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HomeMy WebLinkAbout1349 AbramsonIn Re: Daniel Abramson File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Michael Healey Raquel K. Bergen 04 -014 Order No. 1349 11/29/04 12/8/04 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 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Abramson, 04 -014 Page 2 I. ALLEGATION: That you, Daniel Abramson, a (public official /public employee) in your capacity as a supervisor in Pulaski Township, Lawrence County, violated Section 1103(a) of the Public Official and Employee Ethics Law (65 Pa.C.S. §1101 et seq.) when you used the authority of his office for private pecuniary gain by collecting and receiving a salary as township roadmaster for duties that were related to your position as township supervisor and when you utilized gasoline from township gas supplies for your personal use. II. FINDINGS: 1. Daniel Abramson has served as a Supervisor for Pulaski Township, Lawrence County, since January 1994. a. Abramson served in the office of board Chairman in 1995, 1996, 1999, and 2000. b. Abramson served in the office of board Vice - Chairman in 1998, and 2002. 2. Pulaski Township is a second -class township governed by a three - member board of supervisors. a. Supervisors receive $150.00 gross per month as payment for services in their supervisor capacity. b. The $150.00 payment is for attendance at all regular, special, or other meetings or activities required of the supervisors during the month. 3. Abramson has been appointed as a township roadmaster annually during his entire length of service as a township supervisor. a. Abramson has also served as the Chairman of the Road Department since March 13, 2003. 4. Abramson was the first individual to hold the position of chairman of the road department in Pulaski Township. a. The position was created at the March 13, 2003 regular supervisors' meeting. b. The supervisor in the position was to act as the contact point and liaison between the road department and the board of supervisors. 5. All three Pulaski Township supervisors are appointed as roadmasters at the township's annual re- organization meeting. a. None of the Pulaski Township supervisors work full time in the appointed roadmaster position. b. Supervisors working as roadmasters do so on an as needed" basis. 6. Pulaski Township supervisors' re- organization meeting minutes from 1999 through 2004 document the appointment of all three supervisors as roadmasters at the requested hourly rate shown below: Re- organization Meeting Date Requested Hourly Rate 01/04/1999 $11.00 Abramson, 04 -014 Page 3 01/04/2000 $10.00 Re- organization Meeting Date Requested Hourly Rate 01/03/2001 $10.00 01/07/2002 $10.25 01/06/2003 $10.50 01/05/2004 $14.00 a. Minutes note the requested hourly rate to be approved by the township auditors. b. Minutes note Abramson's participation in the board's action requesting compensation from 1999 through 2004 7 Pulaski Township Board of Auditors re- organization meeting minutes document the following rates approved for working supervisors from 1999 through 2004 as follows: Re- organization Meeting Date Hourly Rate Approved 01/05/1999 01/05/2000 01/03/2001 01/08/2002 01/07/2003 01/06/2004 $9.00 $9.00 $10.00 $10.00 $10.00 $10.00 8. Abramson is the only Pulaski Township supervisor who has submitted hours for payment as a township roadmaster on a consistent basis during the past several years. a. Abramson's involvement with the road crew as a roadmaster was more prevalent than that of the other supervisors /roadmasters. b. Hours submitted for payment by other supervisors as roadmasters occurred infrequently. 9. As a township roadmaster, Abramson is responsible for maintaining the township roads, including inspecting roads, plowing roads, maintaining the township vehicles, and overseeing the township road crew. a. Pulaski Township has no written job description for the roadmaster or the chairman of the road department positions. b. Abramson's duties as the chairman of the road department mirror his duties as a township roadmaster. 10. Pulaski Township employs a road crew to complete various road /maintenance related issues in the township. a. The township road crew normally works 7:00 a.m. to 3:30 p.m., Monday through Friday. b. Exceptions to this schedule occasionally occur due to inclement weather, emergencies, etc. 11. Teamster's Local 261 represents Pulaski Township's road crew. Abramson, 04 -014 Page 4 a. The supervisors /roadmasters are not permitted to perform any physical labor at any time during which a road crew employee is laid -off per union regulations. 12. David McConahy is employed as the Pulaski Township road crew foreman. a. McConahy is responsible for the daily supervision and activities of the township road crew. 13. McConahy meets with Abramson in the morning at the township garage on an almost daily basis to address work to be performed by the road crew that day. a. Abramson and McConahy often ride throughout the township in the morning to inspect township roads and check on any work/maintenance to be completed. b. McConahy then passes this information on to the township road crew. 14. Pulaski Township employees complete individual timesheets which document specific days and hours worked. a. Employees provide general descriptions of the work performed on specific days on the reverse of the timesheets. b. Timesheets utilized document a two -week work period. 15. McConahy reviews and approves the time sheets for the road crew after the timesheets are complete for the two -week pay period. a. McConahy then provides the timesheets to the secretary/treasurer for payroll processing. 16. Abramson completes timesheets to document his hours worked as a township roadmaster /chairman of the road department. a. McConahy does not review or approve Abramson's timesheets. 17. From April 1999 through December 2002, Abramson submitted time sheets to the township which documented specific days worked, the total number of hours worked per day, and a description of activities performed. a. Abramson did not consistently document his start and finish times regarding days worked. 18. Beginning January 2003 and continuing through March 2004, Abramson changed the manner in which he submitted time sheets to the township. a. Time sheets completed by Abramson during this time period documented only specific days worked and the total number of hours claimed. b. Abramson did not consistently note his start and finish times on the time sheets. c. Abramson did not provide a description of his work activities on the time sheets. 19. From June 2003 through March 2004, Abramson maintained personal timesheets at Abramson, 04 -014 Page 5 his residence to document his daily activities including days worked, hours worked, start and finish times, and descriptions of work activities. 20. Daily activities documented by Abramson on timesheets privately maintained confirm Abramson completed duties both in his capacity as a township supervisor and in his capacity as a township roadmaster. 21. Abramson claimed hours and received wages as a township roadmaster for duties performed which were related to his responsibilities as a township supervisor. 22. From April 1999 through March 2004, Abramson was compensated for approximately 87 hours at his hourly roadmaster rate for performing duties associated with his position as an elected supervisor which totaled $811.00. a. These supervisory duties for which Abramson was compensated included attending hearings, meeting with the solicitor, depositions, budgets and various meetings. 23. Pulaski Township employees are compensated on a bi- weekly basis. a. Payroll for the entire year is approved in advance at the annual re- organization meeting. b. No specific motion to approve payroll is made at the regular monthly meetings of the board of supervisors. c. Approval of the monthly bills does not include employee payroll. 24. Although no specific approval of payroll occurs at the monthly meetings, Pulaski Township utilizes bi- weekly payroll summaries to document wages received by township employees. a. The payroll summary documents the two -week pay period, the actual pay date, payroll amounts issued from the General Fund and State Fund by line item and the total amount of payroll issued. 1. Wages issued are categorized by line item. 2. The specific amount paid to each employee is not documented on the summary. b. Attached to the payroll summary are the checks and time sheets for all employees receiving wages for the applicable pay period. c. A section exists on the payroll summary for each supervisor's signature signifying their review and approval of wages issued. 25. Signature authority over township accounts lies with the secretary /treasurer and all three supervisors. a. Township checks require the secretary /treasurer's signature along with the signatures of two supervisors. b. All three supervisors have the opportunity to sign township checks if they desire to do so. 26. The secretary /treasurer places the township payroll summaries, time sheets, and Abramson, 04 -014 Page 6 checks to be signed in one of the three supervisor's mailboxes at the township building for review and signature. a. Once complete, the supervisor passes the information on to one of the remaining two supervisors and so on until all three have had the opportunity to review and sign the documents. 27. Between September 23, 1999, and February 24, 2004, Abramson participated in actions as a township supervisor in approving twenty -eight (28) payroll summaries and signing payroll checks issued to himself for hours claimed as a roadmaster which were supervisory in nature. a. All checks signed by Abramson as an authorized signatory with the exception of check number 8242 were signed by the secretary/treasurer and all three supervisors. 28. During sworn statements supplied to a Commission investigator on March 31, 2004, and September 3, 2004 Abramson asserted the following: a. Abramson requested and received a verbal opinion from the township solicitor early in his service as a supervisor regarding what a supervisor could receive wages for as a township roadmaster; b. Abramson was informed by the solicitor that a supervisor could receive roadmaster's wages for any activity pertaining to township roads, i.e. repair, maintenance, inspection, etc.; c. Abramson was informed that a supervisor could not receive roadmaster's wages for meeting attendance, zoning issues, planning issues, etc.; d. Abramson was in agreement that he submitted and received wages for at least 76 hours claimed as a township roadmaster which were supervisory in nature; and e. Abramson expressed a willingness to reimburse the township for such wages received. 