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HomeMy WebLinkAbout1285 TrimerIn Re: Dorothy Trimer File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Susan Mosites Bicket Donald M. McCurdy Michael Healey 02- 058 -C2 Order No. 1285 6/23/03 7/8/03 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Act, Act 9 of 1989, P.L. 26, 65 P.S. §§ 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was deemed waived. The record is complete. A Consent Agreement and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Trimer 02- 058 -C2 Page 2 I. ALLEGATION: That Dorothy Trimer, a (public official /public employee) in her capacity as a Supervisor for Raccoon Township, Beaver County, violated section 1103(a) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101 et seq.) when she used the authority of herofficefor including but not limited to participating in the actions of the board of supervisors resulting in her receiving an increase in her compensation as township supervisor during her term of office, including but not limited to voting to approve bill lists and signing checks. II. FINDINGS: 1. Dorothy Trimer has served as a Supervisor for Raccoon Township, Beaver County, since 1994. a. Trimer was initially appointed to fill a vacancy in 1994. b. Trimer was elected to serve a six year term in 1996 and re- elected in 2002. 2. Raccoon Township is a township of the Second Class. a. The Board of Supervisors is comprised of three members. b. The Township is comprised of a population of less than 4,999 persons. 3. The Second Class Township Code establishes compensation for the supervisors based on population. 4. Prior to November 9, 1995, Article VI, Section 606, Compensation of Supervisors, designated compensation for supervisors serving in townships with a population of less than 4,999 persons not to exceed $1,500.00 per year. 5. Section 606(a) of the Second Class Township Code also provides the following in regard to the newly increased compensation: a. Supervisors may continue to be compensated under prior law until such time as an ordinance is enacted under this act. b. Any change in salary, compensation or emoluments of the elected office becomes effective at the beginning of the next term of the supervisor. c. Salaries are payable monthly or quarterly for the duties imposed by this act. 6. In 1996 when Trimer took office, the supervisor's compensation was set through Raccoon Township Ordinance #4 86, which followed the guidelines established in the Second Class Township Code for townships with a population of less than 4,999 persons not to exceed $1,500.00. 7. Ordinance #4 86 established the salary of each supervisor for attending regularly scheduled and duly advertised special meetings at $25.00 per meeting. a. Compensation for meeting attendance was not to exceed $1,500.00 annually. b. The compensation was to be paid to the supervisors on a quarterly basis. 8. An Amendment to the Second Class Township Code on 11/09/95, revised compensation for supervisors serving in a municipality with a population of less than 4,999 persons from $1,500.00 per year to $1,875.00 per year. Trimer 02- 058 -C2 Page 3 a. As a result of the revision in the Second Class Township Code, the compensation for the Raccoon Township Supervisors could be raised to $1,875.00. b. Any increase required the approval of the board by ordinance. 9. Raccoon Township Solicitor Frank Kelker informed the Board of Supervisors of the amendment to the Second Class Township Code at the January 14, 1997 board meeting. a. Kelker recommended raising the supervisor's meeting pay from $1,500.00 to $1,875.00. b. Kelker suggested increasing the meeting pay compensation for all supervisors to $50.00 per meeting in 1998, $55.00 in 1999, and $60.00 in 2000. 10. During the January 14, 1997, board meeting, Trimer made the motion to authorize the solicitor to draw up and advertise the proposed ordinance raising meeting pay to $50.00 per meeting and the maximum compensation to $1,875.00. a. The motion was unanimously approved. 11. Ordinance No. 97 -1, an ordinance of the Township of Raccoon, Beaver County, Pennsylvania, establishing the maximum compensation payable to supervisors, was prepared by Solicitor Kelker and submitted to the board of supervisors, including Trimer. Ordinance No. 97 -1 provides as follows: WHEREAS the Commonwealth of Pennsylvania has by Act 60 of 1995 effective May 7, 1996 established a maximum schedule of compensation for supervisors of second class townships according to population; and WHEREAS, the maximum compensation payable to a supervisor of a second class township may not be more than $1,875.00 per anum when the population of such township is not more than 4,999 persons; and WHEREAS, the population of the Township of Raccoon is not more than 4,999 persons. NOW BE IT ORDAINED AND ENACTED by the Township of Raccoon, Beaver County, Pennsylvania, and it is hereby ordained by authority of same and pursuant to the Second Class Township Code, as amended, as follows: 1. The maximum compensation payable to a duly elected or appointed Supervisor of the Township of Raccoon shall be not more than $1,875 per year. 2. The salary of each Raccoon Township Supervisor for attending regularly scheduled meetings of the Board of Township Supervisors and duly advertised special meetings of the Board of Township Supervisors shall be $50.00 per meeting. 3. The salary of Township Supervisors for attending regularly scheduled meetings and duly advertised special meetings shall be paid quarterly. 4. This Ordinance shall become effective January 1, 1998, and shall apply to compensation for meeting attendance only. Meeting Date Action Vote Number/ Meetings Gross Comp. Check Number Check Amount Check Date Signature of Trimer 04/14/98 Voted 3/0 06 300.00 4034 265.65 03/30/98 Yes 07/14/98 Voted 3/0 07 350.00 4169 309.92 06/30/98 Yes 10/14/98 Motioned 3/0 05 250.00 4307 221.37 09/30/98 Yes 12/30/98 Motioned 2/0 06 300.00 4419 265.65 12/16/98 Yes Total 1998 - - -- 1200.00 Trimer 02- 058 -C2 Page 4 5. All ordinances or parts of ordinances inconsistent herewith are hereby repealed. a. All three supervisors, including Dorothy Trimer, signed Ordinance No. 97 -1. b. Although it is indicated in the Ordinance that it was ordained and enacted January 11, 1997, the board did not approve the Ordinance until February 11, 1997. 12. Ordinance No. 97 -1 was presented to the Raccoon Township Board of Supervisors for approval on February 11, 1997. a. The motion was approved by a 2/0/1 vote with Supervisors John Moore and Richard Yoko voting in favor. b. Trimer abstained on the vote based on the advice of the solicitor. 13. Prior to the vote to approve Ordinance #97 -1, Solicitor Kelker advised the board that there was a question as to whether a sitting supervisor could benefit from an increase in salary. a. Kelker recommended that Trimer abstain from the vote. b. Supervisor's John Moore and Richard Yoko would be starting new terms in January 1998, if re- elected. 14. Beginning in January 1998, Raccoon Township Supervisors Dorothy Trimer, John Moore and Richard Yoko began receiving meeting compensation at the rate of $50.00 per meeting. a. Compensation was paid to the supervisors for attendance at regular board meetings, advertised special meetings and public hearings. 15. Trimer was compensated at the rate of $50.00 per meeting from 1998 through 2001 for the following number of meetings: 1998: 24 2000: 22 1999: 26 2001: 22 16. Records of Raccoon Township confirm that Trimer was paid at the rate of $50.00 for each meeting she attended as a member of the board of supervisors for the period 1998 -2001, and took actions including vote to approve payments and sign checks as follows: Meeting Date Action Vote Number/ Meetings Gross Comp. Check Number Check Amount Check Date Signature of Trimer 04/06/99 Motioned 3/0 11 550.00 4548 487.02 03/30/99 Yes 07/13/99 Absent - - -- 07 350.00 4670 309.92 06/29/99 *Yes 10/12/99 Seconded 2/0 02 100.00 4790 88.55 09/29/99 Yes 01/04/00 Seconded 3/0 06 300.00 4905 265.65 12/30/99 Yes TOTAL 1999 - - -- 1300.00 04/13/00 Seconded 3/0 05 250.00 5000 221.37 03/29/00 08/15/00 Voted 3/0 06 300.00 5124 265.65 07/01/00 Yes 10/10/00 Seconded 3/0 04 200.00 5239 164.10 09/28/00 Yes 02/13/01 Motioned 3/0 07 350.00 5348 273.92 12/28/00 TOTAL 2000 - - -- 1100.00 05/08/01 Motioned 3/0 03 150.00 221 126.82 04/12/01 07/10/01 Voted 3/0 02 100.00 312 88.55 06/29/01 08/14/01 Seconded 3/0 02 100.00 357 88.55 07/30/01 Yes 11/13/01 Motioned 3/0 04 200.00 431 177.10 10/09/01 Yes 01/07/02 Voted 3/0 11 550.00 547 487.03 12/29/01 Yes TOTAL 2001 - - -- 1100.00 Trimer 02- 058 -C2 Page 5 17. Bills are approved for payment at the regular monthly meetings of the Raccoon Township Board of Supervisors. a. Bill lists are provided to board members in their folders on or before the date of the meeting. b. Votes to approve payment of the bills are yea /nay votes. 1. Abstentions and no votes are recorded in the minutes. 18. Trimer participated in the votes to approve payment of the bills which included payments to herself, as well as the other supervisors, for attendance at meetings at the increased rate of $50.00 per regular and special meetings. a. Trimer participated in all but one vote to approve payment of the bills which included her own meeting compensation. 1. Trimer was absent from the July 13, 1999 meeting. b. Trimer cast the deciding vote to approve payment of the bills at the December 30, 1998 and October 12, 1999 meetings. Trimer 02- 058 -C2 Page 6 1. Compensation approved for payment to Trimer at those meetings totaled $400.00. Check #4419 - $265.65 ($300.00 gross) Check #4790 - $ 88.55 ($100.00 gross) 2. Trimer's vote was deciding due to the absence of one of the other supervisors. 19. Trimer regularly signed checks payable to herself, as well as the other supervisors, which included the compensation for meeting attendance at the increased rate. a. Township accounts require two signatures including that of the secretary/ treasurer and any one of the three supervisors. 20. Trimer signed 13 of the 17 checks issued to her for meeting compensation between January 1998 and December 2001, totaling $3,850.00. a. Trimer did not sign check numbers 221, 312, 5000, and 5348, totaling $850.00. b. Trimer signed check #4570 in the amount of $350.00, but was absent from the July 13, 1999 meeting at which the payment was approved. 21. W -2 Wage & Tax statements issued to Trimer for compensation she received for attendance at meetings reflect the following: 1998 - $1,200.00 2000 - $1,100.00 1999 - $1,300.00 2001 - $1,100.00 22. In response to resident's inquiries in 2002 about Trimer's receipt of the increased meeting compensation during the middle of her term, Township Solicitor Frank Kelker provided a written opinion to the board of supervisors dated February 11, 2002, as follows: "Historically, the Raccoon Township Supervisors have determined to not award themselves an annual salary for performing their duties, but rather have determined to base their compensation upon meeting attendance and have raised that compensation from time to time within the statutory minimum. Such was the case with the adoption of Ordinance No. 97 -1. Notwithstanding, no supervisor would be able to receive annual compensation over the maximum statutory compensation in effect when elected or appointed, whether it be $1,500.00 or $1,875.00, regardless of the number of meetings attended. Therefore, as long as a supervisor's annual compensation does not exceed the applicable statutory maximum limitation when elected or appointed, it is not contrary to law. To my knowledge, no supervisor has been compensated in excess of the maximum permitted statutory compensation limitation in effect when elected or appointed." 23. As a result of the passage of Ordinance No. 97 -1 Trimer received total payments of $4,700 at $50 per meeting. a. 1998: $1,200.00 1999: $1,300.00 Trimer 02- 058 -C2 Page 7 b. Of that $4,700, $2,350 was in excess of the amount set when Trimer took office. 24. Trimer unintentionally received a private pecuniary gain of $2,350 as a result of her receipt and approval of compensation as set by Ordinance No. 97 -1 during her present term of office. 1998 1999 2000 2001 2000: 2001: Total $1,100.00 $1,100.00 $4,700.00 24 meetings 26 meetings 22 meetings 22 meetings $25 /meeting $25 /meeting $25 /meeting $25 /meeting = $ 600.00 = $ 650.00 = $ 550.00 $ 550.00 Total $2,350.00 25. Trimer states she never intended to violate the State Ethics Act. 26. Trimer abstained from the vote approving ordinance No. 97 -1 which increased the meeting pay for the position of township supervisor. 27. Trimer believed the advice of the township solicitor that she was entitled to receipt of the increased meeting pay in accordance with Ordinance No. 97 -1, so long as total payments to her did not exceed the maximum annual amounts authorized by the Second Class Township Code. III. DISCUSSION: At all times relevant to this matter, the Respondent, Dorothy Trimer, hereinafter Trimer, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegation is that Trimer, as a Raccoon Township Supervisor, violated Section 3(a)/1103(a) of the Ethics Act when she participated in the actions of the board of supervisors resulting in her receiving an increase in her compensation as township supervisor during her term of office. Pursuant to Section 3(a)/1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 2/1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public f of ce or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a Trimer 02- 058 -C2 Page 8 business with which he or a member of his immediate family is associated. 65 P.S. § 402/65 Pa.C.S. § 1102. Section 3(a)/1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Trimer was appointed as a supervisor on the three member board in Raccoon Township, Beaver County in 1994. Trimer was elected in 1996 and re- elected in 2002. Since the township has a population of less than 4,999 persons, the Second Class Township Code (Code) provides that the compensation of the supervisors may not exceed $1,500 er year. In addition, the Code provides that any change in compensation may not become effective until the beginning of the next term of the supervisor. When Trimer took office in 1996, the compensation for township supervisors was $25 per meeting, up to a maximum of $1,500 annually. When the Code was amended on November 9, 1995, the maximum compensation for supervisors in townships with less than 4,999 persons was raised from $1,500 to $1,875 per year. The solicitor informed the board of the Code amendment at a January 1997 board meeting and recommended that the supervisors meeting pay be raised to the maximum of $1,875 with compensation at the rate of $50 per meeting. At that meeting, Trimer made the motion to authorize the solicitor to advertise the proposed ordinance for raising the monthly meeting pay and the maximum compensation, which motion passed unanimously. The details of Ordinance #97 -1 appear in Fact Finding 11. Ordinance #97 -1 which would raise the meeting pay and the maximum compensation was presented to the board for approval on February 11, 1997. The ordinance was approved by a 2 -0 -1 vote with two supervisors voting in favor of the motion and Trimer abstaining based upon the advice of the solicitor. The solicitor recommended that Trimer abstain because there was a question as to whether a sitting supervisor could benefit from a salary increase. In January of 1998, all three supervisors began receiving compensation at the rate of $50 per meeting. Trimer received such compensation at $50 per meeting for 24 meetings in 1998, 26 meetings in 1999, and 22 meetings in both 2000 and 2001. Trimer participated in actions to approve such payments and also signed some checks. See, Fact Finding 16. Thus, Trimer participated in such votes at meetings at which compensation was increased to $50 for regular and special meetings of the board of supervisors. Trimer signed 13 of the 17 checks issued to her for meeting compensation between January 1998 and December 2001 which totaled $3,850. In response to resident's inquiries concerning increased compensation for the supervisors, the solicitor wrote an opinion in February of 2002, that as long as the compensation received by the supervisors did not exceed the $1,500 or the $1,875 maximum, the compensation would not be contrary to law. For the four year period, 1998 -2001, when the increased compensation was in effect, Trimer received a total of $4,700, $2,350 of which was in excess of the amount set as compensation when Trimer took office. As to that amount, Trimer states that she never intended to violate the Ethics Act and believed, based upon the advice of the solicitor, that she was entitled to the receipt of the increased meeting pay as per Ordinance 97 -1. Trimer 02- 058 -C2 Page 9 Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations. The Consent Agreement proposes that this Commission find that Trimer unintentionally violated Section 3(a)1103(a) of the Ethics Act when she voted to approve bill lists and signed checks to herself for meeting pay which resulted in her receipt of an increase in her meeting compensation as a township supervisor during her present term of office. Trimer agrees to make payment in the amount of $2,350 to Raccoon Township through this Commission within 30 days of the mailing of this Order. Finally, Trimer further agrees to the following: "Respondent Trimer agrees to make restitution to Raccoon Township in lieu of the imposition of a civil penalty by the State Ethics Commission and she agrees not to accept or participate in the award of any bonus, fee, payment or other form of compensation from Raccoon Township, its insurers or any other entity or person, in whole or in part, as reimbursement for the aforesaid restitution. Violation of this provision shall render this Consent Decree as null and void." In applying Section 3(a)/1103(a) of the Ethics Act to the instant matter, there were uses of authority of office on the part of Trimer. But for the fact that Trimer was a supervisor, she could not have made and voted for the motion to authorize the solicitor to draft and advertise the ordinance to raise the meeting pay of the supervisors. In addition, Trimer participated as to the approvals to pay the compensation to the supervisors and signed some of the checks. Such were uses of authority of office. See Juliante, Order 809. Such actions resulted in a pecuniary benefit to Trimer consisting of the increased compensation she received as a supervisor. The pecuniary benefit was a private one because it was not authorized in law. In fact, such increased compensation was prohibited by the Code which limited the maximum compensation to $1,500 or $1,875 depending upon the timeframe and status of the supervisor as either in a current or new term in office. Lastly, that private pecuniary benefit inured to Trimer herself. Accordingly, Trimer unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she voted to approve bill lists and signed checks to herself for meeting pay which resulted in her receipt of an increase in her meeting compensation as a township supervisor during her present term of office. See, Cours, Order 1150. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Trimer is directed to make payment in the amount of $2,350 to Raccoon Township through this Commission within 30 days of the mailing of this Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Trimer, as a Supervisor in Raccoon Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Trimer unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she voted to approve bill lists and signed checks to herself for meeting pay which resulted in her receipt of an increase in her meeting compensation as a township supervisor during her present term of office. In Re: Dorothy Trimer ORDER NO. 1285 File Docket: 02- 058 -C2 Date Decided: 6/23/03 Date Mailed: 7/8/03 1. Trimer, as a Supervisor in Raccoon Township, unintentionally violated Section 3(a)/1103(a) of the Ethics Act when she voted to approve bill lists and signed checks to herself for meeting pay which resulted in her receipt of an increase in her meeting compensation as a township supervisor during her present term of office. 2. Per the Consent Agreement of the parties, Trimer is directed to make ayment of $2,350 to Raccoon Township through this Commission within 30 days of the mailing date of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair