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HomeMy WebLinkAbout1178 AltersIn Re: Helen Alters File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy 00- 016 -C2 Order No. 1178 2/26/01 3/12/01 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Alters, 00- 016 -C2 Page 2 I. ALLEGATION: That Helen Alters, a public official in her capacity as a Supervisor for Benner Township, Centre County, violated provisions of the State Ethics Act (Act 9 of 1989, 65 P.S. §401 et seq.) when she used the authority of her office for a private pecuniary benefit by submitting hours for compensation to the township which were related to her duties as township supervisor; and by approving payment of the administrative duties. II. FINDINGS: 1. Helen M. Alters served as a Benner Township Supervisor from January 1994 to December 1999. a. Alters did not seek re- election. 2. Benner Township is a second -class township and has three supervisors that serve as the legislative body of the township. a. Supervisors have regular meetings twice per month. 3. Alters was appointed as a Roadmaster from 1996 through 1999 during reorganization meetings of the board of supervisors. a. Before and including 1994, all three supervisors have been annually appointed Roadmasters. b. Beginning in 1994 and every year thereafter, including dates as noted below, Alters was appointed roadmaster during reorganization meetings on the following dates: January 2, 1996 January 6, 1997 January 5, 1998 January 4, 1999 4. The township auditors set the rate of compensation for supervisors performing road inspections and road work at $12.00 per hour plus mileage reimbursement during meetings of January 3, 1996, and January 7, 1997. 5. On January 6, 1998, the township auditors set the rate of compensation for supervisors performing road work and related township work at $13.50 per hour plus mileage reimbursement. a. The board of supervisors requested a salary be set for supervisors who were performing duties not specifically related to roadmaster. b. The $13.50 /hour salary for road work and related township work was reapproved by the auditors on January 5, 1999. 6. The township employs a director to oversee the Park and Recreation program as follows: a. The Parks Director position was created on March 24, 1993, by Township Resolution 93 -3. Alters, 00- 016 -C2 Page 3 b. Resolution 93 -3 outlined duties of the Park and Recreation Director as follows: 1. Organize and oversee the Pee Wee baseball program. 2. Lead monthly meetings with the Park and Recreation Committee and report activities to the Board of Supervisors. 3. Work with the Board of Supervisors, Park and Recreation Committee, and leaders on the summer Park and Recreation playground program. 4. Work with the Supervisors, Engineers and others on the development of park land in Benner Township. 5. Make application for grants and other moneys available for park and recreation development and operation. 6. Prepare a budget and submit to the supervisors by September 30 for the following calendar year. 7 In May 1993, Dale Moore was hired by the board of supervisors to serve as the Park and Recreation Director, a part -time position. a. Sometime in 1995 after Helen Alters was elected to the board of supervisors, Alters began assisting with the administration of the park program due to Moore's inability to complete the work because of his outside employment. b. Alters took over the responsibility for land acquisition, park planning, committee meetings, surveys, solicitations of equipment donations, preparation of grant applications. c. Moore was responsible for directing the township athletic programs. 8. The board of supervisors was aware that Alters was performing duties related to the Park and Recreation Department from 1994 through 1997. a. The board had no objection to Alters receiving compensation for these duties. b. The members informally agreed that Alters could receive the rate of pay set for roadmasters. 9. In 1996, Helen Alters assumed the position of Benner Township Park and Recreation Director. a. There was no vote of the board appointing Alters to the position. b. The other members of the board of supervisors were aware and in agreement that Alters would serve in this position. c. Alters continued to serve as Park and Recreation Director in 1997. 1. No formal appointment was made by the board in 1997. 10. During the township reorganization meeting on January 5, 1998, Helen Alters and Dale Moore were appointed co- directors of the Park and Recreation Department. Alters, 00- 016 -C2 Page 4 a. Alters, Moore and Michelle Yoho were appointed co- directors by the board of supervisors during the January 4, 1999, reorganization meeting. 1. Dale Moore served in the capacity as Youth Sports Program Director. 2. Michelle Yoho served as Summer Playground Director. b. The votes to appoint Alters, Moore and Yoho were unanimous. 11. The job description for the Parks and Recreation Director position was amended sometime after 1996 when Alters assumed the position to include the following: a. Work to acquire land within the township to be developed for park and recreation activities. b. Work with groups of volunteers to determine park and recreation needs and plan for future park development within the township. c. Work with engineers, planners, contractors, and others to create plans and oversee construction. d. Apply for grants, solicit donations of money, labor, or materials for park development. e. Make quarterly reports to the board of supervisors either in writing or by attending a board of supervisors meeting. 12. Beginning in May 1996, Alters began submitting time sheets to the township delineating duties that she performed for the township. a. Alters submitted the time sheets to the township secretary /treasurer for approval by the board and payment. b. Time sheets included duties that Alters performed as both Parks Director, Roadmaster and Newsletter Editor. c. The time sheets were submitted as a basis for Alters' compensation. 13. Alters began submitting timesheets for compensation as Park/Recreation Director to the township for duties that she performed in the capacity of Parks Director in May 1996 based on a Pennsylvania State Association of Township Supervisors article relating to amendments to the Second Class Township Code regarding employment of township supervisors. a. The article delineated amendments to the Second Class Township Code which permitted supervisors to be employed in any capacity not prohibited by law. 14. From May 1996 through December 1997, Alters submitted hours and was compensated for performing duties at the rate of pay approved by the auditors for supervisors serving as roadmasters. a. 1996: 77.5 hours b. 1997: 139.5 hours Date Check No. Amount Alters' Action Vote 10/07/96 14228 $431.25 Made Motion 3 -0 11/04/96 14339 74.35 Yes Vote 3 -0 12/16/96 14487 273.67 Seconded Motion 3 -0 02/03/97 14659 90.32 Made Motion 3 -0 03/17/97 14791 143.45 Made Motion 3 -0 04/07/97 14858 148.76 Made Motion 3 -0 06/16/97 15088 165.33 Seconded Motion 3 -0 08/18/97 15457 106.26 Seconded Motion 3 -0 09/15/97 15567 154.08 Seconded Motion 3 -0 10/06/97 15642 239.08 Made Motion 3 -0 11/17/97 15805 191.27 Made Motion 3 -0 Alters, 00- 016 -C2 Page 5 c. The rate of pay set by the auditors in 1996 and 1997 was $12.00 per hour. 15. Following her appointment by the board of supervisors on January 5, 1998, to the position of Park and Recreation Director, Alters was compensated the following hours: a. 1998: 191.0 b. 1999: 25.0 b. Township payroll checks require the signatures of two supervisors and the secretary /treasurer. 19. Alters participated in board actions approving bill lists which included the following payments to herself for the Park and Recreation Director salary and salary for serving as a township supervisor. 16. In 1998 and 1999, the township compensated Alters for duties performed as Parks Director at the rate set by the township auditors for a supervisor performing related work at $13.50 per hour. 17. The time sheets submitted by Alters to the township secretary were available to the board for review prior to approval of payments of board meetings. a. Time submitted was treated as payroll with tax deductions being withheld but was not included as a payroll listing on the bill list. b. Payments for each supervisor were listed individually on the bill list that included the check number, who the check was to and the amount. 18. The payroll is included as part of bill lists that are approved by the supervisors at regular supervisor meetings. a. Approval of all billings and payments were done as a group rather than by individual items. a. 217.0 hours Date Check No. Amount Alters' Action Vote 12/02/97 15858 195.52 Made Motion 3 -0 01/05/98 15963 122.20 Made Motion 3 -0 03/16/98 16247 442.30 Made Motion 3 -0 04/14/98 16348 476.17 Made Motion 3 -0 05/04/98 16400 537.90 Yes Vote 3 -0 06/15/98 16593 354.54 Made Motion 3 -0 07/20/98 16797 454.08 Made Motion 3 -0 08/17/98 16917 298.78 Made Motion 3 -0 09/08/98 16993 549.84 Made Motion 3 -0 10/19/98 17142 294.84 Made Motion 3 -0 11/16/98 17219 358.63 Made Motion 3 -0 12/07/98 17282 358.63 Made Motion 2 -0 01/04/99 17426 286.18 Made Motion 3 -0 02/15/99 17594 194.91 Made Motion 3 -0 04/05/99 17736 277.13 Made Motion 3 -0 Alters, 00- 016 -C2 Page 6 b. Alters signed Check Nos. 15805 and 16993 as a member of the board of supervisors. 1. All three supervisors and the secretary /treasurer signed Check No. 15805. c. Alters, along with a second supervisor, cast the deciding vote to approve payment to herself for check No. 17282, along with all other bills included on the listing for that month. 1. Only Alters and one other supervisor was present at the meeting when this check was approved to be paid. 20. Alters did not submit any time sheets to the secretary /treasurer for payment after March 1999. a. Alters did not submit any timesheets for payment because of the uncertainty as to which duties she could be compensated. b. Alters continued to perform duties and maintained an account of all hours that she worked. 21. By letter dated May 6, 1999, Township Solicitor Terry Williams requested an advice from the State Ethics Commission regarding whether township supervisors could be reimbursed for attending meetings of non - township agencies, for assisting in municipal park project services, for attending property owner conferences, or for preparing the township newsletter. 22. On June 8, 1999, the State Ethics Commission Legal Division issued Advice No. 99 -555 in response to Williams' request. a. The advice concluded that supervisors may not receive compensation for attending meetings of non - township agencies, for assisting in municipal park projects, for attending property owner conferences or for preparing the township newsletter. b. The advice did conclude that if supervisors are employed as laborers by the township, they may be compensated for performing labor within the park. Alters, 00- 016 -C2 Page 7 23. On July 6, 1999, Solicitor Williams requested a clarification of Advice no. 99 -555 from the State Ethics Commission. a. Williams requested the clarification because of his omission of facts from the original request that could have affected the Advice. b. The additional facts noted in Williams' letter included amendments to the Second Class Township Code in 1995 which provided that compensation of supervisors could be set in any employee capacity not prohibited by the act or any other law. Williams' letter noted that it has been generally regarded as an expansion of the ability of Second Class Townships to compensate supervisors for performing "work" duties. 24. On August 17, 1999, the State Ethics Commission Legal Division issued Advice No. 99 -555C clarifying the original advice. a. State Ethics Commission Advice No. 99 -555C provided, in part, the following: "Although township supervisors may be compensated as township employees in certain positions such as township laborer, newsletter editor, or park and recreation director, the supervisor could only be compensated for duties performed in those positions that do not constitute duties associated with the elected office of township supervisor." b. The advice also noted that the duties listed in job description provided for the Park and Recreation Director lacked specificity making it difficult to determine whether the duty is encompassed within that of elected supervisors or township employee. c. The advice also provided the following regarding compensation for attending "non- supervisor meetings" as follows: As to the last two groupings of "non- supervisor meetings," the first group involving meetings attended by supervisors as elected officials by its very statement mandates that compensation may not be received for such activities as township employees. As to the second category, the attendance of the supervisors focus group meetings would not allow the supervisors to be compensated as employees for such activities. Participation by the supervisors in vision and historical preservation committees would fall within the area of securing the health, safety and welfare of the citizens of the township. The fact that in some instances the supervisors could pay some other non - supervisor to perform that function does not provide a basis for the supervisors to be then compensated for activities they would perform as an elected official. 25. After receiving Advice No. 99 -555C, Alters reviewed time sheets she submitted to the township from January 1998 -March 1999 to determine whether she was compensated for hours related to her duties as township supervisor. a. Alters reviewed only the time sheets from January 1998 through March 1999 based on Solicitor Williams' advice. 26. After reviewing the time sheets for 1998 and 1999, Alters determined that she was compensated in 1998 and 1999 for duties related to her position as township supervisor as determined by Advice No. 99 -555C. Alters, 00- 016 -C2 Page 8 a. Alters also identified other meetings and duties as uncompensable. 27. The following is a listing of hours for which Alters was compensated which were unrelated to the position of Park and Recreation Director. 1998: 191 hours @ $13.50 /hour = $2,578.50 1999: 25 hours @ $13.50 /hour = $ 337.50 Total: $2,916.00 28. Richard Bair, CPA, (who conducts the yearly audit for Benner Township) recommended to the township that Alters "pay- down" the hours that she had to reimburse the township with hours that she could be compensated for from the period of April- December 1999. a. Bair made this recommendation because of tax related issues. b. The remaining members of the board of supervisors and the solicitor agreed to this pay -down method. 29. For the period of April- December 1999, Alters claimed 177.5 hours worked for the township performing duties for which she was not compensated. a. Alters did not submit these timesheets to the township for reimbursement. b. Total 177.5 hours @ $13.50 /hour = $2,396.25 30. Alters was hired by the current board of supervisors to the position of Parks Director in the spring of 2000 following conclusion of her term as supervisor. a. Alters was to be compensated at the rate of $250.00 per month. b. Alters has not accepted any compensation for her duties as Parks Director for the year 2000. 1. $250.00 x 12 months = $3,000.00 2. Alters will not accept payment until the current matter is resolved. 31. From May 1996 through 1997 Alters, was compensated as Park and Recreation Director, a position she was not appointed to, at a salary set by the auditors for a supervisor performing roadmaster duties. a. 1996: $ 930.00 ($77.5 hours @ $12.00 /hr) b. 1997: $1 674.00 (139.5 hours @ $12.00 /hr) Total $2,604.00 32. From January 1998 through March 1999, Alters was compensated for 216 hours at $13.50 per hour ($2,916.00) for hours unrelated to her appointed position of Park and Recreation Director. 33. A private pecuniary gain of $519.75 was received by Alters in the form of compensation unrelated to duties as Park and Recreation Director as follows: Alters, 00- 016 -C2 Page 9 1998 -1999 $2,916.00 (hours unrelated to park position) 1999 hours unclaimed - $2,396.50 by Alters 177.5 @ 13.5/hr Total $ 519.75 III. DISCUSSION: At all times relevant to this matter, the Respondent, Helen Alters, hereinafter Alters, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa. C.S. §1101 et seq., which Acts are referred to herein as the "Ethics Act." The issue is whether Alters violated the following provisions of the Ethics Act when she used the authority of her office for a private pecuniary benefit by submitting hours for compensation to the township which were related to her duties as township supervisor and approving payments to herself for administrative duties. Section 3/1103. Restricted activities (a) Conflict of interest. — No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a)/65 Pa.C.S. §1103(a). The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 2/1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402/65 Pa.C.S. §1102. Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Alters, 00- 016 -C2 Page 10 As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Alters served as a member of the Board of Supervisors of Benner Township from January 1994 to December 1999. The Board of Supervisors consists of three members. Alters was appointed to the position of Roadmaster for the years 1996 through 1999 during reorganization meetings of the Board of Supervisors. The Township Auditors set the compensation of a Supervisor working as a Roadmaster at $12.00 per hour plus mileage reimbursement in 1996 and 1997, and $13.50 per hour plus mileage reimbursement in 1998 and 1999. In 1996 and 1997, Alters assumed the position of Benner Township Park and Recreation Director without an official appointment by the Board of Supervisors or an established rate of compensation set by the Auditors. Alters submitted timesheets and received compensation for duties performed as Park and Recreation Director based upon the rate of compensation established by the Auditors for a Supervisor working as Roadmaster. The total number of hours Alters worked as Park and Recreation Director in 1996 and 1997 were 77.5 hours and 139.5 hours respectively. In 1998 and 1999, the Board of Supervisors appointed Alters Co- Director of the Park and Recreation Department, with Alters participating in the votes for her own appointment. Alters again submitted timesheets and received compensation as Co- Director based upon the rate established by the Auditors for a Supervisor working as a Roadmaster. The total number of hours Alters worked as Park and Recreation Co- Director in 1998 and 1999 were 191.0 hours and 25.0 hours respectively. The timesheets submitted by Alters to the Township Secretary were treated as payroll for tax purposes, but were not included as a payroll listing on the bill list. Payments for each Supervisor were listed individually on the bill list, which included the check number, the name of the payee, and the amount of the check. The Board of Supervisors approved all payments as a group. From October 1996 to April 1999, Alters participated in Board actions to approve payments to herself for her work as Park and Recreation Director /Co- Director and Township Supervisor. Alters, in her capacity as Supervisor, also co- signed checks issued to herself. For the year 1996, Alters received compensation as Park and Recreation Director, in the amount of $930.00 (77.5 hours x $12.00 /hour). For the year 1997, Alters received compensation as Park and Recreation Director, in the amount of $1,674.00 (139.5 hours x $12.00 /hour). Alters' compensation for 1996 and 1997 as Park and Recreation Director, a position to which she was not appointed, and for which no compensation was established, totaled $2,604.00. For the year 1998, Alters received compensation in the amount of $2,578.50 (191 hours x $13.50 hour) for work unrelated to her position as Park and Recreation Director. From January to March 1999, Alters received compensation in the amount of $337.50 (25 hours x $13.50 /hour) for work unrelated to her position as Park and Recreation Director. Alters' compensation for 1998 and January through March 1999 totaled $2,916.00 for work unrelated to the position of Park and Recreation Director. After March 1999, Alters ceased submitting timesheets to the Township after questions arose as to which duties she would be permitted to receive compensation. The Township Solicitor requested and received an Advice of Counsel and a clarifying Advice of Counsel from the State Ethics Commission, which provided, inter alia, that a supervisor Alters, 00- 016 -C2 Page 11 could only be compensated for duties performed in positions that would not constitute duties associated with the elected office of township supervisor. The clarifying Advice noted that the duties listed in the job description for Park and Recreation Director lacked specificity making it difficult to determine whether one performing such duties would be performing the duties of an elected supervisor or a township employee. A recommendation was made that Alters "pay down" the hours for which she received compensation for work unrelated to the position of Park and Recreation Director with hours for which she would be permitted to receive compensation. For the period of April to December 1999, Alters claimed 177.5 hours worked for the township for which she did not receive compensation. Alters did not receive $2,396.25 (177.5 hours x $13.50 /hour) from the Township for the 177.5 hours claimed. Alters received a private pecuniary benefit in the amount of $519.75 for work unrelated to the duties of Park and Recreation Director ($2,916.00 received in 1998 and 1999 - $2,396.25 "paid down" in 1999 = $519.75). After Alters concluded her term as Supervisor, the Board, in the Spring of 2000, hired her to the position of Parks Director at the rate of $250.00 per month. For duties performed as Parks Director, Alters would ordinarily have received $3,000.00 (12 months x $250.00 /month) for the year 2000. However, Alters has not accepted any compensation for her duties as Parks Director for that year. Having summarized the above relevant facts, we must now determine whether the actions of Gerber violated Section 3(a)/1103(a) of the Ethics Act. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein they propose to resolve the case by finding an unintentional violation of Section 3(a) of the Ethics Act by Alters when she approved payments to herself, signed checks issued to herself, and received compensation for performing duties related to her duties as Township Supervisor; and a payment $519.75 by Alters within 30 days of the issuance of this Order through this Commission to Benner Township. As to Section 3(a)/1103(a) of the Ethics Act, we find that Alters, as a Township Supervisor, approved payments to herself, signed checks issued to herself, and received compensation for work related to her duties as Township Supervisor. Such actions of Alters were uses of authority of office. See, Juliante, Order 809. The uses of authority of office by Alters resulted in a private pecuniary benefit to herself in the amount of $519.75. Accordingly, we find that Alters unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she approved payments to herself, signed checks issued to herself, and received compensation for work related to her duties as Township Supervisor. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Alters is directed to make a payment of $519.75 through this Commission to Benner Township within 30 days of the mailing date of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Alters, as a Supervisor for Benner Township, was a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998. Alters, 00- 016 -C2 Page 12 2. Alters unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she approved payments to herself, signed checks issued to herself, and received compensation for work related to her duties as Township Supervisor. In Re: Helen Alters ORDER NO. 1178 File Docket: 00- 016 -C2 Date Decided: 2/26/01 Date Mailed: 3/12/01 1 Alters, as a Supervisor of Benner Township, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she approved payments to herself, signed checks issued to herself, and received compensation for work related to her duties as Township Supervisor. 2. As per the Consent Agreement, Alters is directed to make a payment of $519.75 through this Commission to Benner Township within 30 days of the mailing date of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, DANEEN E. REESE, CHAIR