HomeMy WebLinkAbout1344 BensonIn Re: Fred Benson
File Docket:
X -ref:
Date Decided:
Date Mailed:
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
03 -049
Order No. 1344
9/20/04
10/1/04
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 investigation, the Investigative Division served upon Respondent written notice of the
specific allegation(s). Upon completion of its investigation, the Investigative Division
issued and served upon Respondent a Findings Report identified as an "Investigative
Complaint." An Answer was not filed and a hearing was waived. 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Benson, 03 -049
Page 2
I. ALLEGATION:
That Fred Benson, a public official /public employee, in his capacity as a Lennox
Township Supervisor, Susquehanna County, violated Sections 1103(a); 1105(b)(5)(8), and
1104(d) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1101 et seq., (Act 93
of 1998), when he used the authority of his office for a private pecuniary gain by utilizing
township equipment for work on his private property; when he utilized township equipment
for his private business interests; and when he failed to file Statements of Financial
Interests for calendar years 1999, 2000, 2001 and 2002; and when he failed to disclose on
the Statement of Financial Interests for the 1998 calendar year his office /directorship in the
West Lenox Cemetery Association and failed to disclose income in excess of $1,300.
II. FINDINGS:
1. Fred Benson has served as a member of the Lenox Township, Susquehanna
County, Pennsylvania Board of Supervisors since at least 1994.
a. Benson currently is the Vice Chairman of the Board of Supervisors.
2. Fred Benson has served as the roadmaster for Lenox Township for the past eight
(8) years.
a. Benson has been appointed roadmaster annually by the board of
supervisors.
3. The Lenox Township roadmaster is responsible for the overall maintenance of
township roads, supervision of the road department and maintenance and operation
of township equipment.
a. There is approximately 50 miles of road within Lenox Township.
b. There is fewer than 5 miles of paved road within Lenox Township.
4. Benson's compensation as roadmaster is approved by the Lenox Township Board
of Auditors.
a. Benson's currently hourly rate of $11.00 per hour has been approved by the
auditors.
b. Notwithstanding emergencies, Benson works approximately 40 hours per
week as roadmaster.
5. Lenox Township owns the following equipment:
a. Four trucks.
b. One backhoe.
c. One front -end loader.
d. One grade all.
e. Other equipment includes a tractor used for raking roads.
6. Lenox Township has three regular employees and two as needed /seasonal
employees.
Benson, 03 -049
Page 3
a. These employees work in the maintenance of township roads.
b. Some of these employees operate township owned equipment.
c. These employees work under the direct supervision of the roadmaster (Fred
Benson).
7 The West Lenox Cemetery, a /k/a the Tower Cemetery, is within the boundaries of
Lenox Township.
8. The West Lenox Cemetery Improvement Association (WLCA) is the owner of the
West Lenox Cemetery.
a. The WLCA receives funds from the sale of graves within the West Lenox
Cemetery.
b. The WLCA is responsible for the maintenance of the West Lenox Cemetery.
9. Fred Benson is the President of the WLCA.
a. Benson has been the President of the WLCA since April 29, 2002.
10. Fred Benson has been the caretaker of the West Lenox Cemetery since April 28,
1998.
a. Benson is responsible for general maintenance, including trimming and
mowing of the grass for which he is compensated.
11. Benson's responsibilities in relation to West Lenox Cemetery include the following:
a. Maintenance of the West Lenox Cemetery as its caretaker.
b. Maintaining records of burials at the West Lenox Cemetery.
c. Collecting fees for grave openings /closings.
d. Collecting fees for grave openings /closings. [sic]
e. Supervising burials at the West Lenox Cemetery.
12. Irene MacDonald, the sister of Fred Benson, serves as the secretary /treasurer of
the WLCA.
13. MacDonald is responsible for the following:
a. Keeping minutes of the West Lenox Cemetery Association annual meetings.
b. Receiving funds from the sale of graves.
c. Issuing and signing checks on behalf of the West Lenox Cemetery
Association.
d. Checks did not include payments for grave site openings /closings.
14. During the period May 20, 2000, through September 17, 2003, Benson received
twenty -one (21) such checks totaling $7,970.00.
