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HomeMy WebLinkAbout1509 RussellIn Re: Selma Russell, 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 -039 Order No. 1509 3/12/09 3/27/09 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding possible violation(s) 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 held. The record is complete. 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. Russell, 07 -039 Page 2 I. ALLEGATIONS: That Selma Russell, a (public official /public employee) in her capacity as a Member of the Municipal Authority of Washington Township violated the following provisions of the State Ethics Act (Act 93 of 1998) when she received compensation not provided for by law by participating in actions of the Authority Board to authorize the expenditure of authority funds for Board Members' compensation in excess of that approved by the appointing authority; and when she accepted an increase in compensation prior to the beginning of a new term of office. § 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). § 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. II. FINDINGS: A. Stipulations and /or Pleadings 1 Respondent, Selma Russell, was a public official /public employee as a member of the Municipal Authority of Washington Township. 2. Upon review of information, the Investigative Division initiated a preliminary inquiry on March 5, 2007. 3. On May 1, 2007, a letter was forwarded to Selma Russell, by the Investigative Division of the State Ethics Commission, informing her that a complaint against her was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. 7006 2150 0000 8771 6406. b. The domestic return receipt bore the signature of Selma Russell, with a delivery date of May 3, 2007. 4. On December 17, 2007, the Investigative Division of the State Ethics Commission Russell, 07 -039 Page 3 filed an application for a second ninety day extension of time to complete the Investigation. 5. On March 4, 2008, an amended Notice of Investigation was forwarded to Selma Russell, by the Investigative Division of the State Ethics Commission, informing her that the allegations contained in the May 1, 2007, Notice of Investigation were being amended. a. Said letter was forwarded by certified mail, no. 7006 2150 0002 5372 6666. b. The domestic return receipt bore the signature of Selma Russell, with a delivery date of March 8, 2008. 6. Periodic notice letters were forwarded to Selma Russell in accordance with the provisions of the Ethics Law advising her of the general status of the investigation. 7 The Investigative Complaint was mailed to the Respondent on April 24, 2008. 8. Selma Russell has served as a member of the Municipal Authority of Washington Township (hereafter Authority) since January 4, 2000. a. Russell served as the Assistant Secretary /Treasurer on the Authority board from January 4, 2000, to February 27, 2007, with the exception of the 2004 calendar year. 1. Russell served as the Assistant Secretary in 2004 while board member Joseph Kubitza served as the Assistant Treasurer. b. Russell served as the Secretary to the Authority board from February 27, 2007, to January 12, 2008. 9. The Authority is governed by a seven member board of directors. 1. Special meetings are held as necessary. 10. Authority board members are currently compensated at the rate of $75.00 (gross) per meeting. a. Board members must be present to receive the $75.00 payment. 11. Voting at an Authority meeting is normally conducted via group "aye /nay" vote after a motion is made and properly seconded. a. If any Authority member objects during the group vote, an individual roll call vote is taken and recorded. b. Any objections or abstentions cast are specifically noted in the minutes. 1. Minutes of Authority board meetings are approved for accuracy at subsequent meetings. 12. Authority board members are provided with a meeting packet the Friday prior to the regularly scheduled meeting. a. The packet includes the upcoming meeting agenda, the prior month meeting minutes, the treasurer's report including monthly bill list, other various reports, correspondence, etc. Russell, 07 -039 Page 4 1. The bill list represents all expenses paid since the previous meeting. 2. Checks issued to Authority board members are included on the bill list. 13. Signature authority over Authority accounts is maintained by the Authority Board Chairman, Treasurer, and Secretary. a. Authority checks require two signatures. 1. Facsimile stamps are not currently utilized by Authority office staff. 14. The Washington Township Board of Supervisors created the Authority via Ordinance presented at the August 4, 1952, regular supervisors meeting. a. The township supervisors created the Authority pursuant to the authority granted them in the Pennsylvania Municipality Authorities Act. b. The Authority was incorporated with the Pennsylvania Department of State, Corporation Bureau, as a Municipal Authority under Entity Number 381069 on August 21, 1952. 1. The Authority has a registered filing address of 1390 Fayette Ave., Belle Vernon, PA 15012. 2. The Authority primarily serves residential customers but also provides services to select commercial and industrial accounts. 15. At the July 21, 1998, meeting of the Authority Board, the Authority passed a Resolution proposing the submission of amendments to the original Articles of Incorporation to the township supervisors for action thereon. a. The proposed amendments included increasing the number of board members from five to seven and proposed that the purpose of the Authority now include the planning, funding, construction, and operation of sewage facilities throughout the township. 1. The Resolution notes that due to the extensive nature of the planning, constructing, and operating of the system, two additional Authority board members were necessary. 2. The Resolution notes the Authority's desire to plan, construct, and operate the sewage system in Washington Township. 16. Upon submission of the resolution by the Authority to the township supervisors, the supervisors adopted Resolution No. 98 -03 titled, "A Resolution of the Board of Supervisors of Washington Township, Pennsylvania, Adopting the Amendments to the Articles of Incorporation of the Municipal Authority of the Township of Washington, Fayette County, Pennsylvania" at the July 29, 1998, regular supervisors meeting. a. The supervisors approved the amendments to the Authority's Articles of Incorporation as documented in the resolution submitted for consideration. 17. In a second undated Resolution, the Authority board voted 4 -0 at its September 29, 1998, regular meeting to approve the Amendments to the Authority's Articles of Incorporation as presented to the township supervisors. Russell, 07 -039 Page 5 a. The Resolution also directed the proper officers of the Authority to take all actions necessary to file the Amendment to the Articles of Incorporation with the proper authorities. b. The Amendment to the Articles of Incorporation was filed with the Pennsylvania Department of State on July 14, 1999. 18. From at least mid -1999 through February 2000, both water and sewage issues were discussed at the same meeting. a. Each Authority member's check was distributed the night of the advertised meeting. 19. From approximately March 2000 through the present, the Authority board has conducted two separate meetings on the published meeting night. 20. There was no formal vote by the Authority board to hold two separate meetings on the same night. 21. The Authority board made the decision to hold two separate meetings based on the following: a. The separation of financial information, billing information, etc. between water service and sewage service. 1. The separation of information was considered due to the fact that various customers residing outside the township who received water from the Authority would not have the ability to tie into the proposed sewage system. 2. The Authority board did not feel that customers not eligible for sewage service should have to pay for costs associated with the sewage project. b. The belief that as the sewage project progressed, the time necessary to discuss relevant issues would increase significantly. c. The convenience of those in attendance at the meeting. 22. The Authority maintains various bank accounts in relation to its operations. a. The Authority utilized two separate financial institutions regarding its General Fund Account from April 2001 through the present. 1. During the time period of April 2001 through approximately October 2003, the Authority General Fund was maintained at PNC Bank under Account Number xxx>ooc0621. 2. From approximately November 2003 through approximately January 2005, the Authority General Fund was maintained at PNC Bank under Account Number xxx>ooc6468. 3. From February 2005 through the present, the Authority General Fund has been maintained at National City Bank under Account Number xxxxx0167. Russell, 07 -039 Page 6 b. The Authority utilized two separate financial institutions regarding its Sewage Account from April 2001 through the present. 1. During the time period of April 2001 through January 2005, the Authority Sewage Account was maintained at PNC Bank under Account Number xxx>ooc9242. 23. From approximately March 2000 through March 2001, the Authority board conducted separate meetings for water and sewage issues but received only one check as payment for both meetings. a. The Authority board is a single governing body. 24. In or about April 2001, the Authority board members began receiving two checks, one check for the water meeting and an additional check for the sewage meeting. a. Both meetings were held on the same date and [at the] same location. 