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HomeMy WebLinkAbout1232 HardingerIn Re: Francis Hardinger 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 01- 032 -C2 Order No. 1232 2/4/02 2/15/02 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 Act, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 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 not filed and a hearing was deemed waived. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Consent Agreement was subsequently approved. The record is complete. The averments in the Investigative Complaint are quoted verbatim as the Findings in this Order. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. §1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Hardinger, 01- 032 -C2 Page 2 I. ALLEGATION: That Francis Hardinger, a public official /public employee, in his capacity as a Supervisor for Grove Township, Cameron County, violated the following provisions of the State Ethics Act, (Act 93 of 1998) when he used the authority of his office for a private pecuniary benefit by submitting hours for compensation and being compensated for attending meetings and other administrative functions. 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. II. FINDINGS: 1. Francis Hardinger has served as a Supervisor for Grove Township, Cameron County, since January 1994. 2. Grove Township is a Second -Class Township with a three - member board of supervisors. 3. Annually, between 1994 and 2001, during reorganization meetings, Hardinger was appointed roadmaster. a. Hardinger participated in board actions appointing himself roadmaster. b. Hardinger works for the township on a part -time basis. 4. Hardinger's duties as roadmaster including [sic] responsibility for maintaining the township roads, including patching and snow plowing, picking -up township garbage, and other labor that may be necessary. a. There is no written job description for this position. 5. Grove Township does not employ any full -time road workers or laborers. a. All supervisors work for the township on an as- needed basis. b. The other supervisors mostly work in Hardinger's absence. Hardinger, 01- 032 -C2 Page 3 c. The township also employs a non - supervisor part -time employee. 6. During reorganization meetings held in 1997 through 1999 the Grove Township supervisors approved motions setting rates of compensation for non - supervisor employees as well as compensation for supervisors when attending outside meetings. a. Until 2000 the supervisors set compensation for supervisors attending meetings other than regular board of supervisors' meeting[s]. b. The supervisors also approved motions requesting the township auditors [to] set rates of compensation for supervisors performing roadmaster or road work. 7 The rates approved by supervisors for outside meetings included meetings at the solicitor's office, fire department, county economic development, and county emergency management. a. These meetings are attended by the supervisors in their capacity as elected supervisor. 8. Grove Township Board of Supervisors reorganization meeting minutes confirm that motions were approved setting the rate of compensation for supervisors attending outside meetings at $35.00 per meeting from 1997 through 1999. a. Hardinger participated in board actions setting wages for outside meetings on January 6, 1997; January 5, 1998; and January 4, 1999. b. The township auditors did not approve outside meeting pay in 1997, 1998 and 1999. 9. Beginning at the January 5, 2000, reorganization meeting, the supervisors discontinued the practice of setting outside meeting pay. a. The supervisors received information that the board of auditors must approve all forms of compensation, including outside meeting pay. b. The supervisors approved motions during reorganization meetings on January 5, 2000, and January 3, 2001, requesting the auditors [to] set outside meeting pay. c. Hardinger participated in board actions requesting this compensation. 10. Beginning in 2000, the auditors began setting the rates for outside meetings and administrative duties based on the request of the supervisors. a. The auditors were previously unaware of the specific duties for which supervisors could be compensated. 11. The Grove Township Board of Auditors reorganization meeting minutes confirm that from 1997 through 1999 the following rates were approved for township supervisors employed by the township. a. 01- 07 -97: $9.00 /hr for supervisors. b. 01- 06 -98: $9.25/hr for supervisors acting as roadmasters, equipment operator, foreman, etc. Date Hours Work Description Check # 06 -10 -97 4.0 Naming Road 2572 06 -16 -97 4.0 Meeting Emporium (Green & Paul M.) 07 -21 -97 1.5 Meeting Fire Hall 2600 08 -01 -97 3.0 Meeting Gibson, Driftwood, & Grove 09 -17 -97 2.0 Meeting Sinnamahoning & Driftwood 2644 Date Hours Work Description Check 02 -23 -99 2.5 Went to Emporium for Reward 3084 04 -12 -99 1.0 Went to Emporium Al Brown 3124 04 -16 -99 2.0 Meeting Sue State 05 -05 -99 3.0 Court Al Brown 3128 10 -22 -99 2.0 Al Brown 3298 Total: 10.5 10.5 Hrs X $9.50 /hr = $99.75 Hardinger, 01- 032 -C2 Page 4 c. 01- 15 -99: $9.50 /hr for supervisors working in any capacity. d. The auditors also set a mileage reimbursement rate for supervisors using their personal vehicles. e. The rates set by the auditors were based on requests made by the board of supervisors. 12. Grove Township Board of Auditors reorganization meeting minutes confirm that the following rates were approved for working supervisors in 2000 and 2001: a. 01- 05 -00: $10.00 /hr for supervisors working in any capacity. $35.00 /outside meeting. b. 01- 03 -01: $10.50 /hr for supervisors working in any capacity including administrative duties. $35.00 /outside meting [sic]. a. 1999: b. 1997: 1. The auditors define administrative duties as non -labor duties associated with the position of elected supervisor. c. The auditors also set a mileage reimbursement rate for supervisors using their personal vehicles. 13. Hardinger submits work reports to the township secretary delineating date, hours worked, work completed, and mileage. a. Other supervisors working for the township submit similar reports. b. The secretary uses the work reports to generate payment to the supervisors. 14. In 1997 and again in 1999 Hardinger was compensated, at an hourly rate, as roadmaster for duties and meetings unrelated to his position as roadmaster. Date Date Meeting Check # 02 -08 -99 Meeting Emporium 3058 03 -18 -99 Meeting Waste Emporium 3094 05 -26 -99 Meeting with DEP 3155 06 -14 -99 Meeting Dirt and Gravel DEP 3180 06 -30 -99 Meet with Randy Aidert from State (Benson Rd) 3202 07 -01 -99 Meeting Twp 07 -12 -99 Meeting Dirt and Gravel Road 3206 07 -21 -99 Meeting Solid Waste 11 -19 -99 Meeting Dirt and Gravel 3298 Date Hours Work Description Check # 10 -28 -97 2.0 Meeting 2679 10 -29 -97 3.5 Meeting 11 -03 -97 4.0 Meeting Emporium Paul 11 -04 -97 3.0 Meeting Fire 12 -12 -97 2.0 Meeting 2712 Total: 29.0 29.0 Hrs. X $9.00= $261.00 Date Meeting Check # 01 -10 -00 Meeting Emporium Dirt and Gravel 3373 01 -27 -00 Meeting with Cherry 3394 03 -13 -00 Meeting Dirt and Gravel 3419 Total: 3 Meetings X $35.00 /mtg = $105.00 Date Meeting Check # 02 -05 -01 Meeting Dirt and Gravel 3675 Total: 1 Meeting X $35.00 /mtg = $35.00 Hardinger, 01- 032 -C2 Page 5 In 1998, 2000 and 2001 Hardinger did not submit and was not compensated at his hourly roadmaster rate for attending these types of meetings. 15. Hardinger received $360.75 at his hourly salary as roadmaster for attending meetings and performing duties in relation to his position as a township supervisor, as follows: c. a. 1999: $ 99.75 1997: 261.00 $360.75 16. Hardinger was also compensated for attending various outside meetings with other public officers that were related to his elected position of township supervisor. a. Hardinger was compensated at the $35.00 /meeting rate set by the supervisors in 1997, 1998 and 1999 and the rate set by the auditors in 2000 and 2001. 17. Hardinger was compensated for attending various outside meetings as disclosed on work reports as follows: a. 2001: b. 2000: c. 1999: Check Date Check Number Check Amount Sign Check Vote Date of Approval 02 -21 -01 3675 $77.78 Yes Motion 03 -14 -01 03 -23 -00 3419 141.39 Yes Motion 04 -05 -00 02 -10 -00 3394 215.23 Yes Motion 02 -09 -00 01 -13 -00 3373 145.53 Yes Motion 02 -09 -00 11 -04 -99 3298 126.94 Yes Motion 11 -10 -99 07 -29 -99 3206 291.06 Yes Motion 07 -14 -99 07 -15 -99 3202 204.51 Yes Motion 07 -14 -99 07 -01 -99 3180 108.55 Yes Motion 07 -14 -99 06 -03 -99 3155 23.12 Yes Second 06 -09 -99 05 -06 -99 3128 176.48 Yes Motion 05 -12 -99 04 -22 -99 3124 73.71 Yes Motion 05 -12 -99 03 -25 -99 3094 114.73 Yes Motion 04 -09 -99 03 -11 -99 3084 200.57 No Motion 04 -09 -99 02 -12 -99 3058 155.76 Yes Motion 02 -17 -99 10 -02 -98 2898 139.71 Yes Motion 10 -14 -98 06 -26 -98 2843 216.71 Yes Second 07 -08 -98 05 -30 -98 2828 330.19 Yes Motion 06 -10 -98 12 -26 -97 2712 34.86 No Motion 01 -05 -98 Date Meeting Check # Check # 05 -20 -98 Meeting Emporium Fire 08 -04 -97 2828 06 -09 -98 Meeting Courthouse 2 Meetings- $25 + $35 = $60.00 2843 06 -17 -98 Meeting Al Brown 09 -16 -98 Meeting 911 2898 Total: 4 Meetings X $35.00 /mtg = $140.00 Date Meeting Check # 06 -06 -97 Meeting Japlowiec ($25) 2567 08 -04 -97 Court ($35) 2620 Total: 2 Meetings- $25 + $35 = $60.00 Date Meeting Check # Total: 9 Meetings X $35.00 /mtg = $315.00 Hardinger, 01- 032 -C2 Page 6 d. 1998: e. 1997: 18. Hardinger was compensated $655.00 for attending outside meetings as follows: a. 2001: $ 35.00 2000: 105.00 1999: 315.00 1998: 140.00 1997: 60.00 $655.00 19. Hardinger participated in board of supervisor actions approving payments and signed checks authorizing payments for administrative duties and outside meeting pay as follows: Check Date Check Number Check Amount Sign Check Vote Date of Approval 11 -14 -97 2679 199.21 Yes Yes 12 -02 -97 10 -03 -97 2644 334.63 Yes Motion 10 -07 -97 08 -23 -97 2620 77.80 Yes Motion 09 -02 -97 08 -08 -97 2600 98.60 Yes Second 08 -05 -97 06 -27 -97 2572 167.36 No Second 07 -01 -97 06 -13 -97 2567 143.38 Yes Second 07 -01 -97 Hardinger, 01- 032 -C2 Page 1 a. Checks may include payment for other supervisor or roadmaster duties. 20. In his capacity as a Grove Township Supervisor /Roadmaster, Hardinger was required to annually file Statements of Financial Interests (SFI). 21. Hardinger's SFI's filed in 1999 for calendar year 1998, in 2000 for calendar year 1999, and in 2001 for calendar year 2000 did not disclose information as follows: a. Hardinger filed a SFI for calendar year 1998 on February 17, 1999. 1. Hardinger failed to disclose Grove Township as direct or indirect sources of income on line 10. b. Hardinger filed a SFI for calendar year 1999 on February 10, 2000. 1. Hardinger failed to disclose Grove Township as direct or indirect sources of income on line 10. c. Hardinger filed a SFI for calendar year 2000 on March 10, 2001. 1. Hardinger failed to disclose Grove Township as direct or indirect sources of income on line 10. 22. Hardinger realized a total financial gain of $1,015.75 when he submitted hours for compensation as roadmaster and for attending outside meetings related to his position of supervisor, and when he participated in approving payments for those duties as follows: a. Roadmaster: $ 360.75 (See Finding No. 21) b. Outside Meeting Pay: $ 655.00 (See Finding No. 24) Total: $ 1,015.75 23. The Township Board of Auditors approved meeting pay at the rate of $35 per meeting for the years 2000 -2001 (See Finding No. 12). 24. Hardinger received compensation for attending meetings in 2000 and 2001 in the amount of $140. (See Finding No. 17(a)(b)). a. There is no evidence that these meetings were for the purpose of performing the duties of the elective office of supervisor. 25. The total unauthorized compensation received by Hardinger was $875.75. III. DISCUSSION: Hardinger, 01- 032 -C2 Page 8 At all times relevant to this matter, the Respondent, Francis Hardinger, hereinafter Hardinger, has been a public official subject to the provisions of the Public Official and Employee 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 allegation is that Hardinger, as a Grove Township Supervisor, violated Section 3(a)/1103(a) of the Ethics Act when he submitted hours and received compensation for attending meetings and other administrative functions. Section 3(a)/1103(a) quoted above 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. facts. Having noted the issues and applicable law, we shall now summarize the relevant Hardinger has served as