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HomeMy WebLinkAbout813 DetischC-11 . of 1'. '. t.J Y IA Arthur F. Detisch STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ,c^ 17t t . File Docket: 90 -027 -C : Date Decided: August 23, 1991 Date Mailed: September 3, 1991 Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the ^ ciplaint by the Investigation Division. An Answer was not filed and ,a. easing was waived. The record is complete. This adjudication 'tE6,Commission is hereby issued which sets forth the individual "Allegations, Findings of Fact, Discussion, Conclusions of Law and 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 adjudication. 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 Act 170 of 1978 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). I. ALLEGATION: That Arthur Detisch, a Supervisor for Millcreek Township, Erie County, violated Section 3(a)' the State Ethics Act (Act 170 of 1978), when he received compensation not provided for by law in the form of a salary as Supervisor in charge of Administration and Public Safety: 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). II. FINDINGS: 1. Arthur Detisch has served as a Millcreek Township Supervisor since January 7, 1980. a. From 1984 until 1988, Detisch served as Supervisor for Administration and Safety. b. In 1988 and 1989, Detisch served as Supervisor fer Administration and Parks & Recreation. c. In 1990, Detisch was appointed Superintendent of= Water & Sewer and Parks & Recreation. d. In 1991, Detisch was appointed Roadmaster of District One, all roads East of I -79. 2. Minutes of the Millcreek Township Board of Supervisors' meetings confirm that the practice of supervisors being hired as department heads dates back to January 4, 1954 up to 1990. 3. Millcreek Township has (149) full -time employees. In addition, the township also employs approximately (100) part -time seasonal employees for road work or park and recreation duties. a. In 1990, the Sewer & Water Department had three supervisory- employees; the Park'& Recreation Department had one supervisor. 1) Supervisor Arthur Detisch had oversight responsibility for these departments. b. In 1990, the Streets Department had four Detisch, 90 -027 -C Page 3. supervisory employees including a road superintendent and three road foreman. 1) Supervisor Paul Martin had oversight • responsibility for this department. c. In 1990, the Administration Department had five supervisory personnel including a - secretary /treasurer, assistant secretary /treasurer, payroll clerk, engineer and zoning administrator. The Public Safety Department had a police chief in charge of police, fire inspection and emergency communication. 1) Supervisor Jess Juliante had oversight responsibility for the Administration and Police Departments. Minutes of the Millcreek Township Board of Supervisors confirm the following action taken relative to the hiring of Arthur Detisch from 1984 through 1990: a. January 3, 1984: Mr. Detisch was employed by the Board of Supervisors as Superintendent of Administration and Safety, on motion by Mr. Martin and seconded by Mr. Pulakos. Present: Pulakos, Martin and Detisch Solicitor: Moffatt b. January 7, 1985: Mr. Detisch was appointed as Superintendent of Administration and Safety, on motion by Mr. Martin, seconded by Mr. Pulakos, with Mr. Detisch voting in favor. Present: Pulakos, Martin and Detisch Solicitor: Moffatt c. January 6, 1986: Mr. Detisch was appointed as Superintendent of Administration and Safety, on motion by Mr. Pulakos, seconded by Mr. Martin, with Mr. Detisch voting in favor. Present: Pulakos, Martin and Detisch Solicitor: Moffatt Detisch, 90 -027 -C Page 4 d. January 5, 1987: Mr. Detisch was appointed as Superintendent of Administration and Safety, on motion by Mr. Pulakos, seconded by Mr. Martin, with Mr. Detisch, voting in favor. Present: Martin, Detisch and Pulakos Solicitor: Moffatt e. January 4, 1988: Mr. Detisch was appointed as Superintendent of Administration by Mr. Martin and seconded by Mr. Pulakos. No vote recorded. Present: Martin, Detisch and Pulakos Solicitor: Moffatt f. January 3, 1989: Mr. Detisch was appointed as Superintendent of Administration and Parks & Recreation on motion by Mr. Pulakos and seconded by Mr. Martin, No voting recorded. Present: Martin, Pulakos and Detisch Solicitor: Moffatt g. January 2, 1990: Motion by Juliante, seconded by Mr. Detisch, with Martin voting in favor of the following department appointments: J. Juliante, Administration and Public Safety ;`Martin, Superintendent of Streets; Detisch, Sewer & Water, Park & Recreation. Present: Detisch, Martin, Juliante and Solicitor Moffatt 5. Prior to 1991, no job description existed for the positions of Superintendent in charge of Administration and Public Safety and Superintendent of Water & Sewer and Parks & Recreation. a. There was no requirement for physical labor on the township roads-. Detisch, 90 -027 -C Page 5 b. No physical labor was performed. on township roads. c. Prior, the duties included overseeing the day -to -day„ activities .. of the township office, police department, fire department and ambulance services, emergency,. communications. 6. Prior to 1991, the supervisor in charge of Water & Sewer and Parks & Recreation had the following general responsibilities: Overseeing the day -to -.day operation of the Parks & Recreation Department and it's' employees. Overseeing the day -to -day operations of the Sewer & Water Department and it's employees. 7. Richard.Bridger..has been in charge of Millcreek Township's Sewer and Water Department since 1958. c. Attend weekly supervisors meetings held at 9:30 a.m. d. Attend one weekly supervisor's meeting held at 9:30 a.m. a. He supervises twelve full -time and three part -time employees. b. He is responsible for all pump stations, water tanks, meters and free hydrants. c. He conducts annual water and sewer line inspections. Bridger would meet with Detisch two to three times each week to discuss water line extensions, customer service and flooding problems. In approximately the beginning of 1990, Detisch began signing off on the master sheet of employees hours worked for payroll purposes. a. Detisch did no independent work to determine if those hours were accurate. 10. Detisch never participated in inspections. 11. Detisch performed no physical Departments. annual water and sewer line labor in the Sewer and Water Detisch, 9r0 -027 =C Page 6 12. Both Supervisors, Paul Martin and Jess Juliante, have occasionally been required to perform duties for the Water and Sewer Department. 13. James Sperry has been the Director of Mill Creek .Township's Park and Recreation Department for the . past,thixteen years. Sperry's responsibilities include the following: a. Implementation of four seasonajC . b. Hiring of approximately_r70 to ` 80 'seasonal employees. c. Supervising employees and the overall operation of the department . 14. Arthur Detisch performed few duties in relation to the Park and Recreation Department. a. Hezdid not participate in the interviewing and 'hiring of seasonal. employees. . Detisch does not handle complaints. t c. Detisch's interaction with Sperry was less than ten minutes each workday. 15. The Millcreek Township Board of Auditors took action regarding - supervisors' salaries and benefits at their reor-gartization - meetings - as follows: a. ;:January 4, 1984: Base Salary: $28,90 Longevity: $580.'Q0 Total Salary: $29,480.00 Present: Absent: c. Jantfary 7 1986: d. Handle all complaints relative to the department. =Base Salary: $28, 000.00 Longevity: - ;0.. .Total Salary:',.. $28,000.00 Present: Lopus, Salsbury and Volgstadt lb.' January 7, 13852 Lopus and Salsbury Volgstadt , DetisCh Page Salaz'y: 29,500.00 ilbillgevity: $590.00 Total Salary: $30,090.00. , Cfer ,r1,- I rd. 4..1" t Salsbury "and - January 6, 1987: Base Salary: $29,500.00 Lor4ev'ty: $590.00 Tot, ft1ary: ,$,30,090.00" Present: Volgstadt, Salsbury and Wesmiller e. January"51 1988I' Base Salary $30,680.00 Longevity: $610.00 Total Salary: $31,290.00 Present: Volgstadt, Salsbury and Wesmiller Base Supervisor Amount Lonaevitv Total Pau] Martin $32,680 $2,614.00 $35,294.00 Arthur Detisch 32,680 1,307.00 , 33,987.00 .*sejlIiante III 32,680 00 32,680.00 ' ! L 7 , - It was moved by Mr. Volgstadt, seconded by Mr. Oskihiller and unanimously resolved, that supervisors will continue to participate in the f. January 4, 1989: Base Salary: $31,680.00 Longevity: $634.00 Total Salary: $32,314.00 Present: Volgstadt, SalsburY and Wesmiller g. January 3, 1990: It was moved by Mr. Wesmiller, seconded by Mr. Volgstadt and unanimously resolved, that the annual base salary of the supervisors will be increased by $1,000.00. Also the longevity pay will be 8% for Mr. Martin and 4% for Mr. Detisch. Detisch, 90 -027 -C Page 8 township's pension plan, hospitalization, vacation plan and other fringe benefits earned by the township employees. Present: William Volgstadt, Dennis Salisbury and Harold Wesmiller h. From 1984 to 1989, Detisch was also given auditor approval to participate in the township's/ hospitalization, vacation, pension and other fringe benefits. 16. In his capacity as Supervisor in charge of Administration and Public .Safety and Supervisor in charge of Sewer & Water and Parks & Recreation, Detisch performed no physical labor. 17. Supervisors employed by Millcreek Township are expected to work forty hours a week. 18. W -2 Wage & Tax Records in Millcreek Township confirm that Arthur Detisch has received the following payments for services he performed as a department head from 1984 through April 11, 1991: a. 1984 - $27,998.96 b. 1985 - $29.422.73 c. 1986 - $30,059.35 d. 1987 - $31,247.14 e. 1988 - $31,290.05 f. 1989 - $32,313.61 g. 1990 - $32,447.13 h. 1991 to April 11, 1991 - $10,880.01 i. Total 1984 Through April 11, 1991 - $225,658.98 19. The Millcreek Township Board of Supervisor's restructured at their Re- Organizational Meeting of January 7, 1991. The ret involved the following board actions: a. It was moved by Mr. Martin, seconded by Mr. Detisch, to appoint Jess S. Juliante, III as secretary for the year 1991. Votes Ayes - Martin, Detisch and Juliante N ays Detisch, §0 -027 -C Page 9 • 3 : r; - None. ,•_. .Present: Martin, ,Detisch and-Juliante It was moved by Mr.. Martin, seconded " b' . . Mr. puliante, with Mr. Detisch voting in! to appoint Arthur Detisch as roadmaster of District One - all roads East of I 79. Present:, Martin, Detisch and Juliate Present: Martin, Detisch and Juliante c. It was moved by Mr. Juliante, seconded by Detisch, with Mr. Martin voting in favor to appoint Paul Martin as roadmaster of District Two - all roads West of ..1 79. . Following the Millcreek Township Supervisors' Reorganization Meeting on January 7, 1991, Detisch's duties changed. 'a.- Detisch no longer had oversight responsibility over the Water & Sewer and Parks Departments. b. Detisch's duties were to serve as Roadmaster of District One, all roads East of 1 -79. 21. = Paul Martin has served as a Millcreek Township Supervisor since 1964. a. Martin served aS'. Road . Superintendent for the entire township from 1979 until the 1991 re- organizational meeting. b. Martin continues to direct all road related activities. 22. The Millcreek Township Road Department consists of thirty employees. a. There are three foreman who report directly to Paul Martin. b. There are additional employees who operate the maintenance garage who also report to Martin. c. The Road Department is responsible for 195 miles of streets. 23. Arthur Detisch resides on the westerly side of I -79 in Millcreek Township. Detisch, 90 -027 -C Page 10 1 • He ws named E supe ntend o f roads ,mast to :wI 79 ,so t} a he cou141 41, rinspect,ed goads cilv,mA way to ; fi " - itom, t z %, 24. Detisch has no, been to - the. Road Department garage to supervise projects. , a. Detisch,has:not met with any- of t1e employees serving in• :supervisory:roles.in the Road Department b. Detisch has not directed any road related activities in his district, East of 1-79. 25. The Millcreek Township Board of Auditors took the following action relative to approval of supervisors' salaries for 1991: a. January 8, 1991: a It was moved by Mr. Salsbury, seconded by *.. Wesmiller and unanimously resolved, that the annual total 1991 salary of the supervisors will remain the same as 1990 pending review of o descriptions and responsibilities. The 1990 total salaries are summarized below: Base Supervisor Amount Longevity Total Paul Martin $32,680.00 $2,614.00 $35,294.00 Arthur Detisch 32,680.00 1,307.00 35,987.00 Jess Juliante III 32,680.00 32,680.00 Present: Dennis Salsbury, Harold Wesmiller and William Volgstadt It was.moved by Mr. Salsbury, seconded by Mr. Wesmiller and unanimously resolved, that the supervisors will continue to participate in the township pension plan, hospitalization plan, vacation plan, to use township Cars while on township business for commuting to and from work, and other fringe benefits earned by other township employees. Present: Dennis.Salsbuiy, Harold Wesmiller and William Volgstadt Detisch, 90- 027 -C Page 11 26. On January 29, 1991, Arthur Detisch submitted a job -description to the Millcreek ,Township Auditors. The job description included the following: At present, I have `the title of Raadmaster. The township is divided into two sections. 'I have the East Section which extends from 1-79 East and includes Belle Valley and Keargwrge. I examine . most of the roads: daily after :_I get a call saying there is a bad pot hole or something else. b. III. DISCUSSION: I still have the Water & Sewer Department which I sign different slips daily. I am in close contact with Max Gill and also Dick Bridger who come in daily with slips that I have to sign. c. I still have Parks & Recreation which Jim Sperry is director and have daily talks to have to sign all his slips. Even though I am in my office a lot, I am still doing business for the township. d. I am in my office at 8:00 a.m. every morning and am available until 5:00 p.m. I take plenty of calls and do my duty. 27. The result of the restructuring by the township supervisors caused the following changes: a. Jess Juliante assumed part of the duties and f responsibilities Gerald Wolf previously had. 1) Wolf formerly was the township secretary /treasurer. 2) Wolf currently is the treasurer /comptroller. b. Paul Martin was Roadmaster II in charge of all roads West of Interstate 79. c. Arthur Detisch was Roadmaster.I in charge of all roads East of Interstate 79. d. Detisch and Martin split the remaining responsibilities of the roadmaster. Arthur F. Detisch, hereinafter Detisch, as a Millcreek Township Detisch, 96- 017 Page 12 Supervisor, is a public official as that term is defined under Act 170 of 1978. 65 P.S. 402. As such,, his conduct is subject to the provisions of the Ethics Law 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 prior law, which is continued in effect for that purpose as if this 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. ' Since the:ccurrences in this case transpired prior to the effective date of Pict 9 .'(June 26, , we must apply the provisions of Act 170 of ;October 4, 1 g7 8 fi ip.L. 883 to determine whether the .,,r, 1.2 Ethics Act w- as'`violated ' Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business. with . which he is associated which is not provided for in law transgresses:the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part'of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act.would prggibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. The issue before us concerns whether Detisch violated Section 3(a) of Act 170 of 1978 quoted above regarding his receipt of a salary as a township supervisor_for performing duties relative to administration and public safety. Factually, Detisch has served as Millcreek Township Supervisor since January, 1980 and was appointed Roadmaster in 1991. Since 1954, it had been the practice in Millcreek Township to hire supervisors as department heads. On January 3, 1984, the, Township Board appointed Detisch as Supervisor for Administration and Safety. Detisch wa re- appointed to Administration and Safety in the January re- Detisch, 90- 027 -C Page 13 organizational meetings for 1985 through 1987. For 1988 and 1989 Detisch was appointed as Supervisor of Administration and Parks and Recreation. Detisch had oversight responsibility in 1990 as Superintendent for the Sewer and Water Department and the Parks and Recreation Department. As to Detisch's various positions, no job descriptions existed. The jobs did not entail any physical labor on township roads and in fact no such labor was performed by Detisch. Prior to 1991, Detisch's duties varied with the department as to which he had oversight duties. In 1990, the Millcreek Township Board of Auditors took action whereby the supervisors' salaries would be increased $1,000.00 per annum which in the case of Detisch translated into a salary of $33,987.00 for that year and $35,987 for 1991. In January 7, 1991 the Millcreek Township Board of Supervisors restructured . at their organizational meeting whereby Detisch was appointed Roadmaster for the 1991 'calendar year Thereafter, Detisch no longer had oversight.responsibility . as to the Water and Sewer and Parks Departments. The Township Board of Auditors; at the January 8, 1991 meeting set the salary for the supervisors at'the same level as the prior year. On January 29, 1991 - the - auditors' received a job description for the position of Roadmaster which - Detisch submitted and which outlined his duties and responsibilities. In considering whether a violation of' of Act 170 of 1978 occurred in this case, we must reference the Second Class Township Code in order to determine whether the compensation received by Detisch for performing duties relative to Administration and Safety, Parks and Recreation and Sewer and Water was authorized in law; if not, such would be a financial gain other than compensation provided by law contrary to Section 3(a) of the Ethics Law. Although the Second Class Township Code does allow for a supervisor to serve as Secretary /Treasurer (53 P.S. S65511) and further allows supervisors to be employed as either a superintendent, roadmaster or laborer (53 P.S. 565514), there is no provision in the Second Class Township Code which would allow a supervisor to be compensated for performing duties relative to administration and public safety. See, Confidential Opinion 91 -001. Detisch received a financial gain for himself consisting of the compensation for performing the above duties. In addition, such action was a use of office on his part because he, as an elected supervisor, put himself in•the position of overseeing the various departments and received compensation in that capacity. Therefore, based on the above, it is clear that there was a use of office by Detisch which resulted in a financial gain other than compensation provided by law. Accordingly, we find a violation of Section 3(a) of Act 170 of 1978. Since this Commission has authority (Yacobet, supra.) to impose restitution, we believe, given the totality of the facts and circumstances: to this case, that restitution in the amount of $2,000.00 da appropriate.' Accordingly; we hereby direct Detisch to Detisch, -90-021 C Page 14 make restitution to the township in the amount of, $2,000.00 by forwarding a check to this .COmmi'seion payable to the order" of Millcreek Township within thirty day's: of this Order. =In ' such r - case, Detisch will then have removed himself from the conflict' °and we will take no further action. However, failure to pay the o'r1ered restitution will result in the referral of this tter to the appropriate law enforcement authority for an ogdeV%}forceinet£t- action. IV. CONCLUSIONS OF LAW: 1. Arthur F. Detisch, as a Millcreek Township Supervisor,is a public official subject to the provisions of Act 9 o 't ' ,T it ; 3, ' r 2. Detisch violated Section of Act '110 of 197g' i n — he received a salaty as a sUper in charge of administi and public safekty wIiichµwas a financial gain :. other than com sition provided by law to 'himself in that there is no authorization in the Second Class Township Code for a supervisor to work and be compensated in such &' position. :.:1)" it. n7, In Re: Arthur F. Detisch : File Dockets : Date Decided: : Date Mailed: ORDER No. 813 90 -027 -C August 23, 1991 September 3, 1991 BY /PRE CoMMISSIO , DENNIS C. HARRINGTON, VIC :Athur '. Detisch, as'a Millcreek Township Supervisor va.oLtecj Section 3(a) of Act 170 of 1978, when he received a salary . as a Supervisor in charge of administration and public safety which was a financial gain other than compensation provided by law to himself in that there is no _autiori?satioon in the . Second Class Township Code for a duper`tisor to work °arid be 'compensated in such a position. 2. Detisch is ordered" to ' make restitution in the amount of $2;000.00 by forwarding a check to •this 'Commission payable to the order of Millcreek Township within thirty days of the issuance of .this order. Failure to comply with the restitution will result in the referral of the matter to the a apropr .ate law enforcement authority fbr an order enforcement action. Based upon the totality of the facts and circumstances of this case, this Commission will take no further action as to the .violation of Section 4(a) of Act 170 of 1978. CHAIR