1. The second meeting would commence immediately after the first meeting would adjourn. b. No official vote was taken by the Authority board authorizing the issuance of an additional check. 1. The Authority board accepted the additional check without seeking advice from the township, the appointing body. 25. Payments [for] board member attendance at Authority water meetings were issued from the Authority General Fund Account while checks representative of board member attendance at Authority sewage meetings were issued from the Authority Sewage Account. a. b. aa. At the August 31, 2000, regular Authority meeting, the Authority board approved the use of $5,000.00 for expenses associated with the sewage project. bb. The $5,000.00 initial deposit credited to the Sewage account originated from the General Account at PNC Bank. 2. From February 2005 through the present, the Authority General Fund has been maintained at National City Bank under Account Number xxxxx0183. Board members routinely received both checks the night of the advertised meeting. Board members did not question the number or amounts of checks received. 26. Compensation for the Authority board members was increased at the January 2 [sic], 2002, re- organization meeting of the Washington Township Supervisors. a. The Washington Township Supervisors approved an increase for Authority board members from fifty dollars per meeting to seventy -five dollars per meeting via unanimous vote. 27. The motion to increase the compensation specifically increased the salaries of, "Board Members of [sic] Water and Sewage Authority." CHECK DATE CHECK NUMBER GROSS SIGNATURE AUTHORITY 01/27/04 2121 $300.00 Arrow /Weiss 01/27/04 2127 $350.00 Arrow /Weiss 01/27/04 2133 $550.00 Arrow /Weiss 02/24/04 2175 $225.00 Arrow /Weiss 03/30/04 2212 $150.00 Arrow /Weiss 04/27/04 2239 $150.00 Arrow /Weiss 05/25/04 2266 $75.00 Arrow /Weiss 06/29/04 2293 $75.00 Arrow /Weiss 07/27/04 2321 $150.00 Arrow /Weiss 08/31/04 2385 $75.00 Sotta /Weiss 09/28/04 2414 $75.00 Arrow /Weiss Russell, 07 -039 Page 7 a. The motion identified the board members as officials for a single Authority. 28. From April 2002 through June 2007, Russell routinely received separate checks for her attendance at Authority water and sewage meetings held on the same evening. a. Russell received $50.00 (gross) for her attendance at each water meeting from April 2002 through December 2003 and $75.00 (gross) for her attendance at each water meeting from January 2004 through June 2007. 1. On January 27, 2004, Russell received two additional checks from the general fund account to account for the increase in compensation approved by the supervisors which was not included in water meeting checks issued in 2002 and 2003. aa. No vote was taken by the Authority board authorizing the issuance or receipt of these payments. bb. No presentation was made by representatives of the Authority to the township supervisors for approval of these payments issued or received. b. Russell received $50.00 (gross) for her attendance at each sewage meeting from April 2002 through December 2003 and $75.00 (gross) for her attendance at each sewage meeting from January 2004 through June 2007. 1. On January 27, 2004, Russell received two additional checks from the sewage account to account for the increase in compensation approved by the supervisors which was not included in sewage meeting checks issued in 2002 and 2003. aa. No vote was taken by the Authority board authorizing the issuance or receipt of these payments. bb. No presentation was made by representatives of the Authority to the township supervisors for approval of these payments issued or received. 29. From January 2004 through December 2004, Russell received and negotiated fifteen checks for attendance at Authority water meetings which included the $25.00 per meeting increase in compensation as shown below: CHECK DATE CHECK NUMBER GROSS SIGNATURE AUTHORITY 04/30/02 1616 $ 50.00 Arrow /Canigiani 05/28/02 1625 $ 50.00 Arrow /Canigiani 06/18/02 1633 $ 50.00 Arrow /Canigiani 07/29/02 1640 $ 50.00 Arrow /Canigiani 08/27/02 1648 $ 50.00 Arrow /Canigiani 09/24/02 1657 $ 50.00 Arrow /Sotta 10/30/02 1665 $ 50.00 Arrow /Canigiani 11/19/02 1674 $ 50.00 Arrow /Canigiani 12/18/02 1683 $ 50.00 Arrow /Canigiani 01/28/03 1688 $ 50.00 Arrow /Sotta 02/25/03 1696 $ 50.00 Arrow /Weiss 03/25/03 1706 $ 50.00 Weiss /Sotta 04/29/03 1714 $ 50.00 Arrow /Weiss 05/27/03 1719 $ 50.00 Arrow /Weiss 06/24/03 1734 $ 50.00 Arrow /Sotta CHECK DATE CHECK NUMBER GROSS SIGNATURE AUTHORITY 11/05/04 2463 $75.00 Arrow /Weiss 12/03/04 2496 $150.00 Arrow /Weiss 12/21/04 2532 $225.00 Arrow /Weiss 12/30/04 2550 $75.00 Arrow /Weiss Russell, 07 -039 Page 8 a. Checks Numbers 2127 and 2133, both issued on January 27, 2004, were issued as payments for water meetings attended in 2002 and 2003 to account for the difference in amounts of checks previously issued and the increase approved by the township supervisors respectively. 30. Russell received $1,500.00 in payment as a result of accepting checks issued for attendance at Authority water meetings which included the $25.00 increase in compensation. a. Russell's signature does not appear as an authorized Authority signatory on any of the fifteen checks issued to Russell which included payments for attendance at Authority meetings. b. Russell cashed or deposited into her personal bank account all checks received and utilized the funds for various personal use.* 31. Russell participated in actions as an Authority board member in approving monthly bill lists on which payment received for attendance at the water portion of Authority meetings was documented. a. Russell voted to approve monthly bill lists on eleven of eleven instances involving the back -pay. 32. From April 2002 though June 2007, Russell received and negotiated sixty -six checks totaling $5,175.00 (gross) from the Authority's sewage account at either PNC Bank (Account No. xxx>oo(9242) or National City Bank ()xxxx0183) representative of payment for sewage meetings attended on the same night as regular Authority water meetings as shown below: CHECK DATE CHECK NUMBER GROSS SIGNATURE AUTHORITY 07/29/03 1742 $ 50.00 Arrow /Sotta 08/21/03 1750 $ 50.00 Arrow /Sotta 09/30/03 1761 $ 50.00 Arrow /Weiss 10/28/03 1768 $ 50.00 Arrow /Weiss 11/25/03 1776 $ 50.00 Arrow /Weiss 12/16/03 1784 $ 50.00 Arrow /Weiss 01/27/04 1801 $300.00 Arrow /Weiss 01/27/04 1808 $300.00 Arrow /Weiss 01/27/04 1815 $ 75.00 Arrow /Weiss 02/24/04 1823 $ 75.00 Arrow /Weiss 03/30/04 1831 $ 75.00 Arrow /Weiss 04/27/04 1841 $ 75.00 Arrow /Weiss 05/25/04 1849 $ 75.00 Arrow /Weiss 06/29/04 1856 $ 75.00 Arrow /Weiss 07/27/04 1867 $ 75.00 Check Not Available 08/31/04 1874 $ 75.00 Sotta /Weiss 09/28/04 1884 $ 75.00 Arrow /Weiss 11/05/04 1902 $150.00 Arrow /Weiss 12/03/04 1917 $150.00 Arrow /Weiss 12/21/04 1925 $ 75.00 Arrow /Weiss 01/25/05 1934 $ 75.00 Arrow /Weiss 02/22/05 1003 $150.00 Arrow /Weiss 03/29/05 1012 $ 75.00 Arrow /Weiss 04/26/05 1021 $ 75.00 Arrow /Weiss 05/31/05 1030 $ 75.00 Arrow /Weiss 06/28/05 1038 $ 75.00 Arrow /Weiss 07/26/05 1047 $ 75.00 Arrow /Weiss 08/30/05 1056 $ 75.00 Arrow /Weiss 09/27/05 1066 $ 75.00 Arrow /Weiss 10/25/05 1076 $ 75.00 Arrow /Weiss 11/29/05 1085 $ 75.00 Arrow /Weiss 12/07/05 1094 $150.00 Arrow /Weiss 12/19/05 1103 $ 75.00 Check Not Supplied 01/31/06 1114 $ 75.00 Arrow /Weiss 02/28/06 1121 $ 75.00 Arrow /Weiss 03/28/06 1128 $ 75.00 Check Not Supplied 04/25/06 1139 $ 75.00 Arrow /Weiss 05/30/06 1147 $ 75.00 Arrow /Weiss 06/30/06 1154 $ 75.00 Arrow /Weiss 07/25/06 1163 $ 75.00 Arrow /Weiss 08/29/06 1173 $ 75.00 Arrow /Weiss 09/26/06 1186 $ 75.00 Arrow /Weiss 10/31/06 1199 $ 75.00 Arrow /Weiss 11/28/06 1208 $ 75.00 Arrow /Weiss 12/19/06 1215 $ 75.00 Arrow /Weiss 01/30/07 1224 $ 75.00 Sotta /Weiss 02/27/07 1234 $ 75.00 Sotta /Weiss 03/27/07 1243 $ 75.00 Russell /Weiss 04/24/07 1249 $ 75.00 Zadronzy /Weiss 05/29/07 1258 $ 75.00 Zadronzy /Weiss 06/29/07 1266 $ 75.00 Check Not Supplied Russell, 07 -039 Page 9 Meeting Date Russell Vote Final Vote Check Date Check Number Check Amount ( Grass ) $ 50.00 04/30/02 Yes 6 -0 04/30/02 1616 05/28/02 Yes 7 -0 05/28/02 1625 $ 50.00 06/18/02 Yes 7 -0 06/18/02 1633 $ 50.00 07/30/02 Yes 6 -0 07/29/02 1640 $ 50.00 08/27/02 Yes 7 -0 08/27/02 1648 $ 50.00 09/24/02 Yes 7 -0 09/24/02 1657 $ 50.00 10/29/02 Yes 7 -0 10/30/02 1665 $ 50.00 11/19/02 Yes 7 -0 11/19/02 1674 $ 50.00 12/17/02 Yes 6 -0 12/18/02 1683 $ 50.00 01/28/03 Yes 6 -0 01/28/03 1688 $ 50.00 02/25/03 Yes 7 -0 02/25/03 1696 $ 50.00 03/25/03 Yes 6 -0 03/25/03 1706 $ 50.00 04/29/03 Yes 7 -0 04/29/03 1714 $ 50.00 05/27/03 Yes 7 -0 05/27/03 1719 $ 50.00 06/24/03 Yes 6 -0 06/24/03 1734 $ 50.00 07/29/03 Yes 7 -0 07/29/03 1742 $ 50.00 08/21/03 Yes 7 -0 08/21/03 1750 $ 50.00 09/30/03 Yes 7 -0 09/30/03 1761 $ 50.00 10/28/03 Yes 7 -0 10/28/03 1768 $ 50.00 11/25/03 Yes 7 -0 11/25/03 1776 $ 50.00 12/16/03 Yes 7 -0 12/16/03 1784 $ 50.00 01/27/04 Yes 7 -0 01/27/04 01/27/04 01/27/04 1801 1808 1815 $300.00 $300.00 $ 75.00 02/24/04 Yes 7 -0 02/24/04 1823 $ 75.00 03/30/04 Yes 7 -0 03/30/04 1831 $ 75.00 04/27/04 Yes 7 -0 04/27/04 1841 $ 75.00 05/25/04 Yes 6 -0 05/25/04 1849 $ 75.00 06/29/04 Yes 6 -0 06/29/04 1856 $ 75.00 07/27/04 Yes 7 -0 07/27/04 1867 $ 75.00 08/31/04 Yes 7 -0 08/31/04 1874 $ 75.00 CHECK DATE CH ECK NUMBER GROSS SIGNATURE AUTHORITY Total $5,175.00 Russell, 07 -039 Page 10 a. Checks Numbers 1801 and 1808, both issued on January 27, 2004, were issued as payments for sewage meetings attended in 2002 and 2003 to account for the difference in amounts of checks previously issued and the increase approved by the township supervisors respectively. b. Of the sixty -six checks issued to Russell representative of attendance at sewage meetings, Russell's signature appears on at least one check totaling $75.00 as an authorized Authority signatory. c. Russell cashed or deposited into personal bank accounts all checks received and utilized the funds for various personal use.* 33. Russell participated in actions as an Authority board member in approving monthly bill lists on which payment received for attendance at the sewage portion of Authority meetings was documented as shown below: Meeting Date Russell's Vote Final Vote Check Date Check Number Check Amount Gross) 09/28/04 Yes 6 -0 09/28/04 1884 $ 75.00 10/26/04 Yes 7 -0 NCI* NCI* NCI* 11/30/04 Yes 7 -0 11/05/04 1902 $150.00 12/21/04 Yes 7 -0 12/03/04 12/21/04 1917 1925 $150.00 $ 75.00 01/25/05 Yes 7 -0 01/25/05 1934 $ 75.00 02/22/05 Yes 7 -0 02/22/05 1003 $150.00 03/29/05 Yes 7 -0 03/29/05 1012 $ 75.00 04/26/05 Yes 7 -0 04/26/05 1021 $ 75.00 05/31/05 Yes 7 -0 05/31/05 1030 $ 75.00 06/28/05 Yes 6 -0 06/28/05 1038 $ 75.00 07/26/05 Yes 7 -0 07/26/05 1047 $ 75.00 08/30/05 Yes 6 -0 08/30/05 1056 $ 75.00 09/27/05 Yes 6 -0 09/27/05 1066 $ 75.00 10/25/05 Yes 7 -0 10/25/05 1076 $ 75.00 11/29/05 Yes 7 -0 11/29/05 1085 $ 75.00 12/20/05 Yes 7 -0 12/07/05 12/19/05 1094 1103 $150.00 $ 75.00 01/31/06 Yes 7 -0 01/31/06 1114 $ 75.00 02/28/06 Yes 7 -0 02/28/06 1121 $ 75.00 03/28/06 Yes 7 -0 03/28/06 1128 $ 75.00 04/25/06 Yes 7 -0 04/25/06 1139 $ 75.00 05/30/06 Yes 5 -0 05/30/06 1147 $ 75.00 06/27/06 Yes 6 -0 06/30/06 1154 $ 75.00 07/25/06 Yes 7 -0 07/25/06 1163 $ 75.00 08/29/06 Yes 7 -0 08/29/06 1173 $ 75.00 09/26/06 Yes 7 -0 09/26/06 1186 $ 75.00 10/31/06 Yes 6 -0 10/31/06 1199 $ 75.00 11/28/06 Yes 6 -0 11/28/06 1208 $ 75.00 12/19/06 Yes 7 -0 12/19/06 1215 $ 75.00 01/30/07 January bills tabled until February meeting 02/27/07 Yes 5 -1 01/30/07 1224 I $ 75.00 January bills approved at February meeting- February bills tabled until March meeting 03/27/07 Yes 6 -0 1 02/27/07 11234 I $ 75.00 February bills approved at March meeting -No official action on March bills 04/24/07 Yes No official action on April bills 05/29/07 Yes 6 -0 05/29/07 1258 $ 75.00 06/26/07 Yes 7 -0 06/29/07 1266 $ 75.00 Russell, 07 -039 Page 11 *NCI: No Check Issued a. Russell voted to approve fifty -nine of fifty -nine bill lists on which payment to her was noted for attendance at sewage portions of Authority meetings. 34. Russell was erroneously not issued payment for her attendance at the October 26, 2004, regular Authority meeting. 35. Russell is no longer receiving separate checks representative of payment for attendance at Authority water and sewage meetings held on the same evening. a. In July 2007, the Authority board elected to stop the receipt of separate checks for water and sewage meetings held on the same evening based on Russell, 07 -039 Page 12 the advice of the Authority's newly appointed solicitor. b. The decision to cease the separate meeting payment was not formally voted on by the Authority board. 1. The decision was based on informal discussions held with the newly appointed solicitor. c. Russell became aware that the Washington Township Supervisors had increase[d] compensation for Authority board members from $50.00 to $75.00 from then Office Manager and Board member Judith Arrow. d. There was no specific or formal instruction by the Authority board to Arrow to generate the 2002 increase checks. e. Russell negotiated all checks received and utilized said funds for personal use with the exception of the 2002 increase checks issued.* 36. During an interview with Commission investigators on January 16, 2008, Russell provided the following information: a. Sewage issues were initially included in discussions at Authority water meetings but the Authority eventually held separate water and sewage meetings on the same evening. b. Then Solicitor Mark Ramsier indicated that [it] was permissible for the board to hold separate meetings and receive payment for each meeting held. 1. Russell could not recall who presented the question to Ramsier. 2. Russell indicated that the Authority board asked Ramsier "everything." 3. Russell's statement is not confirmed by Authority records or information provided by Ramsier. c. Russell became aware that the Washington Township Supervisors had increase[d] compensation for Authority board members from $50.00 to $75.00 from then Office Manager and Board member Judith Arrow. d. Russell negotiated all checks received and utilized said funds for personal use with the exception of the retroactive checks issued.* *[Cf., Fact Findings 30 b, 32 c, 35 e, and 36 d.] B. Testimon 37. John Yetsconish ("Yetsconish ") served as a Washington Township Supervisor from January 1996 to September 2007. a. The Washington Township Board of Supervisors sets the compensation for the Authority Board Members. b. ID 10, pages 1 -3 consist of an amendment to the Articles of Incorporation of The Municipal Authority of the Township of Washington, Fayette County, Pennsylvania." Russell, 07 -039 Page 13 1 The amendment to the Articles of Incorporation is dated September 29, 1998. (See, Fact Finding 50 b). 2. The amendment to the Articles of Incorporation increased the number of Members of the Authority Board to 7 and also added as a purpose of the Authority, that the Authority plan, finance, construct and operate sewage facilities throughout the Township of Washington." (ID 10 -2). c. At the January 2, 2001, Reorganization Meeting of the Washington Township Board of Supervisors, the compensation for Members of the Authority Board was set at $50 per meeting. (ID 14 -2). d. At the January 7, 2002, Reorganization Meeting of the Washington Township Board of Supervisors, the compensation for Members of the Authority Board was set at $75 per meeting. (ID 15 -1). 1. At the time Yetsconish made the motion to increase the compensation of Authority Board Members, he was not aware that the Authority Board Members were receiving two separate checks per meeting night. 2. Township Supervisor Melvin Weiss, who seconded the motion, was a Member of the Authority Board. e. Yetsconish testified that the Washington Township Board of Supervisors would not be able to treat different topics discussed at its own monthly meeting as separate meetings. f. The Washington Township Supervisors have received separate meeting pay for their reorganization meeting and the business meeting held in the same month. 1. The reorganization meeting happens once each year. 2. The reorganization meeting involves different issues than the issues handled at the Regular Meetings of the Washington Township Board of Supervisors. 38. Attorney Mark Ramsier ( "Ramsier ") was Solicitor for the Authority from 1999 until July 31, 2007. a. When Ramsier first began serving as Solicitor for the Authority, the Authority did not have sewage responsibilities, but the Authority subsequently became a joint authority responsible for both sewage and water. (ID 10, pages 1 -3; ID 11, pages 1 -4). b. When Ramsier commenced serving as Solicitor for the Authority, the Authority Board generally met once per month. c. As Solicitor for the Authority, Ramsier was paid per meeting and for additional services rendered. 1. Ramsier initially received $50 per Authority Board meeting, but subsequently Ramsier's compensation was increased to $75 per Authority Board meeting. Russell, 07 -039 Page 14 d. From at least March 28, 2000, forward, while Ramsier served as Authority Solicitor, the Authority Board meetings included a "water" portion of the meeting, followed by an adjournment, and then a "sewage portion" of the meeting, followed by an adjournment. (See, Tr. at 50; Fact Finding 57 c). e. Ramsier testified that he does not know what caused the Authority to begin holding separate portions of its meetings for water and sewer. f. Shortly before Ramsier resigned from the position of Authority Solicitor, Ramsier became aware of the fact that Authority Board Members were receiving two checks per month for Authority Board meetings. 1. Ramsier testified that he does not recall anyone asking him any questions about the ability or legality of Authority Board Members receiving two checks per meeting night. 2. Ramsier did not write a formal opinion on the issue of the ability or legality of Authority Board Members receiving two checks per meeting night. 3. Ramsier's files do not include any indication of his being questioned or of his providing advice regarding the ability or legality of Authority Board Members receiving two checks per meeting night. When the Authority began holding separate portions of its meetings for water and sewer, Ramsier continued to receive only one check per meeting night, as compensation for a single meeting. g. h. The Washington Township Board of Supervisors sets the compensation for Authority Board Members. J. An increase in compensation for an Authority Board Member may only be accepted at the beginning of the Member's new term. Authority Board Secretary /Authority Office Manager Judith Arrow was responsible for issuing the checks that paid compensation to Authority Board Members. k. Ramsier served as Solicitor for the Washington Township Board of Supervisors during part of the time he served as Solicitor for the Authority. 39. Jason Bricker is employed as the Supervising Special Investigator for the Pittsburgh Regional Office of the Pennsylvania State Ethics Commission. a. ID 6, pages 1 -4 consist of a copy of the By -Laws of the Authority that were enacted by the Authority Board on September 8, 1952. 1. Such By -Laws provide an Order of Business for the Regular Meetings of the Authority Board. (ID 6 -2). b. ID 12, pages 1 -5 consist of a copy of the Amended By -Laws of the Authority that were adopted by the Authority Board on July 29, 2003. 1. Such Amended By -Laws provide an Order of Business for the Regular Meetings of the Authority Board. (ID 12 -4). Russell, 07 -039 Page 15 c. One difference between the Order of Business for the Regular Meetings of the Authority Board set forth in the Amended By -Laws as compared to the original By -Laws is the inclusion of a specific sewage portion of the meeting. 1. The Order of Business does not include a second pledge to the flag, second roll call, second approval of minutes, or second Solicitor's report for the sewage portion of the meeting. d. The Amended By -Laws do not describe the sewage portion of the meeting as a second meeting or additional meeting. e. Per the Minutes of the February 27, 2001, Regular Meeting of the Authority Board, the "sewage meeting" lasted only 10 minutes and was followed by a re- opening of the "water meeting." (ID 21 -3). f. Per the Minutes of the July 30, 2002, Regular Meeting of the Authority Board, the "water portion" of the meeting included comments from visitors and a representative of Bankson Engineers regarding the sewage project. (ID 22, pages 2 -3). 1. The Minutes do not include any indication that these individuals were told to wait to discuss the sewage project until a separate portion of the meeting. Per the Minutes of the July 30, 2002, Regular Meeting of the Authority Board, the "sewage meeting" lasted 15 minutes or less. (ID 22, pages 3 -4). h. Per the Minutes of the November 19, 2002, Regular Meeting of the Authority Board, within the span of approximately 40 minutes (between approximately 7:50 p.m. and 8:30 p.m.), the Authority Board did all of the following: held an Executive Session during the "water portion" of the meeting; temporarily adjourned the water portion of the meeting; held the "sewage portion" of the meeting in its entirety; adjourned the sewage portion of the meeting; re- opened the water portion of the meeting; went into Executive Session; reviewed other business under the water portion of the meeting; and adjourned the water portion of the meeting. (ID 23 -3). Per the Minutes of the February 25, 2003, Regular Meeting of the Authority Board, within the span of approximately 19 minutes (between 7:26 p.m. and approximately 7:45 p.m.), the Authority Board did all of the following: reconvened the water portion of the regular meeting following an Executive Session; received the Engineer's Report; received the Chairman's Report; discussed Old Business; discussed New Business; recessed to Executive Session; re- opened the water portion of the meeting; approved a motion; adjourned the water portion of the meeting; conducted in its entirety the sewage portion of the meeting; and adjourned the sewage portion of the meeting. (ID 26, pages 1 -2). j. The minutes of the January 8, 2003, Reorganization Meeting of the Authority Board refer to an upcoming January meeting as the "Joint Water /Sewage Authority Meeting." (ID 24 -2). k. The agenda for the January 28, 2003, Meeting of the Authority Board included a sewage portion of the meeting. (ID 25 -1). 1. The approval of the minutes of the January 28, 2003, Meeting of the Authority Board refers to a single meeting. (ID 26, pages 1 -3). g. Russell, 07 -039 Page 16 I. The published Notices of the Authority Board for its Regular Meetings for 2003, 2004, 2005, 2006, and 2007 stated that the Authority Board meetings would be held on the last Tuesday of each month at 7:00 p.m. (ID 13, pages 4 -9). 1. The Notices did not mention a separate sewage meeting or list a separate time for a sewage meeting. (ID 13, pages 4 -9). m. Barring any absence from meetings, each Authority Board Member received two checks per meeting night for Regular Meetings of the Authority Board from approximately April of 2001 to approximately July of 2007. 40. Thomas Canigiani ( "Canigiani ") is a Member of the Authority Board. a. Judith Arrow ( "Arrow ") has served as an Authority Board Member, Authority Secretary, and the Office Manager of the Authority. b. Arrow distributed checks for meeting pay to the Authority Board Members at the Authority Board meetings. c. Canigiani testified that when he received a check from the Authority for back pay, both he and Board Member John Ventura ( "Ventura ") asked Board Solicitor Mark Ramsier about the checks. d. Canigiani testified that he does not recall a member of the public raising an issue regarding Authority Board Members receiving two checks. e. Canigiani testified that he does not recall anyone advising him that it was unlawful or illegal to receive two checks per meeting night for his service on the Authority Board. f. Canigiani testified that he viewed the water portion and the sewage portion of an Authority Board meeting as two meetings. g. 1. Canigiani testified that Ventura held up the check and said, "Hey, Mark, is this okay ?" (Tr. at 89). During the time period relevant to this matter, Melvin Weiss served as both an Authority Board Member and as a Washington Township Supervisor. 1. Canigiani testified that to his knowledge, Melvin Weiss received two checks per meeting night during his service on the Authority Board. h. Canigiani testified that he does not believe that it was wrong, illegal, or unlawful to take multiple payments for the water and sewage portions of the Authority Board meetings throughout the time period that is relevant to this case. 41. Selma Russell ( "Russell ") is a Member of the Authority Board. a. Russell testified that she did not know that she should not have accepted an increase in Authority Board Member compensation "early" (prior to the beginning of a new term of office). 1. Russell testified that the Authority Board Members rely on the Authority Solicitor to tell them right from wrong. Russell, 07 -039 Page 17 2. Russell testified that the Authority Solicitor did not say a word about the checks for such increased compensation. b. Russell testified that she remembers Canigiani and Ventura questioning Solicitor Ramsier about the checks the Authority Board Members received for back pay. c. Russell testified that she viewed the water portion and the sewage portion of an Authority Board meeting as two meetings. d. Russell testified that she did not believe there was anything wrong with taking multiple payments for the water and sewage portions of the Authority Board meetings. 42. Joanne Latkanich ( "Latkanich ") is a Washington Township Supervisor, having served in that capacity for approximately 10 or 11 years. a. Latkanich served as a Washington Township Supervisor during the time period of January of 2002 through June of 2007. b. Yetsconish and Melvin Weiss also served as Washington Township Supervisors during Latkanich's service as such. c. The Washington Township Board of Supervisors sets the compensation for the Authority Board Members. d. Latkanich testified that prior to the January 7, 2002, Reorganization Meeting of the Washington Township Board of Supervisors, when the compensation for Authority Board Members was increased to $75 per meeting (ID 15 -1), the Supervisors had discussed the increase, and that "[t]he discussion was that they would get paid $75, which would have been an increase from $50 to $75, that they would get paid the $75 per meeting. $75 per water and $75 per sewage." (Tr. at 105). 1. Such an intent on the part of the Washington Township Supervisors is not reflected in meeting minutes or anywhere. (Tr. at 110 -111). 2. Latkanich could not point to anything with the Washington Township Board of Supervisors that would actually state that the Authority Board Members could receive pay for a water portion and for a sewer portion of an Authority Board meeting. (Tr. at 113). e. Latkanich testified that in January 2002, she was aware that the Authority held a water portion of a meeting, adjourned, and then held a sewage portion of a meeting. f. Latkanich was not present at the January 7, 2002, Reorganization Meeting of the Washington Township Board of Supervisors. Latkanich testified that she did not see anything wrong with the Authority Board Members receiving $75 for the water portion and $75 for the sewage portion of the Authority Board meetings from January of 2002 through June of 2007. g. h. Latkanich was previously found to have violated Section 1103(a) of the Ethics Act. (Latkanich, Order 1445). Russell, 07 -039 Page 18 Latkanich testified that it was her understanding when the Sewage Board was created that the same people that would serve on the Water Board would serve on the Water - -- excuse me, Sewage Board." (Tr. at 108). 1. Latkanich could not point to anything indicating that the Authority was divided into two Boards. (Tr. at 111, 113). C. Documents 43. ID R1, pages 1 -70 consist of copies of checks issued by the Authority to Russell from 2002 through 2007. 44. ID R2, pages 1 -34 and ID R3, pages 1 -31 consist of summaries of payroll transactions for paychecks Russell received from the Authority from January 2002 through March 2007. 45. ID R4, pages 1 -4 consist of a summary of payroll transactions for paychecks Russell received from the Authority from January 2002 through December 2007. 46. ID 5, pages 1 -8 consist of the August, 1952 Articles of Incorporation and Washington Township Ordinance by which the Authority was formed. a. The Authority was formed pursuant to the Municipality Authorities Act of 1945. (ID 5, pages 1, 3 -4). 47. ID 6, pages 1 -4 consist of a copy of the By -Laws of the Authority that were enacted by the Authority Board on September 8, 1952. a. Such By -Laws provided for Regular Meetings of the Authority to take place on the second Tuesday of each month at 3:00 p.m., and for special meetings to be called at the discretion of the Chair or upon the written request of two Board Members. (ID 6 -2). b. Such By -Laws provided, in part: SECTION 5. ORDER OF BUSINESS. At the regular meeting of the Board of the Authority, the following shall be the order of business: 1. Roll call. 5. Committee reports. 2. Reading and approval of 6. Unfinished business minutes of last meet- 7. New business. ing. 8. Bills 3. Communications 9. Adjournment 4. Treasurer's report. All resolutions shall be in writing and shall be copied in the minutes of the Board. ID 6 -2. 48. ID 12, pages 1 -5 consist of a copy of the Amended By -Laws of the Authority that were adopted by the Authority Board on July 29, 2003. a. Such By -Laws provide for Regular Meetings of the Authority to take place on the last Tuesday of each month at 7:00 p.m., and for special meetings to be called at the discretion of the Chair or upon the written request of two Board Russell, 07 -039 Page 19 Members. (ID 12 -3). b. Such By -Laws provide, in part: SECTION 5 ORDER OF BUSINESS At the regular meeting of the Authority, the following shall be the order of business: 1. Call To Order 2. Pledge To the Flag 3. Roll Call 4. Open Forum 5. Minutes 6. Treasurer's Report 7. Manager's Report 8. Engineer's Report 9. Solicitor's Report 10. Old Business 11. New Business 12. Adjournment Sewage Portion of Meeting 1. Call to Order 2. Engineer's Report 3. Open Forum 4. Adjournment All resolutions shall be in writing and shall be copied in the minutes of the Board. ID 12 -4. 1. The Amended By -Laws refer to the Order of Business, including the sewage portion of the meeting, as the Order of Business for "the" regular meeting of the Authority. ID 12 -4. 49. One difference between the Order of Business for the Regular Meetings of the Authority Board set forth in the Amended By -Laws as compared to the original By- Laws is the inclusion of a specific sewage portion of the meeting. a. The Amended By -Laws do not describe the sewage portion of the meeting as a second meeting or additional meeting. b. The Amended By -Laws do not provide a separate time for the sewage portion of a Regular Meeting of the Authority Board. 50. ID 10, pages 1 -3 consist of an amendment to the Articles of Incorporation of The Municipal Authority of the Township of Washington, Fayette County, Pennsylvania." a. The amendment to the Articles of Incorporation was authorized by the Authority Board and by the Washington Township Board of Supervisors in July 1998. (ID 7, ID 8). b. The amendment to the Articles of Incorporation is dated September 29, 1998. Russell, 07 -039 Page 20 c. The amendment to the Articles of Incorporation set the number of Members of the Authority Board at 7. d. The amendment to the Articles of Incorporation added the following provision to the Articles of Incorporation: The purpose of the Authority shall include, in addition to the purposes set forth in the Articles of Incorporation, and the amendments thereto, that the Authority plan, finance, construct and operate sewage facilities throughout the Township of Washington." (ID 10 -2). e. The amendment to the Articles of Incorporation was filed with the Department of State on July 14, 1999. (ID 11 -1). 51. The published Notices of the Authority Board for its Regular Meetings for 2003, 2004, 2005, 2006, and 2007 stated that the Authority Board meetings would be held on the last Tuesday of each month at 7:00 p.m. (ID 13, pages 4 -9). a. The Notices did not mention a separate sewage meeting or list a separate time for a sewage meeting. (ID 13, pages 4 -9). b. The Notices were published in The Valley Independent, a daily newspaper of general circulation in Fayette County and other counties. 52. ID 14, pages 1 -2 consist of the Minutes of the January 2, 2001, Reorganization Meeting of the Washington Township Board of Supervisors. a. The Minutes include the following: "Motion by Latkanich, second by Yetsconish to accept setting Board Members of Water & Sewage allowance at Fifty ($50.00) dollars per meeting. Motion carried." (ID 14 -2). 53. ID 15, page 1 consists of the Minutes of the January 7, 2002, Reorganization Meeting of the Washington Township Board of Supervisors. a. The Minutes include the following: "Motion by John Yetsconish, second by Melvin Weiss to increase salaries of Board Members of Water & Sewage Authority to Seventy five ($75.00) dollars per meeting. Motion carried." (ID 15 -1). 54. ID 16, pages 1 -3 consist of the Minutes of the October 26, 1999, Regular Meeting of the Authority Board. a. The Minutes include the following: SEWAGE: Ramsier: At the last meeting of the Township Supervisors, they placed all sewage under the Authority. I have prepared a Draft Agreement and have not heard from Belle Vernon's Solicitor. This is the last item before 537 agreement. Susick: After the agreement is accepted, we then can start the process of funding, engineering, etc.? Ramsier: That's correct. ID 16 -3. 55. ID 17, pages 1 -3 consist of the Minutes of the March 8, 2000, Regular Meeting of the Washington Township Board of Supervisors. a. The Minutes include the following: Russell, 07 -039 Page 21 ... Solicitor Ramsier explained the Township is presently entering into an inter - municipal agreement with the Municipal Authority of the Boro of Belle Vernon. He also stated that the Water Authority was now a Joint Authority; i.e. Water- Sewage Authority. (ID 17 -2). 56. ID 29, pages 1 -4 consist of the Minutes of the March 30, 1999, Regular Meeting of the Authority Board. a. The Minutes include the following: UPDATE ON RESOLUTION: Ramsier: The Board directed me to explore the resolution passed last year. I contacted the State - the articles were not filed. I faxed Mr. Benyak - no response. The Articles of Amendment need to be filed with the state. All resolutions were passed and we need to make it a Joint Authority - Water and Sewage. Motion made by Kubitza, second by Baker, authorizing Attorney Ramsier to complete amendment process. There were no public comments. Vote: 4 -0 ID 29, pages 3 -4. 57. ID 31 consists of certified copies of the Authority Board Minutes and attachments for the time period from March 2000 through March 2002. a. The Minutes are for the following meetings of the Municipal Authority Board: 1. Reorganization Meetings held January 4, 2001, and January 12, 2002; 2. Regular Meetings held March 28, 2000; April 25, 2000; May 30, 2000; June 27, 2000; July 25, 2000; August 31, 2000; September 26, 2000; October 31, 2000; November 28, 2000; December 19, 2000; January 30, 2001; February 27, 2001; March 27, 2001; April 24, 2001; May 29, 2001; June 26, 2001; July 31, 2001; August 23, 2001; September 25, 2001; October 30, 2001; November 27, 2001; December 18, 2001; January 28, 2002; February 26, 2002; and March 26, 2002; 3. Special Meetings held April 2, 2001; December 28, 2001; and March 14, 2002. b. All of the Minutes for the Regular Meetings from March 2000 through March 2002 include a separate section for minutes of the sewage portions of the meetings (sometimes referred to as sewage meetings). c. All of the Minutes for the Regular Meetings from March 2000 through March 2002 reflect that the Authority Board adjourned the "water portion" of the meeting, and then called to order the "sewage portion" of the meeting (sometimes referred to as a sewage meeting), with a subsequent adjournment of the latter. d. ID 31 includes approvals of the minutes of 23 Regular Meetings of the Authority Board. Russell, 07 -039 Page 22 1 Twenty -one of these 23 approvals of minutes of Regular Meetings of the Authority Board refer to a single meeting of the Authority Board, with no separate approval for the sewage portion of the meeting. 2. Two of these 23 approvals of minutes of Regular Meetings of the Authority Board include approvals of minutes under both the water portion and sewage portion of the meeting. (See, Minutes of August 23, 2001, and September 25, 2001, Regular Meetings of the Authority Board). e. For all but two of the meetings documented by ID 31 that occurred from April 2001 through March 26, 2002 (while Authority Board Members were receiving two checks per meeting night, see, Fact Finding 24), the duration of the sewage portions of the meetings cannot be determined. 1. The sewage portion of the November 27, 2001, Regular Meeting of the Authority Board lasted less than 5 minutes. 2. The sewage portion of the March 26, 2002, Regular Meeting of the Authority Board lasted less than 25 minutes 3. Typically, the minutes for the sewage portions of these meetings included few items. 58. Per the Minutes of the February 27, 2001, Regular Meeting of the Authority Board, the "sewage meeting" lasted only 10 minutes and was followed by a re- opening of the "water meeting." (ID 21 -3). 59. Per the Minutes of the July 30, 2002, Regular Meeting of the Authority Board, the "sewage meeting" lasted 15 minutes or less. (ID 22, pages 3 -4). 60. Per the Minutes of the November 19, 2002, Regular Meeting of the Authority Board, within the span of approximately 40 minutes (between approximately 7:50 p.m. and 8:30 p.m.), the Authority Board did all of the following: held an Executive Session during the "water portion" of the meeting; temporarily adjourned the water portion of the meeting; held the "sewage portion" of the meeting in its entirety; adjourned the sewage portion of the meeting; re- opened the water portion of the meeting; went into Executive Session; reviewed other business under the water portion of the meeting; and adjourned the water portion of the meeting. (ID 23 -3). 61. Per the Minutes of the February 25, 2003, Regular Meeting of the Authority Board, within the span of approximately 19 minutes (between 7:26 p.m. and approximately 7:45 p.m.), the Authority Board did all of the following: reconvened the water portion of the regular meeting following an Executive Session; received the Engineer's Report; received the Chairman's Report; discussed Old Business; discussed New Business; recessed to Executive Session; re- opened the water portion of the meeting; approved a motion; adjourned the water portion of the meeting; conducted in its entirety the sewage portion of the meeting; and adjourned the sewage portion of the meeting. (ID 26, pages 1 -2). 62. Per the Minutes of the July 30, 2002, Regular Meeting of the Authority Board, the "water portion" of the meeting included comments from visitors and a representative of Bankson Engineers regarding the sewage project. (ID 22, pages 2 -3). a. The Minutes do not include any indication that these individuals were told to wait to discuss the sewage project until a separate portion of the meeting. Russell, 07 -039 Page 23 63. The minutes of the January 8, 2003, Reorganization Meeting of the Authority Board refer to an upcoming January meeting as the "Joint Water /Sewage Authority Meeting." (ID 24 -2). 64. The agenda for the January 28, 2003, Meeting of the Authority Board included a sewage portion of the meeting. (ID 25 -1). a. The approval of the minutes of the January 28, 2003, Meeting of the Authority Board refers to a single meeting. (ID 26, pages 1 -3). 65. Russell's first term in office as an Authority Board Member began in January 2000. (See, Fact Finding 8). a. The oath of office was administered to Russell at the January 9, 2000, Reorganization Meeting of the Authority Board. (ID 30 -1). III. DISCUSSION: As a member of the Municipal Authority of Washington Township ( "Authority ") since January 4, 2000, Respondent Selma Russell (hereinafter also referred to as "Respondent," "Respondent Russell," and "Russell ") has 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 Respondent Russell violated Section 1103(a) of the Ethics Act when she received compensation not provided for by law by participating in actions of the Authority Board to authorize the expenditure of Authority funds for Board Members' compensation in excess of that approved by the appointing authority; and when she accepted an increase in compensation prior to the beginning of a new term of office. 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. Russell, 07 -039 Page 24 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. We shall now summarize the relevant facts. Respondent Russell has served as a Member of the seven - Member Authority Board since January 4, 2000. Respondent served as the Authority's Assistant Secretary /Treasurer from January 4, 2000, to February 27, 2007, except for in 2004. Respondent served as the Authority's Assistant Secretary in 2004 and Secretary from February 27, 2007, to January 12, 2008. The Washington Township Board of Supervisors ( "Board of Supervisors ") created the Authority in 1952, pursuant to the Municipality Authorities Act. Since 1999, the Authority has been a joint authority responsible for both sewage and water. The Authority Board is a single governing body. Per the Municipality Authorities Act, compensation for authority board members must be established by the appointing authority, in this case, the Board of Supervisors. 53 Pa.C.S. § 5610(d). Authority board members are not permitted to receive an increase or decrease in compensation during their existing terms. Id. Any increase or decrease in salary becomes effective only upon the beginning of a new term after the increase /decrease is enacted. Id. At the January 2, 2001, reorganization meeting of the Board of Supervisors, the compensation for Authority Board Members was set at $50 per meeting. At the January 7, 2002, reorganization meeting of the Board of Supervisors, the compensation for Authority Board Members was set at $75 per meeting. From at least mid -1999 through February 2000, both water and sewage issues were discussed at the same Authority Board meeting. However, from approximately March 2000 through the present, the Authority Board has conducted two separate meetings on published meeting nights, which have been referred to as the "water portion" and "sewage portion" of the meeting, or as the water meeting and sewage meeting. Such meetings have been held consecutively on the same date and at the same location. The second meeting would commence immediately after the first meeting would adjourn. From approximately March 2000 through March 2001, Board Members attending Authority Board meetings received one check per meeting night, which was for both meetings. However, in or about April 2001, Respondent and other Authority Board Members began receiving two checks per meeting night, with one check being for the water meeting and an additional check being for the sewage meeting. No official vote was taken by the Authority Board authorizing the issuance of an additional check. The Authority Board accepted the additional check without seeking advice from the Board of Supervisors, the appointing body. A fundamental issue presented by this case is whether the Authority Board Members could lawfully obtain multiple meeting payments per month by labeling different portions of their regular business meeting as separate meetings. Both the original by -laws adopted by the Authority Board in 1952 and the amended by -laws adopted by the Authority Board in July 2003 have provided for the Authority Board Russell, 07 -039 Page 25 to conduct its Regular Meeting on a particular Tuesday of each month, at a particular time. Since July 2003, the Authority's by -laws have provided for the "Order of Business" of a Regular Meeting to include a sewage portion. (ID 12 -4). The by -laws do not describe the sewage portion of the meeting as a second meeting or additional meeting. Additionally, the by -laws do not provide a separate time for the sewage portion of a Regular Meeting of the Authority Board. The published Notices of the Authority Board providing public notice for its Regular Meetings for 2003, 2004, 2005, 2006, and 2007 stated that the Authority Board meetings would be held on the last Tuesday of each month at 7:00 p.m. (ID 13, pages 4 -9). The Notices did not mention a separate sewage meeting or list a separate time for a sewage meeting. (ID 13, pages 4 -9). At the January 7, 2002, reorganization meeting of the Board of Supervisors, when the compensation for Authority Board Members was increased from fifty dollars per meeting to seventy -five dollars per meeting, the motion to increase the compensation identified the Board Members as officials for a single Authority: "Motion by John Yetsconish, second by Melvin Weiss to increase salaries of Board Members of Water & Sewage Authority to Seventy five ($75.00) dollars per meeting. Motion carried." (ID 15 -1). The motion did not include any language expressly authorizing payments for two separate meetings. Supervisor John Yetsconish ( "Yetsconish ") (see, Yetsconish, Order 1046) testified that at the time he made the motion to increase the compensation of Authority Board Members, he was not aware that the Authority Board Members were receiving two separate checks per meeting night. Supervisor Melvin Weiss did not testify in this matter. In addition to serving as a Supervisor, Weiss also served as a Member of the Authority Board, and like Respondent, accepted compensation increase(s) prior to the beginning of a new term of office as an Authority Board Member, as well as payments for sewage meetings attended on the same night as regular Authority water meetings. (See, Weiss, Order 1479). Supervisor Joanne Latkanich ( "Latkanich ") (see, Latkanich, Order 1445) was not present at the January 7, 2002, Reorganization Meeting of the Board of Supervisors. Although the Board of Supervisors took no official action expressly authorizing payments to Authority Board Members for separate water and sewage meetings, Latkanich testified that in January 2002, she was aware that the Authority held a water portion of a meeting, adjourned, and then held a sewage portion of a meeting. Latkanich testified that prior to the January 7, 2002, Reorganization Meeting of the Board of Supervisors, the Supervisors had discussed increasing the compensation for Authority Board Members, and that "[the discussion was that they would get paid $75, which would have been an increase from $50 to $75, that they would get paid the $75 per meeting. $75 per water and $75 per sewage." (Tr. at 105). Latkanich acknowledged that such an intent on the part of the Washington Township Supervisors is not reflected in meeting minutes or anywhere. (Tr. at 110 -111). From April 2002 through June 2007, Respondent routinely received separate checks for attendance at Authority water and sewage meetings held on the same evening. Respondent received $50.00 (gross) for attendance at each water meeting from April 2002 through December 2003 and $75.00 (gross) for attendance at each water meeting from January 2004 through June 2007. On January 27, 2004, Respondent also received two additional Authority checks to account for the increase in compensation approved by the Board of Supervisors that was not included in water meeting checks issued in 2002 and 2003. However, Respondent was not eligible to receive the increase in compensation until the beginning of her second full term in January 2005. (See, Fact Russell, 07 -039 Page 26 Finding 65; 53 Pa.C.S. § 5610(a)(1), (d)). As for the amount that Respondent received for the meeting pay increase prior to the commencement of a new term of office, we note that the relevant time period as to this allegation would be from April 2002 through December 2004. As of January 1, 2005, Respondent would have commenced her second term of office and would have been entitled to receive the $25 per meeting increase. If Respondent attended every monthly Regular Meeting of the Authority from April 2002 through December 2004, and received the $25 per meeting increase for each of those meetings, she would have received a total of $825.00 for the increase ($225 for April through December of 2002, $300 for 2003, and $300 for 2004). The Stipulated Findings state, "Russell received $1,500.00 in payment as a result of accepting checks issued for attendance at Authority water meetings which included the $25.00 increase in compensation." (Stipulated Findings, paragraph 30, set forth as Fact Finding 30, above). The Stipulated Findings do not state that the full amount of the $1,500.00 was attributable to the increase to which Respondent was not entitled, and it appears that it could not have been so. Per an admitted averment of the Investigative Complaint, From January 2004 through December 2004, Russell received and negotiated fifteen checks for attendance at Authority water meetings which included the $25.00 per meeting increase in compensation..." as detailed in a chart set forth in the admitted averment, which includes checks totaling $2,700 (gross). (Investigative Complaint, paragraph 38; Answer to Investigative Complaint, paragraph 38; see, Fact Finding 29 above). Two of the listed checks - -check number 2127 representing gross compensation in the amount of $350.00, and check number 2133 representing gross compensation in the amount of $550.00 (Id.) -- are stipulated to have been for the extra $25 per meeting compensation for water meetings in 2002 and 2003: "Checks Numbers 2127 and 2133, both issued on January 27, 2004, were issued as payments for water meetings attended in 2002 and 2003 to account for the difference in amounts of checks previously issued and the increase approved by the township supervisors respectively." (Stipulated Findings, paragraph 29 a, set forth as Fact Finding 29 a above). The total gross compensation represented by those two checks, specifically, $900.00, less the $75.00 attributable to the first three months of meetings from January through March of 2002, results in the amount of $825.00. Of course, those checks issued on January 27, 2004, did not include excess water meeting compensation for meetings held in 2004. Based upon the record before us, we factually determine that separate and apart from sewage meeting payments, from April 2002 through December 2004, Respondent received a total of at least $825.00 for the meeting pay increase prior to the commencement of a new term of office. Respondent participated in actions as an Authority Board Member in approving monthly bill lists that included such payments. As for sewage meetings, Respondent received $50.00 (gross) for attendance at each sewage meeting from April 2002 through December 2003 and $75.00 (gross) for attendance at each sewage meeting from January 2004 through June 2007. On January 27, 2004, Respondent also received two additional Authority checks to account for the increase in compensation approved by the Board of Supervisors that was not included in sewage meeting checks issued in 2002 and 2003. No vote was taken by the Authority Board authorizing the issuance or receipt of these payments. No presentation was made by representatives of the Authority to the Township Supervisors for approval of these payments. As detailed in Fact Finding 32, from April 2002 though June 2007, Respondent received and negotiated sixty -six checks totaling $5,175.00 (gross) representing payment Russell, 07 -039 Page 27 for sewage meetings attended on the same night as regular Authority water meetings. As detailed in Fact Finding 33, Respondent participated in actions of the Authority Board in approving monthly bill lists that included sixty -four of the aforesaid checks, totaling $5,025. Of the sixty -six checks issued to Respondent representative of attendance at sewage meetings, Respondent's signature appears as an authorized Authority signatory on at least one check totaling $75.00. Respondent did not vote to approve the bill list for the aforesaid check that she signed. There was one check -- Authority check 1249 totaling $75.00 - -for which Respondent neither signed the check as an Authority signatory nor voted to approve the bill list that included the check. (Cf., Fact Findings 32 and 33). Authority Board Members must be present at Authority meetings in order to receive meeting compensation. Respondent was erroneously not issued payment for an Authority meeting held on October 26, 2004, which she did attend. In July 2007, the Authority Board elected to stop receiving separate checks for water and sewage meetings held on the same evening, based on the advice of the Authority's newly appointed solicitor. During an interview with Commission investigators on January 16, 2008, Respondent indicated, inter alia: that Authority Solicitor Mark Ramsier indicated that it was permissible for the Board to hold separate meetings and receive payment for each meeting held; and that the Authority Board asked Solicitor Ramsier "everything." At the hearing in this matter held on December 15, 2008, Respondent testified that she did not know that she should not have accepted an increase in Authority Board Member compensation "early" (prior to the beginning of a new term of office). Respondent and Authority Board Member Thomas Canigiani testified that they did not believe that it was wrong to take multiple payments for the water and sewage portions of the Authority Board meetings. Both testified that they viewed the water portion and the sewage portion of an Authority Board meeting as two meetings. Both testified that Canigiani and Authority Board Member John Ventura questioned Authority Solicitor Mark Ramsier when they received a check from the Authority for back pay. Respondent testified that the Authority Board Members rely on the Authority Solicitor to tell them right from wrong. Attorney Ramsier, who served as Solicitor for the Authority from 1999 until resigning as of July 31, 2007, testified that it was shortly before he resigned that he became aware that Authority Board Members were receiving two checks per month for Authority Board meetings. Ramsier testified that his own compensation as Authority Solicitor was on a per meeting" basis, and that he continued to receive only one check per meeting night after the Authority Board began holding separate portions of its meetings for water and sewer. Having summarized the above relevant facts, we must now determine whether the actions of Respondent violated Section 1103(a) of the Ethics Act. As we apply the facts to the allegations, due process requires that we not depart from the allegations. Pennsy v. Department of State, 594 A.2d 845 (Pa. Cmwlth. 1991). A violation of the Ethics Act must be based upon clear and convincing proof. 65 Pa.C.S. § 1108(g). Clear and convincing proof is "so `clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." In Re: Charles E.D.M., 550 Pa. 595, 601, 708 A.2d 88, 91 (1998) (Citation omitted). The allegations are that Respondent Russell violated Section 1103(a) of the Ethics Act: (1) when she received compensation not provided for by law by participating in actions of the Authority Board to authorize the expenditure of Authority funds for Board Members' compensation in excess of that approved by the appointing authority; and (2) when she accepted an increase in compensation prior to the beginning of a new term of office. Russell, 07 -039 Page 28 The first allegation pertains to unauthorized payments Respondent received for attending sewage meetings as separate meetings. Each element of a violation of Section 1103(a) of the Ethics Act has been established. From April 2002 though June 2007, Respondent received and negotiated sixty -six checks totaling $5,175.00 (gross) representing payment for sewage meetings attended on the same night as regular Authority water meetings. Respondent used the authority of her public office as an Authority Board Member when she participated in actions of the Authority Board in approving monthly bill lists that included sixty -four of the aforesaid checks, totaling $5,025, as detailed in Fact Finding 33. See, Arrow, Order 1468; Sotta, Order 1482; Cours, Order 1150; Hoover, Order 1402; Nagele, Order 1403; Harton, Order 1421. Respondent also used the authority of her public office when she signed, as an Authority signatory, at least one of the aforesaid checks totaling $75.00. See, Arrow, supra; Weiss, supra; Schlanger, Order 1257; Hoover, supra; Nagele, supra; Harton, supra; Latkanich, Order 1445. Respondent did not vote to approve the bill list for the aforesaid check that she signed. There was only one check -- Authority check 1249 totaling $75.00- - for which Respondent neither signed the check as an Authority signatory nor voted to approve the bill list that included the check. (Cf., Fact Findings 32 and 33). The payments Respondent received for sewage meetings constituted a private pecuniary benefit to Respondent, specifically, unauthorized compensation. Per the Municipality Authorities Act, compensation provided for authority board members must be established by the appointing authority (in this case, the Board of Supervisors). 53 Pa.C.S. § 5610(d). The Board of Supervisors took no official action to approve payments to Authority Board Members for separate water and sewage meetings. Furthermore, based upon the evidence before us, the "sewage meetings" were in fact merely a portion of the monthly Regular Meeting of the Authority Board, regardless of the label attached by the Authority. The Authority was a joint authority. The Authority Board was a single governmental body. The Authority's own by -laws provided for one Regular Meeting per month, at a specific time, that would include a sewage portion. The Authority's published notices of its meetings referred to meetings as being held on a particular Tuesday of each month at a particular time, with no mention of a separate sewage meeting. Respondent argues that we should not be concerned with whether a meeting was advertised in accordance with the Sunshine Act, but rather, asserts that the idea of a meeting turns on what "everybody believed a meeting was." (Tr. at 120). However, the objective evidence establishes that during the relevant time period, the monthly Regular Meeting of the Authority Board included both a water and sewage portion, and that these portions were not separate meetings for which Respondent could receive double compensation. Even if we would consider the water and sewage portions of the Authority's meetings to be separate, our disposition of this matter would not change, because one such meeting would be unauthorized. With the first allegation specifically directed to Respondent's participation in actions of the Authority Board, we hold that Respondent violated Section 1103(a) of the Ethics Act when she received compensation in the amount of $5,025.00, which was not provided for by law, by participating in actions of the Authority Board to authorize the expenditure of Authority funds for Board Members' compensation in excess of that approved by the appointing authority, the Board of Supervisors. The second allegation pertains to Respondent's acceptance of an increase in meeting pay prior to the beginning of a new term of office. As noted above, at the January 7, 2002, reorganization meeting of the Board of Supervisors, the compensation for Authority Board Members was increased from fifty Russell, 07 -039 Page 29 dollars per meeting to seventy -five dollars per meeting. However, pursuant to the Municipality Authorities Act, Respondent was not eligible to receive the increase in compensation until the beginning of her second full term in January 2005. (See, Fact Finding 65; 53 Pa.C.S. § 5610(a)(1), (d)). We have factually determined that separate and apart from sewage meeting payments, from April 2002 through December 2004, Respondent received a total of at least $825.00 for the meeting pay increase prior to the commencement of a new term of office. Such excess compensation was not authorized in law and constituted a private pecuniary benefit to Respondent. The element of use of authority of office has been established. Respondent used the authority of her public office when she participated in actions as an Authority Board Member in approving monthly bill lists that included such payments. With each element of a violation of Section 1103(a) established, we hold that Respondent violated Section 1103(a) of the Ethics Act in relation to her acceptance of an increase in compensation (meeting pay) prior to the beginning of a new term of office. See, Arrow, supra; Weiss, supra; Sotta, supra; Trimer, Order 1285. We reject Respondent's contention that violations may not be found in this matter based upon Respondent's assertions that: (1) the Investigative Complaint fails to state a claim upon which relief can be granted; (2) this matter is barred in whole or in part by the applicable statute of limitations; (3) the Authority was not prohibited from holding multiple meetings on the same day, or from conducting "water business" separately from "sewage business "; (4) the Township lacked authority to limit the number of meetings held by the Authority; (5) the Township had implied /imputed knowledge that the Authority Board Members were receiving separate payments for such meetings, given Weiss' service on both boards and Ramsier's service as Solicitor for both; (6) the Township's failure to act constituted implied or tacit approval of separate payments for same -day consecutive meetings, such that this Commission is equitably estopped from finding Respondent in violation of Section 1103(a) of the Ethics Act; (7) Respondent acted on the advice of the Authority's Solicitor; and (8) Respondent did not use her public office to obtain personal financial gain. We determine that: the Investigative Complaint does aver violations of Section 1103(a) of the Ethics Act, which violations have been established by the record before us; such violations are based upon actions occurring within the time period properly subject to review (see, 65 Pa.C.S. § 1108(m)); based upon the evidence before us, the Authority's "sewage meetings" were in fact merely a portion of the monthly Regular Meeting of the Authority Board, regardless of the label attached by the Authority; and purported reliance upon a Solicitor's advice may, at most, shield a Respondent from treble damages and certain criminal penalties, which are not involved in this case. (See, 65 Pa.C.S. §§ 1109(c), (g)). Section 1107(13) of the Ethics Act empowers this Commission to impose restitution in instances where a public official /public employee has obtained a financial gain in violation of the Ethics Act. The Investigative Division seeks restitution in the total amount of $5,175.00, which is limited to unauthorized sewage meeting pay. Closing Statement and Brief of the Investigative Division, at 7, 22 -23. In considering the request for restitution, we determine that restitution in the total amount of $5,025.00 is warranted in this case, representing the unauthorized sewage meeting pay that Respondent received in violation of Section 1103(a) of the Ethics Act. Cf., Arrow, supra; Weiss, supra; Sotta, supra. (We need not address the meeting pay Respondent did not receive for an Authority meeting held on October 26, 2004, as such amount would be offset by unauthorized compensation Respondent received for the Russell, 07 -039 Page 30 increase in meeting pay prior to the beginning of her new term of office.) We shall permit Respondent to pay the aforesaid restitution in 36 monthly installments as set forth below. Respondent Russell is directed to pay restitution to the Authority in the total amount of $5,025.00 in monthly payments of $139.58 for thirty -five (35) months, and a final payment of $139.70, with all such payments to be payable to the Authority and forwarded to this Commission for processing, and with the first such payment to be forwarded to this Commission by no later than the thirtieth (30 ") day after the mailing date of this adjudication and Order. Respondent may prepay the amount due at any time. Non - compliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Member of the Municipal Authority of Washington Township ( "Authority ") since January 4, 2000, Respondent Selma Russell ( "Russell ") has 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. Russell violated Section 1103(a) of the Ethics Act when she received compensation in the amount of $5,025.00, which was not provided for by law, by participating in actions of the Authority Board to authorize the expenditure of Authority funds for Board Members' compensation in excess of that approved by the appointing authority, the Washington Township Board of Supervisors. 3. Russell violated Section 1103(a) of the Ethics Act in relation to her acceptance of an increase in compensation (meeting pay) prior to the beginning of a new term of office. 4. Restitution is warranted in this case. In Re: Selma Russell, Respondent File Docket: 07 -039 Date Decided: 3/12/09 Date Mailed: 3/27/09 ORDER NO. 1509 1 Respondent Selma Russell ( "Russell "), a public official in her capacity as a Member of the Municipal Authority of Washington Township ( "Authority ") since January 4, 2000, violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when she received compensation in the amount of $5,025.00, which was not provided for by law, by participating in actions of the Authority Board to authorize the expenditure of Authority funds for Board Members' compensation in excess of that approved by the appointing authority, the Washington Township Board of Supervisors. 2. Russell violated Section 1103(a) of the Ethics Act in relation to her acceptance of an increase in compensation (meeting pay) prior to the beginning of a new term of office. 3. Russell is directed to pay restitution to the Authority in the total amount of $5,025.00 in monthly payments of $139.58 for thirty -five (35) months, and a final payment of $139.70, with all such payments to be payable to the Authority and forwarded to this Commission for processing, and with the first such payment to be forwarded to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. Russell may prepay the amount due at any time. a. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair