation other than the above stated to verify
actual 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 reimbursements from Cambria
Township for attending the annual conventions even though you did not
drive your personal vehicle in 1984, 1985 and 1986. The mileage you
were paid is as follows:
a. 1984: $ 64.80
b. 1985: 64.80
c. 1986: 64.80
$194.40
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.
Mr. John M. Makosy
Page 6
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.
a. Registration (included dinner, luncheons, materials) -
$70.00.
b. Room $49 single, $52 double.
10. Township records confirm that the following amounts were paid 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)
b. 4 -1 -86
$200.00 John Makosy 7256
11. Expenses were overpaid to you or on your behalf 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. This computation is based on the fact
that you did pay 1/3 of the $55 room costs and that
registration costs and meals had previously been paid by
Cambria Township.
b. You mistakenly believed that you were entitled to the $200
as per diem expenses.
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.
Mr. John M. Makosy
Page 7
a. 8 -25 -86 $40.00 1/3 of $120.00 7569
Pennsylvanian
(registration for
3 supervisors)
b. 8 -25 -86 $ 25.00 Holiday Inn 7569
(2 supervisors)
c. 9 -9 -86 $270.80 John Makosy 7638
13. Expenses were overpaid by $115.80 for your attendance the
September 11 - 12, 1986 seminar at White Haven.
a. You were entitled to receive $90.00 /day, plus registration
and mileage. This totalled $220.00. ($180 + $40).
b. Your actual expenses were $180.00 plus $40.00 registration.
c. Expense payments made to your or on your behalf totalled
$335.80. You mistakenly believed that you were entitled to
the $270.80 as per diem expenses.
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 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 $150.85 John Makosy 8009
15. Expenses were overpaid by $150.85 for your attendance the March
23 - 24, 1987 seminar at State College which expenses you mistakenly
received.
a. This computation is based on the fact that registration
costs, lodging and meals had previously been paid by
Cambria Township.
Mr. John M. Makosy
Page 8
b. You were entitled to receive a maximum of $90.00 per day,
plus registration and mileage.
c. Your actual expenses were $70.00 for meals and
registration, 1/2 room expenses of $58.30 ($29.15). Total
expenses $99.15.
d. Expense payments made to your or on your behalf totalled
$250.00.
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:
a. Ebensburg to Hershey - 163 miles.
b. Ebensburg to Pittsburgh - 77 miles.
c. Ebensburg to Greensburg - 53 miles.
d. Ebensburg to White Haven - 195 miles.
e. Ebensburg to State College - 65 miles.
18. 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,
1rr. John M. Makosy
Page 9
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
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.
j. After talking to Marian Naylor of PSATS at the 1987
convention, they began keeping receipts.
19. Township Supervisor Fred Sauger advised as follows:
a. He has served as a township supervisor since January, 1970.
He also has been a township employee for (33) years.
b. He has no receipts for expenses, he always paid cash.
c. He could not remember one year from another regarding the
various state conventions.
d. On one occasion, he and John Makosy both took their wives.
He 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, he drove
himself and stayed at the Host Inn in Harrisburg.
h. He also took his wife to the annual convention at
Pittsburgh where he stayed at the Hilton Hotel.
i. No one from either the State Association or the township
auditors ever told the supervisors to keep receipts.
g.
g.
Mr. John M. Makosy
Page 10
He estimated 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
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.
20. You 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. You 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
because he wanted to visit
He was not
d. You could not recall where
where you stayed.
e. You were not aware that he had to keep receipts of
expenditures when attending conventions.
f. All three supervisors usually used the same motel room.
In 1985 they went to Hershey, and you 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. You drove down with Bob
Shook.
g.
j.
Sauger also drove to a seminar
relatives living near Centralia.
the 1984 convention was held or
i. The Pennsylvania seminar in Greensburg was a two day
seminar as was the seminar in the Poconos. They all went to
the Poconos in the seminar and stayed in the same room.
Mr. John M. Makosy
Page 11
In 1987 they went to the convention is 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
by $15.00. 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 you wanted township money, you could have insisted on
being paid for hundreds of hours worked without receiving
compensation.
j
n. You only took the per diem money because it was your
understanding that you were entitled to $90.00 per day,
plus the round trip mileage.
21. Restitution was made to Cambria township through the payment by
check in the amount of $642.68.
22. You collected per diem expenses for attending workshops and
conventions because you believed the per diem amounts were a flat rate
allowance and that you were entitled to mileage. You were not aware
that you were only entitled to actual expenses incurred and that you
should keep receipts for expenses.
23. You were acting in good faith and without wrongful intent and 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. S402. 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 l Restricted Activities.
(a) No public official or public employee
shall use his public office or any confidential
Mr. John M. Makosy
Page 12
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, '_n 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
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 not 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,
Mr. John M. Makosy
Page 13
(1964); Susauehanna 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
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. S65612.
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 $194.40
when you did not drive in 1984, 1985 and 1986. In addition, you
received excessive reimbursements as to an April, 1986 township
Mr. John M. Makosy
Page 14
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 $115.80 beyond the per diem and
registration to which you were entitled. Lastly, you were overpaid by
$150.85 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
for not more than five years, or be both fined and
imprisoned.
65 P.S. S409(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 Commw. Ct. 529, 466 A.2d 283 (1983). The Commission
has, on a number of occasions, offered individuals the opportunity to
divest themselves of the gain received and thereafter, recommended no
further criminal action. The financial gain that you received in the
instant situation equals $642.68.
You have made payment to Cambria Township in the amount of
$642.68 as reimbursement for the excess expense money that you
received. You have thereby removed yourself from the conflict by
making restitution and hence no further action will be taken.
Mr. John M. Makosy
Page 15
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 or seminars.
3. The financial gain referenced in paragraph two
amounts to $642.68.
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 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).
By t - Commmi
e ena G. Hughes
Chair