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HomeMy WebLinkAbout01447 DALEYIn Re: Joseph Daley, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella Reverend Scott Pilarz 06 -069 Order No. 1447 10/23/07 11/7/07 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 ( "Ethics Act "), 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. A Stipulation of Findings and a Consent Agreement were subsequently submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act 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 the Ethics Act. Any person who violates such confidentiality commits a misdemeanor and, upon conviction, may be 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. Daley, 06 -069 Page 2 I. ALLEGATIONS: That Joseph Daley, a public official /public employee in his capacity as a Member and President of Council of Archbald Borough, Lackawanna County, violated Sections 1103(a), 1104(a) and 1105(b)(5) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), 1104(a) and 1105(b)(5) when he used the authority of his office for a private pecuniary gain by, including but not limited to, participating in actions and deliberations of council to authorize his inclusion in a borough paid pension plan, funded in part, with borough funds; when he failed to file a Statement of Financial Interests for the 2003 calendar year by May 1, 2004; and when he failed to disclose all sources of income in excess of $1,300 on Statements of Financial Interests filed for the 2004 and 2005 calendar years. II. FINDINGS: 1. Joseph Daley has served as a member of the Archbald Borough Council since January 5, 1988, and continues to serve into the present. a. Prior to serving as a council member, Daley additionally served as Mayor for the Borough of Archbald for twelve (12) years. b. In both positions, Daley attended and participated in council meetings and the overall operations of the borough, throughout his tenure. 2. The Borough Code establishes the maximum amount of compensation that a council member can receive, based on the population of the borough. The pertinent section reads: a. "Councilmen may receive compensation to be fixed by ordinance at any time and from time to time as follows: In boroughs with a population of less than five thousand, a maximum of eighteen hundred seventy -five dollars ($1875) a year; in boroughs with a population of five thousand or more but less than ten thousand, a maximum of two thousand five hundred dollars ($2500) a year." 53 P.S. §46001 (2006). 3. Archbald Borough operates by a seven member - strong council, weak mayor - form of government. a. According to the U.S. Census Bureau's 2000 Census, Archbald Borough has a total population of 6,220. b. Council members are compensated at an annual rate of $2,500.00 a year, as per the Borough Code, based upon the population of the borough. 4. The Borough Code (53 P.S. § 46202 (37)) outlines the specific powers of the borough [and] provides for the establishment of a pension plan for only employees of a borough. a. "OTHER INSURANCE...to contract with any such company, granting annuities or pensions, for the pensioning of borough employes, or any class, or classes thereof, and to agree to pay part [or] all of the premiums or charges for carrying such contracts, and to appropriate moneys from the borough treasury for such purposes." 5. Per the Borough Code, council members and other elected officials of a borough with a population that exceeds 3,000 cannot serve as an employee of that borough. Daley, 06 -069 Page 3 a. The Borough Code (53 P.S. § 46104) reads as follows: No elected borough official of a borough with a population of 3,000 or more may serve as an employe of [that] borough." b. As outlined in finding 9, the Borough of Archbald's population is 6,220; as such Council members and /or other elected officials are prohibited from serving as employees of the Borough. 6. Prior to December 1991, the Borough of Archbald offered a pension plan exclusively for uniformed employees of the borough. a. Participants in the Uniformed Pension Plan included only members of the Borough's Police Department. b. The borough's uniformed pension plan was administered by ASCO Financial, Inc. 7 On December 27, 1991, the Archbald Borough Council voted, during a regular meeting, to adopt an ordinance providing for the establishment and regulation of a pension plan for non - uniformed employees of the borough. a. The purpose of establishing the plan, was to provide non - uniformed employees of the Borough the opportunity to participate and receive a Borough pension. b. All present members of council, including Daley, voted in favor of adopting the ordinance. 