HomeMy WebLinkAbout1404 WarnerIn Re: Eula L. Warner,
Respondent
File Docket: 05 -041
X -ref: Order No. 1404
Date Decided: 6/23/06
Date Mailed: 6/30/06
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 allegations. 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. The record is complete.
Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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.
Warner, 05 -041
Page 2
I. ALLEGATION:
That Eula Warner, a (public official /public employee) in her capacity as a Supervisor
for Hanover Township, Beaver County violated Section 1103(a) of the State Ethics Act (Act
93 of 1998) when she used the authority of her office for private pecuniary gain, including
but not limited to participating in actions of the Board of Supervisors resulting in the
termination of the Township Planning Commission Coordinator and when she
subsequently was appointed to that position collecting compensation not approved by the
Township Board of Auditors; and when she participated in the process to approve
payments issued to her.
II. FINDINGS:
1. The Investigative Division of the State Ethics Commission received a signed, sworn
complaint alleging that Eula Warner violated provisions of the State Ethics Act (Act
93 of 1998).
2. Upon review of the complaint the Investigative Division initiated a preliminary
inquiry on September 29, 2005.
3. The preliminary inquiry was completed within sixty days.
4. On November 23, 2005, a letter was forwarded to Eula Warner, by the Investigative
Division of the State Ethics Commission informing her that a complaint against her
was received by the Investigative Division and that a full investigation was being
commenced.
a. Said letter was forwarded by certified mail, no. 7004 0750 0002 8074 7346.
b. The domestic return receipt bore the signature of Richard Warner, with a
delivery date of November 25, 2005.
5. Periodic notice letters were forwarded to Eula Warner in accordance with the
provisions of the Ethics Law advising him [sic] of the general status of the
investigation.
6. The Investigative Complaint was mailed to the Respondent on May 4, 2006.
7 Eula L. Warner served as a Supervisor for Hanover Township of Beaver County
from January 2000 through December 2005.
a. Warner served as Chairperson in 2003 and 2004.
b. Warner served as the township secretary /treasurer from January 1996
through December 1999, prior to her election to the board of supervisors.
8. Warner served in an employment capacity for the township while serving as a
supervisor as follows:
a. January 2000 — November 2000: Secretary and Treasurer
b. November 2000 — December 2001: Treasurer
c. December 2001 — October 2002: Assistant Treasurer
d. November 2002 — December 2002: Assistant Treasurer
Warner, 05 -041
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9. Warner served on the township Planning Commission from January 5, 2004
through December 2005.
10. Supervisors serving on the Board since January 2004 include Warner, Joseph
George and Gregory DeLuca.
a. Township minutes have been recorded by a court reporter since at least
2003.
b. Secretary /Treasurer Jill Robinson is responsible for processing bills and
issuing checks.
1. Checks are signed after the bills are approved for payment by the
supervisors.
2. Recurring utility bills are paid as they come due to avoid interest fees.
11. Township checks require two signatures, including that of the Secretary /Treasurer
and one of the supervisors.
a. Supervisor DeLuca did not sign township checks in 2005.
12. An exception to the bill paying /check signing process included compensation
checks issued to the supervisors.
a. Supervisors were compensated for: meeting pay; mileage reimbursement;
expense reimbursement; etc.
b. The Secretary /Treasurer issued checks to the supervisors for the above
noted types of compensation immediately upon the request of the
supervisor.
c. The payments were to be noted on the bill list for the following months [sic]
meeting, to be approved retroactively.
13. The elected auditors for Hanover Township of Beaver County are responsible for
setting compensation for supervisors in employment positions with the township.
a. The annual audit of township accounts is performed by an outside firm.
14. At the Auditors 2004 and 2005 Reorganization meetings, no wage was set for
supervisors because none of the supervisors served in employment positions with
the township.
a. The auditors were informed by the board of supervisors that there would be
no working supervisors during those years.
15. The Hanover Township of Beaver County Planning Commission was created
through the passage of Ordinance No. 11, dated July 31, 1968.
a. The Board of Supervisors appoint five members to serve on the Planning
Commission.
b. At least three of the members are required to be citizens.
c. Planning Commission members are not compensated.
