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HomeMy WebLinkAbout1602 Scimio In Re: Paul Scimio, : File Docket: 10-050 Respondent : X-ref: Order No. 1602 : Date Decided: 4/12/12 : Date Mailed: 5/3/12 Before: Louis W. Fryman, Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella Mark Volk 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 allegations. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an “Investigative Complaint.” An Answer was filed and a hearing was requested. A Stipulation of Findings and a Consent Agreement 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. I.ALLEGATIONS: That Paul Scimio, a public official/public employee in his capacity as a Member of Leetsdale Borough Council, 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 public position for a private pecuniary benefit by participating in discussions and decisions of the Borough Council resulting in his hiring as the Borough Manager; and when he charged personal expenses to a Borough issued credit card. II.FINDINGS: 1. Paul J. Scimio served as a Council Member for Leetsdale Borough, Allegheny County, consecutively from January 7, 2002, through August 12, 2010. a. Scimio held the office of Vice-President of Council from January 3, 2006, through August 12, 2010. b. Scimio was previously appointed to Borough Council on January 2, 1990, and served as a Council Member consecutively until January 1, 1996. 2. Scimio resigned from his position on Council effective August 12, 2010. a. Scimio resigned in order to accept employment as the Borough Manager for Leetsdale Borough. Scimio, 10-050 Page 2 1. Scimio’s letter of resignation was accepted by Council at the August 12, 2010, regular Council meeting. b. Scimio was employed as the Borough Manager from August 23, 2010, until released by Council on January 3, 2012. 3. Leetsdale Borough (hereafter “Borough”) is governed by a seven Member Council and a Mayor. a. Borough Council holds one legislative meeting per month on the second Thursday of each month. b. Borough Council currently holds one workshop meeting per month on the Tuesday prior to the second Thursday of each month. 1. Borough Council did not consistently hold workshop meetings from at least January 2009 through November 2010. 2. Borough Council resumed holding scheduled monthly workshop meetings in December 2010. c. Borough Council holds special meetings on an as needed basis. 4. All seven Members of Council, including Council President, can vote on motions presented for approval. a. Council President may not make or second motions on the floor. b. The Borough Mayor has voting privileges only if a tie occurs among voting Council Members. 5. Voting at Borough Council meetings primarily occurs via group “aye/nay” fashion. a. Individual roll call votes may occur depending upon the issue presented for consideration. 1. Roll call votes may be conducted for personnel issues, financial issues, controversial issues, etc. b. Any objections or abstentions cast by Council Members are specifically documented in the written meeting minutes. 1. Minutes of all meetings held are approved for accuracy by Council at subsequent [Council] meetings. 2. Council meetings are digitally recorded and retained indefinitely to assist in generation of the minutes. 6. Council Members do not receive a formalized meeting packet prior to the workshop or legislative meetings. a. Council Members are provided with various pieces of information received at the Borough building throughout the month via e-mail transmission. Scimio, 10-050 Page 3 1. Hard copies of the items forwarded are also available to the Council Members in each Council Member’s mailbox located at the Borough building. b. Council Members routinely receive the meeting agenda and prior month’s minutes via e-mail for review anywhere from two days prior to the meeting to the day of the meeting. 1. Hard copies of the agenda, prior month’s minutes, list of bills, and any items remaining in each Council Member’s mailbox are placed at each Council Member’s seat the night of the workshop meeting. aa. The register of bills provided documents all those bills which have been received at the Borough for payment since the prior monthly legislative meeting. 7. Meeting agendas for upcoming meetings during Scimio’s tenure as Borough Manager were generated by the Borough Manager. a. The Borough Manager automatically places any items of which he is aware that require discussion and/or action on the agenda for consideration. b. The Borough Manager routinely contacts each individual Council Member who chairs a Borough committee (e.g., public works, public safety, etc.) as well as Council President regarding any additional items which require placement on the agenda. c. The agenda is normally presented to Council President for input and approval prior to distribution. 1. The setting and approval of the meeting agenda is a responsibility of Council President. d. The Borough Secretary/Treasurer was responsible for creation of the agenda prior to the establishment of the Borough Manager position. 1. The Borough Secretary/Treasurer followed the same general procedure regarding generation of the agenda. 8. During Scimio’s service as Borough Manager, signature authority over Borough accounts was maintained by the Borough Senior Clerk (formerly titled Secretary/Treasurer), Council President, the Council Member serving as the Chairman of the Finance Committee, and a third Council Member who was routinely available to sign checks. a. Two signatures are required on all Borough checks. 1. Signatures obtained can be any combination of those individuals holding signature authority. b. The Borough currently requires live signatures on Borough checks. 1. A facsimile stamp of President of Council Roger Nanni’s signature previously existed and was utilized until approximately early to mid- 2010. Scimio, 10-050 Page 4 9. Prior to Scimio’s appointment as Borough Manager effective August 23, 2010, Leetsdale Borough did not employ a Borough Manager. a. The position of Borough Manager did not exist in the Borough from the Borough’s incorporation on March 28, 1904, through June 9, 2010. b. General, day-to-day, administrative duties associated with operational running of the Borough office were completed by the individual(s) serving in the positions of Borough Secretary and Borough Treasurer. 10. Article IX of the Pennsylvania Borough Code addresses the powers, duties, and rights of appointed officers and employees. a. Subtitle (g) of Article IX addresses the position of Borough Manager. b. Section 1141 of Article IX, subtitle (g), in part, allows for Council’s creation and/or abolishment of the position of Borough Manager by ordinance at Council’s discretion at any time. 1. Section 1141 also permits the election to or removal of an individual from the Borough Manager position at any time by a majority vote of all the Members of Council. aa. A proper vote to elect or remove an individual from the position of Borough Manager requires a vote of all Council Members and not only those in attendance at the applicable meeting. 11. The Borough considered the possibility of establishing the position of Borough Manager during or about the early 2000s. a. The subject of a Borough Manager position, among other issues, was documented within the scope of an Administrative Review conducted for the Borough through the Governor’s Center for Local Government Services, Pennsylvania Department of Community and Economic Development. 1. The Borough, through a Letter of Intent dated January 9, 2003, requested the Governor’s Center for Local Government Services to provide technical assistance through the Peer Assistance Program. 