HomeMy WebLinkAbout1494 MahaIn Re: Richard P. Maha,
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 -006
Order No. 1494
9/22/08
10/10/08
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." An Answer was filed and a hearing was requested. A
Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were
subsequently submitted by the parties to the Commission for consideration. The
Stipulated Findings are set forth 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.
Maha, 07 -006
Page 2
I. ALLEGATION:
That Richard P. Maha, 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 seven (7)
members *, elected by ward.
* [Cf., Fact Findings 13a1, 13c1.]
2. Richard P. Maha is an adult individual who served as a member of the Elizabeth
Township Board of Commissioners from January 1, 1982, until December 31, 1994;
then again from January 1, 2000, until February 2002.
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, Maha 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, Maha was elected /re-
elected by the citizens of Elizabeth Township, Pennsylvania.
2. As Township Commissioner, Maha 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. Maha was never employed as an employee of the Township of Elizabeth.
4. On or about February 28, 2002, Maha retired from public service as a
Commissioner of Elizabeth Township.
5. As an elected official of Elizabeth Township, Maha 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.
Maha, 07 -006
Page 3
a. Section I of Ordinance #330 establishes that the Township's pension plan
will be regulated by the Municipal Employees' Retirement System.
b. Section II 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 III and liability for payment of the member's contributions concerning
the past ten (10) years was assumed by the Township.
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. The Board of Commissioners approved Ordinance #330 upon the third and
final reading.
8. On June 3, 1968, the Elizabeth Township Board of Commissioners voted on and
approved Ordinance #332, amending Ordinance #330 by rewording Section II.
a. The amendment to Section II 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.
9. Maha was elected to the Township Board of Commissioners and began service on
or about January 1, 1982, and again on or about January 1, 2000.
a. On or about January 8, 1984, Maha made application to enroll in the
Township of Elizabeth's non - uniformed pension plan.
b. Maha again made application to enroll in the Township's non - uniformed
pension plan upon re- election.
1. Maha completed his second application for enrollment on or about
January 1, 2000.
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.
Maha, 07 -006
Page 4
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.
53 P.S. § 56563 (emphasis added).
12. Maha 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. Maha did not exercise either option regarding refund /repayment of his
contributed monies and interests, as directed by 53 P.S. §56563.
1. Maha did not receive a payout of his contributed monies plus interest
within sixty (60) days of December 31, 1984.
2. Maha 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 December 31, 1994, the Township of Elizabeth
approved no less than three (3) ordinances regarding the Township's non -
uniformed pension plan.
a. On February 4, 1985, Ordinance #541 was approved, upgrading the member
benefits.
1. A tally of the votes indicates that Ordinance #541 passed YEAS 9/
NAYS 0.
Maha, 07 -006
Page 5
b. On August 18, 1988, Ordinance #578 was approved, amending the vesting
schedule for member benefits.
c. On July 1, 1991, Ordinance #610 was approved, amending calculations
concerning credit for prior years of service regarding member benefits.
1. A tally of the votes indicates that Ordinance #541 passed YEAS 9/
NAYS 0.
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.
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.
15. As a Member of the Board of Commissioners, Maha 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 February 28, 2002, Maha retired from service regarding the Elizabeth
Township Board of Commissioners.
a. Maha had served as an active member of the Elizabeth Township Board of
Commissioners from January 1, 1982, until December 31, 1994; then again
from January 1, 2000, until February 28, 2002.
17. On or about May 14, 2002, Maha made application to receive retirement benefits
from his Elizabeth Township pension fund.
a. Said application listed the benefit as "Vested Benefit."
b. The application was notarized by Deborah L. Totman on the same date.
18. On or about June 27, 2002, Maha was provided with information from the
Pennsylvania Municipal Retirement System regarding his pension benefits.
a. Maha opted to receive monthly pension payments in the amount of $112.83
for the remainder of his life.
b. Maha selected a retirement option whereby in the event of his death, his
beneficiary, Sandra Maha, would continue to receive monthly pension
Maha, 07 -006
Page 6
payments in the amount of $112.83 for the remainder of her life.
19. At the time of his retirement, Maha had contributed $1,348.06 toward his Elizabeth
Township pension plan.
20. At the time of his retirement, the Township of Elizabeth had contributed $16,106.16
toward Maha's Township pension plan.
a. On or about June 6, 2002, Maha received a check in the amount of $451.32,
representing pension benefits due up to June 30, 2002.
1. Maha did not withdraw any of his personal contributions from the
pension fund.
21. Since June 27, 2002, Maha has received monthly payments, in the amount of
$112.83, from the Pennsylvania Municipal Retirement System, totaling $7,221.12,
as of July 31, 2007.
a. The $7,221.12 Maha has received represents contributions and interest
thereon, made by both Maha and the Township of Elizabeth, towards Maha's
Township funded /partially funded pension plan.
22. Per the First Class Township Code (53 P.S. §[56563]), "[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. Maha did not refund any of the pension funds, including interest, to the
Township.
23. Per the First Class Township Code, 53 P.S. §[56563], Maha is ineligible to receive
any benefits from the Township's pension plan.
a. Maha was never employed by the Township and only served as an elected
official.
b. Maha never received nor purchased his interest in the Township pension
plan prior to December 31, 1984, or within sixty (60) days thereafter, as
directed by the Township Code.
c. Maha received monetary payments from a funded /partially funded Township
pension plan after January 1, 1985.
24. Maha utilized the authority of his office as a member of the Elizabeth Township
Board of Commissioners to vote on and approve at least three (3) 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.
At the time Maha voted /approved the passage of said ordinances, Maha was
a member of the Township's pension plan.
25. Maha additionally utilized the authority of his office as a member of the Elizabeth
Township Board of Commissioners to vote on and approve the payment of Minimum
Municipal Obligation (MMO) to the Elizabeth Township non - uniformed pension plan,
after January 1, 1985.
a.
Maha, 07 -006
Page 7
a. At the time Maha voted /approved the payment of the MMO's, Maha was a
member of the Township's pension plan.
26. As a result of Maha's participation as a member of the Elizabeth Township's Board
of Commissioners, Maha received pension payments in violation of the First Class
Township Code (53 P.S. §[56563]).
a. Maha received a personal financial gain of approximately $5,873.06
representing payments made to him as a participant in the Township of
Elizabeth's funded /partially funded pension plan.
b. Personal financial gain is calculated by obtaining the total amount of
payments received by Maha ($7,221.12) and subtracting Maha's personal
contributions ($1,348.06). ($7,221.12 - $1,348.06 = $5,873.06)
III. DISCUSSION:
As a Member of the Elizabeth Township Board of Commissioners (hereinafter also
referred to as "Board ") from January 1, 1982, until December 31, 1994, and from January
1, 2000, until February 28, 2002, Respondent Richard P. Maha ( "Maha ") 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 Maha 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.
Maha, 07 -006
Page 8
65 Pa. C. S. § 1102.
Section 1103(a) of the Ethics Act prohibits a public official /public employee from
using the authority of public office /employment or confidential information received by
holding such a public position for the private pecuniary benefit of the public official /public
employee himself, any member of his immediate family, or a business with which he or a
member of his immediate family is associated.
As noted above, the parties have submitted a Consent Agreement and Stipulation of
Findings. The parties' Stipulated Findings are reproduced above as the Findings of this
Commission. We shall now summarize the relevant facts as contained therein.
The Township is a First Class Township located in Allegheny County, Pennsylvania.
Maha served as a member of the Board from January 1, 1982, until December 31,
1994, and from January 1, 2000, until February 28, 2002. Maha never served as a
Township employee.
On April 1, 1968, Township Ordinance #330, creating the Township's non - uniformed
pension plan ( "Plan "), was proposed and publicly presented with a first and second
reading. 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.
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.
Maha applied to enroll in the Plan on or about January 8, 1984, and again on or
about January 1, 2000, after his re- election.
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 11a.
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, Maha
remained a member of the Plan after January 1, 1985. Maha 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 July 1, 1991, the Board approved the following three
(3) Ordinances concerning the Plan. On February 4, 1985, the Board approved Ordinance
#541 upgrading member benefits. On August 18, 1988, the Board approved 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. Maha voted to approve at least two of the aforesaid
Ordinances (Ordinances #541 and # 610) while he was a participating Plan member. (Cf.,
Fact Findings 13a -c, 24).
Maha, 07 -006
Page 9
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; and in the year 2002, the Township expended $191,884.00
toward the Plan. As a Board member, Maha voted to approve the payment of the MMO(s)
for the Plan while he was a participating Plan member. The Stipulated Findings do not
indicate in which years Maha voted to approve the payment of the MMO(s). (See, Fact
Findings 14 -15).
On or about February 28, 2002, Maha retired from service on the Board. On May
14, 2002, Maha applied to receive retirement benefits from the Plan. On or about June 27,
2002, Maha was provided with information from the Pennsylvania Municipal Retirement
System regarding his pension benefits. Maha chose to receive monthly pension payments
in the amount of $112.83 for the remainder of his life, with his beneficiary receiving
$112.83 for the remainder of her life in the event of Maha's death.
At the time of his retirement, Maha's personal contributions to the Plan were in the
amount of $1,348.06, and the Township's contributions to the Plan on Maha's behalf were
in the amount of $16,106.16. Maha did not withdraw any of his personal contributions from
the Plan. On or about June 6, 2002, Maha received a check in the amount of $451.32,
representing pension benefits due up to June 30, 2002. From June 27, 2002, to July 31,
2007, Maha has received monthly payments of $112.83 from the Pennsylvania Municipal
Retirement System, totaling $7,221.12, representing contributions made by both Maha and
the Township plus interest on those contributions.
The parties have stipulated that pursuant to the First Class Township Code, 53 P.S.
§ 56563, Maha is ineligible to receive any benefits from the Township's Plan. Maha was
never employed by the Township, and Maha 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.
The parties have stipulated that Maha received a personal financial gain of
approximately $5,873.06 representing total payments made to Maha as a participant in the
Plan less Maha's personal contributions to the Plan.
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
as follows:
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 Maha'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 in violation of the First Class
Township Code.
4. Except as otherwise provided herein, Maha agrees to not participate
Maha, 07 -006
Page 10
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 Maha 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 Maha, 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 Maha. Maha'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 Maha, 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 Maha'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
Maha from receiving payments from, reinvesting and /or reenrolling 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.
Maha, 07 -006
Page 11
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. Maha has never been a Township
employee, and so, during the time period under review in this matter, Maha has not been
entitled to participate in the Township's Plan.
However, most of Maha's official actions as to the Plan occurred during the years
from 1985 to 1991, and those actions could not form the basis for a violation in this matter
because they 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, any action(s) by Maha as to the Plan would have consisted of voting to
approve MMO(s) while Maha 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 Maha should not participate in the Plan, Maha 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 Maha cannot be dissolved /voided absent a court order.
As part of the Consent Agreement, Maha 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 Maha 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 Maha.
Given the unique and unusual circumstances presented by the parties, we
determine that the Consent Agreement sets forth the proper disposition for this case.
Under the factual circumstances of this case, we hold that no violation of Section
1103(a) of the Ethics Act occurred in relation to Maha'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.
Maha is directed to comply with the terms of the Consent Agreement of the parties.
Maha, 07 -006
Page 12
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, 1982, until December 31, 1994, and from January 1, 2000, until
February 28, 2002, Respondent Richard P. Maha ( "Maha ") 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, Maha 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: Richard P. Maha,
Respondent
ORDER NO. 1494
File Docket: 07 -006
Date Decided: 9/22/08
Date Mailed: 10/10/08
1. Under the unique facts of this case, Respondent Richard P. Maha ( "Maha "), a
public official in his capacity as a Commissioner for Elizabeth Township
( "Township ") from January 1, 1982, until December 31, 1994, and from January 1,
2000, until February 28, 2002, 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. Maha 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