Warner, 05 -041
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16. The duties of the Planning Commission, outlined in Section III of Ordinance No. 11,
are as follows:
a. The planning agency shall have the power and shall be required to:
1. Prepare the comprehensive plan for the development of the
municipality as set forth in the act, and present it for the consideration
of the governing body;
2. Maintain and keep on file records of its actions. All records and files
of the planning agency shall be in the possession of the governing
body.
b. The planning agency shall:
1 Prepare and present for consideration to the governing body of the
municipality, and, after adoption, maintain for the governing body an
official map, and make recommendations to the governing body on
proposed changes in such map as set forth in the act;
2. Prepare and present to the governing body of the municipality a
zoning ordinance, and made [sic] recommendations to the governing
body on proposed amendments to it as set forth in the act;
3. Prepare and administer subdivision and land development regulations
as set forth in the act;
4. Prepare and administer planned residential development regulations
as set forth in the act;
5. Prepare and present to the governing body of the municipality a
building code and make recommendations to the governing body on
proposed amendments thereto;
6. Prepare and present to the governing body of the municipality a
housing code and make recommendations to the governing body on
proposed amendments thereto;
7 Submit to the appointing authority of the municipality a recommended
capital improvements program;
8. Promote public interest in, and understanding of, the comprehensive
plan and planning;
9. Make recommendations to governmental, civic and private agencies
and individuals as to the effectiveness of the proposals of such
agencies and individuals;
10. Hold public hearings and meetings;
11. Require from other departments and agencies of the municipality
such available information as relates to the work of the planning
agency;
12. In the performance of its functions, enter upon any land to make
examinations and surveys either after permission has been obtained
from the owner or after public notices;
Warner, 05 -041
Page 5
13. Do such other act [sic] or make such studies as may be necessary to
fulfill the duties and obligations imposed by this act.
17. Township Ordinance No. 11 empowers the Board of Supervisors to employ
person(s) in administrative or technical capacities to aid the Planning Commission,
either as consultants on particular matters or as regular employees of the
Township.
18. The Township of Hanover Subdivision and Land Development Ordinance, #29,
adopted in 1994, establishes the basis for charging a fee for subdivision
applications under Section 12.1, Review Fees, which provides:
At the time of submission of subdivision or land development plans
for review and approval, the applicant shall pay to the township such
fees as are established by Resolution of the board of supervisors.
The fees and charges may vary in accordance with the scope and
complexity of the subdivision or land development plan submitted for
review, such as the number of parcels or lots in the plan, the
complexity of the utility drawings, the number of required construction
drawings, and the area proposed for development."
19. Review and recommendation for subdivision approval is delegated to the Planning
Commission through Township Ordinance #29, as follows:
The authority to receive, review and recommend subdivision and
land development approval pursuant to this Ordinance and to
otherwise administer the provisions herein shall be assigned to the
Hanover Township Planning Commission by the board of supervisors.
All applications for subdivision and land development located within
the township shall be forwarded upon receipt by the municipality to
the township planning commission for review and recommendation to
the township supervisors."
20. A Subdivision Application Fee of $300.00 per lot is fixed per Resolution #577.
a. The application fee is in addition to actual costs incurred by the township
(i.e.: filing fees; copying costs; etc.).
21. Between June 2003 and June 2005, the township employed John Hudack as a
Planning Commission Coordinator.
a. Hudack was appointed by the Board of Supervisors.
1. Hudack had previously served on the Planning Commission and
performed duties as the Planning Commission Secretary.
b. No formal job description exists for the position held by Hudack.
c. Hudack was paid $84.00 per month plus mileage.
22. Hudack coordinated the necessary documents from submission of applications and
required documentation to the township, to the filing of the plans with the County,
including:
a. Review of subdivision and land development applications for completeness;
Warner, 05 -041
Page 6
b. Oversight of the submission of the application to outside agencies for
approval;
c. Attend Planning Commission meetings during which the plans were
reviewed;
d. Preparation of a report on the Planning Commissions recommendations
regarding the applications, and providing the report to the Board of
Supervisors;
e. Attend the regular monthly meetings of the Board of Supervisors to read the
Planning Commission report, and be available to answer questions or
concerns expressed by the Board;
23. By way of letters dated June 14 and June 27, 2005, Hudack was notified that he
was being fired as the Planning Commission Coordinator.
24. The decision to fire John Hudack was made by Board Chairman Joseph George.
a. George directed the Secretary /Treasurer to telephonically contact Warner to
determine whether Warner agreed with the decision.
1. When telephonically contacted by Jill Robinson, Warner agreed with
George.
2. No attempt was made to contact Supervisor DeLuca.
25. The June 14, 2005 letter to Hudack, sent at the direction of the Board Chairman,
Joseph George, was signed by Jill Robinson, Township Secretary /Treasurer.
a. Hudack was informed that he was being terminated for being disrespectful to
the Board of Supervisors at the June 14, 2005 Board meeting.
b. Hudack refused to acknowledge the letter.
26. The June 27, 2005 letter, signed by board Chairman Joseph George, stated that
Hudack's termination was effective June 24, 2005.
a. Hudack was directed to return all township property in his possession by
7/1/05.
27. Formal action to terminate Hudack's employment with the township was taken at the
July 12, 2005 Board meeting.
a. Warner cast the deciding vote to approve the firing of John Hudack, which
passed by a 2/1 vote with Warner and Joseph George in favor, and Gregory
DeLuca opposed.
b. The vote was taken on the advice of the solicitor.
1. The solicitor was not made aware of the firing until after the meeting
had started.
28. No action was taken to fill the vacant position of Planning Coordinator, or to hire
anyone to take over the responsibilities.
Warner, 05 -041
Page 7
a. The position was not advertised, and applications or letters of interest were
not solicited.
29. Warner began performing the duties of Planning Coordinator in or around June 14,
2005.
a. Warner was a member of the Planning Commission at the time.
30. Board of Supervisors Chairman George believed that Warner would only perform
Planning Coordinator duties until a replacement could be appointed.
a. No one, including George, was aware that Warner intended to be
compensated for the duties.
b. George became aware when Warner submitted the first request in July
2005.
31. Warner began submitting requests for payment for performing the duties of the
Planning Coordinator in July 2005.
a. Warner submitted her requests to the Secretary /Treasurer who was
responsible for issuing payments for Planning Commission related duties.
32. Township Secretary /Treasurer Jill Robinson, was told by Warner that she would be
performing the duties of the Planning Coordinator.
a. Robinson confirmed with Supervisor Chairman Joseph George that Warner
would serve as Planning Coordinator.
33. Warner submitted to Robinson a form titled `Hanover Township Planning
Commission Reporting Form Fees Owed ", which listed the names of the subdivision
applications on which she had worked.
a. Warner signed the form attesting that the information contained thereon was
true and correct.
b. Information on the form included: applicants name and amount paid to the
township; amount paid to Warner; the type of application (subdivision,
variance, conditional use); and the approval date.
34. Reporting Forms Warner submitted for Planning fees owed to her, between July
and December 2005, listed the following eight (8) Plans /Subdivisions that she
performed work on:
Plance & Koerbel
Nancy Tellish
Snyder Plan
Harry & Lillian Kane
Thomas & Mary Vance
K. R. Reed
Sipp (Bernice Wooding)
Donna Bird
35. The first Reporting Form Warner submitted was for payment of planning fees in
relation to the Plance and Koerbel plans.
a. Check number 7562 in the amount of $300.00 was issued at Warner's
Warner, 05 -041
Page 8
request, on July 13, 2005 by Secretary /Treasurer Jill Robinson.
b. Warner submitted the request one day after the regular monthly meeting of
July 12, 2005 when Hudack's firing was approved.
1. Warner was performing duties related to the position prior to
Hudack's firing was confirmed.
36. Warner's compensation was one -half of the fee the township charged the applicant.
a. The fee was based on the number of lots included in the subdivision.
b. The fee for a one -lot subdivision is $300.00.
c. The fee for each additional lot is $300.00 per lot.
d. The minimum fee Warner received for each subdivision application was
$150.00.
37. Supervisor Joseph George directed the township secretary that Warner's fee was to
be one half of the total fee the applicant was charged.
a. The compensation was based on what was paid in neighboring Greene
Township.
38. At the August 9, 2005 public meeting of the board of supervisors, residents
questioned the $300.00 fee paid to Warner for the two subdivisions, which was
included on the bill list.
a. Board Chairman Joseph George stated that we decided to do like Greene
Township and split the fees between (the township) and the person that
does the filing. That is what we are doing "; and that the township was
"paying her half of the fee for doing the work."
