HomeMy WebLinkAbout786 SandersIn re:
Ray Saiide s
10 _
STATE ETHICS COMMISSION
SOB. FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
1 ! SSf' 7 ?. "_ / ,i
Cr�.1 r -v.
File Dock b0 87 '-1 Q -C; .87- 119 -t
Date 'aiaed ( Feptuary 14, 199
Date Whiled: ; ( *ibritail , 28, 19g . r.°
Before: Robert W. - rn; �ic���Chair
G. Sieber Pancoast
Dennis C. Harrington
r•�, _ Daneen E. Reese
Roy W. Wilt .�`. .
2 ...
The State EthiirsCommission received:a` complaint regarding a
possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S.
401 et. seq. Written notice, of the specific allegation(s) was served
at the commencement of the investigation A Findings Report was= '
Issued and served, tipoi t'bmpletion of the investigation, which '
constituted the Compl'aitt` by the Investigation Division. An Answer
was filed and a hearin4 The record is complete. This
adjudication of the Coiimkes ion is hereby issued which sets forth the
Individual Allegations, bindings of Fact, Discussion, Conclusions of
Law . anal Order.
This adjudication is final and'will be made available as a public
document fifteen days after issuance. However, reconsideration may be
requested which will defer public release of this adjudication pending
action on the request by the Commission. A request for
reconsideration, however, does not affect the finality of this
adjudibation. A reconsideration request must be received at this
CoMmission within fifteen days of issuance and must include a detailed
explanation of the reasons as to why reconsideration should be granted
in conformity with 51 Pa. Code 52.38.
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 unless the right to challenge this Order is
waived, may violate confidentiality by releasing, discussing or
circulating this Order. However, confidentiality does not preclude
discussing this case with an attorney at law.
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, 65 P.S. 409(e).
ADJuDICATIQN
yr
fated the
I. Allegation: That you, a Girard Tdwns,�ip Supervisor
following provisions of the State Ethics At t (Act 170 0 r978)
you voted to pass a resolution authorizing the township solicitor to
represent you in a court action against the township auditors
regarding the setting :f, wages; and ..when you ,failed to disclose on
Statements of Financial 3'nte'est5 real estate' that you owned in . Erie
County; loans in excess of $5,000.00 at Conneaut Savings and Loan;
interest income from Conneaut Savings and Loan; and rental income from
properties you p 3i d .n,, r Coun ty:
Section J. - 1�es ricted A'ct1 it1es
..
(.a) No of f j:c ' 1 or public eitIpl yee
shall .l use. hi, ralc 'offi a or an confidentiarl`' ved through his holding public
okf.fice_ to,plataipt financial, gain, other than
compe iati c n prf4vided by :law . for hims `'g mber
Y •ia
�la'� family, 'o pi
a r, a b
he is A .od'i'ated. 65 1 547Hrar
Section 5. Statement of financial interests.
(b) The statement shall i,ncl t
following information for the prio' ca fi lar'ye4sr
with regard to the person required /o file the
statement and members of his imate fabmily;J"
(3) Any direct or in.. gr
Vas ,interest in any ; real estat h as -
sold or leased to the Commonwealth, any
of its agencies or political
subdivisions; purchased or leased from
the Commonwealth, any of its agencies
or political subdivision; or which was
the subject of any condemnation
proceedings by the Commonwealth, any of
its agencies or political subdivisions.
(4) The name and address of each
creditor to whom is owed in excess of
$5,000 and the interest rate thereon.
However, loans or credit extended
between members of the immediate family
and mortgages securing real property
which is the principal residence of the
person filing or of his spouse shall not
be included.
(5) The name and address of any
person who is the direct or indirect
source of income totalling in the
aggregate $500 or more. However, this
Mr. Ray Sanders
Page 2
II. Findings:
1. Ray Sanders served as a Girard Township Supervisor from 1971
through July 1987 when he resigned.
2. Minutes of the Girard Township Auditor's meetings indicate
that the following compensation was fixed by the auditors in
1986 for the roadmaster and supervisors as part -time
laborers for the Township.
Roadmaster Pay - $375.00 Per Week
Supervisors as Part -Time Laborers - $6.00 Per Hour
3. In 1986, the township supervisors initiated a legal action
in_the - Erie County Court of Common Pleas against the
toWnsh p auditors seeking to have the wages - township
c supervisor /employees increased.
/11
.,.