a township supervisor since 1994 and as roadmaster from 1994 through 2001. After Hardinger performed various duties for the township, he submitted time sheets for payment. Hardinger received payment after his timesheets were processed by the secretary /treasurer. The rate of compensation was set through action taken by the township board of supervisors at the January reorganizational meetings. Prior to January of 2000, the supervisors set compensation for attending meetings other than regular board meetings. Following the reorganizational meetings of the supervisors, the township auditors would have their own meeting to approve certain compensation for the supervisors working as township employees. Typically, the board of auditors would approve the compensation for the supervisors as township employees at a certain hourly rate plus mileage under certain circumstances. A review of Hardinger's time sheets for the years 1997 through 1999 reflect that, in some instances, he submitted time sheets for either hours worked or a flat meeting rate for various administrative duties he performed, such as meeting with the solicitor, other municipal representatives, the district justice, state or county officials, and other persons or entities. During the relevant time period, Hardinger received compensation for duties that were not related to his employment position as township roadmaster. For the relevant time period, Hardinger received $360.75 as roadmaster for attending meetings and performing administrative duties associated with the elected office of township supervisor. In addition, Hardinger received $655.00 for attending outside meetings. Such compensation totaled $1,015.75. The amount of unauthorized compensation received by Hardinger has been stipulated by the parties to be $875.75. The record also reflects that when Hardinger filed his Statements of Financial Interests (FIS's) for the calendar years 1998 through 2000, he failed to disclose Grove Township as a direct or indirect source of income. Having summarized the above relevant facts, we must now determine whether the actions of Hardinger violated Section 3(a)/1103(a) of the Ethics Act, Act 9 of 1989 as codified by Act 93 of 1998. The parties have entered into a Consent Agreement and filed a Stipulation of Findings. The Consent Agreement proposes that we find that a violation of Section 3(a)/1103(a) of the Ethics Act when Hardinger submitted hours for compensation and received compensation for attending outside meetings and performing other administrative functions when such compensation was not approved by the auditors for the years 1997 Hardinger, 01- 032 -C2 Page 9 through 1999; Hardinger did not violate Section 3(a)/1103(a) of the Ethics Act for meeting compensation received during the years 2000 through 2001 as such pay was approved by the Township Board of Auditors. Further, Hardinger agrees to make payment in the amount of $875.75 to the Commonwealth through this Commission. In applying Section 3(a)/1103(a) of the Ethics Act to the above, we find violations by Hardinger for receiving compensation to which he was not entitled. The administrative duties performed by Hardinger were encompassed within the role of a supervisor as an elected official. Hardinger received additional compensation for performing administrative functions and attending meetings. Hardinger was not legally entitled to receive such compensation because such duties are encompassed within the functions of elected supervisor for which the compensation is limited by the Second Class Township Code. Thus, Hardinger was only entitled to receive compensation for performing labor as a township employee but not for performing administrative functions which were within the functions of an elected township supervisor. Consequently, Hardinger violated Section 3(a)/1103(a) of the Ethics Act when he received compensation for performing administrative functions and meeting pay which duties are encompassed within the functions of the office of elected township supervisor. See, Johnson, Order No. 1187. Our decision follows the ruling of Commonwealth Court which noted in R.H. and T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. 1996): T.W. maintains that he is entitled to hourly wages for performing these [administrative] duties. He notes that the recent growth of the Township led to a substantial increase in demands upon the Township government and that the Supervisors have assumed responsibility for meeting much of this burden. With this argument, T.W. implies that, because the rise in activity forced him to work in excess of the stated duties of Township Supervisors, he was properly compensated for such actions with an hourly wage. We sympathize with T.W.; however, there is no question that the duties at issue were supervisory in nature. The supervisory salary was statutorily set and encompassed all of the ensuing administrative functions. Thus, T.W. violated the 1978 Act when, in addition to his Supervisor's compensation, he received hourly wages as an employee for performing administrative duties. Id. at 1011. As to the years 2000 and 2001, the record reflects that the auditors approved meeting pay at the flat rate of $35.00 per meeting. A supervisor as an elected official may only receive such compensation as specified in the Second Class Township Code (Code). Supervisors may not receive compensation for attending board meetings as township employees. Any action by the Board of Auditors to approve such compensation would be a nullity in derogation of the Code. In this case, although Fact Findings 16 and 24a. appear at odds, we will accept Fact Finding 24a. as being dispositive. Accordingly, since the Stipulation of Findings does not establish that Hardinger received such compensation as an elected supervisor (Fact Finding 24a.), we find no violation of Section 3(a)/1103(a) of the Ethics Act for this pay that was approved by the auditors for the year 2000 and 2001. Although we cannot find a violation of the Ethics Act as to Hardinger's filings of deficient FIS's for the calendar years 1998 through 2000 since that is not part of the Hardinger, 01- 032 -C2 Page 10 allegation, we direct Hardinger to file amended FIS's for the calendar years 1998 through 2000 listing Grove Township as a source of income. The originals of the FIS's are to be filed with Grove Township with copies filed at the Commission for compliance verification. 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, Hardinger agrees to make payment to the Commonwealth of Pennsylvania in the amount of $875.75 through this Commission, within thirty (30) days after the date of the mailing of this Order. Compliance as to the payment of $875.75 and the filing of the amended FIS's will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Hardinger, as a Supervisor in Grove Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Hardinger violated Section 3(a)/1103(a) of the Ethics Act when he received compensation as a township employee for administrative functions and meetings which functions are encompassed within the duties of an elected township supervisor. 3. Hardinger did not violate Section 3(a)/1103(a) of the Ethics Act for receiving meeting compensation that was approved by the auditors for the year 2000 -2001. In Re: Francis Hardinger ORDER NO. 1232 BY THE COMMISSION, File Docket: 01- 032 -C2 Date Decided: 2/4/02 Date Mailed: 2/15/02 1 Hardinger, as a Supervisor in Grove Township, violated Section 3(a)/1103(a) of the Ethics Act when he received compensation as a township employee for administrative functions and meetings which functions are encompassed within the duties of an elected township supervisor. 2. Hardinger did not violate Section 3(a)/1103(a) of the Ethics Act for receiving meeting compensation that was approved by the auditors for the year 2000 -2001. 3. Hardinger is directed to file amended Statements of Financial Interests for the calendar years 1998 through 2000 listing Grove Township as a source of income. The originals are to be filed with Grove Township with copies filed at this Commission for compliance verification. 4. Hardinger is directed to make payment of $875.75 within thirty (30) days of the date of mailing of this Order through this Commission to Grove Township. 5. Compliance with paragraphs 3 and 4 will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. DANEEN E. REESE, CHAIR