39. At the same meeting, Auditor James Uranker expressed his belief that Warner
could not receive compensation from the township unless she asked the elected
auditors to set compensation for her in the position of Planning Coordinator.
a. Joseph George disagreed with Uranker and indicated that (it) would be
checked.
b. No additional discussion is noted in the minutes of August 9, 2005 regarding
the auditor's [sic] role in setting compensation for supervisors serving in
employment positions with the township.
c. The solicitor was present at the meeting but was not asked for an advice or
opinion regarding the compensation Warner was receiving as Planning
Coordinator.
40. The compensation Warner received for performing duties of the Planning
Coordinator was not approved by the Hanover Township Board of Auditors.
a. At no time were the Auditors made aware of Warner's employment by the
township
41. On August 9, 2005, immediately following the discussion regarding the
compensation paid to Warner as Planning Coordinator, the Board approved
Check
Date
Check
Number
Amount
Description
Signatur
e
07 -13 -05
7562
$300.0
Plance & Koerbel /Tellish
No
0
08 -19 -05
7618
$150.0
Snyder Plan
No
0
09 -02 -05
7653
$300.0
Harry & Lillian Kane Plan
No
0
10 -06 -05
7734
$600.0
Vance /Sipp /Reed
Yes
0
Subdivisions
12/13/05
7877
$150.0
Donna Bird Plan
No
0
Warner, 05 -041
Page 9
payment of the bills which included compensation paid to Warner as Planning
Coordinator.
a. Warner made the motion and cast the deciding vote to approve the bill list.
b. The vote was 2/1, with Gregory DeLuca voting no.
c, The bill list included the $300.00 payment to Warner for the Plance and
Koerbel plans issued to her on July 13, 2005.
42. At subsequent board meetings, Warner cast the deciding vote to approve payment
of the bills which included fees paid to her for performing the duties of the Planning
Coordinator.
a. The bill list approved for payment at the September 2, 2005 meeting
included $150.00 in fees payable to Warner for the Snyder Plan.
1. Warner cast the deciding vote.
b. The bill list approved for payment at the December 16, 2005 meeting
included $150.00 in fees payable to Warner for the Donna Bird Plan.
1. Warner was one of two supervisors present voting to approve the bill
list.
43. A payment of $300.00 was made to Warner for the Harry and Lillian Kane Plan, and
a $600.00 payment to Warner for the Vance, Reed, and Sipp Subdivisions were not
voted on by the board for approval.
a. Check No. 7653 was issued to Warner in the amount of $300.00 on
September 2, 2005 for the Kane Plan.
b. Check No. 7734 was issued to Warner in the amount of $600.00 on October
6, 2005 for the Sipp /Reed Subdivisions.
44. Five checks were issued from the township general fund to Warner in payment of
work she performed in relation to the duties of the position of Planning Coordinator.
a. Warner personally endorsed all five checks issued to her for subdivision
fees.
45. Warner signed check #7734, in the amount of $600.00, issued to her for the fees for
the Vance, Sipp and Reed subdivisions.
Applicant
Resident
Fee Paid
Fee Paid
to
Warner
Check
Date
D ate
A pproved
Vote
Check
#
Plance & Koerbel
$300.00
$150.00
07/13/05
8/9/05
2/1
7562
Nancy Tallish
$300.00
$150.00
"
Snyder Plan
$300.00
$150.00
08/19/05
*
7618
Harry & Lillian
Kane
$600.00
$300.00
09/02/05
*
7653
Thomas & Mary
Vance
$300.00
$150.00
10/06/05
*
7734
K.R. Reed
$600.00
$300.00
*
"
Sipp (Bernice
Wooding)
$300.00
$150.00
*
"
Donna Bird
$300.00
$150.00
12/13/05
12/16/05
2/0
7877
Warner, 05 -041
Page 10
a. Check #7734 was never formally approved by the Board of Supervisors.
b. The payment was inadvertently left off of the bill list for the meeting following
the October 6, 2005 check date.
46. On more than one occasion, Warner requested payment of the subdivision fees
owed to her immediately after the monthly meeting, or on the following day.
a. Warner waited until after the bill list was approved so that the payment to her
for the subdivision fees would not show up until the following month [sic]
meeting.
47. Warner participated in the vote to approve payment of the bills which included fee's
[sic] paid to her as Planning Coordinator.
*The checks issued on 09/02/05 and 10/06/05, were not included on bill lists
approved by the Board. The checks were left off of the bill list inadvertently as a
result of being issued outside the normal check process.
48. In a Sworn Statement provided to a Commission Investigator on December 20,
2005, Supervisor Joseph George provided the following in regard to Warner's
performance of the duties of Planning Coordinator and the setting of her
compensation:
a. The original creation of the position of Planning Coordinator, to which John
Hudack was appointed, was his idea.
b. The position was meant to be that of a liaison between the Planning
Commission and the Board of Supervisors.
c, It was his decision to terminate Hudack.
d. He considered Warner's affirmative response to terminate Hudack, along
with his own, to be a majority vote of the Board of Supervisors.
1. Warner responded affirmatively when, at his direction the
Secretary /Treasurer telephonically contacted Warner to ask her if she
agreed with Hudack's termination.
2. He did not know if Supervisor DeLuca was contacted and made
aware of the intention to fire Hudack.
Warner, 05 -041
Page 11
e. At the July 12, 2005 Board meeting, when a vote was taken to fire Hudack,
he had no knowledge that Warner was already performing the duties of the
Planning Coordinator position.
f. He assumed she was doing the work because she was a member of
the Planning Commission.
He believed that the Planning Commission Board may have delegated the
responsibilities to Warner.
h. Warner was involved in the decision to set her compensation which was
based on what neighboring Greene Township paid for a similar position.
1. Compensating Warner was probably his idea, not Warner's.
2. He did not consider that the individual in Greene Township that [sic]
performed duties similar to that of Planning Coordinator was not a
Supervisor.
He did not believe that Warner intentionally waited to submit her requests for
payment as planning coordinator until after the regular Board meetings to
avoid questions from the public.
1. He confirmed signing checks payable to Warner outside of the normal
bill paying process.
He admitted that Warner has regularly participated in the votes to approve
payment of the bills; while Supervisor DeLuca is either absent from the
meetings, or votes against payment of the bills.
1. He did not believe that it was a problem for Warner to participate in
approving payments to herself because, in his opinion, the Ethics Law
(Section 3j) allowed her to vote.
g.
J.
49. Warner's use of the authority of her public position resulted in a private pecuniary
gain of $1,500.00.
a. Warner participated in the discharge of the planning coordinator and then
assumed that position.
1. Her appointment was not approved by the board of supervisors.
b. Warner submitted requests for compensation even though compensation
was not approved by the township board of auditors.
c. Warner voted to approve 2 of the 5 checks issued to her and signed one of
those checks.
50. Warner received a financial gain of $1,500.00 when she accepted compensation
that was not approved by the Board of Auditors for performing duties of the
Planning Commission Coordinator.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Eula L. Warner (Warner), has
been a public official subject to the provisions of the Public Official and Employee Ethics
Warner, 05 -041
Page 12
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 Warner, as a Hanover Township Supervisor, violated
Section 1103(a) of the Ethics Act when she participated in actions of the Board of
Supervisors to terminate the Township Planning Commission Coordinator; when she
subsequently obtained that position and collected compensation not approved by the
Township Board of Auditors; and when she participated in the process to approve
payments issued to her.
Pursuant to Section 1103(a) of the Ethics Act quoted above, 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:
facts.
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.
Having noted the issues and applicable law, we shall now summarize the relevant
Warner served as a Hanover Township Supervisor from January 2000 through
December 2005 and Planning Commissioner from January 2004 through December 2005.
Warner also held employment positions with the Township as Secretary /Treasurer,
Treasurer and Assistant Treasurer.
Although the normal process for the three member Hanover Township Board of
Supervisors is to approve payments followed by the issuance of checks that require two
signatures, the Secretary /Treasurer and one Supervisor, an exception is made for
Supervisors' compensation checks. The Secretary /Treasurer issues checks to
Supervisors for compensation immediately upon their request. The payments are noted in
the bills list for the following month's meeting. Although the Board of Auditors is
responsible for setting the compensation for Supervisors in employment positions, the
Warner, 05 -041
Page 13
Board of Auditors did not set any wage for Supervisors in 2004 or 2005 because they were
advised that the Supervisors would not be working as Township employees during that
time.
The Township Planning Commission is comprised of five members who are
appointed by the Board of Supervisors. The Board of Supervisors also employs persons in
administrative or technical capacities to aid the Planning Commission, either as
consultants or regular employees. Pursuant to Township ordinance, the Planning
Commission reviews subdivision or land development plans and has the authority to
recommend a course of action to the Township Supervisors. A detailed listing of the
powers and duties of the Planning Commission is set forth in Fact Finding 16. To file a
subdivision application with the Planning Commission, a fee in the amount of $300 per lot
is charged by the Township in addition to actual costs incurred.
Between June 2003 and June 2005, the Township employed John Hudack as the
Planning Commission Coordinator at a monthly salary of $84 plus mileage. Hudack's
duties and responsibilities included interalia: reviewing subdivision and land development
applications for completeness; overseeing the submission of applications to outside
agencies for approval; attending Planning Commission meetings when plans were
reviewed; preparing the Planning Commission's recommendation reports for the Board of
Supervisors; and attending regular meetings of the Board of Supervisors to read the
Planning Commission reports and respond to questions by the Board members.
By letters dated June 14 and 27, 2005, Hudack received notification that he would
be terminated as the Planning Commission Coordinator. Board Chairman George made
the decision to terminate Hudack and Warner agreed. No attempt was made to contact the
third Supervisor, Gregory DeLuca, on the matter. Formal action to terminate Hudack
occurred at a Township Board Meeting on July 12, 2005 wherein Warner cast the deciding
vote to approve the termination with Supervisor DeLuca voting no.
No effort was made to fill the vacancy for Planning Commission Coordinator.
Warner began performing the duties of the Planning Commission Coordinator in mid June
of 2005. Although Board Chairman George was aware that Warner would perform the
duties pending the appointment of a replacement, he was not aware that Warner intended
to be compensated for such duties until she submitted her first payment request in July of
2005.
Between July and December 2005, Warner submitted to the Township
Secretary /Treasurer eight plans /subdivisions on which she performed work as the
Planning Commission Coordinator. Planning Commission fees were based upon the
number of lots in the subdivision: $300 was charged for a one lot subdivision and $300
more for each additional lot. Board Chairman George directed that Warner's fee would be
a minimum of $150, up to one -half of the total fee that the applicant was charged.
At an August 9, 2005 public meeting of the Board of Supervisors, residents
questioned the fees that Warner obtained regarding two subdivisions. At that meeting, a
Township auditor expressed his belief that Warner could not receive compensation unless
she asked the auditors to set her compensation as Planning Commission Coordinator.
Board Chairman George disagreed with the auditor and indicated that the matter would be
reviewed. The compensation that Warner received for performing the duties of Planning
Commission Coordinator was not approved by the Township Board of Auditors.
At the August 2005 and subsequent meetings, the Board of Supervisors approved
payments of bills that included the compensation to Warner as Planning Commission
Coordinator. Typically, the vote as to Warner's compensation was 2 to 1 with
Supervisor DeLuca voting no.
Warner, 05 -041
Page 14
Five checks were issued from the Township general fund to Warner to compensate
her for work that she performed as Planning Commission Coordinator. See, Fact Finding
44. One of those five checks was never formally approved by the Board of Supervisors.
See, Fact Findings 44, 45. On several occasions, Warner did not request payment as
Planning Commission Coordinator until immediately after the monthly meeting so that the
payment for those fees would not show up until the following meeting. See, Fact Finding
46. Warner participated in the vote to approve the payment of bills that included
compensation to her as Planning Commission Coordinator. See, Fact Finding 47.
Warner used the authority of her office to obtain a financial gain of $1,500 as the
Planning Commission Coordinator, even though her position was not approved by the
Board of Supervisors and the compensation was not set or approved by the Board of
Auditors. Warner submitted requests for compensation as the Planning Commission
Coordinator and voted to approve some of the checks and signed one of those checks in
payment to her as compensation.
The Investigative Division has filed a Position Statement wherein it raises the
following: the averments of the Investigative Complaint are deemed admitted because of
the failure to file an Answer; there were uses of authority of office for private pecuniary
gain by Warner in working as the Planning Commission Coordinator without the approval
by the Board of Supervisors and without the approval of compensation by the Township
Board of Auditors; actions were taken by Warner as a Supervisor in approving payments to
herself and signing one check; there were actions by Warner at Board meetings to
approve the payment of bills, including compensation to her as Planning Commission
Coordinator; $1,500 that was not approved by the Board of Auditors as compensation for
Planning Commission Coordinator was received by Warner; such action by Warner was in
violation of Section 1103(a) of the Ethics Act; there were four separate violations of
Section 1103(a) of the Ethics Act by Warner in working as a Planning Commission
Coordinator without approval of the Board of Supervisors, submitting requests for
compensation that were not approved by the Township Board of Auditors, voting to
approve checks issued to her and issuing a paycheck that was not approved by the Board
of Supervisors; $1,500 was received by her as Planning Commission Coordinator even
though she was not formally appointed to that position; and repayment by Warner of
$1,500 plus interest is sought to the Commonwealth of Pennsylvania through this
Commission within 30 days of the issuance of the Order.
Having summarized the above relevant facts, we must now determine whether the
actions of Warner violated Section 1103(a) of the Ethics Act. In applying Section 1103(a)
of the Ethics Act, there were uses of authority of office on the part of Warner. But for the
fact that Warner was a Supervisor, she could not have assumed the position of working as
Planning Commission Coordinator and she could not have submitted requests for
compensation to the Board of Supervisors for payment, participated in the payment
process and signed one check to herself that was not approved by the Board of
Supervisors. All such actions were uses of authority of office. See, Juliante, Order 809.
Those uses of authority of office resulted in pecuniary benefits to Warner consisting of the
portions of the fees that she received by working as Planning Commission Coordinator.
There was no authorization in law for Warner to receive such fees in that no
compensation was approved by the Township Board of Auditors for her as Planning
Commission Coordinator. In that the financial gain Warner received was compensation
other than provided for by law, the pecuniary benefit she received was private. Lastly, that
private pecuniary benefit inured to Warner herself. Accordingly, Warner violated Section
1103(a) of the Ethics Act in each instance when she used the authority of office to work as
a compensated Planning Commission Coordinator, submitted requests for compensation
as Planning Commission Coordinator when that compensation was not approved by the
Township Board of Auditors; participated in voting to approve checks to herself and signed
one paycheck that was not approved by the Board of Supervisors or auditors; and received
Warner, 05 -041
Page 15
compensation as Planning Commission Coordinator without being formally appointed to
that position. See, Cuppels, Order 1237.
Section 407(13)/1107(13) of the Ethics Act empowers this Commission to impose
restitution in instances where a public official /public employee has obtained a financial
gain in violation of the Ethics Act. Restitution is warranted in this case. Accordingly,
Warner is directed within 30 days of the date of mailing of this Order to make payment to
the Commonwealth of Pennsylvania through this Commission in the amount of $1,500.
Non - compliance will result in the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. Eula L. Warner, as Supervisor for Hanover Township, Beaver County, for the
relevant time period was a public official subject to the provisions of Act 9 of 1989
as codified by Act 93 of 1998.
2. Warner violated Section 1103(a) of the Ethics Act in each instance when she used
the authority of office to work as a compensated Planning Commission Coordinator,
submitted requests for compensation as Planning Commission Coordinator when
that compensation was not approved by the Township Board of Auditors;
participated in voting to approve checks to herself and signed one paycheck that
was not approved by the Board of Supervisors or auditors; and received
compensation as Planning Commission Coordinator without being formally
appointed to that position.
In Re: Eula L. Warner,
Respondent
ORDER NO. 1404
File Docket: 05 -041
Date Decided: 6/23/06
Date Mailed: 6/30/06
1 Eula L. Warner, as Supervisor for Hanover Township, Beaver County, violated
Section 1103(a) of the Ethics Act in each instance when she used the authority of
office to work as a compensated Planning Commission Coordinator, submitted
requests for compensation as Planning Commission Coordinator when that
compensation was not approved by the Township Board of Auditors; participated in
voting to approve checks to herself and signed one paycheck that was not
approved by the Board of Supervisors or auditors; and received compensation as
Planning Commission Coordinator without being formally appointed to that position.
2. Warner is directed within 30 days of the date of mailing of this Order to make
payment to the Commonwealth of Pennsylvania through this Commission in the
amount of $1,500. Non - compliance will result in the institution of an order
enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair