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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