29. Between 1999 to approximately December 2003 Daniel Abramson occasionally obtained fuel for his personal vehicle from township fuel services. a. Approximately eighty -five (85) gallons of fuel was obtained by Abramson during this time period. 30. The other members of the board of supervisors were aware of and informally approved Abramson using township fuel in his personal vehicle. a. The board approved Abramson obtaining the fuel rather than paying Abramson mileage for use of his personal vehicle while on township business. III. DISCUSSION: At all times relevant to this matter, the Respondent, Daniel Abramson, hereinafter Abramson, 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." Abramson, 04 -014 Page 7 The allegations are that Abramson, as a Pulaski Township Supervisor, violated Section 1103(a) of the Ethics Act when he received compensation as a township roadmaster for duties related to his position as a township supervisor and utilized gasoline from township gas supplies for his personal use. 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 9 of 1989/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 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 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. Since January of 1994, Abramson has served as a supervisor on the three member board in Pulaski Township, Lawrence County. Abramson is also the township roadmaster and chairman of the road department, where he acts as the contact point and liaison between the road department and board of supervisors. All three supervisors are appointed as working roadmasters with an hourly rate approved by the board of auditors. The compensation set by the board of auditors in various years is delineated in Fact Finding 7. The foregoing pay is in addition to the compensation of $150.00 per month the supervisors receive as elected officials. As a township roadmaster, Abramson is responsible for maintaining, inspecting, and plowing the roads, as well as overseeing the township crew. The road crew foreman usually meets with Abramson daily to discuss the work that needs to be performed by the road crew. Although the foreman reviews and approves the timesheets for the road crew, he does not review or approve Abramson's timesheets for his work hours as a township roadmaster. Abramson, 04 -014 Page 8 From April 1999 through December 2002, Abramson submitted timesheets which documented the specific days worked, the total number of hours worked per day, and the description of the activities performed. However, from January of 2003 through March 2004, Abramson merely submitted timesheets that only listed the specific days worked and total number of hours claimed without any consistent notation for start and finish times and without any notation as to the description of work activities performed. Abramson maintained a private log which delineated his duties as a township supervisor and township roadmaster. Abramson claimed hours and received wages as a roadmaster for administrative duties which he performed in his capacity as elected township supervisor. In particular, from April 1999 through March 2004 Abramson received compensation of $811.00 for 87 hours of work as a roadmaster for duties which actually related to his position of elected township supervisor. Such administrative duties as a supervisor for which Abramson received compensation included attendance at hearings, meetings with the solicitor, depositions, budget and various other meetings. The township pays its employees on a bi- weekly basis. There is no specific approval of payrolls at monthly meetings. A payroll summary is prepared which is provided to each supervisor whose signature attests to his or her review and approval of the wages issued. Township checks that are issued to the employees require the signatures of the secretary /treasurer and at least two supervisors. For the approval process, the secretary/ treasurer places the township payroll summaries, timesheets, and checks for signature in one of the three supervisors mailboxes. Once the supervisor completes the review and signs off, the documents are forwarded to one of the other two supervisors. Between September 1999 and February 2004, Abramson participated as a supervisor in approving 28 payroll summaries and signing payroll checks issued to himself for hours claimed as roadmaster work that were in fact administrative in nature. Abramson acknowledged receiving a verbal opinion from the township solicitor to the effect that he as a supervisor could receive wages as a roadmaster that involved repair, maintenance and inspection of roads but not for meeting attendance, zoning, and planning issues. Abramson has agreed that he submitted and received wages as a roadmaster for at least 76 hours of work which were for administrative duties as an elected supervisor. Between 1999 and December 2003, Abramson occasionally utilized gasoline from the township fuel storage facility for his own personal vehicle. The other two members of the board knew and informally approved of Abramson's use of the township fuel in his personal vehicle since such was in lieu of making payments to Abramson for use of his personal vehicle while on township business. 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. That an unintentional violation of Section 1103(a) of the Ethics Act occurred when Daniel Abramson participated in actions approving payroll to himself for duties performed as a township roadmaster when said duties related to his position as township supervisor. b. That no violation of Section 1103(a) of the Ethics Act occurred when Daniel Abramson used township gasoline in his personal vehicle, in that the board had informally approved said usage in lieu of paying Abramson mileage for use of his personal vehicle." In addition, Abramson agrees to pay $811.00 to Pulaski Township through this Abramson, 04 -014 Page 9 Commission within thirty (30) days of the issuance of this order. In applying Section 1103(a) of the Ethics Act to the first allegation, there were uses of authority of office on the part of Abramson. But for the fact that Abramson was a township supervisor, he would not have been in a position to receive compensation for work he claimed in his capacity as a roadmaster where such work was for administrative duties as elected supervisor. In addition, as a supervisor Abramson was able to review, sign -off, and approve timesheets as well as co -sign checks in payment to himself. Such actions were uses of authority of office. See, Juliante, Order 809. The uses of authority of office resulted in pecuniary benefits to Abramson himself consisting of the $811.00 that he received as a township employed roadmaster for performing administrative duties of an elected supervisor. Such pecuniary benefits were private because there is no authorization in law for an elected township supervisor to receive additional pay for such administrative duties. Lastly, the private pecuniary benefit inured to Abramson himself. Accordingly, Abramson unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions to receive compensation as a township roadmaster for administrative duties that he performed in his capacity as an elected township supervisor. See, Hessinger, Order 931, affirmed in part R.H. and T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. 1996). Turning the second allegation concerning the use of township paid gasoline for his personal vehicle, the stipulated findings reflect that the other two supervisors informally approved of such action because Abramson used his personal vehicle for township business. Hence, Abramson used the township gasoline rather than submit reimbursement for his own vehicle usage on township business. Thus, the stipulated findings establish that although Abramson received a pecuniary benefit for the use of township gasoline, it was not a private pecuniary benefit because there is authorization in law for a supervisor to receive mileage for the usage of his township vehicle. In this case, township gasoline was utilized in lieu of Abramson submitting and receiving mileage reimbursement. Accordingly, Abramson did not violate Section 1103(a) of the Ethics Act when he utilized township gasoline in his personal vehicle in that the board informally approved such usage in lieu of paying Abramson mileage for the use of his personal vehicle on township business. See, Akerly, Order 976. 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, Abramson is directed to pay $811.00 to Pulaski Township through this Commission within thirty (30) days of the issuance 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. Abramson, as a Supervisor in Pulaski Township, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Abramson unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions to receive compensation as a township roadmaster for administrative duties that he performed in his capacity as an elected township supervisor. 3. Abramson did not violate Section 1103(a) of the Ethics Act when he utilized township gasoline in his personal vehicle in that the board informally approved the usage in lieu of paying him mileage for the use of his personal vehicle on township business. Abramson, 04 -014 Page 10 In Re: Daniel Abramson ORDER NO. 1349 File Docket: 04 -014 Date Decided: 11/29/04 Date Mailed: 12/8/04 1 Abramson, as a Supervisor in Pulaski Township, unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions to receive compensation as a township roadmaster for administrative duties that he performed in his capacity as an elected township supervisor. 2. Abramson did not violate Section 1103(a) of the Ethics Act when he utilized township gasoline in his personal vehicle in that the board informally approved the usage in lieu of paying him mileage for the use of his personal vehicle on township business. 3. Per the Consent Agreement of the parties, Abramson is directed to pay $811.00 to Pulaski Township through this Commission within thirty (30) days of the issuance 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