HomeMy WebLinkAbout1456 CarlockIn Re: Charles J. Carlock, Jr.,
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
07 -005
Order No. 1456
1/28/08
2/15/08
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 allegation(s). Upon completion of its investigation, the
Investigative Division issued and served upon Respondent a Findings Report identified as
an "Investigative Complaint." A Stipulation of Findings and a Consent Agreement waiving
an evidentiary hearing 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.
Carlock, 07 -005
Page 2
I. ALLEGATION:
That Charles Carlock, a public official /public employee, in his capacity as
Commissioner for Elizabeth Township, Allegheny County, violated Section 1103(a) of the
State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §1103(a) when he used the authority of his
office for a private pecuniary gain by participating in actions of the board authorizing his
inclusion in and ultimate receipt of pension payments funded in part by the township.
II. FINDINGS:
1. Elizabeth Township is a township of the First Class located in Allegheny County,
Commonwealth of Pennsylvania.
a. Elizabeth Township is governed by a Board consisting of nine (9) members,
elected by ward.
2. Charles J. Carlock, Jr., is an adult individual who served as a member of the
Elizabeth Township Board of Commissioners from January 1, 1955, until December
31, 2003.
a. A Public Official is defined as:
Any person elected by the public or elected or appointed by a
governmental body or an appointed official in the executive,
legislative or judicial branch of this Commonwealth or any political
subdivision thereof, provided that it shall not include members of
advisory boards that have no authority to expend public funds other
than reimbursement for personal expense or to otherwise exercise the
power of the State or any political subdivision thereof.
65 Pa.C.S. § 1102.
b. As a Township Commissioner, Carlock is /was considered a "public official"
as that term is defined in the Pennsylvania Public Official and Employee
Ethics Act (65 Pa. C.S. § 1101 et seq.).
1. Throughout his service as commissioner, Carlock was elected /re-
elected by the citizens of Elizabeth Township, Pennsylvania.
2. As Township Commissioner, Carlock served in a role in which he was
given authority to expend public funds and otherwise exercise the
authority of the Township of Elizabeth.
3. Carlock was never employed as an employee of the Township of Elizabeth.
4. On or about December 31, 2003, Carlock retired from public service as a
Commissioner of Elizabeth Township.
5. As an elected official of Elizabeth Township, Carlock was afforded an opportunity to
participate in a pension plan, partially funded by the Township of Elizabeth.
6. On or about April 1, 1968, the Township of Elizabeth proposed Ordinance #330
creating the Township's non - uniformed pension plan and publicly presented the
proposed ordinance with a first and second reading.
a. Section 1 of Ordinance #330 establishes that the township's pension plan will
be regulated by the Municipal Employees' Retirement System.
Carlock, 07 -005
Page 3
b. Section 11 of Ordinance #330 directs that membership in the pension plan
shall be mandatory for all elected officials.
c. Credit for prior service to the Township was established at ten (10) years per
Section 111 and liability for payment of the member's contributions concerning
the past ten (10) years was assumed by the Township.
d. Carlock voted in the affirmative on readings number one and readings
number two concerning Ordinance #330.
7 On or about April 29, 1968, the Township of Elizabeth again proposed Ordinance
#330 creating the Township's non - uniformed pension plan and publicly presented
the proposed ordinance for a third and final time.
a. Meeting Minutes indicate that Carlock was not present at the April 29, 1968,
meeting.
b. The Board of Commissioners approved Ordinance #330 upon the third and
final reading.
c. Carlock, as President of the Board of Commissioners, signed Ordinance
#330 into law on or about April 29, 1968.
8. On June 3, 1968, the Elizabeth Township Board of Commissioners voted on and
approved Ordinance #332, amending Ordinance #330 by rewording Section 11.
a. The amendment to Section 11 included language making participation in the
Township's non - uniformed pension plan mandatory for all full -time
employees as well as [providing for] mandatory participation by all elected
officials.
b. Ordinance #332 was voted on and approved by all present Commissioners
upon the third and final public reading of Ordinance #332.
c. Meeting minutes of the June 3, 1968, meeting indicate that Carlock was
present at this meeting.
d. Carlock, as President of the Board of Commissioners, signed Ordinance
#332 into law on or about June 3, 1968.
9. Prior to January 1, 1985, the Elizabeth Township Board of Commissioners voted on
and approved at least two (2) subsequent ordinances regarding the township's non -
uniformed pension plan.
a. On December 27, 1976, the Board approved Ordinance #448.
1. Ordinance #448 upgraded the member benefits of those individuals
participating in the Township's non - uniformed pension plan.
2. Additionally, Ordinance #448 again reiterated that participation in the
pension plan was mandatory for elected officials.
3. Carlock, as President of the Board of Commissioners, signed
Ordinance #448 into law on or about December 27, 1976.
b. On June 4, 1979, the Board approved Ordinance #479.
Carlock, 07 -005
Page 4
1 Ordinance #479 amended Ordinance #448, correcting an error and
established normal retirement age at sixty -five (65) rather than sixty
(60).
2. Carlock, as President of the Board of Commissioners, signed
Ordinance #479 into law on or about June 4, 1979.
10. Prior to January 1, 1985, the First Class Township Code did not prohibit elected
officials from participating in a pension plan funded in whole or in part by their
respective Townships.
11. In 1984, however, the First Class Township Code was amended to add the
following:
a.
Any pension or annuity contract entered into by a township between
January 1, 1959, and December 31, 1984, that includes or provides for
benefits for commissioners at township expense shall not be void or unlawful
solely because of such inclusion of such commissioners; nor shall any
penalty, assessment, surcharge or disciplinary action of any kind occur as a
result of such participation by commissioners: Provided, however, That
anyone entitled to benefit coverage under a pension paid for, in whole or in
part, by any township without lawful authority shall deliver, surrender and
assign to the township all benefits paid thereunder after December 31, 1984.
Where any official personally contributed toward such a pension plan
or a purchase of such an annuity, he shall be refunded his total contributions
thereto, plus any interest accumulated thereon, less any amount already
paid to him under the annuity or pension plan, when the annuity or pension
benefits are delivered, surrendered or assigned to the township, or when the
annuity becomes the property of the township by operation of this section. In
lieu of a refund of total contributions plus accumulated interest, an official
who personally contributed toward the pension plan or toward the purchase
of the annuity may elect to purchase from the township its interest in that
pension plan or annuity program. The election option shall be exercised
within sixty (60) days of the effective date of this act. The value of the
interest of the township in the pension plan or annuity program with respect
to the official shall be determined by the actuary who prepared the 1983
municipal pension report for the township pension plan or annuity program
pursuant to the act of December 6, 1972 (P. L. 1383, No. 293), entitled "An
act requiring municipal pension systems to have an actuarial investigation of
the fund made by an actuary who shall report his findings to the Department
of Community Affairs," using the same applicable actuarial assumptions as
used in that report or, if no actuary was retained for the 1983 report or no
1983 report was filed, by an actuary retained for the purpose of valuing the
township interest. The cost of the actuarial valuation of the township interest
and any future administrative costs of the pension plan or the annuity
program attributable to the official shall be payable by the official in a
manner to be established by agreement with the township auditors.
No elected or appointed township official included in a township -paid
pension or annuity plan entered into prior to December 31, 1984, shall be
subject to any penalty, assessment, surcharge or disciplinary action of any
kind as a result of said participation. Any residual interest, value, refund of
premium or benefits payable on or after December 31, 1984, arising out of
the township -paid interest of the elected or appointed township officials shall
become the exclusive property of the township.
Carlock, 07 -005
Page 5
53 P.S. § 56563 (emphasis added).
12. Carlock remained a member of the non - uniformed pension plan sponsored in whole
or in part by the Township of Elizabeth after January 1, 1985.
a. Carlock did not exercise either option regarding refund /repayment of his
contributed monies and interest, as directed by 53 P.S. §56563.
1. Carlock did not receive a payout of his contributed monies plus
interest within sixty (60) days of December 31, 1984.
2. Carlock did not elect to purchase from the township its interest in the
pension plan within sixty (60) days of December 31, 1984.
13. Between January 1, 1985, and October 2, 1995, the Township of Elizabeth
approved no less than four (4) ordinances regarding the Township's non - uniformed
pension plan.
a. On February 4, 1985, Ordinance #541 was approved, upgrading the member
benefits.
1. Carlock, as Chairman of the Board of Commissioners, signed
Ordinance #541 into law on or about February 4, 1985.
b. On August 18, 1988, Ordinance #578 was approved, amending the vesting
schedule for member benefits.
1. Carlock, as Chairman of the Board of Commissioners, signed
Ordinance #578 into law on or about August 18, 1988.
c. On July 1, 1991, Ordinance #610 was approved, amending calculations
concerning credit for prior years of service regarding member benefits.
1. Carlock, as Chairman of the Board of Commissioners, signed
Ordinance #610 into law on or about July 1, 1991.
d. On October 2, 1995, Ordinance #678 was approved, altering the benefit
agreement concerning the non - uniformed pension plan for Elizabeth
Township.
1. Ordinance #678 again made participation of elected officials in the
Township funded /partially funded pension plan mandatory.
2. Carlock, as Chairman of the Board of Commissioners, signed
Ordinance #678 into law on or about October 2, 1995.
14. In order to maintain proper funding of the Township's non - uniformed pension plan,
the Township made contributions on a yearly basis to the pension 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 Township.
b. The MMO is approved by the Board of Commissioners on a yearly basis as
part of the annual budget.
Carlock, 07 -005
Page 6
1 In the year 2000, the Township of Elizabeth expended $203,291.00
towards the non - uniformed pension plan, as agreed by the Township
Board of Commissioners.
2. In the year 2001, the Township of Elizabeth expended $194,273.00
towards the non - uniformed pension plan, as agreed by the Township
Board of Commissioners.
3. In the year 2002, the Township of Elizabeth expended $191,884.00
towards the non - uniformed pension plan, as agreed by the Township
Board of Commissioners.
4. In the year 2003, the Township of Elizabeth expended $99,852.00
towards the non - uniformed pension plan, as agreed by the Township
Board of Commissioners.
15. As a member of the Board of Commissioners, Carlock voted to approve the
payment of the MMO regarding the non - uniformed pension plan, of which he was a
participating member.
16. On or about December 31, 2003, Carlock retired from service [with] the Elizabeth
Township Board of Commissioners.
a. Carlock had served as an active member of the Elizabeth Township Board of
Commissioners continuously since January 1, 1955.
17. On or about December 15, 2003, Carlock made application to receive retirement
benefits from his Elizabeth Township pension fund.
a. Said application listed the benefit as "Superannuation (Normal Retirement)."
b. The application was notarized by Carolyn Joyce Casoni on the same date.
18. On or about January 28, 2004, Carlock was provided with information from the
Pennsylvania Municipal Retirement System regarding his pension benefits.
a. Carlock opted to receive monthly pension payments in the amount of
$504.73 for the remainder of his life.
19. At the time of his retirement, Carlock had contributed $3,191.45 towards his
Elizabeth Township pension plan.
a. Carlock earned an additional $6,426.77 of interest on his personal
contributions.
20. At the time of his retirement, the Township of Elizabeth had contributed $39,482.93
towards Carlock's Township pension plan.
21. On or about December 19, 2003, Carlock made application for the return of his
personal contributions plus interest, concerning his Elizabeth Township Pension
Plan.
a. On or about January 28, 2004, Carlock received a check in the amount of
$8,332.87 from the Pennsylvania Municipal Retirement System.
1. This check represented the entirety of Carlock's personal
contributions, plus interest, into his Elizabeth Township Pension Plan,
Carlock, 07 -005
Page 7
minus twenty percent (20 %) Federal Income Tax withholding.
2. Upon Carlock's death, his beneficiaries will receive zero ($0.00)
dollars, in that Carlock chose to withdraw his personal contributions,
plus interest, in its entirety.
22. Since January 1, 2004, Carlock has received monthly payments, in the amount of
$504.73, from the Pennsylvania Municipal Retirement System, totaling $21,198.66,
as of July 31, 2007.
a. The $21,198.66 Carlock has received represents contributions and interest
thereof, made entirely by the Township of Elizabeth, towards Carlock's
township- funded /partially funded pension plan.
23. Per the First Class Township Code (53 P.S. §65653), "[a]ny residual interest, value,
refund of premium or benefits payable on or after December 31, 1984, arising out of
the township -paid interest of the elected or appointed township officials shall
become the exclusive property of the township."
a. Carlock did not refund any of the pension funds, including interest, to the
Township.
24. Per the First Class Township Code, 53 P.S. §65653, Carlock is ineligible to receive
any benefits from the Township's pension plan.
a. Carlock was never employed by the Township and only served as an elected
official.
b. Carlock never received nor purchased his interests in the Township Pension
Plan prior to December 31, 1984, or within sixty (60) days thereafter, as
directed by the Township Code.
c. Carlock received monetary payments from a funded /partially funded
township pension plan after January 1, 1985.
25. Carlock utilized the authority of his office as a member of the Elizabeth Township
Board of Commissioners and as President /Chairman of same, to vote on and
approve at least four (4) ordinances directing the management and /or requirements
concerning payment of benefits, to members of the Elizabeth Township non -
uniformed pension plan, after January 1, 1985.
a. At the time Carlock voted /approved the passage of said ordinances, Carlock
was a member of the township's pension plan.
26. Carlock additionally utilized the authority of his office as a member of the Elizabeth
Township Board of Commissioners and as President /Chairman of same, to vote on
and approve the payment of Minimum Municipal Obligation (MMO) to the Elizabeth
Township non - uniformed pension plan, after January 1, 1985.
At the time Carlock voted /approved the payment of the MMO's, Carlock was
a member of the township's pension plan.
27. As a result of Carlock's participation as a member of the Elizabeth Township's
Board of Commissioners, Carlock received pension payments in violation of the
First Class Township Code (53 P.S. §65653).
a.
a. Carlock received a personal financial gain of $21,198.66 representing
Carlock, 07 -005
Page 8
payments made to him as a participant in the Township of Elizabeth's
funded /partially funded pension plan.
b. Of the $21,198.66 Carlock received, zero ($0.00) dollars represent his
personal contributions /interest.
c. The amounts paid to Carlock as a result of his retirement benefits paid by
the Elizabeth Township Pension Plan represent monies and interest
contributed solely by the Township of Elizabeth.
III. DISCUSSION:
As a Member of the Elizabeth Township Board of Commissioners (hereinafter also
referred to as "Board ") from January 1, 1955, until December 31, 2003, Respondent
Charles Carlock, Jr. ( "Carlock ") was 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 allegation is that Carlock violated Section 1103(a) of the Ethics Act when he, as
a Commissioner for Elizabeth Township ( "Township "), Allegheny County, used the
authority of his office for a private pecuniary gain by participating in actions of the Board
authorizing his inclusion in, and ultimate receipt of pension payments from, a pension plan
funded in part by the Township.
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
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
Carlock, 07 -005
Page 9
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.
The Township is a First Class Township located in Allegheny County, Pennsylvania.
The Board consists of nine members. Carlock served as a member of the Board
from January 1, 1955, until December 31, 2003. Carlock never served as a Township
employee.
On April 1, 1968, at a meeting of the Board, Carlock voted in the affirmative as to
the first two readings of proposed Township Ordinance #330 creating the Township's non -
uniformed pension plan ( "Plan "). Per the Ordinance, the Plan was to be regulated by the
Municipal Employee's Retirement System. The Ordinance directed that membership in the
Plan was mandatory for all elected officials.
Ordinance #330 was subsequently publicly presented for the third time, and at the
Board's April 29, 1968, meeting, the Board approved Ordinance #330. Meeting minutes
indicate that Carlock was not present at the April 29, 1968, Board meeting. However, as
President of the Board, Carlock signed Ordinance #330 into law on or about April 29,
1968.
On June 3, 1968, the Board voted on and approved Ordinance #332, which
amended Ordinance #330 by rewording Section II. The amendment to Section II included
language making participation in the plan mandatory for all full -time employees as well as
all elected officials. Carlock was present at the June 3, 1968, Board meeting and per the
minutes, he participated in voting on and approving Ordinance #332. Carlock, as
President of the Board, signed Ordinance #332 into law on or about June 3, 1968.
On December 27, 1976, the Board approved Ordinance #448 upgrading the
member benefits of those individuals participating in the Plan and reiterating that
participation in the Plan was mandatory for elected Township officials. Carlock, as
President of the Board, signed Ordinance #448 into law on or about December 27, 1976.
On June 4, 1979, the Board approved Ordinance #479 correcting an error and
establishing normal retirement age at sixty -five (65) rather than at age sixty (60). Carlock,
as President of the Board, signed Ordinance #479 into law on or about June 4, 1979.
In 1984, the First Class Township Code was amended to require township
commissioners participating in a pension plan at township expense during the time period
from January 1, 1959, to December 31, 1984, to deliver, surrender and assign to such
township all benefits paid under the plan after December 31, 1984. See, Fact Finding 11
a. The affected township commissioners were given 60 days from the effective date of the
act to elect either to: (1) receive a refund of their own personal contributions to the plan
plus interest; or (2) purchase from the township its interest in the plan. 53 P.S. § 56563.
Despite the aforesaid amendment to the First Class Township Code, Carlock
remained a member of the Plan after January 1, 1985. Carlock did not elect either to
receive a refund of his personal contributions plus interest or to purchase the Township's
interest in the Plan as required by the First Class Township Code, 53 P.S. § 56563.
Between January 1, 1985, and October 2, 1995, the Board approved the following
four (4) Ordinances concerning the Plan. On February 4, 1985, the Board approved
Ordinance #541 upgrading member benefits. On August 18, 1988, the Board approved
Carlock, 07 -005
Page 10
Ordinance #578 amending the vesting schedule for member benefits. On July 1, 1991, the
Board approved Ordinance #610 amending calculations concerning credit for prior years of
service regarding member benefits. On October 2, 1995, the Board approved Ordinance
#678 altering the benefit agreement concerning the Plan and again mandating
participation of elected officials in the Plan. All of the aforesaid ordinances were signed
into law by Carlock.
Each year, the Township made a contribution 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 Township. The Board approved the MMO on a yearly basis
as part of the annual Township budget as follows: in the year 2000, the Township
expended $203,291.00 toward the Plan; in the year 2001, the Township expended
$194,273.00 toward the Plan; in the year 2002, the Township expended $191,884.00
toward the Plan; and in the year 2003, the Township expended $99,852.00 toward the
Plan. As a Board member, Carlock voted to approve the payment of the MMOs for the Plan
while he was a participating Plan member.
On December 15, 2003, Carlock applied for "Superannuation Normal Retirement"
benefits from the Plan. On December 19, 2003, Carlock applied for the return of his
personal contributions to the Plan plus interest. On or about January 28, 2004, Carlock
was provided with information from the Pennsylvania Municipal Retirement System
regarding his pension benefits. Carlock chose to receive monthly pension payments in the
amount of $504.73 for the remainder of his life, with his beneficiaries receiving no
payments upon his death.
At the time of his retirement, Carlock's personal contributions to the Plan were
$3,191.45, and he had earned interest in the amount of $6,426.77 with respect to his
personal contributions. On or about January 28, 2004, Carlock received a check from the
Pennsylvania Municipal Retirement System in the amount of $8,332.87, representing his
personal contributions plus interest minus a withholding for Federal Income Tax purposes.
At the time of his retirement, the Township had contributed $39,482.93 toward the
Plan on Carlock's behalf. From January 1, 2004, to July 31, 2007, Carlock received
monthly payments of $504.73 from the Pennsylvania Municipal Retirement System, totaling
$21,198.66, representing contributions made entirely by the Township to Carlock's pension
plan, plus interest on those contributions.
The parties have stipulated that pursuant to the First Class Township Code, 53 P.S.
§ 56563, Carlock is ineligible to receive any benefits from the Township's Plan. Carlock
was never employed by the Township, and Carlock did not elect either of the two aforesaid
options that were made available with respect to commissioner pension plans for a 60 -day
period following the 1984 amendment of the First Class Township Code.
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 no violation of Section 1103(a) of the Public Official and
Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred in
relation to Carlock's receipt of pension payments funded in
part by the township as it was deemed mandatory for all
Commissioners to participate in said pension plan, despite the
Carlock, 07 -005
Page 11
fact that participation by Commissioners was /is in violation of
the First Class Township Code.
4. Except as otherwise provided herein, Carlock agrees to not
participate in any pension plan funded in whole or in part by the
Township of Elizabeth, Allegheny County, Pennsylvania.
Participation includes future contributions to the pension fund and /or
the receipt of pension payments pursuant to the aforementioned
pension plan.
5. It is understood and agreed between the parties that a third - party,
The Pennsylvania Municipal Retirement Board (PMRB), holds the
position that the pension payments and arrangements between PMBR
and Carlock equate to a binding contractual agreement which cannot
be dissolved /voided absent an Order from a court of competent
jurisdiction.
6. It is further understood and agreed between the parties that in light of
correspondence from counsel of The Pennsylvania Municipal
Retirement Board (PMRB) dated November 2, 2007, the provisions of
this Consent Agreement, specifically paragraph number four
(Paragraph 4), cannot be complied with by Carlock, absent the action
of a third - party, namely The Pennsylvania Municipal Retirement
Board (PMRB).
7 In light of the contents of paragraph number six (Paragraph 6), it is
understood and agreed between the parties that an Order from the
Commonwealth Court, or other court of competent jurisdiction, in the
form of either an Enforcement Action and /or Request for Declaratory
Judgment, may be necessary in order to achieve compliance with the
instantly filed Consent Agreement and /or any Order issued by the
Pennsylvania State Ethics Commission, issued in connection with the
filing of this Consent Agreement.
8. Any need for additional action in the form of an Enforcement Action
and /or Request for Declaratory Judgment, will not be held adversely
against Carlock. Carlock's receipt of PMRB pension payments while
the legal proceedings referenced in Paragraphs 7 through 10 herein
are pending shall not subject him to any penalty, violation or duty of
repayment or disgorgement of such funds.
9. It is understood and agreed between the parties that an Order from
the Commonwealth Court, or other court of competent jurisdiction,
regarding the issues addressed in paragraph number five (paragraph
5) will resolve any and all outstanding issues between the State
Ethics Commission and Carlock, currently before the Pennsylvania
State Ethics Commission.
10. Upon issuance of a final Order from the Commonwealth Court, or
other court of competent jurisdiction, declaring or holding that
Carlock's receipt of PMRB pension payments are in violation of the
First Class Township Code, or other applicable law, the provisions
contained within this Consent Agreement shall become fully
enforceable and binding.
11. Nothing contained in this agreement shall be construed to prohibit
Carlock from receiving payments from, reinvesting and /or reenrolling
Carlock, 07 -005
Page 12
in a pension plan funded in whole or in part by the Township of
Elizabeth, Allegheny County, Pennsylvania, provided enrollment in
such is provided for by law and in conformity with the applicable rule
of law including, but not limited to the Pennsylvania Ethics Act (65
Pa.C.S. § 1101 et seq.) and the First Class Township Code (53 P.S. §
55101 et seq. )
12. 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 1 -3.
In considering the Consent Agreement, we note that during the time period under
review in this matter, the First Class Township Code, on its face, has provided for pension
plans for township employees. 53 P.S. § 56563. Carlock has never been a Township
employee, and so, during the time period under review in this matter, Carlock has not been
entitled to participate in the Township's Plan.
However, most of Carlock's official actions as to the Plan occurred during the years
from 1968 to 1995, and those actions could not form the basis for a violation in this matter
because they pre -dated the Ethics Act and /or occurred outside the scope of the five -year
period for conducting an investigation under the Ethics Act. 65 Pa.C.S. § 1108(m).
During the time period that is subject to review, the only action(s) by Carlock as to the Plan
consisted of voting to approve one or more MMOs while Carlock continued to participate in
the Plan.
Furthermore, it is clear from the stipulated Findings and Consent Agreement that it
has been deemed mandatory for all Township Commissioners to participate in the Plan,
under color of Township Ordinances so stating. Additionally, even now, when the parties
are in agreement that Carlock should not participate in the Plan, Carlock is not able, as a
practical matter, to extricate himself from the Plan. The Pennsylvania Municipal
Retirement Board ( "PMRB ") is of the position that the pension payments and arrangements
between PMBR and Carlock cannot be dissolved /voided absent a court order.
As part of the Consent Agreement, Carlock has agreed to not participate in any
pension plan funded in whole or in part by the Township, with the parties agreeing that
participation includes future contributions to the pension fund and /or the receipt of pension
payments pursuant to the Plan. However, per the Consent Agreement, the parties further
understand and agree that Carlock cannot comply with this particular requirement
(paragraph 4 of the Consent Agreement) absent the action of the PMRB, and that a court
order may be necessary in order to achieve compliance with the Consent Agreement or
any Order issued by this Commission in connection with the Consent Agreement.
Therefore, paragraphs eight through eleven of the Consent Agreement detail the manner
in which effectuation of the Consent Agreement will impact Carlock.
Given the unique and unusual circumstances presented by the parties, we
determine that the Consent Agreement sets forth the proper disposition for this case.
We conclude that, under the factual circumstances of this case, Carlock did not use
the authority of his office for a private pecuniary benefit by voting to approve one or more
MMOs while participating in the Plan during the time period under review in this matter.
Carlock, 07 -005
Page 13
We therefore hold that no violation of Section 1103(a) of the Ethics Act occurred in relation
to Carlock's receipt of pension payments funded in part by the Township as it was deemed
mandatory for all Commissioners to participate in said pension plan, despite the fact that
participation by Commissioners was /is contrary to the First Class Township Code. We
emphasize that the outcome of this case is based upon unique circumstances and should
not be viewed as precedent for other cases, which would be decided based upon their
facts.
Carlock is directed to comply with the terms of the Consent Agreement of the
parties.
Compliance with the foregoing will result in the closing of this case with no further
action by this Commission, except to the extent further action of this Commission may be
needed to accomplish the terms of the Consent Agreement. Noncompliance will result in
the institution of an order enforcement action.
IV. CONCLUSIONS OF LAW:
1. As a Member of the Elizabeth Township ( "Township ") Board of
Commissioners from January 1, 1955, until December 31, 2003, Respondent
Charles J. Carlock, Jr. ( "Carlock ") was 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. Under the unique facts of this case, Carlock did not violate Section 1103(a)
of the Ethics Act when he received pension payments funded in part by the
Township as it was deemed mandatory for all Commissioners to participate
in said pension plan, despite the fact that participation by Commissioners
was /is contrary to the First Class Township Code.
In Re: Charles J. Carlock, Jr.,
Respondent
ORDER NO. 1456
File Docket: 07 -005
Date Decided: 1/28/08
Date Mailed: 2/15/08
1. Under the unique facts of this case, Respondent Charles J. Carlock, Jr. ( "Carlock "),
a public official in his capacity as a Commissioner for Elizabeth Township
( "Township ") from January 1, 1955, until December 31, 2003, did not violate Section
1103(a) of the Ethics Act when he received pension payments funded in part by the
Township as it was deemed mandatory for all Commissioners to participate in said
pension plan, despite the fact that participation by Commissioners was /is contrary
to the First Class Township Code.
2. Carlock is directed to comply with the terms of the Consent Agreement of the
parties.
a. Compliance with the foregoing will result in the closing of this case with no
further action by this Commission except to the extent further action of this
Commission may be needed to accomplish the terms of the Consent
Agreement.
b. Non - compliance will result in the institution of an order enforcement action.
BY THE COMMISSION,
Louis W. Fryman, Chair