8. Archbald Borough ordinance number 16 -1991 of 1991, establishing the pension plan for Non - Uniformed Employees, was adopted by the Borough and signed into law on December 27, 1991. a. The ordinance was signed by President of Council, Joseph Daley; attested to by Secretary Leonard E. Hosie; and approved by Mayor James McLaughlin. b. Archbald Borough ordinance, number 16 -1991, reads as follows: "A pension plan is hereby established for the non - uniformed employees of the Borough of Archbald pursuant to and in compliance with the act of December 18, 1984, P.L. 1005, No. 205, as amended; said plan shall be under the direction of the borough council of the Borough of Archbald and shall be applied and set forth under such regulations as council may prescribe, said regulations being incorporated herein by reference. The effective date of the pension plan established hereby shall be January 1, 1992." c. Ordinance No. 16 -1991 is void of language regarding the inclusion of the council members in the pension plan. 9. On January 1, 1992, the Archbald Borough Non - Uniformed Pension Plan Agreement was entered into by the borough with plan trustees, Joseph Daley, Harold McGee and William Roe. a. The Archbald Borough Non - Uniformed Pension Plan is a single - employer Budget Year Meeting Date Action 2001 6- Dec -00 Seconded Motion 2002 5- Dec -01 Seconded Motion 2003 4- Dec -02 Voted in Favor 2004 3- Dec -03 Voted in Favor 2005 1- Dec -04 Made Motion 2006 7- Dec -05 Voted in Favor Daley, 06 -069 Page 4 defined contribution pension plan. b. Eligible employees in the plan contribute at least 4% of their gross annual compensation, which is matched by a Borough contribution of 4 %. c. "Eligible employees" are defined in the plan as follows: Any person who is employed by the Employer or Affiliated Employer, but excludes any person who is an independent contractor. Employee shall include Leased Employees within the meaning of Code Sections 414(n) (2) and 414(0) (2) unless such Leased Employees are covered by a plan described in Code Section 414(n) (5) and such Leased Employees do not constitute more than 20% of the recipient's non - highly compensated work force." d. Employees of the borough were eligible to participate in the plan after six months of service with the borough. e. After a Borough employee completed six months of service, the Borough notified those individuals of their eligibility to participate in the pension plan in writing. f. The pension plan established a vesting schedule where participants would become fully vested after 5 years of service. 10. The Borough of Archbald automatically withdrew a participant's set contribution from [the] Borough- issued compensation or payroll checks. 11. In conjunction with the participant's contributions, the borough began to make contributions on a yearly basis to the plan in the form of a Minimum Municipal Obligation (MMO). a. The MMO is determined by the plan's actuary, who provides the information to the Borough. b. The MMO is approved by council on a yearly basis as part of the annual budget. 12. Meeting minutes confirm that Daley voted in favor of paying the MMO, as part of the annual budget, on a yearly basis from 2001 through 2006. a. 13. During the meeting of September 19, 2001, the borough counci , including Daley, voted to approve a resolution amending the borough's non - uniformed pension plan. a. The resolution increased the employee and employer contribution for full - time employees from 4% to 5 %. Year Daley contribution Borough contribution 2001 $100.00 $100.00 2002 $100.00 $100.00 2003 $100.10 $100.10 2004 $103.95 $103.95 2005 $100.10 $100.10 2006 $100.00 $100.09 Total $604.15 $604.24 Daley, 06 -069 Page 5 b. The employee and employer contribution for non -full time employees remained at 4 %. c. The resolution contained wording which specifically included council members and officers as employees of the borough. 1. "Whereas, the other non - uniform employees of the borough (council members, officers, etc.) who are not full -time employees, shall contribute 4% of their wages toward the retirement plan effective January 1, 1999, employer will match the 4 %." 14. Newly elected /appointed council members and newly hired employees were notified of the non - uniformed pension plan upon entering office or employment. a. Eligible participant[s] were provided with an application upon being employed or elected to the borough. 15. On November 21, 2001, during a meeting of the Archbald Borough Council, Daley made a motion to adopt a resolution amending the vesting schedule of the non- uniform pension plan. a. The resolution amended the pension plan to provide for 100% vesting upon entry into the plan, for all future and current plan participants. b. This motion was approved with a unanimous vote. c. This resolution was made so that council members and other elected officials, who participated in the plan, could be fully vested even if they only served one term. 16. Joseph Daley has participated in the non - uniform pension plan continuously since its inception since the ordinance was amended on November 21, 2001, to include elected officials. a. Yearly contributions into the plan were made by Daley, and the Borough, at 4% of Daley's gross compensation as a Borough Council Member. b. From 1992 through 2006, Daley contributed a total of $1,357.11 of his Borough Council Member compensation into the Borough's non - uniform pension plan. 17. From January 1, 2001, through December 31, 2006, Daley has contributed $604.15 of his annual gross compensation for service as a Borough Council Member into the borough pension plan, to which the Borough contributed $604.24. a. Daley's and the Borough's contributions into the plan are as follows: Daley, 06 -069 Page 6 18. Borough Code (53 P. S. §46001) directs that the compensation of a Borough Council Member may be set by ordinance and shall not exceed $2,500.00 per year in boroughs [with] population[s] between 5,000 and less than 10,000. (See finding #9). a. Archbald Borough's population as of 2000 was 6,220. 19. Per the Borough Code (53 P.S. §46104) council members and other elected officials of a borough with a population that exceeds 3,000 cannot serve as [employees] of that borough. a. Archbald Borough's population as of 2000 was 6,220. 20. Borough Code (53 P.S. §46202 (37)) directs that a borough may provide a pension plan only for employees of the borough. a. The position of Council Member is not a borough employee. b. Daley, as a Council Member, could not be included in any pension plan. 21. At the time Daley voted on pension related ordinances, in his capacity as Borough Council Member, he was also a member of the pension plan. 22. As a result of Daley's participation in the pension plan he received a pecuniary benefit when he became a vested member in [the] pension plan, allowing him access to a cash payout of his borough pension. a. Daley's pension fund is the result of accumulated interests on funds contributed by himself and the Borough into the pension plan. b. Daley's pension fund is also comprised of funds contributed directly by himself and the Borough into the pension plan. 23. At no time during his participation in the Borough Pension Plan was Daley an employee of the Borough. (See 53 P.S. §46104). 24. Per the Borough Code (53 Pa. C.S. §46025)* Daley was ineligible to receive any compensation, in excess of $2,500.00 per year, outside of that set by borough ordinance. a. Contributions by the Borough into a pension plan would be considered compensation in excess of that allowed by the Borough Code. * [sic] [The cited Section refers to the salary cap for a Borough Mayor. The parties presumably intended to cite 53 Pa.C.S. § 46001, which would set the same maximum amount of $2,500 for Daley's compensation as a Council Member.] 25. As of December 31, 2006, Daley's Borough Pension contained $4,207.65, of which $1,357.11 was directly contributed by Daley. 26. Daley realized a private pecuniary gain of $2,850.54 ($4,207.65 - $1,357.11) as a result of Borough contributions into the pension plan. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS CONCERNING DALEY FAILING TO FILE STATEMENTS OF FINANCIAL INTERESTS AND FILING DEFICIENT STATEMENTS OF FINANCIAL INTERESTS. Daley, 06 -069 Page 7 27. As a council member for the Borough of Archbald, Daley was required annually to file a Statement of Financial Interest form by the May 1 deadline, containing information for the prior calendar year. 28. Statement of Financial Interests forms on file with the Borough of Archbald [include] the following filings by Daley: a. Calendar year: 2002 Filed: March 1, 2003, on SEC form 01/03 Position: Councilman Creditors: None Direct or Indirect Sources of Income: Archibald [sic] Borough All Other Financial Interests: None b. Calendar year: 2003- No Form Filed c. Calendar year: 2004 Filed: December 15, 2003, on SEC form 01/04 Position: Council Member Creditors: None Direct or Indirect Sources of Income: None All Other Financial Interests: None d. Calendar year: 2004 Filed: April 14, 2004, on SEC form 01/00 Position: Councilman Creditors: None Direct or Indirect Sources of Income: None All Other Financial Interests: None e. Calendar year: 2005 Filed: February 1, 2006, on SEC form: unknown Position: Councilman Creditors: None Direct or Indirect Sources of Income: None All Other Financial Interests: None 29. Daley failed to file a Statement of Financial Interests with the Borough of Archbald for calendar year 2003 by May 1, 2004. 30. On January 4, 2007, Daley filed a Statement of Financial Interests form with the State Ethics Commission for calendar year 2003, which contained the following information: a. Calendar year: 2003 Filed: January 4, 2007, on SEC form 01/07 Position: Council member Creditors: None Direct /Indirect Sources of Income: Archbald Borough Prudential Ins. Co. All Other Financial Interests: Moses Taylor /Mid - Valley Hospital Board 31. Daley did not disclose income received from his position with the Borough of Archbald on SFIs filed for the 2004 and 2005 calendar years. 32. Daley received income in excess of $1,300 from the borough annually from 2002 through 2005. Daley, 06 -069 Page 8 33. On January 4, 2007, Daley filed amended Statements of Financial Interests forms with the State Ethics Commission which disclosed the Borough of Archbald as a direct source of income. 34. Amended Statements of Financial Interests forms filed with the State Ethics Commission include the following information: a. Calendar year: 2004 Filed: January 4, 2007, on SEC form 01/07 Position: Council member Creditors: None Direct /Indirect Sources of Income: Archbald Borough Prudential Ins. Co All Other Financial Interests: None b. Calendar year: 2005 Filed: January 4, 2007, on SEC form 01/07 Position: Council member Creditors: None Direct /Indirect Sources of Income: Archbald Borough Prudential Ins. Co All Other Financial Interests: None III. DISCUSSION: Respondent Joseph Daley (hereinafter also referred to as "Respondent" or "Daley "), as a Council member for Archbald Borough (also referred to herein as "Archbald" or "Borough ") from January 5, 1988, to the present, has at all times relevant to these proceedings been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The allegations are that Daley violated Sections 1103(a), 1104(a) and 1105(b)(5) of the Ethics Act when he used the authority of his office for a private pecuniary gain when he participated in actions and deliberations of the Archbald Borough Council to authorize his inclusion in a Borough pension plan funded in part with Borough funds; when he failed to file a Statement of Financial Interests for the 2003 calendar year by May 1, 2004; and when he failed to disclose all sources of income in excess of $1,300 on Statements of Financial Interests filed for the 2004 and 2005 calendar years. 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: § 1103. Restricted Activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or Daley, 06 -069 Page 9 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. The term 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 /public 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. Section 1104(a) of the Ethics Act provides that each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the Statement of Financial Interests the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. 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. Joseph Daley has served as a member of the Archbald Borough Council from January 5, 1988 to the present. Prior to serving as a Council member, Daley served as Archbald Borough Mayor for twelve years. Archbald Borough Council has seven members and operates by a "strong council, weak mayor" form of government. As of the year 2000, Archbald Borough had a total population of 6,220. Pursuant to the Borough Code, compensation for borough council members is fixed by ordinance. For boroughs with populations of five thousand or more but less than ten thousand, the Borough Code sets maximum compensation for borough council members at $2,500 per year. 53 P.S. § 46001. Archbald Borough Council members receive compensation in the maximum amount of $2,500 per year. Pursuant to the Borough Code, elected officials of a borough with a population of 3,000 or more cannot serve as borough employees. 53 P.S. § 46104. As an Archbald Borough Council member, Daley could not be a Borough employee. The Borough Code authorizes boroughs to establish pension plans for borough employees. 53 P.S. § 46202 (37). Prior to December 1991, Archbald Borough offered a pension plan, administered by ASCO Financial, Inc., which was only available to uniformed Borough employees. The only participants in this pension plan were members of the Borough Police Department. At its December 27, 1991, regular meeting, the Archbald Borough Council, including Daley, voted to adopt an ordinance providing for the establishment and regulation of a pension plan for non - uniformed Borough employees. This ordinance was signed into law Daley, 06 -069 Page 10 by Respondent Daley as President of Archbald Borough Council. This ordinance, which does not specifically address the eligibility of Borough Council members to participate in the pension plan, provides as follows: A pension plan is hereby established for the non - uniformed employees of the Borough of Archbald pursuant to and in compliance with the act of December 18, 1984, P.L. 1005, No. 205, as amended; said plan shall be under the direction of the borough council of the Borough of Archbald and shall be applied and set forth under such regulations as council may prescribe, said regulations being incorporated herein by reference. The effective date of the pension plan established hereby shall be January 1, 1992. Archbald Borough Ordinance No. 16 -1991 of 1991. On January 1, 1992, Archbald Borough entered into the "Archbald Borough Non - Uniformed Pension Plan Agreement," establishing the Archbald Borough Non - Uniformed Pension Plan ( "the Plan "). The Plan is a single - employer defined contribution pension plan, where participants in the Plan contribute at least 4% of their gross annual compensation which is matched by a Borough contribution of 4 %. Respondent Daley served as one of the Plan trustees. The Plan was available to eligible employees who had worked for the Borough for six months. The Plan defined "eligible employees" as follows: Any person who is employed by the Employer or Affiliated Employer, but excludes any person who is an independent contractor. Employee shall include Leased Employees within the meaning of Code Sections 414(n) (2) and 414(0) (2) unless such Leased Employees are covered by a plan described in Code Section 414(n) (5) and such Leased Employees do not constitute more than 20% of the recipient's non - highly compensated work force. After six months of Borough employment, eligible employees were notified in writing of their eligibility to participate in the Plan. For an eligible employee who chose to participate ( "participant "), the Borough automatically withdrew a set contribution from the participant's Borough- issued compensation or payroll checks. Participants in the Plan became fully vested after 5 years of Borough service. The Borough made yearly contributions to the Plan in the form of a Minimum Municipal Obligation ( "MMO "). The MMO was determined by the Plan's Actuary, who provided the information to the Borough. The Borough Council approved the MMO on a yearly basis as part of the annual Borough budget. Daley voted in favor of paying the MMO as part of the annual budget on a yearly basis from 2001 through 2006. At its September 19, 2001, meeting, the Borough Council, including Daley, voted to approve a resolution amending the Plan to specifically include Borough Council members and Borough Officers as "employees" of the Borough for purposes of eligibility in the Plan: Whereas, the other non - uniform employees of the borough (council members, officers, etc.) who are not full -time employees, shall contribute 4% of their wages toward the retirement plan effective January 1, 1999, employer will match the 4 %. This resolution also increased the employee and employer contribution for full time employees in the Plan from 4% to 5% but did not change the employee and employer contribution for non -full time employees. Daley, 06 -069 Page 11 Newly elected or appointed Council members and newly hired employees were notified of the availability of the Plan and provided with an application upon entering office or beginning employment. At the November 21, 2001, Borough Council meeting, Daley moved to adopt a resolution amending the vesting provisions of the Plan to provide for 100% vesting upon entry into the Plan for all current and future Plan participants. This motion was approved by unanimous vote of the Borough Council. The purpose of this resolution was to ensure that Council members and other elected Borough Officials could be fully vested after serving just one term of office. Daley participated in the Plan since its inception. Daley made yearly contributions to the Plan at the rate of 4% of his gross compensation as a Borough Council member. From 1992 through 2006, Daley contributed a total of $1,357.11 to the Plan. From January 1, 2001, through December 31, 2006, Daley contributed $604.15 of his gross annual compensation as Borough Council member to the Plan, and the Borough contributed $604.24 to the Plan on his behalf. As of December 31, 2006, Daley had accumulated $4,207.65 in the Plan through his own contributions of $1,357.11, Borough contributions, and accrued interest. The parties have stipulated that Daley realized a total private pecuniary gain of $2,850.54, calculated as $4,207.65 less $1,357.11. As a Borough Council member, Daley was required to annually file a Statement of Financial Interests ( "SFI ") by May 1, disclosing information for the prior year. For calendar years 2002 through 2005, Daley received income from the Borough in excess of $1,300 annually, such that Daley was required to disclose the Borough as a source of income on SFIs filed for those calendar years. Daley timely filed an SFI for calendar year 2002, listing the Borough as a source of income. Daley failed to file an SFI for calendar year 2003. Daley filed two SFIs for calendar year 2004 prior to the May 1, 2005, filing deadline. Both SFIs for calendar year 2004 failed to list the Borough as a source of income. Daley filed an SFI for calendar year 2005 on February 1, 2006, which SFI failed to list the Borough as a source of income. On January 4, 2007, Daley filed with this Commission an SFI for calendar year 2003 and amended SFIs for calendar years 2004 and 2005, disclosing Archbald Borough as a source of income on each form. 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 Daley participating in actions and deliberations of council to authorize his inclusion in a borough paid pension plan, funded in part, by borough funds. b. That a violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a) occurred in relation to Daley failing to file a Statement of Financial Interests for the 2003 calendar year by May 1, 2004. c. That a technical violation of Section 1105(b)(5) of the Public Daley, 06 -069 Page 12 Official and Employee Ethics Law, 65 Pa.C.S. § 1105(b)(5) occurred in relation to Daley failing to disclose Archbald Borough as a source of income in excess of $1,300 on Statements of Financial Interests for calendar years 2004 and 2005. 4. Daley agrees to make payment in the amount of $2,850.54 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 2. In considering the Consent Agreement, it is clear that the elements for the recommended unintentional violation of Section 1103(a) of the Ethics Act have been established. Daley initially used the authority of his public office as a Borough Council member by voting to establish the Plan for non - uniformed employees of the Borough and entering the Plan as a member. These particular actions occurred in 1991 and 1992 and may not form the basis for an alleged violation in this matter due to the passage of time. (See, limitations provision of the Ethics Act, 65 Pa.C.S. § 1108(m).) In September 2001, Daley voted to approve a resolution increasing the employee and employer contribution for full -time employees from 4% to 5% and specifically including Council members and Officers as employees of the Borough for purposes of eligibility in the Plan. During the time period of November 2001 through 2006, Daley used the authority of office by: (1) continuing to unlawfully participate in the Plan; (2) making a motion, seconding a motion, or voting on a yearly basis to have the Borough pay the MMO for the Plan in which Daley participated; and (3) making a motion and voting to adopt a resolution amending the Plan vesting schedule to provide for 100% vesting upon entry into the Plan for both future and current Plan participants. But for his position as Borough Council member, Daley would not have been able to take the aforesaid actions. Such actions resulted in a private pecuniary benefit to Daley, consisting of Borough contributions made to the Plan on Daley's behalf and accrued interest, received in contravention of the Borough Code. As noted above, the Borough Code provides that a borough may provide a pension plan for borough employees. 53 P.S. § 46202 (37). Elected borough council members and other elected officials in a borough with a population of 3,000 or more cannot serve as employees of the borough. 53 P.S. § 46104. As a Borough Council member, Daley was not, and could not be, a Borough employee during the time that he participated in the Plan. Therefore, Daley could not lawfully participate in the Plan. Daley, 06 -069 Page 13 Per the Borough Code, Daley's compensation as Borough Council member could not exceed $2,500 per year. 53 P.S. § 46001. Contributions by the Borough to the Plan on Daley's behalf were in excess of his $2,500 yearly Borough compensation. Such excess compensation was unauthorized in law. Intent is not a requisite element for a violation of Section 1103(a) of the Ethics Act. See, e.q., Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987). Nevertheless, we find that the aforesaid violation was unintentional. Based upon the facts as stipulated by the parties, it would appear that Daley reasonably believed that he was entitled to participate in the Plan. Despite Daley's lack of intent to violate the Ethics Act, Daley did in fact use the authority of his public office for his own private pecuniary benefit, necessitating our conclusion that an unintentional violation of Section 1103(a) of the Ethics Act occurred. Therefore, we agree with the parties that an unintentional violation of Section 1103(a) of the Ethics Act occurred in relation to Daley participating in actions and deliberations of Borough Council to authorize his inclusion in the Plan which was funded in part by Borough funds. Turning to the recommended violations of Section 1104(a) and 1105(b)(5) of the Ethics Act, the parties have stipulated that Daley failed to file a Statement of Financial Interests with the Borough for calendar year 2003 by May 1, 2004. Daley was required to file a Statement of Financial Interests for calendar year 2003 in his position as Council member. The parties have also stipulated that Daley's Statements of Financial Interests for calendar years 2004 and 2005 failed to disclose income in excess of $1,300 each year, received from the Borough as a result of his position as a Council member. Accordingly, we hold that a violation of Section 1104(a) of the Ethics Act occurred in relation to Daley failing to file a Statement of Financial Interests with the Borough for calendar year 2003 by May 1, 2004. We further hold that a technical violation of Section 1105(b)(5) of the Ethics Act occurred in relation to Daley failing to disclose Archbald Borough as a source of income in excess of $1,300 on Statements of Financial Interests for calendar years 2004 and 2005. Daley has also agreed to make payment in the amount of $2,850.54 in settlement of this matter. With respect to the amount of the payment, although some portion of the agreed -upon private pecuniary gain was contributed to the Plan more than five years prior to the Investigative Division's investigation of this matter (see, 65 Pa.C.S. § 1108(m)), the parties have agreed that an appropriate resolution of this matter would be for Daley to pay the aforesaid amount which appears to represent the entire amount of the private pecuniary gain. We accept the terms of the Consent Agreement as negotiated by the parties with benefit of legal counsel. 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. Per the Consent Agreement, we direct Daley to make payment in the amount of $2,850.54, payable to the Commonwealth of Pennsylvania and forwarded to 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. Joseph Daley ( "Daley "), as a Council member for Archbald Borough ( "Borough ") from January 5, 1988 to the present, has at all times relevant to these proceedings Daley, 06 -069 Page 14 been a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. Daley unintentionally violated Section 1103(a) of the Ethics Act when he, as a Borough Council member, participated in actions and deliberations of Borough Council to authorize his inclusion in a Borough -paid Non - Uniformed Pension Plan, funded in part by Borough funds. 3. Daley violated Section 1104(a) of the Ethics Act when he, as a Borough Council member, failed to file a Statement of Financial Interests with the Borough for calendar year 2003 by May 1, 2004. 4. Daley technically violated Section 1105(b)(5) of the Ethics Act when he, as a Borough Council member, failed to disclose Archbald Borough as a source of income in excess of $1,300 on Statements of Financial Interests for calendar years 2004 and 2005. In Re: Joseph Daley, Respondent ORDER NO. 1447 File Docket: 06 -069 Date Decided: 10/23/07 Date Mailed: 11/7/07 1 Respondent Joseph Daley ( "Daley "), a public official in his capacity as a Council member for Archbald Borough ( "Borough ") from January 5, 1988 to the present, unintentionally violated Section 1103(a) of the Ethics Act when he participated in actions and deliberations of Borough Council to authorize his inclusion in a Borough -paid Non - Uniformed Pension Plan, funded in part by Borough funds. 2. Daley violated Section 1104(a) of the Ethics Act when he, as a Borough Council member, failed to file a Statement of Financial Interests with the Borough for calendar year 2003 by May 1, 2004. 3. Daley technically violated Section 1105(b)(5) of the Ethics Act when he, as a Borough Council member, failed to disclose Archbald Borough as a source of income in excess of $1,300 on Statements of Financial Interests for calendar years 2004 and 2005. 4. Per the Consent Agreement of the parties, Daley is directed to make payment in the amount of $2,850.54, payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of this Order. 5. Compliance with paragraph 4 above will result in the closing of this case with no further action by this Commission; non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair