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HomeMy WebLinkAbout786-R Sanders (2)In re: Ray Sanders STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket:. 87`,119 -C; 87 -150 -C : Date Decided: April 5: 1991 : Date Mailed: Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese Roy W. Wilt The State Ethics Commission received a request for reconsideration on February 15, 1991, with respect to Order 786 issued on February 28, 1991. Pursuant to Section 2.38 of the regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: (b) Any party may ask the Commission to reconsider an order within 15 days of service of the order. The person requesting reconsideration should present a detailed explanation setting forth the reason why the order should be reconsidered. Reconsideration may be granted at the . discretion of the Commission only where any of the following occur: (1) A material error of law has been made. (2) A material error of facts has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order and where these could not be or were not discovered previously by the exercise of due diligence. 51 Pa. Code S2.38(b). This adjudication of the Commission is hereby issued which sets forth the Discussion and Reconsideration Order. This Reconsideration Order and Order 786 are final and shall be made available as public documents on the fifth (5th) business day following the date of issuance of this Order. ADJUDICATION Discussion: Reconsideration is sought as to wherein we determined that Ray Sanders, Girard Township Supervisor violated Sct o Act o 170 o fe1 978 when he used public office to obtain a voting to utilize the township solicitor to representghim at to tow ship expense in a lawsuit against the township setting of his and one other supervisor's r pensati as it o ount employees (roadmaster /laborer) al re resentation. of $381.00 which was one half of the cost of the legal of the Ethics Law was also found to but Law w by y failing ng to disclose reconsideration is not sought as to that portion of the Order. The proffered basis for reconsideration to authorize paid material error of law in determining that legal representation by the township solicitor for ins c Law. lawsuit against the auditors violated Section 3(a) Three arguments are muzerel.iance support on Szymanowskie Opinion l 87 -002 First, it is argued that our misplaced due to that opinion's reliance o 886 eat from Report of McRean Townshi 69 Erie L.J. 56 (1986) by Pennsylvania Commonwealth Court at sion Pa.CCmm ommw. C 68, 531 A.2d 879 (1987). An analysis of that decision the cited d case, the that the case ud hors °instituted a surcharge instant action matter. against two the ie auditors the Court of Common Pleas. The supervisors which was dismissed by supervisors appealed the decision of the lower court because it On imposed a limitation upon supervisors' award Section 563fofotheeTownship appeal, Commonwealth Court interpreted sal from Code to allow ditors'f report _ rlsettlement ofvtheeaccountp any the township nshhip au u township office and secondly o n remanded the ca wa based upo the township. Commonwealth Court holding that the lower court could not limit the the suservisors' counsel fees since the above conditions did apply The institution of legal proceedings in the instant mat nor not involve an appeal of a report or settlement c co n t n o r wa any money recovered by the township. To the contrary, supervisors were seeking an increase in their hourly rate as f the roadmaster /laborer which would be to the financial under the r Second o Class township. Thus, there is no statutory b asis fees under the factual Township Code for recovery of counsel circumstances of this case. Clearly, the case of In Re: Roofner's Appeal, 81 Pa. Super 482 (1923), which we considered in the base Order is on point. These supervisors brought the action a roadmaster /laborer auditors whichrrelates the to setting of their hourly rate as their working positions as township employees and not as elected Mr. Ray Sanders Page 2 supervisors. Hence, such legal fees were incurred for a private purpose in their capacity as township employees and not for a public purpose as to the elected office of township supervisors. , The second argument asserts that the General Assembly did not intend for a township supervisor to face a financial burden of challenging what he considers an inadequate wage. The provision which authorizes auditors to set the wages for supervisors as township is set forth in Section 515(a) of the Second Class Township Code which makes no allowance for counsel fees for supervisors who seek to challenge such wages. As noted above, Section 563 does make an allowance for counsel fees under certain circumstances which are not applicable herein. v .In the third and final argument, it is asserted that these township supervisors did nqt become a roadmaster /laborer for the purpose of personal financial gain and the General Assembly did not intend supervisors to pay their own counsel fees in challenging Lo "...the Township Auditors (who) have set the wages arbitrarily w... ". The facts in this case belie the above assertion in that these supervisors are working employees who do receive compensation at an hourly rate set by the auditors and who have challenged that rate because they sought a higher hourl rate. townshiA employees, did have a purpose of financial there basis in law for the payment by the township of their counsel fees.-in s no such circumstances. As to the legislative intent argument, we mus. conclude that the General Assembly did intend for these employee- .! 1:_ supervisors to pay for their counsel fees in such cases because there is na statutory authority for counsel fees under these circumstances. Upon review of the Order in conjunction with the ar ume have been made, no material error of law has been shown g hts which warrant reconsideration. which would 1d In re: Ray Sanders co s ' eration Order 78 • -R he r I : est by Ray . Sanders to reconsider. Order 786::iss . Mi R0 .February T ar 28� 1991 is denied. �.th ' the terms of Order "� 8+5 Sanders isdirected to comply w days of the date of issuance of this within .thirty (30) Y Reconsideration Order. Failure to comply with paragraph 2 will result in the referral of this matter to the appropriate law enforcement authority for review and appropriate action. : File Docket: 87-119-C; 87-150-C ._ = Date Decided: Ap_ri� 5 ___ ____ $ Date Mailed: Ayril 15, 1991 BY THE COMMISSION,