HomeMy WebLinkAbout1366 Rietscha, Jr.In Re: Vincent Rietscha, Jr.
File Docket: 04 -043
X -ref: Order No. 1366
Date Decided: 6/6/05
Date Mailed: 6/17/05
Before: Louis W. Fryman, Chair
John J. Bolger, Vice Chair
Donald M. McCurdy
Paul M. Henry
Raquel K. Bergen
Nicholas A. Colafella
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 filed and a hearing was 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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Rietscha, 04 -043
Page 2
I. ALLEGATION:
That Vincent Rietscha, Jr., a public official /public employee, in his capacity as a
supervisor for Barr Township, Cambria County, violated Section 1103(a) provisions of the
State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §1103(a) when he used the authority of his
office for the private pecuniary gain of himself when he participated in decisions of the
board of supervisors to authorize payments on his behalf to a township pension plan when
he was not eligible to be included in such plans [sic] and when he claimed hours worked
as a Roadmaster for duties as Supervisor including, but not limited to, attendance at
various monthly meetings of county agencies.
II. FINDINGS:
1. Vincent Rietscha, Jr. has served as a supervisor for Barr Township, Cambria
County, since January 7, 2002.
2. Barr Township is a second -class township governed by a three - member board of
supervisors.
a. Supervisors currently receive $75.00 gross per meeting as payment for
services in their supervisor capacity.
3. Rietscha was appointed to the position of township roadmaster at the township's re-
organization meetings held in January 2002 and January 2003.
a. Working supervisors received wages of $9.50 per hour and $10.00 per hour
in 2002 and 2003 respectively in their employee positions.
4. The township roadmaster is responsible for maintaining the township roads;
including inspecting roads, plowing roads, maintaining the township vehicles, etc.
5. During Rietscha's tenure as roadmaster, the Barr Township road crew was primarily
composed of Rietscha, Ralph Dumm, and Brian Birchall.
a. Rietscha performed physical labor with the road crew on an as- needed basis.
b. Dumm and Birchall worked full time in their capacity as road crew employees.
6. Barr Township utilizes timesheets generated in -house to document days and hours
worked by all township employees.
a. Township employees are responsible for personally entering their hours
worked on the bi- weekly timesheets.
b. The timesheet provides a section for a brief description of the road crew's
daily activities.
7 Barr Township has maintained a non - uniformed pension plan for employees
through Baltimore Life Insurance Company, since at least November 12, 1991.
8. The Barr Township Non - Uniformed Pension Fund is a guaranteed fund.
a. Funds contributed by the township are maintained by Baltimore Life in one
lump sum; however, Baltimore Life maintains records on the amounts
specifically allocated to each eligible employee.
9. Employee eligibility regarding enrollment in the non - uniformed pension plan was
Rietscha, 04 -043
Page 3
initially established by resolution at a regular township supervisors' meeting.
a. Multiple resolutions have been passed since the establishment of the plan
which address eligibility requirements, contribution amounts, and other
procedural issues.
10. The requirements for eligibility in the township pension plan in part include the
following criteria:
a. All employees of the township who were paid on an hourly basis and
employed more than one thousand hours in any year were eligible to receive
a benefit in the amount of $2,800.00;
1. Hours of service were determined on the basis of actual hours for
which the employee was paid or entitled to payment.
2. Eligibility applied to only full -time employees who completed one
thousand hours service for the year.
aa. Barr Township considered employees to be employed on a full
time basis regarding eligibility for the township pension fund if
employees worked at least 1,000 hours in the calendar year.
b. The board of supervisors and secretary were authorized to execute any and
all documents necessary for the implementation of the pension plan.
11. Municipalities that offer employees enrollment in a municipal pension plan are
eligible to receive funding from the Commonwealth of Pennsylvania through the
Department of the Auditor General, Municipal Pensions and Fire Relief Programs
Unit to offset the expense of the plan.
a. State aid supplied is a reimbursement to the township of a portion of the total
amounts contributed for eligible employees in the previous year.
12. The State mandates that municipalities with non - uniformed employee pension plans
can receive reimbursement only for those employees who meet the following
requirements:
a. Employees must be an active, full time non - uniformed employee of the
municipality;
b. Employees must be employed for any six consecutive months during the
calendar year;
c. Employees must work no less than thirty -five hours per week; and
d. Employees must be a member of a pension plan and meet all its
requirements.
13. Rietscha began employment with Barr Township as the township roadmaster in
January 2002 working on an as needed" basis.
14. As a supervisor and township employee, Rietscha was eligible for inclusion in the
township pension fund contingent upon working 1,000 hours per calendar year.
15. Thomas Britton, as the secretary /treasurer and pension fund officer in 2002 and
2003, was responsible for determining the number of Barr Township employees
Rietscha, 04 -043
Page 4
eligible for township paid pension contributions.
a. If the estimated amount totaled one thousand hours or more, the employee
was provided a pension fund contribution by the township.
16. Barr Township records for calendar year 2002 document 1033 hours worked by
Rietscha in the position of township roadmaster.
17. Barr Township records for calendar year 2003 document 863.5 hours worked by
Rietscha in the position of township roadmaster as shown below:
18. Britton issued Barr Township General Fund check number 1922, dated October 2,
2002, to Baltimore Life Insurance Company in the amount of $8,400.00 in
association with township pension contributions due to eligible employees for
calendar year 2002.
a. Accompanying the check was correspondence from Britton dated October 2,
2002, that detailed contribution amounts of $2,800.00 for Rietscha, Birchall,
and Dumm for calendar year 2002.
19. Check number 1922 was voted on and approved for payment by the supervisors at
the October 14, 2002, regular monthly meeting.
a.
b.
The vote to approve the monthly bills, including the townships contributions
to the non - uniformed employee pension fund, passed 2 -0.
Rietscha and John Brawley were the only supervisors present at the meeting.
20. Rietscha had accumulated the minimum one thousand hours required for inclusion
in the pension fund by the conclusion of the 2002 calendar year.
a. Rietscha worked 1,029.0 hours for the township in 2002 per actual payroll
issued (See Finding No. 27).
b. Rietscha was eligible for receipt of the $2,800.00 benefit in calendar year
2002.
21. Britton issued Barr Township General Fund check number 2402, dated October 28,
2003, to Baltimore Life Insurance Company in the amount of $8,400.00 in
association with township pension contributions due to eligible employees for
calendar year 2003.
a. Accompanying the check was correspondence dated October 28, 2003, that
detailed contribution amounts of $2,800.00 for Rietscha, Birchall, and Dumm
for calendar year 2003.
b. Rietscha and Britton signed township check number 2402 as authorized
township signatories.
c. Check Number 2402 was credited to Barr Township's Group Pension Fund
on November 4, 2003.
22. Check number 2402 was voted on and approved for payment by the supervisors at
the November 10, 2003, regular monthly meeting.
a. Rietscha was present at the meeting.
Rietscha, 04 -043
Page 5
b. Rietscha voted to approve the monthly bills which included the township's
contribution of $2,800.00 into Rietscha's pension fund at Baltimore Life.
c. The vote to approve the monthly bills passed 3 -0 with no abstentions noted.
23. Rietscha did not accumulate the minimum one thousand hours required for
inclusion in the pension fund by the conclusion of the 2003 calendar year.
a. Rietscha worked 885 1/2 hours for the township in 2003 per actual payroll
issued.
b. Rietscha was not eligible for receipt of the $2,800.00 benefit provided him in
calendar year 2003.
24. Rietscha believed that because Britton issued the check for his pension contribution
that Britton had verified that Rietscha had accumulated the requisite number of
hours.
a. Rietscha relied upon Britton for the calculation of hours worked.
25. Baltimore Life Annual Pension Fund Statements dated January 5, 2004, document
allocations in Rietscha's name and interest accrued for calendar year 2003 as
shown below:
2003:
Beginning + + Ending
Balance Deposit Withdrawal Interest Balance
01/01/03 12/31/03
$2,831.37 $2,800.00 $0.00 $155.41 $5,786.78
26. Barr Township applied through the Department of the Auditor General, Municipal
Pensions and Fire Relief Programs for State aid regarding township contributions
made to the township Non - Uniformed Employee Pension Plan in 2002 and 2003.
a. The applications were filed on February 10, 2003 and February 2, 2004 for
calendar years 2002 and 2003 respectively.
b. Barr Township received State aid in 2003 and 2004 for benefits paid on
behalf of Rietscha in 2002 and 2003.
27. Barr Township was not eligible to receive State aid for Rietscha in 2003 and 2004
for calendar years 2002 and 2003 as a result of Rietscha not working a minimum of
thirty -five hours per week over a consecutive six -month period during 2002 or 2003.
28. In a voluntary statement provided to a Commission Investigator on August 25, 2004,
Rietscha provided the following information:
a. Rietscha was aware that employees were required to work a minimum of
1,000 hours in the applicable calendar year to be eligible for receipt of the
township provided benefit during that year.
b. Rietscha believed he had accumulated more than 1,000 hours per year in
both 2002 and 2003.
c. Rietscha claimed to have abstained from all votes regarding the approval of
Rietscha, 04 -043
Page 6
township contributions made to Baltimore Life on behalf of township
employees.
29. Rietscha realized an increase in township provided contributions to his pension
fund at Baltimore Life in the amount of $2,955.41 when he voted to approve and
signed the check issued to Baltimore Life for the township pension fund in 2003
when he did not meet township eligibility requirements for receipt of the benefit.
a. Rietscha received an allocation of $2,800.00 in his name regarding the
township contribution made into the pension fund in 2003 when he was not
eligible for such benefit.
b. Rietscha realized an additional gain of $155.43 as a result of interest
accrued on funds allocated to Rietscha's pension fund in 2003
THE FOLLOWING FINDINGS RELATE TO RIETSCHA'S CLAIM OF AND PAYMENT
FOR HOURS WORKED AS A TOWNSHIP ROADMASTER/TEMPORARY EMPLOYEE
WHICH WERE RELATED TO HIS POSITION AS AN ELECTED SUPERVISOR
30. Barr Township supervisors' re- organization meeting minutes confirm that for 2002,
2003, and 2004 the board of supervisors requested rates of pay for working
supervisors as shown below:
Re- organization Meeting Date Requested Hourly Rate
January 7, 2002
January 6, 2003
January 5, 2004
$9.50
$10.00
$10.00
31. Article VI of the Second Class Township Code set forth mandates and guidelines
regarding the position of township supervisor.
a. Section 602 (c) provides that a supervisor may be employed as a
roadmaster, laborer, secretary, treasurer, assistant secretary, assistant
treasurer or in any employee capacity not otherwise prohibited by the
Second Class Township Code or any other Act.
32. The majority of hours submitted for payment by Rietscha from 2002 though 2004
represented hours utilized in inspecting, maintaining, and /or working on township
roads; and /or supervising the township road crew.
33. Rietscha also submitted hours for attending meetings in his position as township
supervisor, including the Cambria County Sewer Enforcement Agency (CCSEA)
and the Cambria County Building Code Enforcement Agency (CCBCEA).
34. The Cambria County Sewage Enforcement Agency (CCSEA) was organized in
approximately February 1999 for the purpose of collectively administering Act 537,
relating to sewage enforcement, for interested municipalities in Cambria County.
a. Each participating municipality appoints a delegate to represent the
municipality at the monthly meetings.
b. Activities performed by municipal delegates at the monthly meetings include
approving previous month's minutes, approving agency expenditures,
making decisions on the agency, etc.
c. The delegates perform no physical labor at the meetings.
Rietscha, 04 -043
Page 7
35. Barr Township adopted Ordinance No. 20030414 regarding participation in the
CCSEA at the April 14, 2003 regular supervisors' meeting.
a. Article IV, Section B of the Ordinance mandates the following:
As soon as possible, but not later than thirty (30) days after the adoption of
this Ordinance, every member shall, by action of its Governing Body, appoint
a Representative, and at its option, may also appoint an Alternate
Representative to the Board. Each Representative and Alternate shall be an
individual who must be: (1) a member of the Governing Body of the member
municipality that he or she represents; or (2) the Municipal Secretary."
1. Article III - Definitions of the Ordinance defines Governing Body as,
the Board of Supervisors of the Township of Barr, Cambria County,
Pennsylvania."
b. Ordinance No. 20030414 was signed by Rietscha, Britton, and Supervisor
John Brawley.
36. Rietscha was initially appointed as the Barr Township representative to the CCSEA
at the August 11, 2003 regular supervisor's meeting.
37. Rietscha was subsequently re- appointed as the Barr Township representative to the
CCSEA at the April 12, 2004 regular supervisors' meeting.
38. The Cambria County Building Code Enforcement Agency (CCBCEA) was organized
in approximately June 2004 for the purpose of collectively administering the
Pennsylvania Uniform Construction Code for interested municipalities in Cambria
County.
a. The CCBCEA is a multi - municipal agency.
b. Interested municipalities must pass an ordinance to become a participating
member of the CCBCEA.
39. Each participating municipality appoints a delegate to represent the municipality at
the monthly meetings.
40. Activities performed by municipal delegates at the monthly meetings include
approving previous month's minutes, approving agency expenditures, making
decisions on the agency, etc.
41. The CCBCEA holds one regular meeting per month on the second Tuesday of each
month.
a. CCBCEA meeting are approximately one and one -half hour in length.
42. Barr Township adopted Ordinance No. 2004 -06 -01 and Ordinance No. 2004 -06 -02
regarding participation in the CCBCEA at the June 14, 2004 regular supervisors'
meeting.
a. Section 3, Subsection A of the Intermunicipal Agreement associated with
Ordinance No. 2004 -06 -02 mandates the following:
"Membership. The Program Committee shall be composed of one (1)
member of the governing body of each participating Municipality, appointed
Rietscha, 04 -043
Page 8
for a one (1) year term by the governing body at its first meeting in January
of each year. The initial members of the Program Committee shall be
appointed by the governing bodies within thirty (30) days from the execution
of this agreement. Each governing body may, if it so desires, appoint an
alternate member to the Program Committee."
b. Ordinance No. 2004 -06 -02 and the Intermunicipal Agreement were signed
by Rietscha as the Chairman of the Board of Supervisors.
43. Rietscha was appointed as the Barr Township representative to the CCBCEA at the
June 14, 2004 regular supervisors' meeting.
a. The vote to appoint Rietscha into the position passed unanimously (3 -0).
b. Rietscha voted affirmatively on the motion to appoint himself into the position.
44. In 2003 and 2004, Rietscha claimed hours and received wages as a township
roadmaster /township employee for attendance at various CCSEA and CCBCEA
meetings.
a. Rietscha attended these meetings in his capacity as a Barr Township
Supervisor.
45. Rietscha claimed payment at his employee hourly rate for 24 hours at $10 /hour and
was compensated for attendance at meetings of the CCBCEA and /or meetings of
the CCSEA for a total of $240.
46. According to Rietscha, the supervisors voted on the pension plan at their October
meeting and Rietscha was included in the plan anticipating that he would have had
the necessary 1,000 hours by the end of that year, if it were at least a normal
Winter.
47. Rietscha was advised by the then secretary /treasurer at the beginning of the
following year that Rietscha had accumulated 1,007 hours, but on closer
examination this was not so, and Rietscha failed to accumulate the necessary hours
to participate in the pension plan.
48. The hours for duties as supervisor, including, but not limited to, attendance at
various monthly meetings of county agencies could not be properly included in the
total hours worked.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Vincent Rietscha, Jr.,
hereinafter Rietscha, 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 Rietscha, as a Barr Township Supervisor, Cambria County,
violated Section 1103(a) of the Ethics Act when he participated in decisions of the Board of
Supervisors to authorize payments on his behalf to a township pension plan when he was
not eligible to be included in such plan; and when he claimed hours worked as a
Roadmaster for duties as Supervisor including, but not limited to, attendance at various
monthly meetings of county agencies.
Rietscha, 04 -043
Page 9
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 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.
Rietscha has served as a Supervisor for Barr Township ( "Township ") since January
7, 2002. The Township is a Second Class Township governed by a three - member Board
of Supervisors ( "Board ").
Rietscha was appointed Roadmaster in January of 2002 and 2003. In 2002 and
2003, working Supervisors were paid $9.50 per hour and $10 per hour, respectively. The
Township utilized timesheets to document days and hours worked by the Township
employees. The employees were responsible for entering their own hours on the
timesheets.
All Township employees who were paid on an hourly basis and employed more than
1,000 hours in any year were eligible to receive a pension fund contribution from the
Township in the amount of $2,800 under the Township's non - uniformed pension plan.
Hours of service were determined on the basis of actual hours for which the employee was
paid or entitled to payment. The Township Secretary /Treasurer /Pension Fund Officer was
responsible for determining the number of Township employees eligible for Township paid
pension contributions.
Barr Township records reflect that Rietscha worked over 1,000 hours as
Roadmaster in calendar year 2002. Findings 16, 20(a). In October 2002, the Township
Secretary /Treasurer /Pension Fund Officer issued Township check no. 1922 in the amount
of $8,400 to Baltimore Life Insurance Company, which included the $2,800 Township
pension contributions for three individuals including Rietscha. At the October 14, 2002,
Rietscha, 04 -043
Page 10
regular monthly meeting of the Board, Rietscha participated in approving the Township's
monthly bills, which included the pension contributions to the non - uniformed pension plan.
Barr Township records reflect that Rietscha worked less than 1,000 hours as
Roadmaster in calendar year 2003. Findings 17, 23(a). In October 2003, the Township
Secretary /Treasurer /Pension Fund Officer issued Township check no. 2402 in the amount
of $8,400 to Baltimore Life Insurance Company, which included the $2,800 Township
pension contributions for three individuals including Rietscha. At the October 14, 2002,
regular monthly meeting of the Board, Rietscha participated in approving the Township's
pension contributions to the non - uniformed pension plan. Rietcha signed check no. 2402
as an authorized signatory and participated in approving the Township's monthly bills,
which included the pension contributions to the non - uniformed pension plan.
Rietscha believed that because the Township Secretary /Treasurer /Pension Fund
Officer issued a check for his pension contribution in 2003, he had accumulated the
requisite number of hours to participate in the pension plan.
For calendar year 2003, $2,800 was contributed by the Township to Rietscha's
pension fund, plus $155.43 in interest.
As noted above, in 2002 and 2003, working Supervisors were paid $9.50 per hour
and $10 per hour, respectively. The $10 per hour rate of pay remained the same for 2004.
In 2003 and 2004, Rietscha submitted hours for attending Cambria County Sewer
Enforcement Agency ( "Sewer Enforcement Agency ") and Cambria County Building Code
Enforcement Agency ( "Code Enforcement Agency ") meetings as the Township
representative to both the Sewer Enforcement Agency and the Code Enforcement Agency.
Rietscha claimed payment for attending such meetings at his employee hourly rate of $10
per hour for 24 hours for a total compensation of $240.
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:
"3. The Investigative Division will recommend the following in relation to
the above allegations:
a. That an unintentional violation of Section 1103(a) of the
Public Official and Employee Ethics Law, 65 Pa.C.S. §
1103(a) occurred in relation to Rietscha's participation
in actions to authorize payments, on his behalf, to a
township pension plan when he was not eligible to be
included in such pension plan.
b. That no violation of Section 1103(a) of the Public
Official and Employee Ethics Law, 65 Pa.C.S. § 1103(a)
occurred in relation to compensation received as a
Roadmaster for the performance of duties related to his
position as an elected supervisor, as any gain received
therefrom was de minimis in nature.
4. Rietscha agrees to provide the Commission written confirmation from
the investment entity charged with managing the township's pension
plan that Rietscha has been removed from the plan, for calendar year
2003. Such written confirmation shall be received by the Commission
within thirty (30) days of the issuance of the final adjudication in this
matter."
Rietscha, 04 -043
Page 11
Consent Agreement, paragraphs 3 -4.
In considering paragraph 3(a) of the Consent Agreement quoted above, Rietscha
did not work the requisite 1,000 hours in order to be eligible to receive a $2,800 pension
fund contribution from the Township under the Township's non - uniformed pension plan.
Nevertheless, Township check no. 2402 was issued to Baltimore Life Insurance Company,
which included the $2,800 pension fund contribution for Rietscha. Rietscha used the
authority of his public office when he signed Township check no. 2402 as an authorized
signatory and participated in approving the Township's monthly bills, which included the
pension contributions to the non - uniformed pension plan. But for his position as a
Township Supervisor, Rietscha would not have been able to take such actions, which
resulted in a private pecuniary benefit to Rietscha, consisting of a $2,800 unauthorized
contribution by the Township to Rietscha's pension fund, plus $155.43 in interest.
Intent is not a requisite element for a violation of Section 1103(a) of the Ethics Act.
See, e.g., Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Commw. 1987).
Nevertheless, based upon the Stipulated Findings and Consent Agreement, it would
appear that the aforesaid violation was unintentional given that Rietscha relied upon the
Township Secretary /Treasurer /Pension Fund Officer for the calculation of hours worked.
Therefore, we agree with the parties that an unintentional violation of Section 1103(a) of
the Ethics Act occurred when Respondent Rietscha participated in actions to authorize
payments on his behalf to the Township's non - uniformed pension plan when he was not
eligible to be included in such plan.
In considering paragraph 3(b) of the Consent Agreement quoted above, there is a
fundamental distinction between a Township Supervisor as an elected public official and
as a paid Township employee. The compensation that a Supervisor as an elected official
receives is limited by the Second Class Township Code ( "Code "). Any legislative or
administrative duties are encompassed within the duties of elected Supervisor for which
the Supervisor may not receive any additional compensation beyond that authorized in the
Code. As a working Township employee, the Supervisor may be compensated at the
hourly rate or salary set by the Auditors for performing duties that are employee related.
See, VanWhy, Order 1295; Hardinger, Order 1232; Cours, Order 1150; Yetsconish, Order
1046.
In applying Section 1103(a) to the above, we find that Rietscha used the authority of
his public office as a Township Supervisor by claiming 24 hours as a Roadmaster for
attending meetings related to his position as a Township Supervisor. But for his position
as a Township Supervisor, Rietscha would not have been able to take such actions, which
resulted in a private pecuniary benefit to Rietscha consisting of unauthorized employee
compensation in the amount of $240 for performing functions related to his elected position
as Township Supervisor.
Our decision follows the ruling of Commonwealth Court which noted in R.H. and
T.W. v. State Ethics Commission, 673 A.2d 1004 (Pa. Commw. 1996):
T.W. maintains that he is entitled to hourly wages for
performing these [administrative] duties. He notes that the
recent growth of the Township led to a substantial increase in
demands upon the Township government and that the
Supervisors have assumed responsibility for meeting much of
this burden. With this argument, T.W. implies that, because
the rise in activity forced him to work in excess of the stated
duties of Township Supervisors, he was properly compensated
for such actions with an hourly wage.
Rietscha, 04 -043
Page 12
We sympathize with T.W.; however, there is no
question that the duties at issue were supervisory in nature.
The supervisory salary was statutorily set and encompassed
all of the ensuing administrative functions. Thus, T.W.
violated the 1978 Act when, in addition to his Supervisor's
compensation, he received hourly wages as an employee for
performing administrative duties.
Id. at 1011.
Ordinarily the use of the authority of public office to receive hourly wages as an
employee for performing administrative duties constitutes a conflict of interest prohibited
by Section 1103(a) of the Ethics Act. See e.g., Metrick, Order 1037; Cook, Order 1203.
We emphasize this point so that there is no misunderstanding that this Commission in any
way condones Rietscha's inappropriate conduct.
Nevertheless, based upon recent case law addressing the de minimis exception to
the definition of "conflict" or "conflict of interest," we must conclude that the private
pecuniary benefit received by Respondent Rietscha in this case, specifically $240, was de
minimis. See, Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Commw. 2004).
Because we determine that the private pecuniary benefit Rietscha received was de
minimis, we shall accept the parties' recommendation that Rietscha did not violate Section
1103(a) of the Ethics Act in relation to compensation received as a Roadmaster for the
performance of duties related to his position as an elected Supervisor, as the private
pecuniary benefit was de minimis.
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, Rietscha is directed to
provide this Commission with written confirmation from the investment entity charged with
managing the Township's pension plan that Rietscha has been removed from the plan for
calendar year 2003. Such written confirmation shall be provided to this Commission within
thirty (30) days after the date of 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. Vincent Rietscha ( "Rietscha "), as a Supervisor for Barr Township ( "Township "), was
at all times relevant to these proceedings, a public official subject to the provisions
of Act 9 of 1989 as codified by Act 93 of 1998.
2. Rietscha unintentionally violated Section 1103(a) of the Ethics Act when he
participated in actions to authorize payments on his behalf to the Township's non -
uniformed pension plan when he was not eligible to be included in such plan.
3. Rietscha did not violate Section 1103(a) of the Ethics Act when he received
compensation as a Roadmaster for the performance of duties related to his position
as an elected Supervisor, as the gain received therefrom was de minimis.
In Re: Vincent Rietscha, Jr.
ORDER NO. 1366
File Docket: 04 -043
Date Decided: 6/6/05
Date Mailed: 6/17/05
1 Vincent Rietscha ( "Rietscha "), as a Supervisor for Barr Township ( "Township "),
unintentionally violated Section 1103(a) of the Ethics Act when he participated in
actions to authorize payments on his behalf to the Township's non - uniformed
pension plan when he was not eligible to be included in such plan.
2. Rietscha did not violate Section 1103(a) of the Ethics Act when he received
compensation as a Roadmaster for the performance of duties related to his position
as an elected Supervisor, as the gain received therefrom was de minimis.
3. Per the Consent Agreement of the parties, Rietscha is directed to provide this
Commission with written confirmation from the investment entity charged with
managing the Township's pension plan that Rietscha has been removed from the
plan for calendar year 2003. Such written confirmation shall be provided to this
Commission within thirty (30) days after the date of mailing 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