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DAVID SUMMERS v. COMMONWEALTH PENNSYLVANIA (09/13/89)

decided: September 13, 1989.

DAVID SUMMERS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE ETHICS COMMISSION, RESPONDENT. ERNEST REPPERT, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, STATE ETHICS COMMISSION, RESPONDENT. VINCENT WINN, PETITIONER, V. COMMONWEALTH OF PENNSYLVANIA, STATE ETHICS COMMISSION, RESPONDENT



PETITION FOR REVIEW, (STATE ETHICS COMMISSION).

COUNSEL

Joseph R. Rygiel, Uniontown, for petitioners.

Vincent J. Dopko, and John Contino, Gen. Counsel, Harrisburg, for respondent.

Crumlish, Jr., President Judge, Colins, J., and Barbieri, Senior Judge.

Author: Crumlish

[ 128 Pa. Commw. Page 521]

OPINION

David Summers, Ernest Reppert and Vincent Winn (supervisors) file consolidated appeals from a State Ethics Commission (Commission) decision ordering restitution. Section 3(a) of the Act of October 4, 1978 (Act).*fn1 We reverse.

[ 128 Pa. Commw. Page 522]

As members of the Township Board of Supervisors, the supervisors, pursuant to their authority under The Second Class Township Code (Code),*fn2 appointed themselves to individual positions as township roadmaster, secretary/treasurer and road superintendent, thereby assuming township employee status. Under Section 702 of the Code, as Page 522} amended, 53 P.S. § 65713, the supervisors are also authorized to provide township funds to purchase health and life insurance for township employees. At the time of the supervisors' alleged violations, Section 515 of the Code required that, as employees, "[t]he compensation of supervisors, when acting as superintendents, roadmasters or laborers, shall be fixed by the township auditors . . . ." 53 P.S. § 65515. During the ensuing three years, the supervisors participated in the same life and health insurance coverage they purchased for the township employees. Because there was no affirmative auditor approval, the Commission considered this "financial gain other than compensation provided by law," found that the supervisors had thus violated Section 3 of the Act, and ordered full restitution.

Pursuant to a 1988 amendment to Section 515, Act of March 30, 1988, P.L. 312, No. 41, the Code now provides that participation by supervisor-employees in township-paid life and health insurance plans does not require auditor approval. 53 P.S. § 65515(c)(1). This amendment also granted amnesty, but, as expressly provided in the amended statute, to non supervisor-employees only for any insurance benefits they received during the period from January 1, 1959, to March 31, 1985. Thus, these supervisors in the case at bar fall within the three-year period from 1985 through 1988 in which, the Commission contends, auditor approval was required before supervisors could receive compensation in the form of township-paid health and life insurance coverage.

Petitioners do not dispute they were the recipients of township-paid health and life insurance coverage. Rather, they contend that the premiums which the township paid for their insurance coverage are not the type of compensation requiring auditor approval. Auditors of South Union Township Appeal, 47 Pa. Commonwealth Ct. 1, 407 A.2d 906 (1979). We agree.

In South Union, this Court upheld the denial of surcharges assessed against supervisors who had authorized the payment of their own hospital insurance premiums. There, the benefits received were not confined to the ...


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