Benson, 03 -049
Page 4
a. The checks contained a notation on the memo line that the check was issued
for mowing /trimming.
b. These checks were endorsed by Fred Benson.
c. These checks were cashed by Fred Benson.
d. Checks issued to Benson did not include payments for gravesite openings/
closings.
15. McDonald, Secretary /Treasurer of the West Lenox Cemetery Association,
confirmed that all fees collected for grave openings /closings are paid to Benson.
a. No fees for grave openings /closings are deposited into any of the accounts
of the West Lenox Cemetery Association.
b. Fees for grave openings are set by Benson.
1. Fees charged by Benson since 2000 are as follows:
2000: $300 to $350
2001: $300 to $350
2002: $400 to $425
2003: $400 to $425
2. Benson charged a rate of $75 for cremations.
3. Fees charged [sic] included the costs of opening and closing a grave
site, filling grave and removing dirt as necessary.
16. During the period January 1, 2000, through December 31, 2003, there were twenty -
one (21) burials in the West Lenox Cemetery.
a. The fees for the grave openings /closings totaled $5,825.00.
b. Grave opening fees by year are as follows:
2000: $ 950.00
2001: $1,325.00
2002: $1,375.00
2003: $2,175.00
c. All of the grave opening fees were provided to Fred Benson.
17. Of the twenty -one (21) checks issued for the grave opening /closing for the
aforementioned, the following has been confirmed.
a. Sixteen (16) checks were issued directly to Fred Benson by funeral homes or
representatives of the deceased.
1. All 16 checks were endorsed and cashed by Benson.
b. Two (2) checks were issued to the West Lenox Cemetery.
1. Both were endorsed and cashed by Benson.
c. One (1) check was issued to Romelia Benson, wife of Fred Benson.
Benson, 03 -049
Page 5
1. The check was endorsed by both Romelia Benson and Fred Benson.
d. Two (2) checks for grave opening /closing couldn't be located due to the
unavailability of surviving family members.
18. The check issued to Romelia Benson was check No. 1239 issued on November 10,
2003, in the amount of $425 by the Litwin Funeral Home.
a. The check was endorsed by both Romelia Benson and Fred Benson.
b. Litwin made the check payable to Romelia Benson at the request of Fred
Benson.
1. Benson informed Litwin the reason for the request was the he was
being investigated.
19. The WLCA owns no equipment with which to open /close graves.
20. On two occasions between March 2002 and November 2002, Benson utilized
equipment owned by Lenox Township to dig graves or move stone at the West
Lenox Cemetery.
a. A township employee operated township equipment specifically identified as
a backhoe.
1. The work done at the West Lenox Cemetery was beyond the
employee's normal work hours.
2. The township employee was not compensated by Benson or the
township for operating this equipment.
21. Lenox Township was not reimbursed by the West Lenox Cemetery Association for
the use of township equipment to dig graves.
a. Fred Benson did not reimburse Lenox Township for the private use of its
equipment.
b. The board of supervisors, of which Benson is a member, did not request
reimbursement and voice no opposition, upon learning that Benson had
used the township equipment for the benefit of the WLCA.
22. Randy Decker of PennDOT's Municipal Services Division contacted Benson in early
January 2003 regarding allegations of misuse of township equipment.
a. Benson admitted to Decker to using a township backhoe on two occasions in
2001 -2002 to dig graves at a local cemetery.
b. Benson did not admit that he had been compensated for the private use of
the township backhoe.
c. Decker forwarded a letter dated January 28, 2003, to the Lenox Township
Board of Supervisors suggesting the township stop the practice immediately.
23. Burial permit records of WLCA confirm single burial permits for March 2002 as
follows:
Benson, 03 -049
Page 6
a. March 12, 2002: Burial permit for Marita Cook
24. Arrangements for the Cook interment was handled by the Tuttle - Yeisley Funeral
Home
25. Benson was issued a $400.00 check by the Tuttle - Yeisey Funeral Home for the
opening and closing of the Cook grave site.
26. Benson used the township backhoe to assist with the burial of George Michaels on
October 19, 2001.
a. Benson used the township backhoe to assist the contractor in moving an
overly large stone.
27. The Michaels internment was handled by the Barton Funeral Home, Montrose, PA.
a. The Barton Funeral Home issued check no. 691 dated October 18, 2001, in
the amount of $300.00 to the West Lenox Cemetary [sic].
28. Benson retained the payments from Tuttle - Yeisey and Barton.
a. No funds were given to the Cemetery Association.
b. No payments were made to Lenox Township for use of township equipment
to dig the sites.
c. No payments were made to the township employee who operated the
equipment.
29. Benson, as an elected Lenox Township Supervisor, is required to file a Statement
of Financial Interests (SFI) Form (SEC -1) each year he holds office and the year
following completion of public service.
30. Benson filed a Statement of Financial Interests for the 1998 calendar year on March
5, 1999.
a. Benson did not disclose any direct or indirect sources of income in excess of
$1,300.
1. In 1998 Benson earned in excess of $1,300 from Lenox Township
and the WLCA.
31. A Statement of Financial Interests compliance review conducted by an investigator
for the State Ethics Commission confirmed that Benson has not filed Statements of
Financial Interests with Lenox Township for the following calendar years.
1999
2000
2001
2002
32. As an elected supervisor in Lenox Township, Benson is paid $25.00 per meeting of
the Board of Supervisors.
a. The Board of Supervisors meet once a month.
b. On occasion, the Board of Supervisors have a special meeting in addition to
Benson, 03 -049
Page 7
the regularly scheduled monthly meeting.
c. Benson has attended all monthly meetings of the board of supervisors since
1999.
33. During the period from 1999 through 2002 when he failed to file Statements of
Financial Interests, Benson was compensated as follows by the township:
Roadmaster Salary Meeting Pay
1999: $300.00
2000: $18,020.00 $300.00
2001: $20,191.00 $300.00
2002: $23,309.50 $300.00
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Fred Benson, hereinafter
Benson, 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 allegations are that Benson, as a Lenox Township Supervisor, Susquehanna
County, violated Sections 1103(a), 1105(b)(5)(8), and 1104(d) of the Ethics Act, when he
utilized township equipment for work on his private property and for his private business
interests; failed to file Statements of Financial Interests (SFI's) for calendar years 1999,
2000, 2001 and 2002; and failed to disclose his office /directorship in the West Lenox
Cemetery Association (WLCA) and certain income in excess of $1,300 on his 1998
calendar year SFI.
Pursuant to Section 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 93 of 1998 as follows:
Section 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 office 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
business with which he or a member of his immediate family is
associated.
65 P.S. § 402/65 Pa.C.S. § 1102.
Section 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
Benson, 03 -049
Page 8
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.
§1104. Statement of financial interests required to be filed
(a) Public official or public employee. - -Each public
official of the Commonwealth shall file a statement of financial
interests for the preceding calendar year with the commission
no later than May 1 of each year that he holds such a position
and of the year after he leaves such a position. Each public
employee and public official of the Commonwealth shall file a
statement of financial interests for the preceding calendar year
with the department, agency, body or bureau in which he is
employed or to which he is appointed or elected no later than
May 1 of each year that he holds such a position and of the
year after he leaves such a position. Any other public
employee or public official shall file a statement of financial
interests with the governing authority of the political
subdivision by which he is employed or within which he is
appointed or elected no later than May 1 of each year that he
holds such a position and of the year after he leaves such a
position. Persons who are full -time or part -time solicitors for
political subdivisions are required to file under this section.
65 Pa. C. S. §1104(a).
Section 1104(a) of the Ethics Act requires that each public official /public employee
must file a Statement of Financial Interests for the preceding calendar year, each year that
he holds the position and the year after he leaves it.
Section 1105(b)(5) of the Ethics Act requires that every public official /public
employee and candidate list the name and address of any direct or indirect source of
income totaling in the aggregate of $1,300 or more.
Section 1105(b)(8) of the Ethics Act requires that every public official /public
employee and candidate list any office, directorship or employment of any nature
whatsoever in any business entity.
§ 1105. Statement of financial interests
(b) Required information. - -The statement shall
include the following information for the prior calendar year
with regard to the person required to file the statement:
(5) The name and address of any direct or
indirect source of income totaling in the aggregate $1,300 or
more. However, this provision shall not be construed to require
the divulgence of confidential information protected by statute
or existing professional codes of ethics or common law
privileges.
(8) Any office, directorship or employment of
any nature whatsoever in any business entity.
Benson, 03 -049
Page 9
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.
Benson has served as a Lenox Township Supervisor since 1994 and as the
appointed roadmaster for the last eight years. Benson typically works a 40 -hour workweek
and receives roadmaster compensation at $11.00 per hour as approved by the board of
auditors. The township has two regular and three seasonal employees who work on the
roads under the direct supervision of Benson as roadmaster.
In a private capacity, Benson is President of WLCA which owns the West Lenox
Cemetery (Cemetery). Benson, as caretaker for the cemetery, performs general maintenance
including trimming and mowing the grass, maintaining burial records, collecting fees and
supervising burials.
Irene McDonald, Benson's sister, serves as the secretary /treasurer of the WLCA
and has duties consisting of keeping the minutes of annual meetings, receiving funds, and
issuing and signing checks on behalf of WLCA, except for those checks involving grave
openings /closings. McDonald has confirmed that all fees collected involving grave
openings/ closings are paid to Benson. For the period January 2000 through December
2003, Benson received $5,825.00 for 21 burials, the details of which are delineated in Fact
Finding 16.b.
Since the WLCA does not own any equipment to open /close graves, Benson on two
occasions in March and November of 2002 utilized township equipment to open graves or
move stone at the cemetery. A township employee operated the township equipment after
normal work hours but did not receive any compensation from Benson or the township for
operating the equipment. The township was not reimbursed by the WLCA or Benson for
the use of the township equipment to open the graves.
An individual in PennDOT's Municipal Services Division contacted Benson in
January of 2003 regarding allegations of misuse of township equipment. Benson admitted
using the township equipment on two occasions to open graves. The PennDOT official
then forwarded a letter to the township board of supervisors suggesting that the township
stop the practice immediately.
As to the two instances where the township equipment was used to open the
graves, Benson received a $400.00 check in one case and a $300.00 check in the other
consisting of the fees relating to those internments. Benson retained those payments and
gave no funds to either the WLCA, Lenox Township, or the township employee who
operated the equipment.
Benson, as an elected township supervisor, is required to file SFI's on an annual
basis. Although Benson filed an SFI for the calendar year 1998, he failed to disclose any
direct or indirect sources of income in excess of $1,300.00. For that calendar year,
Benson received income in excess of $1,300.00 from both Lenox Township and WLCA.
As to the calendar years 1999 through 2002, Benson failed to file SFI's for those calendar
years. The stipulated findings do not delineate whether Benson reported his office in
WLCA on his 1998 calendar year SFI.
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:
"a. No violation of Section 1103(a) of the State Ethics Act regarding the allegation that
Benson, 03 -049
Page 10
Benson used township equipment on his personal property.
b. An unintentional violation of Section 1103(a) of the State Ethics Act occurred when
Benson used township equipment to dig graves at the West Lenox Cemetery for
which he subsequently was paid.
c. That unintentional violations of Section 1104(d) of the State Ethics Act occurred
when Benson failed to file Statements of Financial Interests for the 1999 through
2002 calendar years.
d. That an unintentional violation of Section 1105(b)(5) occurred when Benson did not
disclose the receipt of all income in excess of $1,500 [sic] on the Statement of
Financial Interests filed for the 1998 calendar year.
e. That an unintentional violation of Section 1105(b)(8) occurred when Benson failed
to disclose on the 1998 Statement of Financial Interests his office, directorship in
the West Lenox Cemetery Association."
In addition, Benson agrees to pay $800 to the Commonwealth of Pennsylvania through this
Commission within thirty (30) days of the mailing of this order.
In applying Section 1103(a) of the Ethics to the allegation that Benson used
township equipment on his personal property, the stipulated findings do not reflect any
instance where Benson took such action. Given that the record does not set forth any
facts to support the allegation, we find that Benson did not violate Section 1103(a) of the
Ethics Act in that he did not use township equipment on his personal property.
The stipulated findings reflect two instances where Benson used township
equipment for the purpose of opening graves at the West Lenox Cemetery. The findings
further reflect that Benson received fees in both of those cases as to those two
internments. Such actions on the part of Benson were uses of authority of office. But for
the fact that he was a supervisor, Benson could not have been in a position to utilize the
township equipment for the non - public purpose of opening the two gravesites at the
cemetery. Such actions were uses of authority of office. See, Juliante, Order 809. The
uses of authority of office on the part of Benson resulted in private pecuniary benefits
consisting of the fees that he received as to the opening of the gravesites at the cemetery.
Lastly, the private pecuniary benefits inured to Benson himself. Accordingly, Benson
unintentionally violated Section 1103(a) of the Ethics Act when he used township
equipment to open graves at the West Lenox Cemetery and received fees which he
retained for personal use. See, Reis, Order 1283.
Turning to the matter of the SFI's, the findings reflect that Benson failed to file the
required SFI's for the calendar years 1999 -2002. Benson failed to perform this duty as
required by law. Accordingly, Benson unintentionally violated Section 1104(d) of the
Ethics Act when he failed to file SFI's for the calendar years 1999 through 2002. If Benson
has not already done so, he is directed within 30 days of the date of mailing of this order to
fully and accurately complete and then file SFI's for the calendar years 1999 through 2002
with Lenox Township. In addition, Benson is directed to file copies with this Commission
for compliance verification purposes.
As to the 1998 calendar year, the findings reflect that Benson did not disclose the
receipt of income from the township and the WLCA even though his income from those two
sources exceeded $1,300.00. Accordingly, Benson unintentionally violated Section 1105(b)(5)
of the Ethics Act when he failed to disclose receipt in income in excess of $1,300.00 on his
SFI for the 1998 calendar year.
Lastly, as to the allegation that Benson violated Section 1105(b)(8) of the Ethics Act
regarding his failure to disclose his office or directorship in the WLCA on the 1998
Benson, 03 -049
Page 11
calendar year SFI, there are no facts of record to establish a failure on the part of Benson
to disclose that financial interest. Accordingly, Benson did not violate Section 1105(b)(8)
of the Ethics Act regarding the allegation that he failed to disclose his office or directorship
in the WLCA, based upon an insufficiency of evidence. See, 2 Pa.C.S. §507.
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, Benson is directed to pay
$800 to the Commonwealth of Pennsylvania through this Commission within thirty (30)
days of the mailing of this order. Compliance with the foregoing payment and SFI's filing
directives 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. Benson, as a Lenox Township Supervisor, is a public official subject to the
provisions of Act 9 of 1989 as codified by Act 93 of 1998.
2. Benson did not violate Section 1103(a) of the Ethics Act in that he did not use
township equipment on his personal property.
3. Benson unintentionally violated Section 1103(a) of the Ethics Act when he used
township equipment to open graves at the West Lenox Cemetery and received fees
which he retained.
4. Benson unintentionally violated Section 1104(d) of the Ethics Act when he failed to
file SFI's for the calendar years 1999 through 2002.
5. Benson unintentionally violated Section 1105(b)(5) of the Ethics Act when he failed
to disclose receipt in income in excess of $1,300.00 on his Statement of Financial
Interests for the 1998 calendar year.
6. Benson did not violate Section 1105(b)(8) of the Ethics Act regarding the allegation
that he failed to disclose his office or directorship in the WLCA, based upon an
insufficiency of evidence.
In Re: Fred Benson
ORDER NO. 1344
File Docket: 03 -049
Date Decided: 9/20/04
Date Mailed: 10/1/04
1 Benson, as a Lenox Township Supervisor, did not violate Section 1103(a) of the
Ethics Act in that he did not use township equipment on his personal property.
2. Benson unintentionally violated Section 1103(a) of the Ethics Act when he used
township equipment to open graves at the West Lenox Cemetery and received fees
which he retained.
3. Benson unintentionally violated Section 1104(d) of the Ethics Act when he failed to
file SFI's for the calendar years 1999 through 2002.
4. Benson unintentionally violated Section 1105(b)(5) of the Ethics Act when he failed
to disclose receipt in income in excess of $1,300.00 on his Statement of Financial
Interests for the 1998 calendar year.
5. Benson did not violate Section 1105(b)(8) of the Ethics Act regarding the allegation
that he failed to disclose his office or directorship in the WLCA, based upon an
insufficiency of evidence.
6. Per the Consent Agreement of the parties, Benson is directed to pay $800 to the
Commonwealth of Pennsylvania through this Commission within thirty (30) days of
the mailing of this order. If Benson has not already done so, he is directed within
30 days of the date of mailing of this order to fully and accurately complete and then
file SFI's for the calendar years 1999 through 2002 with Lenox Township and
copies with this Commission for compliance verification purposes.
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