HomeMy WebLinkAbout416-R HornDear Mr. Horn:
Mr. Henry Horn
Franklin Township Supervisor
11030 Eureka Road
Edinboro, PA 16412
Re: No. 84 -106 -C
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
June 20, 1986
Order No. 416 -R
The State Ethics Commission has received a complaint regarding you and a
possible violation of Act 170 of 1978. The Commission has now completed its
investigation. On February 11 and February 2.5, 1986, a hearing on this matter
was conducted and relevant evidence and testimony was presented. The
individual allegations, conclusions, and findings on which those conclusions
are based are as follows:
I. Allegation: That you, a former Franklin Township Supervisor, violated
Section 3(a) of the Ethics Act, 65 P.S. 403(a), which prohibits the use
public office or confidential information gained through that office by
participating in the Township Pension Fund whose entire premiums were paid
from public funds; securing the cash surrender value from those insurance
plans for your personal use; voting on and /or approving payment of premiums.
for those plans.
A. Findings:
1. You served as a Franklin Township Supervisor from at least 1974 until your
term of office expired at the end of 1983. As an elected official you are
subject to the provisions of the Ethics Act.
2. Franklin Township records prior to April, 1978 were destroyed by fire.
3. Township records do not reflect you as heing employed by the township as
either roadmaster, laborer, or in any position except as a supervisor during
the period from 1974 through 1983.
4. Township meeting minutes record the following actions relating to
appointment of a roadmaster:
Mr. Henry Horn
June 20, 1986
Page 2
a. January 2, 1979: Motion by you, seconded by Ley to appoint Ley as
Road Foreman. The motion passed two to one. Ley voted for his
appoi ntment.
b. February 13, 1979: Supervisor Beck asked Solicitor Bolla whether the
Ethics law prohibits Ley from voting for himself. Solicitor
comments that it is not wrong because the Ethics Act does not cover
that situation.
c. January 7, 1980: Motion by Herman, second by you to appoint Ley
as Roadmaster. Unanimous vote. Ley voted for his appointment.
d. January 5, 1981: No record of any appointment as roadmaster in the
organization minutes of the township supervisors.
e, January 4, 1982: Motion by Sachar, second by Herman to postpone
appointing a roadmaster until interviews are completed.
5. Minutes of the Franklin Township Auditors' Reorganization meetings record
the following actions relating to compensation for road foreman and
supervisors worki ng i n other capacities:
a. January 3, 1979: Supervisor's salary to remain the same - Ley to
receive $6.00 an hour with one week's paid vacation and the township
to pay for upkeep and running expenses when Ley's truck is used for
township business. Other supervisors were to receive $4.75 an hour.
There was no approval for pensions or other benefits.
b. January 8, 1980: Ley's salary was raised to $6.50 an hour and he was
given an additional week's vacation, Other supervisors' salaries
were raised from $4.45 an hour to $5.00 an hour. There was no
approval for pensions or benefits.
c. March 10, 19b0: $25 per month and 17¢ per mile for the use of Ley's
personal vehicle instead of the "upkeep." Daily records were
requi red for this reimbursement.
d. January 6, 1981: Roadmaster's pay was approved at $7.50 an hour and
a 20¢ per mile allowance plus a two -week vacation, $25.00 per month
for vehicle maintenance was allowed to Ley, other supervisors were
paid $5.00 an hour. There was no approval for pensions or benefits.
e. Minutes of the auditors' meetings from 1974 through 1978 also do not
record approval for pensions or benefits.
Mr. Henry Horn
June 20, 1986
Page 3
6. Mr. Gary Gastemire, an auditor for Franklin Township since 1978, testified
that although he was aware the township was paying premiums to Columbia Life
Insurance for a pension fund and the auditors did not question these payments,
they had never approved payments for any supervisor's inclusion in a pension
plan.
7. On July 17, 1978, Edwin T. Kosteva, Columbia Life Insurance Company, wrote
to the Franklin Township Board of Supervisors telling them that, "In further
review of your file, we 'find there is no formal documentation of your pension
plan... no formal document governing the provisions of your plan. Without
such a formal document, questions can arise... complicated by litigation
against the township. You should have an ordinance or resolution establishing
the pension plan and a formal document governing the plan." He said he and
agent Frank Gigliotti would work with the solicitor and supervisors to prepare
the documents and a resolution.
8. Franklin Townhip Supervisors' meeting minutes from May, 1978 through
April, 1982 record the following information about the supervisors' pension
plan:
a. October 10, 1978: Motion by Ley, second by you to establish a
Defined Contribution Pension Plan, passed unanimously. Criteria and
guidelines for the plan were also established by this motion. The
plan applied to employees and supervisors but excluded employees
working less than 1,000 hours per year.
(1) The plan provided that full -time employees and supervisors were
eligible to participate but that the employer (township) would
contribute $800.00 per year for "... each eligible employee."
(emphasis added)
(2) There was no provision for premium payments for supervisors.
(3) Solicitor Lawrence Bolla testified that this was "... probably
a form resolution presented by Columbia, as I recall."
(4) The effective date of this plan was shown as May 15, 1974. The
insurance company did not have a copy of the resolution
establishing this plan until September, 1981.
(5) There are no signatures on this plan.
(6) Except for the township minutes, there were no documents
presented to show official notice from the township to Columbia
Life Insurance Company authorizing that company to set up the
plan and accept payments from the township. A contract was
agreed to. (See Finding 16).
Mr. Henry Horn
June 20 1986
Page 4 '
(7) There is
no evidence
township payments of townshi
(8 ) There prior to this action approving a
payment S n0 evidence s res olution, Plan or
b' May 12, 7981: of premiums for was taken legality Herman to authorize
motion by t ownship asked
the excepti Herm an, second a pension plan Bolla
than the raa of those for by r"ou with n plan for the about the
of $800 to Columbia were approved pension a un animous up vote ser rs,
was approved `umbia Accident�ro�ed for plan for S',pervi bills with
c. and Healthp payment. In addition, Payment
sors other
June g In surance
township 1981: Solicitor by check N
's can tar Boi °• 17 91
co nfirmed Participate in la reported that Township with Ken
shi;1 Su �� ider pension at only em
Township Supervisors plan. He states is of the
request repayment ors Le the s r as e P � - '� n nsylvani a h Association
at he has
Insurance gal Counsel, Y1 recommends end tate
Columbia Camn�is be Se nt to He recomme a Ass ociatio n
mbi Irrsur sinner could Columbia Insurance. of
You, aseconded ce Insurance Compa asked elp collect a letter to
request repayment by Supervisor does f; help e `the refund adds that the
PaSmerrt f pervisor Herma respond h e
July ,4 1S a ° m Columbia Insurance a cred favorably. Motion b tf
b
eturj1 the Solicitor was solicitor to
money Bolla reports Columbia
wi thdrawal y for
table rking
e the issue Surat are signed. n Mo working for the a Life Insurari ce will
e. you a township if
A ugust 11 at the meeting. S bonded by Herman to
attends 1981
they and states that heliotti, Columbia r, Motion carried.
J receive
in dividual tt but signed for company a - -nsur
table the issue the They will r 1 refund the `he ce money Company,
Columbia Insur not
pending township. Motion r b urn the , s money o the
p
Insurance. inves tigatin g Y Herman, e
(1) On August lg on passes with e$ti 9ating th by you to
De partme n t � 1981 Gail a unanimous vote.
of
wrote t Kipp, Columbia vote,
to i 1 a
that were ere 1nd attach a Gig iiotti as follows:
Pe nsion
sent to attached
agree the township's of the letter
would to hand the money to
Columbia P s solicito and the releases
_
agree
these individuals an Ins urance' s township then the
these s prote hen these su p e rvisors
directly we cantnat later
9ive datet ° I f a ghenst any liability
the township the do not S
s the money
Mr. Henry Horn
June 20, 1986
Page 5
J
"Many thanks for the copy of the resolution. They seemed
to have followed Ed's rough draft that he had sent them. I
noticed on Section 11 that they have a #1 and #2 schedules.
They should have had a box before each number and one of the
boxes checked. This could be a source of ambiguity; though our
copies of federal and state reports support the 100 percent
Immediate Vesting Schedule. It would only affect Robert Herman
in any case, since he started employment in 1980 whereas Horn
and Ley have been there over six years."
(4) There is no evidence that you ever received information from
Mr. Gigliotti's investigation of the Columbia Insurance files
or the above correspondence.
f. September 8, 1981: Issue tabled because Mr. Gigliotti was not able
to attend the meeting.
October 13, 1981: Solicitor Bolla said he would attempt to have the
question of insurance put on the agenda of the Erie County
Association of Township Officials. He adds that other townships
recognize they have the same problem. Mr. Gigliotti did not attend
the meeting and the minutes give no reason for his absence.
h. January 4, 1982: Supervisor Herman requested that the solicitor
notify Columbia Life Insurance to close out the pension fund and to
forward checks. Supervisor Sachar supported this request.
9•
(2) Mr. Frank Gigliotti testified that he was not aware that the
supervisors wanted to terminate their pension plans and that he
did not remember this memorandum or the August 11, 1981 motion
to return to meet with the supervisors after "investigating"
the company's files.
(3)
On September 4, 1981, Ms. Kipp again wrote to Mr. Gigliotti
stating:
i. February 10, 1982: Solicitor Bolla presented forms to the
supervisors to be signed to terminate the pension plan. Motion by
Herman, second by you to expedite the forms for the supervisors to
terminate the pension plan. Unanimous approval.
March 10, 1982: Solicitor Bolla reports that the forms for
termination of the pension plan had been forwarded to the Columbia
Life Insurance and the plan will be terminated by the end of the
month.
k. April 14, 1982: Solicitor Bolla reports that the pension fund is now
terminated.
Mr. Henry Horn
June 20, 1986
Page 6
9. Franklin Township auditor records for the past nine years do not record a
supervisor's request for the approval of a pension plan.
a. Mi nutes of the township auditors' reorganization meetings from
1974 through 1985 record approval only for compensation for
supervisors empicyed b,7 the township for hourly wages, vacation
leave, and expenses for use of personal vehicles while on township
busi ness.
10. Columbia Life Insurance Company, Bloomsburg, Pen:isyl vani a, records
disclose the following information atout the Franklin Township pension plan:
a. The plan was administered under a Group Annuity Contract No. DA -164.
b. The effective date of the plan was May 14, 1974.
c. Eligible participants .►ere defined as full -time employees and
supervisors; persons working less than 1,000 hours annually were
excluded.
d. 100% immediate vesting was included.
e. The employer contributed 100% of the premium which was $800 per
employee per year.
f. Beck, Ley, Township Secretary /Treasurer Diane Horn and you are listed
as the only participants.
g. Yearly statements and employee census for 1980 through 1982 list the
participants as you and Supervisors Ley, Beck, Herman and township
Secretary /Treasurer Diane Horn.
h. This record was not in the insurance company file until September,
1981.
11. Correspondence between the Franklin Township Solicitor and Columbia Life
Insurance Company discloses the followi
a. June 30, 1981: Letter from Solicitor Bolla to Columbia Life
insurance Company; "I have reviewed the Pennsylvania Second Class
Township Code regarding the payment of insurance and annuity benefits
to supervisors. 53 P.S. §65713 is the relevant statute governing
Franklin Township's contract with your company. That section
clearly provides that a second class township may only provide this
type of coverage for employees of the township. The supervi sors
themselves, if they are not employees of the township, are not
entitled to any benefits unc "er this section. Please refer to the
case of Hendricks v. East Rockhill Township, 1 D. & C. 3rd 763 (1977)
for a most recent interpretation of the relevant statute." He added
Mr. Henry Horn
June 20, 1986
Page 7
that he had been directed by the township supervisors to demand
repayment of all funds currently in the pension fund attributed to
Robert Beck, Ley, and you. He noted that, in Ley's case, they were
not requesting return of the amount paid for him as a full -time
employee of the township. He also asked for an accounting of all
funds paid into the purchase payment fund from the registered date
and the interest paid on those funds.
b. July 7, 1981: Edwin T. Kosteva, Pension Administrator, wrote to
Solicitor Bolla stating that Robert Beck is no longer a supervisor
and received his vested benefits February 28, 1980. Kosteva had
enclosed authorization for withdrawal of fund forms to be- completed
and signed and stated that they needed specific information on which
of the contributions the township had made for Ley while he was a
working supervisor and when Ley was a non - working supervisor.
There was a "cc: Frank Gigliotti" notation on this letter.
c. July 10, 1981: Solicitor Bolla wrote to Mr. Kosteva stating that
one -half of the existing contributions were made by the township as a
result of Ley's employment as roadmaster with the township. He
stated the township intended that this amount would remain in Ley's
fund, the balance was to be refunded.
d. August 7, 1981: Gail S. Kipp, Pension Manager Columbia Life
Insurance Company, wrote to Mr. Ed Springer, Springer & Perry, asking
him to respond to a question raised by Solicitor Bolla by telephone.
Solicitor Bolla asked whether there was legal authority for the
township to terminate the funds and collect the money if the
supervisors do not agree to relinquish the money. Solicitor Bolla
had stated that the supervisors were not eligible to participate in
the plan. The amounts involved were you, $7,318.23; Robert Herman,
$630.00; and Ley $7,718.33. She also noted that former supervisor
Robert Beck had received his vested benefits of $5,843.13 on March 5,
1980.
e. August 17, 1981: A. J. Carden, Vice President, Columbia Life
Insurance Company, wrote to Lawrence C. Bolla. Columbia Life
Insurance had been advised by their legal counsel that the most
practical manner in which to resolve the Franklin Township pension
question would be to have supervisors sign release forms to allow the
company to refund the money to the township. He enclosed release
forms.
f. January 20, 1982: Solicitor Bolla wrote a letter to Gail S. Kipp
confirming a telephone conversation of that day stating his
understanding that any of the present or former supervisors who wish
to withdraw their assets from the pension plan need only sign the
"Authorization for Withdrawal of Funds" form which had been provided.
YEAR
BEGINNING
BALANCE
AMOUNT OF
CONTRIBUTION
INTERESTS &
MISC. CREDITS
FEES
WITHDRAWALS
BALANCE
1974
-0-
$800.00
$ 27.79
-0-
-0-
$827.79
1975
$827.79
$800.00
$ ?7.71
-0-
-0-
$1,705.50
1976
$1,705.50
$800.00
$136.41
-0-
-0-
$2,641,91
1977
$2,641.91
$800.00
$186.18
-0-
-0-
$3,628.09
1978
$3,628.09
$800.00
$255.56
-0-
-0-
$4,683.65
1979
$4,683.65
$800.00
M $ 22.50
22.50
-0-
$5,812.55
I $328.90
1980
$5,812.55
$800.00
M $ 22.50
22.50
-0-
$7,040.71
I $428.16
1981
$7,040.71
-0-
I $591.33
-0-
-0-
$7,632.04
1982
$7,632.04
-0-
I $72.41
$7,704.45
-0-
-
-
$5,600
$2,104.45
$45.00
$7,704.45
-0-
Mr. Henry Horn
June 20, 1986
Page 8
He added the form was to be signed by both the withdrawing employee
and by the appropriate township official. The appropriate township
official was not identified. He noted that he thought the forms
could be prepared and signed at the regular township meeting on
February 10, 1982.
March 4, 1982: Gail S. Kipp wrote a letter to Solicitor Bolla
enclosing copies of the letter sent to you, Herman and
Secretary /Treasurer Diane Horn, rioting that these accounts had been
closed and the people paid in full. She also asked for a copy of any
resolution that was passed at the February 10, 1982 meeting.
12. Yearly policy statements and plan account ledgers obtained from Columbia
Life Insurance confirmed the following information regardi ng contributions
made on your behalf by Franklin Township:
a. The plan was effective on May 15, 1974. Your participation date was
at that time.
b. Contributions, interests and the balance of the plan at the end of
each year is shown in the following table:
g.
TOTAL CREDITS
TOTAL DEDUCTIONS
Mr. Henry Horn
June 20, 1986
Page 9
13. Records confirm you endorsed check No. 813 in an amount of $7,704.45 that
was cashed on March 12, 1982. None of that money was returned to the
township.
14. Attorney Bolla, the former solicitor, provided the following
information:
a. You and the other supervisors -were coaxed into purchasing the
insurance by the Columbia representative.
b. He researched the pension issue and found a lower court case in Bucks
County. Based on a court ruling, he advised the board of supervisors
that the plan obtained from Columbia was inappropriate.
c. He attempted to have the policies changed but Columbia refused to do
so without a release form signed by supervisors. You refused to sign
such a release.
d. No payments for your pension plan were made by the township after
1980.
15. The record of the township pension plan and your participation is as
follows:
A. May 14, 1974, Contract DA -164 entered into by the township and
Columbia Life Insurance Company.
(1) Ley and Supervisor Beck signed as applicant. Franklin Township
was identified as the applicant.
(2) The name of the plan was "Franklin Township Pension Fund ".
(3)
Other than the signatures of Ley and Supervisor Beck, there
is no record of township authorization of this plan.
B. On October 10, 1978, the township supervisors approved a "Defined
Contribution Plan" at the suggestion of Mr. Edwin T. Kosteva,
Columbia Life Insurance Company. (See Finding 7)
(1) The Columbia Life Insurance Company copy of this plan was the
only one presented.
(a) It was not signed or dated.
(b) It was not received by the insurance company until
September 3, 1981. (See Finding 8e (3)).
(c) The effective date was shown as May 15, 1974 but there was
no explanation for the back dating.
Mr. Henry Horn
June 20, 1986
Page 10
(1)
This designation would have affected y :ur vested interest. If
option 2 was selected and effective October 10, 1978, you would
riot have been eligible for fa`;1 vesting until 1984.
C. On i- ebiifary 10, 1982, you signed an "Authorization for Withdrawal
of Funds' requesting .. withdrawal and retun of all vested assets"
for you. The reason for withdrawal was recorded as "Termination of
Plan" Supervisor Herman signed as the township official.
D. Columbia Insurance Company issued check #00873 dated March 3, 1982,
in the amount of $7,704.45. You endorsed th'.s check.
E. There is no record of official township action to terminate the
pl ar..
B. Discussion: As a Township Supervisor you are a public official as that
term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct
is subject to the requirements thereof. Sowers, 80 -050; G1 ova, No. 326; Hunt,
No. 384 -R.,
(2)
(d) The township had not identified the vesting option they
were choosing. The options were 1: "100% immediate
vesting "; 2: "0% for three years. 25% after 3 years
employment with 25% each year thereafter until 6 years ".
(See Finding 8e (3))
There was no record as to whether the period for considering
either option was May 15, 1974, October 10, 1978 or September,
1981.
Generally the Ethics Act provides that:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
The question of the propriety of pension and annuity plans for
supervisors of second class townships has been reviewed by this Commission on
many occasions. McCutcheon, No. 127; Hoak, No. 128, Marcello, 85 -003. The
Commission determinations in these matters has been reviewed and affirmed by
the Commonwealth Court of Pennsylvania. McCutcheon v. State Ethics
Commission, 77 Pa. Comm. 529, 466 A.2d 283, (1982).
Mr. Henry Horn
June 20, 1986
Page 11
Generally, in situations such as the instant matter, it must be
determined whether the official used his position to obtain or secure
financial gain other than the compensation that is authorized by law.
It is now clear that pension benefits such as the type of question
herein, constitute a financial gain. See McCutcheon v. State Ethics
Commission, 466 A.2d 283, at 288.
The additional question to be answered is whether such benefits are
compensation provided by law. A complete analysis of this exact issue has
been set forth in the above authorities. See also; Hendricks v. East Rockhill
Township, 1 D & C 3d 763, (1977), Synoski v. Hazel Township, Pa. Commw.
, 500 A.2d 1282, (1985). Generally, the compensation to be paid to a
township supervisor who serves only in that position is specifically set by
Statute. 53 P.S. §65515. A Supervisor who is also employed by the township
in one of the positions authorized in the Second Class Township Code, may
receive additional compensation. Such compensation, however, in order to be
authorized by law, must be affirmatively fixed by the Township Board of
Auditors. 53 P.S. §65542.
We have reviewed the instant matter in light of these now established
concepts of law as well as under the policy pronouncement of the Commission.
51 Pa. Code §7.1.
Had you been employed by the township as a laborer or roadmaster you
would have been qualified to receive pension benefits as approved by the
auditors. With relation to your participation in the plan as a non - working
township supervisor, clearly you were not entitled to participate in the plan
at the township's expense.
We note that you were on the township board of supervisors in October,
1978 when the pension plan was officially initiated. We also note that you
received benefits since 1974 but there was no official action, even by the
supervisors, until 1978. You, in fact, voted in 1978 to obtain this plan for
yourself and the other supervisors. (See finding 8(a)). This is a use of
your public office as defined in the Ethics Act. See, McCutcheon v. State
Ethics Commission, Supra.
Also, in 1981, the propriety of the plan was questioned and you and the
other supervisors were, in fact, informed that the plan was not authorized by
law. (See finding 8 b,c). Questions along this line had also been raised as
early as 1978. (See finding 7).
The Supervisors were, thus, informed by the Solicitor that the plan
should be tenninated. (See Finding 8(c) ). You were still a supervisor during
1981 when these questions were raised.
Mr. Henry Horn
June 20, 1986
Page 12
Eventually, on April 14, 1982, the plan was terminated. When the plan
was terminated, the insurance company requested that each supervisor execute
an authorization for withdrawal of funds in order to receive the cash value of
the plan. The refunds were then forwarded to each individual supervisor.
Records reflect that on March 26, 1982, you cashed a refund check in the
amount of $7,704.45 and retained the proceeds.
Some questions have been raised as to whether the township board of
supervi sors were informed as to the procedure offered by Columbia Life
Insurance Company for the termination of the policy. Attorney Bol1a testified
that two methods of termi nation were offered, Under the first method, the
supervisors would be required to sign -a release after which the funds would be
transmitted di rectly to the township. Under the second fermi nation program,
the supervisors would sign authorization for withdrawal forms where after the
funds would be disbursed directly to the township supervisor. The township
board supervisors signed the authorization for withdrawal forms rather than
the official releases. However, each member of the township board of
supervisors testified that Attorney Boll a never informed them of the procedure
whereby the township would have directly received the money. In any event,
even if we, for the sake of this order assume that Attorney Bolla, in fact,
never informed the township board of supervi sors as to the alternative
termination procedure, this nevertheless does not alleviate the fact that you
accepted and retained the funds that were received for your own benefit.
There is no reason why, even after the funds were released to you as an
individual you could have not turned over to the township that portion of
funds which were paid for your participation in the program as a non - working
supervisor. Your acceptance of these funds, after substantial questions as to
the legality of the program had been raised, was clearly not in accord with
the State Ethics Act.
It is also important to note, i n relation to the foregoing situation,
that even prior to the questions that had been raised by Mr. Herman regarding
the propriety of the plan, i n 1978 the supervi sors approved a defined
contribution plan at the suggestion of the Columbia Life Insurance
representative, Specifically, set forth in that defined contribution plan,
was the requirement that the plan was for full -time employees and the township
was to contribute $800.00 per year for each eligible employee. While the plan
indicated that super - visors were eligible to participate, there was no
provision in the plan for premium payments for supervisors who were not
emloyees„ Thus, as early as 1978, the board of supervi sors knew that the
payment for this program by the township, regarding non - working supervi sors,
was questionable. To argue that the supervisors were not aware of the
standards for participation that those same supervisors established in the
defined contribution plan would be incredulous. Regardless of all the
questions that had been raised regardi ng this plan, from 1978 on, you
nevertheless accepted and retained the funds that were received. As such, we
Mr. Henry Horn
June 20, 1986
Page 13
believe that your receipt of those funds to which you were not entitled
violates the State Ethics Act. Such an acceptance of a gain or of
compensation to which an employee is not entitled is a use of one's public
office in vioation of Section 3(a) of the State Ethics Act. Huff, 84 -015,
Domalakes, 85 -010, Weaver, 85 -014, Blumling, No. 388.