41 Minutes of the Girard Township Supervisors meetings reflect
the following in regard to authorizing the solicitor to
represent Supervisors Borland and Sanders in a suit against
the Township auditors :
c ��...
a. January 16, 1986: c c c.
Township Solicitor•w41l be Attorney.. George Schroeck.
Chairman Borland said-, at this-time, hg_ would1ike tpp
exercise a retainer fee number.- On a motion by Ray
Sanders, Attorney Schroeck will be retained at the fee
of $100.00 per meeting and $50.00 per hour, same as in
the - 1985. .Motion: was sePOn4e4:. by Dan Douglas,
unanimats . r.
t% -
Present Dan Douglas, Wiiliamv.Borlind Ray Sanders.
provision shall not be construed to
require the divulgence of confidential
information protected by statute or
existing professional codes of ethics.
65 P.S. 5405(b)(5).
b. March 11, 1986: ,
EugeneXwiatkowski questioned the suit being
against the auditors :4y the "supervisors, using the
Township Solicitor. Eugene said Dan Douglas told him
that he was not aware of this action until he read it
in the paper. Dan Douglas said he was aware of the
action, but it was never brought up for approval by the
Mr. Ray Sanders
Page 3
supervisors to proceed on it. Dan Douglas said he is
not contesting the wage. Dan Douglas said he was aware
of the proceedings,.but he never gave word that he was
involved in it Eugene asked Din Douglas if he felt, it
is justified to use township expenses.
Schroeck said that he is in charge to represent the
board, and that is by legislative act. There is no
charge on the bill for that. Kwiatkowski questioned
six hours on last month's bill. He said that there
were three hours on that bill for the solicitor's fee
to file suit for the supervisors. He said that the
suit was filed on-behalf of the supervisors, as
employees of the Township. Aren't they using the
Township Solicitor to try to attempt a financial gain
for themselves?
Schroeck said that he represents the supervisors.
Schroeck said that the board has a right to look into
anything they want, and it. Dan Douglas said
that he is having a problem with the,solicitor's bill.
Motion by Dan Douglas, seconded by Ray Sanders,
, unanimous, to approve the Financial Statement ending
February 28, 1986.
Motion by Dan Douglas, seconded by Ray Sanders,
unanimous, to approve the invoices fox payment.
Present: Borland, Douglas, Sanders.
c. April 8, 1986:
Chairman said that the supervisors, by resolution,
directed the Township's Solicitor to represent us in
our court case against the auditors, so he asked for a
motion for a resolution to that effect. Ray Sanders
made the motion, Danj:souglas said he is not supporting
this motion, William Borland made the second. Vote:
Ray Sanders and William Borland voted yes, and Dan
Douglas voted no. So registered.
Present: 1.orland, Douglas, Sanders,
5. At the March 20, 1986 meeting of the Girard Township
Auditors, Ted Padden was appointed Attorney for the Board of
Auditors at a rate of $75.00 peF hour, subject to the
approval by the court.-,
Mr. Hay Sanders
Page 4
The motion to hire Padden was passed` 'on a two to one vote,
Korb Brent and Joyce Dale voted in fav-br -,-' and Charles
Graham °abstained. Attorney Padden appointed to
represent auditors against the -case the supervisors
brought regarding wages. -
6. Records of Girard Township indicate -the following regarding
the employment of counsel by the supervisors and auditors:
a. -" By way of letter dated February 26, 1986, from Auditor
Joyce Dale, the supervisors are advised of the
auditor's intention to employ. legal" coueeel to
represent them in the actionwgbaken by the supervisors
against the auditors. (Case=#432 -A -1956 in the Erie
County Court of Common•Pleas).
b. By way of letter dated April 9, 1986, from Township
Clerk, Connie Scalise, to Al Wehan of the law firm of
Schroeck, Segel and Murray. The firm is advised of the
resolution of the supervisors authorizing the to
representation of them in the court case against the
auditors.
Records of Girard Township indicate the following invoices
from the law firm of Schroeck, Segel and Murray, P. C. for
seriees provided to Girard Township in relation -to
representation of the supervisors in the compensation suit
against the auditors:
a. February 7, 1986:
January 13, 1986 - Phone Conference With Supervisors
.5 Hours;
January 23, 1986 - Prepare Motion Re: Roadmaster
Salaries = 6.0 Hours
January 30, 1986 - Filing Fee'at` House Re:
Roa ita'ater Salaries - $40.50
January 31, 1986 - Erie County Sheriff Service Re:
Roadmaster Filing - $44.00
b. March 28, 1986:
March 14, 1986 - Phone Conference With Bill Borland Re:
Township Auditors Appeal - .1 Hours
Zr. Ray Sanders
Page 5
March 27..;•1986 - Research and Letter Re:. Supervisors
Compensation -- 2.25 Hours
,
December 3, 1986 Prepare a I otiOA Re: Roadmaster
salary ,original time reported orr5aanuary 23, 1986, was
6 hours - Correct time was 2 Hours. Credit issued 4
hours at $50.00; per, hoar. . .. . t.-
:y ;
c May 2, 1986:
d. Mav 30, 1986q
g.
r
April 22, 1986 Review, Petition tion tOkciAp arOve Counsel
Fees and....Response. Lettex L,s oursx .,4...
April 28, . . 1986 . - Preparation, _mac Roa4master Pay
Hearing - .75 Hours
April 29, 1986 - Preparation for Roadmaster's Pay
Hearing - 1.75•Hours
April 29, 1986 - Hearing at Judge 1JUiliante's -Court
Room - 2.25 Hours it • -
May 12, 1986 - Two Phone Conferences With Betty Bell
Re: Roadmaster's Pay Increase - .2 Hours
e. June 30, ,198.6:
June 5, 1986 - .PhoneConference With Supervisors -1.0
Hours
=:`June 25, 1986 - Argument Re: Wage Order - .5 Hours
f. August 2, 1986: +'
-June 25, 1986 - Prepare Document for Wage Case - .3
Hours
July 1,_ 1986 - Stipulation and Order Re: Roadmasters
Wages -•.75 Hours
July 2, 1986 . - Phone Conference With Supervisors
(Attorneys Schroeck and Wehan) and Research - 3.0
Hours
July 7, 1986 - Letter to Attorney $adders Re:
Stipulation and Order Re: Roadmaster Wages - .2 Hours
October 1, 1986:
Mr. Iay Sanders
Page 6
September 5, 1986 - to Supervisors Re:.
Roadmaster's Pay - , Hours
z:,:
8. Records of Girard Township indicate the total amount of fees
charged to and paid by the Township, in the legal action
taken by the supervisors against the auditors is as follows:
16.3' Hours at $50.00 Per Hour= $81.00
Filing Fee;- $40.50
Sheriff a Service Fee - $44.00
Total , $899.50
9. Payment for the .5
hours on March 27,
noted in Finding 8
compensation suit:
hours on January 13, 1986 and the 2.25
1986, whigh was included in the funds
above, was not in relation to the
a. The total cos the township for representation in
the compensation suit was $762.00.
10. Dan Douglas, former Girara Township Supervisor, who served
with Borland and Sanders in 1986, was not in favor of the
suit brought against the auditors or of using Township funds
to pay the solicitor to represent the supervisors in this
case.
11. Auditor Charles Graham t the wages set for the
supervisors by the auditors in 1986, were unfair, and that
he voted against hiring an attorney to represent the
auditors because" he felt it could be worked out.
,. ;
12. Former Township Solicitor George Schroeck, researched the
situation before he agreed to represent the supervisors in
the case against the regarding wages. He based his
decision to represent -the supervisors on this research. He
found court documents that showed that the solicitor
represents the Township and the supervisors acting as
roadmasters. He cited the case of Ballou versus the State
Ethics Commission for a determination of the solicitor's
duties and silver versus- Downs for specific reference to the
Girard case=
13. Girard Township Auditor, Joyce Dale, recalled that the
auditors were made aware of the suit against them by
letter. The auditors retained Attorney Ted Padden and
informed the supervisors of that - fact -in a letter dated
February 26, 1986. The auditors cut the
supervisor /laborers pay because they were not operating
Mr. Ray Sanders
Page 7
equipment biut were only . acting as general laborers.
Supervisor /roadmaster BOiland's wages were kept the same.
14. Records _of Girard TO indicate the following .
t s of Finacii fterest` on file with tile Town
Secretary for Ray Sandei ° Y"'
a. cling pate: April 17, 1987
for the 'Year: 1986
Source of Income: Social Security and Girard Township
All Other Financial InterestCategories: None
b. Filing Date: April 7, 1986
For the Year: 1985 '
Source of Income: Social Security and Girard Township
All Other Financial Interest Categories: None
c: Filing Date:_ February 22, 1985
For the Year: . -1984 =
Source of Income: Social Security and Girard Township
All Other Financial Interest Categories: None
. Filing Date: March 2, 1984
for 'the Year: Blank
Source Of lncome:"'SOcial Security, Disability and
`Girard Township
All Other Financial Interest Categories: None
e. Filing Date:. December 2, 1983
For the Year: Blank`
Source of Income: Social Security, Disability and
Girard Township
All Other Financial Interest Categories: None
f. Filing Date: March 6, 1983
For the Year: Blank
Source of Income:' None
All Other Financial Interest Categories: None
Filing Date: March 12, 1982
For the Year: Blank
Source. of Income: None
Creditors: General Telephone Company
All Other Financial Interest Categories: None
h. Filing. Date: May 10, 1981
Por the Year: Blank
Source of income: None
Creditors: .Cpneral Telephone Company
1 11 O her- Fineiticial Interest Categories: None
g.
Mr. Ray Sanders
Page 8
i. Filing Date: March 12, 1980
For the Year: Blank'
Source of Income: General Telephone Company
Ail Other Financial Interest- tat'egoribs s 'None
15. Records : of the Erie Counter Assbssment' Bureau indicate the
- following properties are owned by Ray H. and /or Norma L.
Sander located in Girard Township:
a. Col +s king °Road, TR 499; Block No. 93; Parcel Number 3;
TaSaValue . $250.00; Land Only
b. '8essemer'- gnd Erie Railroad, TR 497; Block No. 92;
"Parcel - Number 1; Tax Value = $70.00 Land Only
-
c. , : :interstate 90 TR 497; Block No 95; Parcel No. 14; Tax
Value - $110.00; Land Only
d. 7920 Colespring Road, TR 497; Block No. 85; Parcel
Number 10; Tax Value - $20,980; Land and Buildings
17. Records of the Erie County Recorder of Deeds Office indicate
the following properties owned by Ray H. Sanders between
1952 and 1987:
e. Colespring.Road; -cross Station Road, TR 497; Block No.
87;Parcta Number-' 15; Tax Value $8,100.00; Land and
Buildings '
16. Records of the Erie County Assessment Bureau indicate the
following properties owned by Ray H. and/or Norma L. Sanders
located in Girard 'Bordiligh:
a. 118 Wilcox 'Street, PT. LTS. 37, 38, and 39 Day Sub.;
Block No. 7; Parcel Number 6; Tax Value $11,770.00
Record of ownership was changed on May 30, 1989 to
Andrew and Deborah Vasilik for the consideration of
$42,000.00.
a. Deed Book No. 632 (page 572), September 18, 1952;
deeded by Charles,A. Bender and Anna M. Bender to Ray
H. Sanders and'Norma L. Sanders for the sum of $1.00
(one dollar), located in Girard Township.
b. Deed Book No. 964' '(page 121), June 27, 1967: deeded by
John Klimek and Pauline Klimek and Roy Klimek to Ray H.
and Normal L. Sanders for the sum of $1.00 (one
dollar). The actual consideration is $1,400.00 (one
Mr. Ray Sanders
Page 9
c.T Deed BOP) No. 1442•(page 277), November 30, 1981:
GeorgeL Trout, of the estate of Clyde M.
Trout to Ray H. and Norma L. Sanders for the sum of
$22,000.00 (twenty two thousand dollars), for land
situated at 118 W:1cox Street in Girard Borough,
containing 7,425 square feet of land and having erected
-t ereQn a � fre,me dwelling .hquse
d.
c
d.
thousand four hundred dollars), located in Girard
Township.
April 21,
Thomas L.
f. April 21,
g. Augmst 1, 1986:'
1986:
Dow moved out.
1986:
Deed Book No 0029 (page 0449), June` 9, 1987: Ray H.
Gino MOrmli - 16 . Sanders to - Lyle H. $anders ,. for the sum of
=$1.00 dollar), for land located Girard
Towns This' transfer is from parent.to son.
18. Records L _ .a_ +e +1,o fril l niai nct
o
ru5 vi Girard ate.. Borough -
regarding 118 Wilcox Street West,.• Girard,.- Pennsylvania:
a. December 11, 1981:
Ray and Norma Sanders, moved out 12/14/81 and moved to
7920 Colespring Road Girard, Pennsylvania. Sanders is
— listed as owner.
b. December 14, 1981: ,
Archie Sampsell moved in on December 21, 1981 from 421
Lake Street,, Girard, Pennsylvania.
April 27, 1984:
Archie Sampsell moved out.
April 29, 1984:
Thomas L. Dow moved in and paid a $50.00 security
deposit for electricity, water and sewage.
Ray Sanders is listed as owner.
Mr. Ray Sanders
Page 10
Louis A. Bartosek moved in and is listed as owner by a
] d /lease contract. r.
h. Mau 31, 1989:
•
Louis A. Bartosek moved out and_the final bill is
directed to Attorney Sterrett/613 Masonic. Building,,
Erie, gennsylvania, 16501.
19. Thomas Dow formerly rented a residence at 118 Wilcox Street
in GiraR .•Bprough. The property was owned by Ray H. and
Normal., Sunders, and le lived there approximately two
years. He approximated his monthly rent payment as $200.00
plus u.l.ities. The rent was paid directly to Ray Sanders.
20. Louis Bartosek formerly rented a property at 118 Wilcox
Street,. Girard, Pennsylvania for approximately three years.
Bartosek had an agreement with Ray Sanders to rent the house
with an to buy. The agreement was with Ray and Norma
Sanders through Attorney Ean Murray, however, the rent was
paid directly to Sanders.
The rent was $375.00 a month plus utilities and taxes. In
December, 1988, Sanders lowered the rent to approximately
$325.00 per month paid the taxes himself. This was due
to the fact that Bartosek was laid off from his job in
December, 1988. The house remained in Sanders name the...
entirtime he lived there.
III. Discussion: Ray Sanders, hereinafter Sanders, as an elected
Girard Township supervisor was a public official as that term is
defined under the Ethics Act. 65 P.S. S402; 51 Pa. Code S1.1. As
such, his conduct is subject to the provisions of.the.Ethics Act and
the restrictions therein are applicable to him.
Initially, it is noted that Section 5 of Act 9 of June 26, 1989
provides, in part, as follows:
"This amendatory act shall not apply to
violations committed prior to the effective date
of this,act, and causes of action initiated for
such violations shall be governed by the ; }
law, which is continued in effect, for that purpose.
as if t j,s ; act were not in force. For the
purposes of this section, a violation was
committed, prior to the effective date of this act
if any elements of the violation occurred prior
thereto."
Mr. Ray Sanders
Page 11
Since the occurrences in this case transpiredprior to the .
effective date of Act '0 (June 26, 1989), we must apply the provisions
of Act 170 of October 4, 1978, P.L. 883 to =de whether the
Ethics ACt was violated.
.J. - ;e 1. .. C. r. • !
Under Section 3Via), hooted above this Comb isn has dpie ruined
that-use f. office . by ,;a publiC official to obtiln; . jnanc 1 ga ,n for
himself or.. as member h:s ` im 4ediate family or .,bf�ess with ~which
he is associated whichTis - not ,provided for, in4aw trb,nsgresses'the
above provision of law: ;'' Thus_, ute of of f ice a public official - to
obtain a financial vain`whi h Cis G riot authorized as part of his
compensation is, prohibited by Sestien-3(a) *_ HoaknicCutcheon v. State
Ethics Commission, 77 Pa. Commw ..''Ct.. "'529,,466'A:2d`283 (1983); Yacobet
v. Stat h3.�cs Cb f ssionr 10'9 `p4 .COiIU W ' C t 432:. 531'A.2d,.536
(1987) . Simi lariy, :Sectioi _'3 ) the Ethics: "would" prohibit a
public official /-employee from using public office to advance his own
interests; ..R slow Ir. State Ethic Couthu,ssion,' 116 .Pa. Commw. Ct. 19,
540 A 2d 1374 (1888) Likewis'e;. 'a public Official/employee may not
use the status or position of public office for his own personal
advantage; duff; opinion .84 -015
- ..� _
Under Sections 5(b)(3), (4) and (5) quoted above, these
"Provisions of law requite: - that the `= .followipg interetts be listed on
the Financial Interests., Statement: direct or indirect real estate
interests which are purchased,`leased or subject to.condemnation by
the Commonwealth or a political subdivision; the name and address of
all creditors whom` are owed in amount in excess of _" $5,000 except for
inter family loans or mortgages, on the principal residence and the
name and address of all direct or indirect sources of income of $500
or more.
In this case' - must - determine whether Sanders as a supervisor
violated Section 3(a)_ of, the - Ethics Act quoted above regarding the
utilization of the town'stiip solicitor to represent him in a court
action'against the townshi$auditors regarding the setting of his
wages as an employee-s.iper°visor. Secondly, we must consider whether
Sanders violated any of the provisions of Section 5(b) -(3), (4) and (5)
regarding the failure to U various financial = interests.
Factually, Sanders served as a township supervisor from 1971
through 1987. After the Girard Township auditors set the compensation
for working supervisors in 1986 . at a rate of $375 per week for a
roadmaster and $6.O0 per hour for supervisors who worked as part -time
laborers, the township _supervisors instituted legal action in the
Court of Common Pleas of "Erie-rounty against the auditors seeking an
increase in their wages as a township supervisor- employees.
The minutes of the January 16, 1986 meeting of the Girard
Township supervisors 'reflect that Attorney George Schroeck was
retained as township solicitor. It is reflected in the March 11, 1986
Mr. Ray Sanders
Page 12
meeting minutes that township auditor Eugene Kwiatkowski questioned
the propriety of the supervisors utilizing the township solicitor for
representation in their law suit against the township. In particular,
Kwiatkowski obJected to the fact that the supervisors were utilizing
the solicitor to file the lawsuit, not in their capacity as
supervisors but as employees of the township. Solicitor Schroeck
responded that he represented the supervisors' and tha „the'board had
the right to look into the matter.
Thereafter at April 8, 1986 meeting, Sanders made a _motion that
the township solicitor represent them in a court action against . the
auditors which motion was seconded by Supervisor. William Borland. The
motion carried by a two to one vote with Sanders and Borand voting in
favor of the motion and Supervisor Dan Douglas voting against it.
Thereafter, the Girard Township Board of Auditors retained their own
counsel to defend the court action which was filed by Borland and
Sanders. Auditor Charles - Graham voted against the motion on the basis
that the wages set by the auditors were unfair; he also voted against
retaining counsel to represent the auditors because he believed the
matter could be worked out.
Similarly, Supervisor Dan Douglas opposed the filing of the law
suit against the auditors or of using township funds to pay the
solicitor to represent the supervisors in the matter. The record
reflects that the total cost incurred by the township for the legal
representation of Borland and Sanders amounted to. $762. Township
Auditor Joyce Dale concurred in the retaining of counsel by the
township auditors. The auditors cut the supervisor - laborers pay since
they were not operating equipment and were only acting as general
laborers; in addition, Supervisor Borland's compensation as roadmaster
was not lowered but merely maintained at the current rate.
In applying the provisions of Section 3(a) of the Ethics Act
quoted above to the instant matter, we believe the actions of Sanders
in retaining the township solicitor for representation in a law suit
against the .township violated Section 3(a) of the Ethics Act. Clearly
there was a use of office on the part of Sanders in that he made and
voted in favor a motion to retain the township solicitor for legal
representation in the law suit. The use of office resulted in a
financial gain since Borland and Sanders did not have to pay the $762
in legal fees generated by the solicitor which were paid by the
township. Since Borland and Sanders did,not have to personally pay
for their legal representation, they were enhanced by the out -of-
pocket expenses they would otherwise have had to pay. We must now
determine whether the financial gain is compensation provided for by
law.
This Commission considered the issue o ;'trhether a township
supervisor could obtain legal representation at township expense
regarding the amount of compensation fixed by the auditors in
Mr. Ray Sanders
Page 13
Szvmanowski, Opinion 87 -002. In the cited the requestor
sought advice as to whether .eithe the township solicitor could be
utilized or whether the requestor could obtain private counsel who
would be paid the township regarding hid representation in the law
suit against the township. In that d we opined that the Second
Class Township Code did not authorize for such representation which
was in the nature of a private or personal. action against the township
by the supervisor:
While there may be an appropriate mechanism
fo'r °a supervisor, to recover legal expenses if he
must challenge the auditors report regarding the
fixing of salary, such mechanism` is not provided
for in the Second Class Township Code and
therefore, a supervisor who uses his position to
- secure funds to obtain such legal representation
or 'who employs the services of the township
solicitor to do such is receiving , a financial gain
that is not part of the compensation provided for
by law. The receipt of such gain through the use
of one's public office would thus not be in accord
with the provisions of the State Ethics Act. 65
P.S. 5403. See also, Appeal from Auditors' Report
of McKean Township, 69 Erie L.J. 56, (1986).
The instant situation does not arise out of
any official action that you performed.
Rather, it arises from your that the
compensation fixed for you by the auditors is not
appropriate for the services that you are
performing. We thus believe, that your processing
of this matter is clearly one of a personal and
individual nature and not related to your
official actions. As such, we do not believe that
a township supervisor may utilize township funds
to employ representation in pursuit of a personal
legal action against the township. Id. at 4.
See also Herlands, Advice 88-592, wherein it was determined that
the township solicitor or private counsel at township expense could
not- be by supervisors in defending in a surcharge action
instituted against them by the auditors regarding the propriety of
their mileage reimbursements and the receipt of health care benefits.
In•Roofner's Appeal, 81 Pa. Super. 482, A.2d � (1923), the
Pennsylvania Superior Court determined that it was inappropriate for
township supervisors to receive legal representation at township
expense concerning their indictment on a charge of . unlawfully
neglecting and refusing to keep up a certain township road which had
become unsafe and dangerous for travel. The court in deciding that
jr
Mr. Ray Sanders
Page 14
the supervisors were charged with official misconduct and hence not
entitled to representation at township expense, reasoned as follows:
"the power of a municipality or.its appropriate
officers to employ an attorney is limited to those
matters in which the municipality has some
official duty or which may probably be said to
affect its interests. An attempted employment of
an attorney in a matter in connection with which
the municipality has no official duty, or which
does not fall within the'duties of the board or •
official making -the contract of employment, does
not render the municipality liable to the attorney
for his compensation:-Dillion on Municipal
Corporations, Vol. 2, paragraph 824, at' page 1245.
It is a. fundamental principle that public funds
shall notbe used for private purposes. The
offense for which appellants were indicted was a
personal one: Com. v. John Meany, 8 Pa. Superior
Ct. Z24. Their obligation to pay their counsel
was personal.
Counsel fees and other expenses'incurred by public
officials in defending criminal charges, or
charges of official misconduct, are incurred for a
private purpose and cannot, in the absence of
statutory provision therefor be paid from public
funds.
When one accepts a public office he assumes the
risk of defending himself:-even against unfounded
accusations at his own expensd. 81 Pa. Super. at
484, 485.
In Silver v. Davis, 493- Pa. 50,-425=A.2d 359 (1981); the
Pennsylvania Supreme Court allowed representation by a solicitor in
recall action against two * members of the _boards of _ supervisors
However, in the cited case such related to the official action and
office of the township supervisors and did not involve matters of
possible misconduct or matters which would be considered personal and
private in nature.
Therefore, based upon the statutory restriction of Section 3(a)
of the Ethics Act, the prior precedent of this Commission as well as
Judicial precedent, we find-a clear violation of Section 3(a) of the
Mr. Ray Sanders
Page 15
Ethics Act regarding the utilization of the township solicitor at
township expense. x r
In the instant matter, the township expended'$ ?t2 for the
representation of Borland and Sanders. The power of- thiB5•Commission
to order restitution by public officials /employees who`haVe -beon
enriched at the expense of their governmental body has been upheld by
Commonwealth' Court. See Yacobet v. State Ethics`Commiesion, supra.
Since the foregoing expenditure has been made on behalf of both
Borland and Sanders, it is fair and appropriate that Sanders pay one
half of the amount to the township has restitution " Accordingly,
Borland is hereby directed within thirty' days of the date of this
order to forward a check to this Commission payable` to:Gir-ard Township
in the amount of $381.00. Failure to comply with the foregoing
provision will result in the referral of this matter to the
appropriate law enforcement authority.
Turning to the matter of the allegation concerning Section
:5(b)(3), (4) or (5), the charge relates to the failure to disclose:
real estate interests in Erie County; loans in; excess ;of $5,000.00 at
the Conneaut Savings and Loan, interest from the Conneaut Savings and
Loan and rental income from properties in Erie County. For the
filints that occurred by Sanders in the years 1980 through 1987, the
Financial Interests Statements do not list any of the items noted in
t:e allegation. Although Sanders individually or jointly with his
spouse owns various realty, a review of those properties reflects that
they were not purchased, leased or subject to condemnation by the
i Commonwealth or a political subdivision. Thus, these interests were
not required to be listed and Sanders did not violate 5(b)(3) as to
that aspect of the allegation. As to the Conneaut Savings and Loan,
there is no evidence that Conneaut was a creditor for an amount in
excess of $5,000.00 or paid interest income in an amount of $500 or
more; hence, we find no violation by Sanders as to that aspect of the
allegation.
As the final part of the - allegation concerning rental income, it
is noted that Sanders did receive rental income as a:landlord from
tenant Thomas L. Dow from 1984 through April 1986 which monthly
rental rate of $200 would have generated income of $500 or more in
each of-those three years -In addition, Sanders reoeived rental'
income from tenant Louis A. liartbsek, from August 1986 . through May 1989
at a monthly rental rate of 337.5'.00 which was reduced to in
December, 1988 Therefore, Slanders received rental ' income of $500 or
more from Bartosek in each of 'those three years Accordingly , sae find
that Sanders violated Section 5(b)(5) of the Ethics Act by failing to
list the names and addresses of Dow and Bartosek , from whom be- ecetved
income of $500 or more for the years 1984 through 1986 and 198 and
1987 respectively. .r.,x wf
Mf . 1 Sandex§
Page 16
Sanders is directed within 30 days of the date of this Order to
file amended Statemezlts of Financial Interests for the calendar years
1984 through 19`87 fisting the above interests. Failure to comply with
the above will result.n the referral of this matter to the
appropriate law enfoFdement authority for review and' appropriate
action . F-..
;wit • 9(11
TV. Conclu #pig of ^ Law:
1. Ray Sander0 as a }}rard Township supervisor was a public official
as defined, under hie " Ethics Act
2. Sanders violated Section 3(a) of the Ethics Act when`he made a
motion andvoted in favor of a resolution to retain the township
solicitor to represent him at township expense in a law suit
filed against the township auditors regarding the amount of his
compensation as a township employee. +?
3. Sanders did not violate Section 5(b)(3) of the Ethics Act
regarding the failure to list real estate interests since such
interest were not subject to purchase lease or condemnation by
the Commonwealth or a political subdivision.
4. Sanders did not violate Section 5(b)(4) of the Ethics Act
regarding listing Conneaut Savings and Loan as either a creditor
owed in excess of $5,000.00 or a source of income of $500.00 or
more since there is no evidence that Conneaut was a creditor or a
source of income.
5. Sanders violated Section 5(b)(5) of the Ethics Act by failing to
list rental income from Thomas L. Dow on his 1984, 1985 and 1986
calendar year Financial Interests Statement and rental income
from Louis Bartosek on his 1986 and 1987 calendar year Financial
Interests Statements.
In re: Ray Sanders
3. Failure to comply with the provisions of paragraph 2 will
result•fn the referral of this matter to the appropriate law
enforcement authority for review and appropriate action,
4. Sadeks -did not violate Sedt'ion 50)(3) of the Ethics Act
regarding the failure to list real estate interests since
such interest were not subject to purchase lease or
condemnation by the Commonwealth or a political subdivision.
5. Sanders did not violate Section 5(b)(4) of the Ethics Act
regarding listing Conneaut Savings and Loan as either a
creditor owed in excess of $5,000.00 or a source of income
of $500.00 �r more since there is no evidence that Conneaut
f3as a creditor or a source of income.
: File Docket: 87- 150 -C; 81 -119 -C
: Date Decided: February 1 I�
Date Mailed: 'ebruar7 8
ORDER No. 786
' Ray'Sanders as a Girard Township Supervisor violated Section
3(a) of the Ethics Act when he made a motion and voted in
favor of a resolution to retain the township solicitor to
represent him at township expense in a law suit filed
gainst: the township =auditors - regarding the amount of his
c6 npensation as - a -township- erpToye�.
&riders -is hereby ordered within' 30 days of the date of the
issuance of this order to forward =a` check to this Commission
in the amount of $381.00 payable to the order of Girard
Township. -.. .
6. , :Sanders viblated Section 5(b)15) of the Ethics Act by
failing to list rental income from Thomas . L. Dow on his
• "1.984, 1985_and 1986 calendar year Financial Interests
�� "tt=a { tell eats and rental income from :Louis Bartosek on his 1986
lifd4VIMaale year Financial Interests Statement.
Sanders-_ is dire to file . amended Financial interests
:Statements with this`ommtssion within 30 days of the date
cif ct a s= Ord4r for the calendar years 1984 through 'I987 .r �
names and addresses of sources of i n `
r , a cilefetenced `in. paragraph 6.
Failure to comply with the provision of paragraph 7 will
result in the referral of this matter to the appropriate law
- enforcement authority for review and appropriate action.
BY TTEMHSI
ROBERT W: BROWN, VICE CHAIR