Generally, the State Ethics Act provides as follows:
Section 9. Penalties.
(a) Any person who violates the provisions of Section 3(a)
and (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. 409(a).
Section 9. Penalties.
(c) Any person who obtains financial gain from violating
any provision of this act, i n 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).
In addition to the above, the Act provides that the Commission may forward the
results of any investigation to the appropriate prosecuting authority, unless
the alleged offender removes himself from the conflict of interest by
divesting himself of any financial gain received in violation of the State
Ethics Act. 65 P.S. §4079(iii). This principle has been upheld by the
Commonwealth Court of Pennsylvania in McCutcheon v. State Ethics Commission,
supra. In addition to the following, the Commission regulations also set
forth that the Commission may, in determining to recommend a prosecution,
decide not to recommend such prosecution if:
§7.17. Extenuating or mitigating circumstances.
(a) The Commission may, in deciding whether to
recommend prosecution as set forth in §7.16 (relating to
options available to the Commission) decide not to refer a
matter for prosecution if any of the following events
occur:
(3) The Supervisor, if gain has already been
secured as a result of inclusion in a plan, remits
and refunds the gain, as determined by the
Commission, to the plan, the township or the State
Treasury as appropriate; or
Mr. Henry Horn
June 20, 1986
Page 14
(4) The Supervi so r, i f gain has al ready been
secured as set forth i n paragraph (3) refunds, i n
addition to the amount determined thereunder, an
additional 10% thereof per annum so that any benefit
derived from the gain associated with the plan is
negated. 51 Pa. Code 7.17(a).
As a result of the foregoing, the - Commission may offer a person who has
obtained fi nenci al gain in violation of the State Ethics Act the opportunity
to divest himself of that financial gain.
In addition to the followiny, we note, that even if you were to have
rp ,eivcd your pension program and the financial gain resulting therefrom, in
good faith and based upon the advice that you had received from others
i nclud° ng your soli ci tor, such good faith receipt of benefits or fi nanci al
gain to which 2 .,ou are not entitled, would not alleviate you from the duty of
returning such g =in to the . governmental body from which it was received. Good
faith reliance upon a solicitor, has been held not to constitute just cause
for retention of a financial gain to which one was not entitled. See,
Allegheny County v. Grier, 179 Pa. 639, 368. 353, (1897); McCutcheon v. State
Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1983); Kestler Appeal, 66
Pa. Comm, l., 444 A.2d 761 (1981). We believe that this result is appropriate
and therefcoe, we will offer you the opportunity to divest yourself of the
financial gain that was received in violation of the State Ethics Act. We
will also impose the 10% interest requirement as set forth in the regulations
of the State Ethics Act. 51 Pa. Code 7.17(a), (4). The amount of financial
gain which we have determined to have been obtained in violation of the State
Ethics Act, wou "id be the amount of funds expended by the township on your
behalf in your capacity as supervisor. The total amount expended by the
township, en your behalf, was $5,60C.00, with accrued credits and interest
obtained through the pension program you received as a result of your
termination of the program was $7,704.45. This amount plus the 10% penalty
equals $8,475.00
C. Conclusion: You violated the State Ethics Act when you, as a township
supervisor, received, accepted and retained the proceeds from a
township - provided pension plan to which you knew you were not entitled.
Unless, within thirty (30) days of the date of this order you remit to the
State Ethics Commission a check made payable to Franklin Township in the
amount of $8,475.00. In the event that you do not make such restitution, we
will refer this matter to the appropriate law enforcement authorities for
further review.
Our files in this case will remain confidential in accordance with
Section 8(a) of the Ethics Act, 65 P.S, 408(a). However, this Order is final
and will be made available as a public document 5 days after service (defined
as mailing) unless you file documentation with the Commission which justifies
Mr. Henry Horn
June 20, 1986
Page 15
reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code
2.38. During this 5 -day period, no one, including the Respondent unless he
waives his right to challenge this Order, may violate this confidentiality by
releasing, discussing or circulating this Order.
Any person who violates the 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, see 65 P.S. 409(e).
By the Commission,
G. Sieber Pancoast
Chairman