2. The Administrative Review was scheduled to begin in March 2003 with an expected completion date by the end of July 2003. b. Scimio was a Member of Council at this time. 12. The July 7, 2004, Administrative Review Report ultimately presented to Borough Council contained a specific section dedicated to the feasibility of employing a Borough Manager as well as a concluding section which in combination noted, among other information, the following: a. The investigation of the feasibility of hiring a manager was an issue of major importance to the Borough in completion of the study; b. The subject of consideration of employing a manager was initiated by a Borough resident; c. Council was not dissatisfied with the organizational structure in place at that time; Scimio, 10-050 Page 5 d. It was unlikely that the transition to a Council/Manager form of government alone would increase grant opportunities for the Borough as Leetsdale had reportedly been successful in its receipt of grant awards over the past five prior years; 1. It would not be feasible to consider the hiring of a manager for the primary goal of grant acquisition; 2. There was no reason why the Borough Secretary, a Council Member, or other employee could not make grant application on behalf of the Borough; e. It was not feasible to consider the employment of a Borough Manager until that Council or a future administration wished to substantially expand the role of the chief administrator; and f. The Borough appeared to function at a satisfactory level based on the needs of the community and Borough Council. 13. From approximately mid-2004 through mid-2008, Borough Council had no serious discussion [about] and took no formal action to move forward with the establishment of the Borough Manager position (e.g., creation and passing of an ordinance, advertising for applications, etc.). a. Informal discussion occurred among various Council Members at times regarding a Borough Manager position within the Borough. 1. Discussion which occurred primarily did so as situations arose for which a Borough Manager may be best suited to address. 2. Discussion was intermittent and not a consistent occurrence. 14. During or about mid to late 2008, various Council Members engaged in informal discussions among one another regarding the possibility of employing a Borough Manager. a. Council took no formal action to move forward with the creation of the position at that time (e.g., creation and passing of an ordinance, advertising for applications, etc.). b. Borough minutes for meetings held in 2008 and 2009 document no discussion and/or action regarding the possibility of employing a Borough Manager having occurred at any public meetings. c. Various Council Members considered pursuing the Ambridge Borough Manager at that time for employment as the Borough Manager. 15. By the end of 2008, Council did not further pursue the hiring of a Borough Manager. a. Council abandoned the possibility after discovering that the individual employed as the Ambridge Borough Manager had left Ambridge Borough for other employment. b. Council did not again formally discuss or pursue with any focus the possibility of creating a Borough Manager position until April 2010. Scimio, 10-050 Page 6 16. An executive session was held by Council on or about March 1, 2010, to discuss alleged improprieties by a Member of Council. a. The executive session was recommended by the Borough Solicitor upon receipt of a telephone call from Scimio. 1. Scimio had been informed by Borough staff in late February 2010 while at the Borough building of various questionable activities allegedly involving a Member of Council. 2. Scimio contacted the Borough Solicitor upon receipt of the information from the Borough employees. b. Council Members in attendance at the executive session included Scimio, Osman Awad, Benjamin Frederick, and Wesley James. 17. The executive session addressed multiple subjects, including allegations of improper activities conducted by or involving a Member of Council. a. The actions of Council President Roger Nanni were the focus of the executive session. b. After the allegations were initially presented and discussed, Nanni was invited to the executive session to provide input regarding the allegations. 1. After Nanni’s participation in the executive session, Council determined that Nanni should step down as Council President while the allegations were investigated. c. After the meeting, Borough staff received a telephone call from Scimio advising that Scimio was assuming the duties and responsibilities of the office of President of Council at that time. d. Council eventually took no action against Nanni as a result of the inquiry. 18. Council held one regularly scheduled legislative meeting and no special meetings between the time frame of the March 1, 2010, executive session and the April 8, 2010, regularly scheduled legislative meeting. a. The meeting was held on March 11, 2010. 1. Scimio, Frederick, James, and Council Member Thomas Brown were present at the meeting. b. Minutes of the March 11, 2010, regular meeting document no discussion regarding any interest in the creation of a Borough Manager position. c. Minutes of the March 11, 2010, regular meeting were approved for accuracy via unanimous vote at the April 8, 2010, regular meeting with no corrections/amendments documented. 1. Scimio, Frederick, Awad, James, and Council Member Michael Bajsec were present at the meeting. 19. Discussion occurred between multiple Members of Council in one-on-one settings between the March 1, 2010, executive session and the April 8, 2010, regular meeting regarding information presented in the March 1, 2010, executive session. Scimio, 10-050 Page 7 a. Individual discussions occurring between Council Member Bajsec and Scimio, Nanni, James, and Frederick included the topic of creation of a Borough Manager position. 1. All individuals contacted by Bajsec, including Scimio, were in favor of moving forward with the creation of a Borough Manager position. 2. Scimio expressed his support for creation of a Borough Manager position during the contact with Bajsec. 20. Between the time frame of the March 1, 2010, executive session and the April 8, 2010, regular meeting, Nanni contacted the Borough Solicitor via telephone and specifically discussed the Borough Manager position. a. Nanni inquired into the process to be followed in order to create the position. 21. The agenda developed for the April 8, 2010, regular meeting of Borough Council provided an overview of subjects to be addressed at the meeting. a. The topic of preparation of an ordinance creating the job description for the position of Borough Manager was not documented on the agenda. 1. Petalino was not contacted by any Council Member and requested/directed to place the preparation of an ordinance for the position of Borough Manager on the agenda. 22. At the April 8, 2010, regular Council meeting, a motion was made under “New Business” by Frederick, seconded by Awad, for the Borough Solicitor to prepare an ordinance creating the job description of Borough Manager. a. Scimio was present at the meeting and voted in favor of the motion. b. The vote to approve the motion passed via 5-0 unanimous vote with no abstentions. 1. Nanni and Brown were absent from the meeting. c. The motion was made, seconded, and approved immediately after three topics documented on the agenda under “New Business” were presented. 23. No discussion occurred during the April 8, 2010, meeting among Council Members present regarding the creation of a Borough Manager position either prior to or after the motion to prepare the ordinance establishing the position. a. Minutes of the meeting document no questions about or discussion of the position by Council Members present with the exception of the motion, the second to the motion, and the vote approving the motion. 1. The minutes were approved for accuracy at the May 13, 2010, regular meeting. b. The digital recording of the meeting documents no questions about or discussion of the position by Council Members present with the exception of the motion, the second to the motion, and the vote approving the motion. Scimio, 10-050 Page 8 24. The agenda for the May 13, 2010, regular meeting of Borough Council provided an overview of subjects to be addressed at the meeting. a. The agenda specifically noted, among other sections, a section for “Solicitor” and two specific topics to be addressed. 1. Included in the topics to be addressed was a motion to advertise the proposed ordinance establishing the position of Borough Manager. 2. Petalino placed the topic on the agenda without being requested or directed to do so as a result of her experience in Borough affairs and past practice. aa. Petalino was aware that Council was required to approve the advertisement of the proposed ordinance prior to its actual advertisement. 25. At the May 13, 2010, regular Council meeting, a motion was made under “Solicitor’s Report” by Frederick, seconded by Awad, to advertise the ordinance creating the office of Borough Manager. a. The vote to approve the motion passed 6-0-1 with Scimio abstaining. 1. Minutes document Scimio abstaining because he did not have an opportunity to review the proposed ordinance. b. No discussion occurred during the May 13, 2010, meeting among Council Members present regarding the creation of the Borough Manager position either prior to or after the motion to advertise the ordinance which created the position. 26. At the June 10, 2010, regular Council meeting, a motion was made under “Solicitor’s Report” by Frederick, seconded by Awad, to adopt the ordinance establishing the office of Borough Manager. a. Scimio was present at the meeting and voted in favor of the motion. 1. Scimio voted in favor of adopting the ordinance which created the Borough Manager position after having expressed interest in the position to at least two separate Council Members. b. The vote to approve the motion passed via 7-0 unanimous vote with no abstentions. 27. Borough Ordinance No. 617, approved at the June 10, 2010 regular meeting, is titled, “AN ORDINANCE OF THE BOROUGH OF LEETSDALE, COUNTY OF ALLEGHENY AND COMMONWEALTH OF PENNSYLVANIA CREATING THE OFFICE OF MANAGER; AND PROVIDING THE MANOR [sic] OF FILING [sic] SAID OFFICE, THE AMOUNT OF BOND, METHOD OF COMPENSATING SUCH OFFICER AND POWERS AND DUTIES OF SAID OFFICE.” 28. No discussion occurred during the June 10, 2010, meeting among Council Members present regarding the creation of the Borough Manager position either prior to or after the motion to adopt the ordinance establishing the position. Scimio, 10-050 Page 9 a. Minutes of the meeting document no questions about or discussion of the position by Council Members present with the exception of the motion, the second to the motion, and the vote approving the motion. 1. The minutes were unanimously approved for accuracy at the July 15, 2010, regular meeting. b. An executive session was held by Council prior to the June 10, 2010, regular meeting to discuss personnel matters. 1. The executive session did not address the position of Borough Manager. 2. The subject of the executive session related to disciplinary action to be taken against a Borough employee. 29. During the time from April 2010 to June 2010, when Scimio was participating in discussions and actions of Council to authorize the Solicitor to prepare the Borough Manager ordinance, advertise the ordinance, and approve [Ordinance No.] 617 creating the Borough Manager position, Scimio had a reasonable expectation that he would be an applicant for the Manager position. a. Scimio expressed his interest in the position to Members of Council, including Bajsec and Nanni. 30. Scimio expressed his interest in the Borough Manager position in casual conversations with Councilman Bajsec early into the process of creating the position. a. Scimio expressed his interest to Bajsec during conversations with Bajsec which occurred from mid-to-late April 2010 through mid-to-late May 2010. b. Scimio informed Bajsec that he was developing interest in the position and advised what he (Scimio) could bring to the role. 1. Scimio stated to Bajsec that he felt that he (Scimio) could do a good job and would be good for the position. 31. In addition to expressing interest in the Borough Manager position to Bajsec, Scimio contacted Nanni in or about June 2010 and expressed interest in the position. a. Scimio questioned Nanni if he could submit an application. b. Scimio questioned what would happen if he applied. 32. Between the dates of June 10, 2010, and July 7, 2010, Council President Nanni and a Borough employee discussed the Borough Manager position. a. Nanni came to the Borough office during normal operational hours and entered the administrative office area which housed Petalino’s and Kohlmeyer’s work space. 1. Kohlmeyer was not in the office at the time. b. Nanni and Petalino spoke in a one-on-one setting. Scimio, 10-050 Page 10 1. No other individuals were present in the administrative office at the time of the conversation. c. Petalino questioned if Nanni knew who was to be placed into the Borough Manager position. 1. Nanni responded that he knew who was to be hired but did not initially identify the individual to Petalino. d. Petalino continued to question Nanni on the identity of the individual during the conversation. 1. Nanni informed Petalino that Scimio was to be placed into the position. e. Nanni informed Petalino of Scimio’s pending employment as the Borough Manager prior to the advertisement for the position, acceptance of resumes for the position, and interview of candidates for the position. 33. At the July 15, 2010, regular Council meeting, a motion was made under “New Business” by Bajsec, seconded by Frederick, to advertise for applicants for the position of Borough Manager. a. Scimio was present at the meeting and voted in favor of the motion. 1. Scimio voted in favor of advertising for applicants for the Borough Manager position after having expressed interest in the position to at least two separate Council Members. b. The vote to approve the motion passed via 7-0 unanimous vote with no abstentions. c. The agenda for the July 15, 2010, regular meeting of Borough Council did not include advertising for applicants for the position of Borough Manager. 1. Petalino was not contacted by any Council Member and requested or directed to place the advertising for applicants for the position of Borough Manager on the agenda. d. Scimio had expressed his interest in the position at the time of this vote on July 15, 2010. 34. No discussion occurred during the July 15, 2010, meeting among Council Members present regarding the advertisement for applicants for the position of Borough Manager either prior to or after the motion to advertise for applicants for the position. a. Minutes of the meeting document no questions about or discussion of the position by Council Members present with the exception of the motion, the second to the motion, and the vote approving the motion. 1. The minutes were unanimously approved for accuracy at the August 12, 2010, regular meeting. 35. No discussion occurred during the July 15, 2010, meeting among Council Members present regarding qualifications required for the position of Borough Manager either prior to or after the motion to advertise for applicants for the position. Scimio, 10-050 Page 11 a. Qualifications for applicants for the Borough Manager position were not discussed in any public forum by Council prior to filling the position. 36. Contemporaneous to the conclusion of the July 15, 2010, meeting, Council Member Nanni and Mayor Poninsky participated in a conversation in the breezeway of the Borough building in relation to the Borough Manager position. a. Nanni approached Poninsky and initiated the conversation. b. Nanni instructed Poninsky not to apply for the Borough Manager position. 1. Poninsky had previously approached various Members of Council for information on the Borough Manager position. c. Nanni informed Poninsky that the position had already been promised to another individual. 1. Nanni did not identify the individual to Poninsky. 37. Nanni was the Borough official who created the actual advertisement ultimately published for the Borough Manager position. a. During or about the time frame between the creation of the ordinance and the placing of the advertisement, Nanni contacted the Borough Solicitor and questioned if any required qualifications existed to hold a position of Borough Manager. 1. Nanni specifically questioned if the position required a college degree. aa. Borough Solicitor Richard Start advised Nanni that a college degree was not required to hold a Borough Manager position but may be an indication of a good qualification for such a position. 1. Scimio does not hold a college degree. 2. Nanni specifically questioned about the possible salary for the position. aa. Start recommended contacting neighboring municipalities and inquiring into manager salaries to assist in establishing a salary for the position. 38. Nanni informed the remainder of Council, including Scimio, the Mayor, and the Secretary/Treasurer, via e-mail dated July 19, 2010, of actions he had taken and/or actions to be taken in relation to the Borough Manager position. a. Nanni advised that he was placing an ad that week for the Borough Manager position. 1. Nanni created the advertisement for the Borough Manager position without input from any other Members of Council. b. Nanni advised that a P.O. Box had been established for resumes. Scimio, 10-050 Page 12 1. Nanni had opened a P.O. Box at the Leetsdale Post Office on July 17, 2010, at 9:19:45 a.m., in the name of “Leetsdale Borough, Roger” to receive resumes for the Borough Manager position. aa. The P.O. Box/Call Number was 227, Leetsdale, PA 15056. bb. Nanni opened the P.O. Box so that applications would not be received at the Borough office. c. Nanni advised that a committee had been appointed for the selection process, consisting of himself, Bajsec, and Awad, to include resume review, interview set-up and conduction, and recommendation of a candidate and compensation package to Council. d. Scimio contacted Bajsec and Nanni about the manager position prior to the committee being formed. 39. The Borough’s official circular of record is The Beaver County Times. a. The Beaver County Times also publishes an Allegheny County edition known as the Allegheny Times. 1. The Allegheny Times edition serves western Allegheny County. b. The content of the newspapers is primarily the same with the exception of the front page. 1. Advertisements placed in The Beaver County Times are also published in the Allegheny Times on the same days for the same run length. 40. On or about July 19, 2010, Nanni submitted the advertisement identifying the Borough’s acceptance of applications for the Borough Manager position to The Beaver County Times. a. Nanni submitted the advertisement for publication to The Beaver County Times via e-mail. b. Advertisements to be placed by the Borough in its circular of record were traditionally placed by the Secretary/Treasurer prior to the filling of the Borough Manager position. 41. The advertisement generated and submitted by Nanni for publication in relation to the newly created Borough Manager position noted qualifications and requirements as follows: BOROUGH MANAGER The Borough of Leetsdale is now accepting applications for the position of Borough Manager. Applicant must have management experience and working knowledge of municipal government. Send resume to: Leetsdale Borough, P. O. Box 227, Leetsdale, PA 15056. Attn: Roger A. Manni [sic]. Resumes must be postmarked on or before July 27, 2010. Scimio, 10-050 Page 13 a. The advertisement for the newly created Borough Manager position was published in The Beaver County Times and the Allegheny Times on July 20, 2010. 1. The advertisement was not published in any other circulars or publications. 2. The advertisement was published for one day only, July 20, 2010. aa. Nanni determined the length of time for the advertisement to run. 42. Shortly after the July 15, 2010, regular meeting, Scimio again expressed his interest in the Borough Manager position to various Members of Council. a. Scimio spoke with Councilman Brown outside of Brown’s home in Leetsdale and informed Brown that he (Scimio) was considering submitting an application for the Borough Manager position. 1. Scimio was driving by Brown’s property and stopped to speak with Brown. 2. Brown was outside at the time. b. Scimio re-affirmed his interest to Bajsec in a conversation with Bajsec during which Scimio stated his intent to apply for the position. c. Scimio expressed his interest to Frederick in a conversation during which Scimio identified his intent to apply for the position. 43. A total of five resumes were submitted in response to the Borough’s advertisement of the Borough Manager position. a. Three of the five resumes submitted for the position were from Borough officials. 1. Resumes were submitted by Scimio, James, and Poninsky. b. The remaining two resumes were submitted by private citizens Marissa Kuzma and Paul Butcher. c. The dates the resumes were received could not be positively identified. 1. All resumes submitted required a postmark date of no later than July 27, 2010, per the published advertisement. d. The advertisement was not published a second time to obtain a larger pool of applicants from which to make a selection. 44. Interviews for the Borough Manager position were conducted at the Borough building on three separate days over a span of one week between August 2, 2010, and August 9, 2010. a. Bajsec scheduled the interview dates and times for the candidates as follows: August 2, 2010 August 6, 2010 August 9, 2010 Scimio, 10-050 Page 14 Marissa Wesley James/7:30pm Pete Kuzma/9:00am Poninsky/9:00am Paul Scimio/9:30am --- Paul Butcher/9:30am Note: All times are approximate b. All three selection committee [members] were present at each of the interviews. c. No additional Borough representatives participated in any of the interviews conducted. 45. Interviews for the Borough Manager position lasted between approximately thirty and forty-five minutes each. a. No additional interviews were conducted with any candidates beyond the initial interviews. b. Neither the salary range for the position nor benefits information associated with the position was presented to the applicants at the time of the interviews. 46. At the conclusion of the final interview on August 9, 2010, the selection committee traveled from the Borough building to Little Athens, a restaurant located in Sewickley, Pennsylvania, to discuss and evaluate the individuals interviewed. 47. Scimio was selected/ranked by the selection committee as the most qualified candidate for the Borough Manager position. a. The ranking was based on Scimio’s assertion of management experience through his employment history, his familiarity with managing large dollar construction projects, and his knowledge of the Borough and its procedures. b. The selection committee justified its selection of Scimio primarily on Scimio’s resume and interview responses. 48. The resume submitted by Scimio to the Borough for consideration for the Borough Manager position documented Scimio’s prior work history as well as Scimio’s experience on Borough Council among other information. 49. Scimio was aware that the Borough Manager position was to be filled by Council at the August 12, 2010, regular meeting. a. Scimio was made aware by the selection committee during his interview of August 2, 2010, that the position was to be filled at the August 12, 2010, meeting. b. Scimio was informed that he was required to submit a letter of resignation from his position on Council conditional upon his appointment as the Borough Manager. 1. Scimio submitted a letter of resignation dated August 12, 2010. aa. Scimio was on a family vacation in Ocean City, Maryland, from August 6, 2010, to August 13, 2010. Scimio, 10-050 Page 15 bb. Scimio had prepared his letter of resignation in advance and dated it for the night of the August 12, 2010, meeting. 50. Scimio either attempted to contact/communicate with or did contact/communicate with every Member of Council on August 12, 2010, prior to the convening of the regular meeting. a. Scimio was on vacation in Ocean City, Maryland, on August 12, 2010, when he initiated the contacts. 51. Although on vacation, Scimio maintained communication with various Members of Council, including members of the selection committee, from the dates of August 6, 2010, through August 13, 2010. a. Scimio communicated with various Members of Council via receipt of and/or initiation of cellular telephone calls between the time frame of August 6, 2010, and August 13, 2010. 52. Four Members of Borough Council met in the then Borough conference room and discussed the Borough Manager position prior to convening the August 12, 2010, regular meeting. a. Council Members present considered the meeting to be an executive session meeting. b. Council Members Nanni, Bajsec, Awad, and Frederick were present for the meeting/discussion. 1. All four of these Council Members had contact with Scimio prior to the executive session. 2. No record exists that these Council Members had contact with any other applicants for the Borough Manager position. c. Solicitor Start was also present at the meeting/discussion. 53. During the meeting/discussion, Nanni and Bajsec advised that interviews for the Borough Manager position had been conducted. a. Nanni and/or Bajsec also presented a recommendation to hire Scimio at a specified salary. 54. The Pennsylvania Sunshine Act establishes specific situations and procedures for which municipal entities may conduct executive session meetings. a. Executive sessions may be held during the recess of a public meeting, at the conclusion of such meetings, or announced for a future time. b. The reason for holding the executive session must be announced at a public meeting occurring immediately prior or subsequent to the executive session. 55. No official announcement or record of the meeting or the subject discussed at such exists within the minutes of the August 12, 2010, regular meeting or subsequent Council meetings. a. None of the Council Members known to be present at the meeting announced that an executive session and/or the subject thereof [sic] had Scimio, 10-050 Page 16 been held immediately prior to the convening of the August 12, 2010, meeting. b. None of the Council Members known to be present at the meeting requested a correction of or addition to minutes of the August 12, 2010, meeting identifying the conduction of an executive session prior to the August 12, 2010, regular meeting. 56. A proposed agenda for the August 12, 2010, meeting was sent to Council Members by Petalino via e-mail transmission prior to August 12, 2010. a. The August 12, 2010, regular meeting of Borough Council was scheduled to begin at 7:00 p.m. as documented on the meeting agenda. 57. After distribution of the proposed agenda, Nanni directed Petalino via e-mail to add the subject of hiring a Borough Manager to the August 12, 2010, agenda. a. Petalino added the hiring of a Borough Manager to the agenda under the agenda section titled “Unfinished Business.” 58. During the audience participation portion of the August 12, 2010, regular meeting, multiple individuals addressed Council with questions and concerns regarding the Borough Manager position. a. Questions/concerns addressed regarding the Borough Manager position included, in part, the following: 1. The actual need for a Borough Manager position in the Borough; 2. The manner in which the position was advertised and the fact that the position was advertised for one day only; 3. The lack of qualifications identified for the position; 4. The lack of discussion by Council at public meetings regarding the hiring of a Borough Manager; 5. The total number of times candidates were interviewed; 6. The salary range for the position; and 7. Bonding requirements for the individual selected for the position. b. Council was specifically requested to reconsider taking action on the Borough Manager position for the benefit of all residents to allow time to investigate a number of candidates who would potentially be capable of filling the position. c. Council disregarded the request to reconsider taking action on the hiring of the Borough Manager that evening. 59. At approximately 9:31 p.m. at the August 12, 2010, regular meeting, a motion was made under “Unfinished Business” by Bajsec, seconded by Awad, to hire Scimio as the first Borough Manager for Leetsdale Borough at a bi-weekly salary of $2,195.00. Scimio, 10-050 Page 17 a. Council Members Nanni, Bajsec, Frederick, Awad, and James voted unanimously via roll call vote to hire Scimio. 1. Scimio and Brown were absent from the meeting. 2. James voted in favor of hiring Scimio as the Borough Manager although James had been interviewed for the position. b. The salary for Scimio was determined by Bajsec’s review of existing Borough Managers’ salaries in Allegheny County municipalities and by the existing salaries of the Borough administrative employees at that time. 1. Bajsec did not take into consideration the qualifications and/or experience and education of existing Borough Managers in Allegheny County municipalities in relation to wages associated with the Borough Manager position. 60. Immediately after the August 12, 2010, vote to hire Scimio as the Borough Manager, Nanni announced his possession of Scimio’s letter of resignation from Council in order for Scimio to accept the Borough Manager position. a. The motion to accept Scimio’s resignation was made by Frederick, seconded by Bajsec, and approved via unanimous 5-0 vote. 61. Council accepted Scimio’s letter of resignation prior to Scimio being informed of Council’s decision at the August 12, 2010, meeting. a. Council accepted Scimio’s letter of resignation prior to informing Scimio of the salary approved for the position at the August 12, 2010, meeting. b. Nanni also had possession of conditional letters of resignation from the other Borough official applicants, Poninsky and James. 62. Scimio began employment as the Borough Manager on August 23, 2010. 63. No specific job description for the position of Leetsdale Borough Manager currently exists. a. Documented duties and responsibilities that Scimio was to perform as the Borough Manager were limited to those identified in Ordinance No. 617. 64. Scimio received bi-weekly wages as the Borough Manager in the amount of $2,195.00 (gross) in calendar year 2010 and $2,260.85 (gross) in calendar year 2011. a. Scimio’s bi-weekly compensation at times included reimbursement for mileage and a cellular telephone allowance beyond his Borough Manager salary. 65. Insufficient evidence exists to establish by clear and convincing proof that Scimio utilized the authority of his office as a Leetsdale Borough Council Member to secure the Borough Manager position. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT SCIMIO UTILIZED HIS BOROUGH PROVIDED CREDIT CARD FOR PERSONAL USE. Scimio, 10-050 Page 18 66. At varying times during the time frame of about January 2006 through July 2010, the Borough utilized multiple credit accounts through various providers. a. The Borough maintained credit accounts with, at a minimum, the following: 1. British Petroleum (a/k/a BP): Account Number XXXXXX1292. aa. The BP account is still open/active. bb. BP credit cards are available for use by representatives of the Borough Streets Department and Police Department. 2. Sam’s Club: Account Number XXX X XX XXXXXX6420. aa. The Sam’s Club account is still open/active. bb. The Sam’s Club credit card is maintained in the Borough office for use as needed. 3. National City: Account Number XXXX XXXX XXXX 3243. aa. The National City account was closed effective July 6, 2009. 4. Citizens Bank: Account Number XXXX XXXX XXXX 6781. aa. The Citizens Bank account is still open/active. b. The Borough utilized the credit accounts for convenience purposes in relation to the purchase of needed items, travel expenses, etc. 67. In or about June 2008, the Borough obtained a credit account through Citizens Bank. a. The Borough obtained multiple cards from Citizens Bank assigned to specific, individual Borough representatives. 1. The Borough was assigned a main account number with specific sub- account numbers for each individual credit card issued. b. The first documented use of the Citizens Bank credit cards by Borough representatives occurred in July 2008. 68. Scimio, as a Member of Council, received a Borough issued credit card in his name from Citizens Bank as of at least July 2, 2008. a. The first use associated with Scimio’s credit card documented a transaction date of July 2, 2008. b. The account number associated with Scimio’s Citizens Bank credit card was XXXX XXXX XXXX 6989. 69. The Borough has provided an annual Christmas party/appreciation dinner for Borough representatives and employees from at least 2006 through 2009 as shown below: Date Location Cost* Scimio, 10-050 Page 19 Date Location Cost* December 22, Mike’s Place $923.00 2006 December 21, Mike’s Place $414.00 2007 December 19, Borough $2,370.00 2008 Bldg December 18, Borough $6,889.00 2009 Bldg *Represents minimum cost associated with party/dinner rounded to nearest dollar a. The costs associated with the events have been borne solely by the Borough. b. Expenses associated with the events were paid for via use of National City, Sam’s Club, and/or Citizens Bank credit cards assigned to Borough personnel and/or checks written from the Borough General Fund. 1. Expenses associated with the 2008 and 2009 event included food, snacks, alcohol, door prizes, etc. c. Individuals invited included, among others, all members of the Borough Police Department. 70. Scimio, as a Member of Council, arranged for and authorized private Christmas appreciation dinners in 2008 and 2009 for selected members of the Borough Police Department in addition to the events held at the Borough building on December 19, 2008, and December 18, 2009. a. Scimio served as the Chairman of the Public Safety-Police Committee from at least January 2006 until or about August 12, 2010, when he resigned from his position on Council. b. Scimio did not receive approval from Borough Council prior to organizing or having the Christmas appreciation dinners for members of the Borough Police Department. 71. Scimio did not make arrangements for, organize, or have a private Christmas appreciation dinner for members of the Borough Police Department in 2006 or 2007. a. Scimio did not have a Borough issued credit card in his name until approximately July 2008. 72. Scimio, through then Chief of Police Shawn Fleming, invited various members of the Borough Police Department to a Christmas appreciation dinner to be held on December 21, 2008, at Ichiban Hibachi and Sushi Bar (hereafter “Ichiban”) in Robinson, Pennsylvania. a. The concept/idea for the Christmas appreciation dinner originated with Scimio. 73. The Christmas appreciation dinner for the Police Department was held on December 21, 2008, at Ichiban, located in Robinson, Pennsylvania. a. Six guests were present at Ichiban for the dinner on December 21, 2008. Scimio, 10-050 Page 20 1. Individuals present for the dinner included Scimio and his spouse, Fleming, Santucci and guest, and Officer Dan Raible. 74. The receipts for Ichiban Check Numbers 2763 and 3065, in the amounts of $65.18 and $433.54 respectively, document orders placed by the six individuals in attendance at the December 21, 2008, Police Department dinner in the total amount of $498.72. 75. Scimio utilized his Borough issued credit card to pay for Ichiban receipts/Check Numbers 2763 and 3065 in the total amount of $498.72. a. The receipts/Check Numbers note payment of the expenses via MasterCard. b. There was not a vote of Council authorizing Scimio to charge meals for himself and other Borough employees to the Borough credit card. 76. Charges incurred by Scimio in association with use of his Borough issued credit card to pay expenses incurred at the Police Department dinner appeared on the January 10, 2009, Citizens Bank statement issued to the Borough. a. The statement identified charges totaling $498.72, charged to the MasterCard assigned to Scimio. 77. Scimio did not submit the itemized receipts associated with the Ichiban expenses to Petalino for processing. a. Scimio submitted only a Borough expense form noting his name, a purpose of “Police Appreciation Dinner,” and the amount along with the credit card receipts for Ichiban receipts/Check Numbers 2763 and 3065. 78. Scimio incurred expenses on his Borough issued credit card which were personal in nature under the guise of Borough business. a. The concept for and the organization of the Police Department dinner originated with Scimio. b. No separate Christmas event/dinner paid for by the Borough had been held for the Police Department during Scimio’s tenure as the Chairman of Public Safety-Police since at least 2005. c. Scimio did not request or obtain formal approval from Council at a public meeting to incur expenses to the Borough for a Police Department dinner separate from the general Borough appreciation dinner in 2008. 79. At the February 12, 2009, regular Council meeting, payment to Citizens Bank for the main Borough credit card statement dated January 10, 2009, was presented for approval for charges associated with the use of Borough issued credit cards by various Borough representatives. a. The Borough account at Citizens Bank had an existing balance of $5,474.39 at the beginning of the statement period (e.g., December 11, 2008). b. The Borough account at Citizens Bank had a new balance of $8,307.00 at the conclusion of the December 11, [2008], through January 10, [2009], billing period. Scimio, 10-050 Page 21 1. Charges incurred by Scimio for the Police Department dinner totaling $498.72 were represented in the new balance at the end of the billing period. c. Payment to Citizens Bank was approved via unanimous vote of Council in the amount of $4,717.33 for partial payment of charges incurred in association with the Borough’s credit account. d. Scimio seconded the motion to pay the bills and voted in favor of the approval of the list of bills which included his use of his Borough credit card and his authorization for expenses he incurred for taking members of the Police Department to dinner. e. Payment was issued via submission of Borough check number 09362, dated February 13, 2009, in the amount of $4,717.33 covering the costs of the Police Department dinner hosted by Scimio. 80. Scimio, through then Assistant/Acting Chief of Police Santucci, invited selected members of the Borough Police Department to a Christmas appreciation dinner to be held on December 21, 2009, at Ichiban in Robinson, Pennsylvania. a. The concept/idea for the Christmas appreciation dinner originated with Scimio. 81. The Christmas appreciation dinner for the Police Department was held on December 21, 2009, at Ichiban, located in Robinson, Pennsylvania. a. A total of nine guests were present at Ichiban for the dinner on December 21, 2009. 1. Scimio was not present for the dinner. 2. Individuals present for the dinner included Santucci and guest, Fleming and guest, Officer Dan Raible and guest, Poninsky and Awad. 82. Paula Scimio (Scimio’s wife) went to Ichiban in Robinson, Pennsylvania, on December 21, 2009, and informed those present for the Police Department dinner that Scimio would not be attending. a. Paula Scimio informed those present that Scimio was experiencing back problems. b. Paula Scimio ordered takeout food from Ichiban for herself and Scimio. 1. The items were charged to Scimio’s Borough credit card. 83. The receipt for Ichiban Check Number 9287 totaling $124.31 documented the order placed by Paula Scimio on December 21, 2009, at 7:25 p.m. as follows: 2 Shrimp Temp App $15.90 2 Stk & Shrimp 45.90 2 Side F Rice 5.90 1 Clear Soup 1.75 G Cert Sold 50.00 Total $124.31 Scimio, 10-050 Page 22 a. The items charged to the Borough credit card were for Scimio’s personal use. 84. Paula Scimio utilized Scimio’s Borough issued credit card to pay for Ichiban receipt/Check Number 9287 in the total amount of $124.31. a. Items purchased included food for Scimio and his spouse as well as a fifty dollar ($50.00) gift certificate. b. Paula Scimio signed the “Signature” portion of the credit card receipt associated with the purchase as “P. Scimio.” c. Scimio gave the card to his spouse with the knowledge that it would be used to purchase food/items for personal use. 85. The amount of $124.31 charged to Scimio’s Borough issued credit card was not the total cost of the Police party. a. Scimio authorized Santucci to place the balance of costs incurred by those present for the Police Department dinner on Scimio’s Borough issued credit card. 1. Scimio authorized such through his spouse. aa. Paula Scimio offered Scimio’s Borough issued credit card to Santucci to pay the expenses associated with the dinner. b. Santucci did not utilize Scimio’s credit card to pay for expenses incurred at the Police Department dinner. c. Santucci utilized his Borough issued credit card to pay for the expenses associated with the Police Department dinner instead of Scimio’s credit card. 86. The receipt for Ichiban Check Number 9316, totaling $455.00, documented the orders placed by the nine individuals actually in attendance at the December 21, 2009, Police Department dinner. 87. Santucci utilized his Borough issued credit card to pay for Ichiban receipt/Check Number 9316 in the total amount of $455.00. a. Santucci utilized his Borough issued credit card to pay for the dinner due to the fact that Scimio was not present to pay for the expenses. 88. Charges incurred by Scimio and Santucci in association with use of Borough issued credit cards to pay expenses incurred at the Police Department dinner appeared on the January 10, 2010, Citizens Bank statement issued to the Borough. a. The statement identified charges totaling $455.00 incurred on the Sub- Account Number ending in 6971. 1. The Ichiban expense on December 21, 2009, was the only charge incurred by Santucci during the applicable billing period. 2. The charge posted to the account on December 23, 2009. b. The statement identified charges totaling $382.04 incurred on the Sub- Account Number ending in 6989. Scimio, 10-050 Page 23 1. Scimio utilized or authorized the use of his Borough issued credit card for three separate expenses during the applicable billing period. aa. Scimio’s Sub-Account documented expenses incurred from Oriental Trading Company ($208.73), Giant Eagle ($49.00), and Ichiban ($124.31). 1. The transaction date for the Ichiban expense was December 21, 2009. 2. The charge posted to the account on December 23, 2009. 89. Neither Scimio nor Santucci submitted the itemized receipts associated with the Ichiban expenses to Petalino for processing. a. Scimio submitted only a Borough expense form noting his first name, a purpose of “Police-Dinner Ichiban,” and the amount. 1. Additionally documented on the form was, “Lost recpt. purchase was exact amt on statement.” 2. Scimio’s failure to submit the itemized receipt concealed the purchase of take-out food from Ichiban on the Borough issued credit card, the purchase of a fifty dollar gift certificate on the Borough issued credit card, and Paula Scimio’s actual use of Scimio’s Borough issued credit card. b. Santucci submitted only the general, non-itemized credit card receipt and a Borough expense form. 1. Santucci’s failure to submit the itemized receipt concealed the purchase of alcoholic beverages via Santucci’s Borough issued credit card. 90. Scimio and Santucci incurred expenses on their Borough issued credit cards which were personal in nature under the guise of Borough business. a. The concept for and the organization of the Police Department dinner originated with Scimio. b. Santucci’s Borough issued credit card was utilized only because Scimio was not present at the dinner. c. No separate Christmas event/dinner paid for by the Borough had been held for the Police Department during Scimio’s tenure as the Chairman of Public Safety-Police with the exception of the events held in 2008 and 2009. d. Scimio did not request or obtain formal approval from Council at a public meeting to incur expenses to the Borough for a Police Department dinner separate from the general Borough appreciation dinner. 91. At the January 14, 2010, regular Council meeting, payment to Citizens Bank for the main Borough credit card statement dated January 10, 2010, was presented for approval for charges associated with the use of Borough issued credit cards by various Borough representatives. Scimio, 10-050 Page 24 a. The Borough account at Citizens Bank had an existing balance of $3,710.00 at the beginning of the statement period (December 11, 2009). b. The Borough account at Citizens Bank had a new balance of $5,440.14 at the conclusion of the December 11, 2009, through January 10, 2010, billing period. 1. Charges on Scimio’s and Santucci’s credit cards, for the Police Department dinner totaling $579.31 as authorized by Scimio, were represented in the new balance at the end of the billing period. 92. At the January 14, 2010, regular Council meeting, payment to Citizens Bank was approved, via unanimous vote of Council, in the total amount of $6,144.44 for partial payment of charges incurred in association with the Borough’s credit account. a. Scimio was present at the meeting. b. Scimio voted in favor of the approval of the list of bills which included his use of his Borough credit card and his authorization of Santucci’s credit card use for expenses incurred for the Police Department dinner. 1. Expenses incurred for the Police Department dinner were personal and authorized by Scimio only. 2. Expenses incurred for the Police Department dinner were not pre- approved by Council. 3. Scimio did not publicly disclose the personal use of his or Santucci’s Borough issued credit card to Council for informational purposes prior to or after the vote to approve the list of bills. c. The value of the payment approved at the January 14, 2010, meeting was sufficient to cover the costs associated with the Police Department dinner as well as additional credit expenses. d. Payment was issued via submission of Borough General Fund check number 10301, dated January 15, 2010, in the amount of $6,144.44. 93. Scimio, in his capacity as a Member of Borough Council, authorized expenditures for holiday parties for himself and selected members of the Borough Police Department. a. Expenses were charged to Borough credit cards issued to Scimio and Police Chief Santucci. 94. Scimio received a private pecuniary gain of $1,078.03 when he authorized personal expenditures on his Borough issued credit card and subsequently voted, as a Councilman, to approve payment of those expenditures. III.DISCUSSION: As a Council Member for Leetsdale Borough (“Borough”), Allegheny County, from January 7, 2002, through August 12, 2010, Respondent Paul Scimio, also referred to herein as “Respondent,” “Respondent Scimio,” and “Scimio,” 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. Scimio, 10-050 Page 25 The allegations are that Scimio violated Section 1103(a) of the Ethics Act: (1) when he used the authority of his public position for a private pecuniary benefit by participating in discussions and decisions of the Borough Council resulting in his hiring as the Borough Manager; and (2) when he charged personal expenses to a Borough issued credit card. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.— No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/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 set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. The Borough is governed by a seven Member Council and a Mayor. Scimio served as a Member of Borough Council from January 7, 2002, through August 12, 2010, and as Vice-President of Borough Council from January 3, 2006, through August 12, 2010. Scimio resigned from his position on Council effective August 12, 2010, in order to accept employment as the Borough Manager. The position of Borough Manager did not exist in the Borough from the Borough’s incorporation on March 28, 1904, through June 9, 2010. General, day-to-day, administrative duties associated with operational running of the Borough office were Scimio, 10-050 Page 26 completed by the individual(s) serving in the positions of Borough Secretary and Borough Treasurer. Pursuant to the Borough Code, a borough council may, at its discretion, at any time, create or abolish by ordinance the position of borough manager. The Borough Code authorizes a borough council, by a vote of a majority of all the members, to elect one person to fill the position of borough manager. At various times prior to 2010, Borough Council or some Council Members considered or discussed the possibility of establishing the position of Borough Manager, but Council took no formal action to move forward with the creation of the position during that time. At an executive session of Borough Council held on or about March 1, 2010, Council addressed multiple subjects, including allegations of improper activities conducted by or involving a Council Member. Michael Bajsec (“Bajsec”), a Council Member, subsequently had individual discussions with Scimio and Council Members Roger Nanni (“Nanni”), Wesley James (“James”), and Benjamin Frederick (“Frederick”) about the creation of a Borough Manager position. All of the individuals contacted by Bajsec, including Scimio, were in favor of moving forward with the creation of a Borough Manager position. At the Borough Council meeting on April 8, 2010, a motion for the Borough Solicitor to prepare an ordinance establishing the position of Borough Manager was made by Frederick and seconded by Council Member Osman Awad (“Awad”). Scimio participated in a 5 to 0 Council vote to approve the motion. On May 13, 2010, Borough Council approved a motion to advertise the proposed ordinance creating the office of Borough Manager. Scimio abstained from voting on the motion because he did not have an opportunity to review the proposed ordinance. During the time from April 2010 to June 2010, Scimio had a reasonable expectation that he would be an applicant for the Borough Manager position. During casual conversations with Bajsec between mid-to-late April 2010 through mid-to-late May 2010, Scimio expressed his interest in the Borough Manager position and stated that he felt he could do a good job and would be good for the position. In or about June 2010, Scimio contacted Nanni, expressed interest in the position, and asked if he could submit an application for the position. On June 10, 2010, Scimio participated in a unanimous vote by Council to adopt Borough Ordinance No. 617, which created the office of Borough Manager. Scimio voted to adopt Borough Ordinance No. 617 after having expressed interest in the Borough Manager position to at least two separate Council Members, including Bajsec and Nanni. In a conversation between June 10, 2010, and July 7, 2010, Nanni and a Borough employee discussed the Borough Manager position. When the Borough employee asked if Nanni knew who was to be placed into the Borough Manager position, Nanni initially responded that he knew who was to be hired, but he did not identify the individual. After continued questioning, Nanni informed the Borough employee that Scimio was to be placed into the Borough Manager position. At the July 15, 2010, Borough Council meeting, Scimio participated in a unanimous vote by Council to approve a motion to advertise for applicants for the position of Borough Manager. Council did not discuss the qualifications required for the position of Borough Manager during the meeting. Following the conclusion of the Council meeting, Nanni and Mayor Pete Poninsky (“Poninsky”) had a conversation in relation to the Borough Manager position. Nanni instructed Poninsky not to apply for the Borough Manager position and informed him that the position had already been promised to another individual who Nanni Scimio, 10-050 Page 27 did not identify to Poninsky. Shortly after the July 15, 2010, Council meeting, Scimio had conversations with Bajsec, Frederick, and Council Member Thomas Brown in which Scimio expressed his intent to apply for and/or his interest in the Borough Manager position. Nanni created the advertisement for the Borough Manager position without input from any other Members of Borough Council. In an e-mail dated July 19, 2010, Nanni advised Council, Poninsky, and the Borough Secretary/Treasurer that he was placing an advertisement that week for the Borough Manager position and that a P.O. Box had been opened to receive resumes. Nanni further advised that a committee (“Selection Committee”), consisting of himself, Bajsec, and Awad, had been appointed for the selection process, which included resume review, interview set-up and conduction, and recommendation of a candidate and compensation package to Council. On July 20, 2010, the Borough’s advertisement for applicants for the Borough Manager position was published in two newspapers. In response to the advertisement, the Borough received resumes from three Borough officials--Scimio, James, and Poninsky-- and two private citizens. The Selection Committee interviewed the candidates for the Borough Manager position between August 2, 2010, and August 9, 2010. The Selection Committee then evaluated the candidates and selected/ranked Scimio as the most qualified candidate based upon Scimio’s assertion of management experience through his employment history, his familiarity with managing large dollar construction projects, and his knowledge of the Borough and its procedures. Scimio was made aware by the Selection Committee during his interview that the Borough Manager position was to be filled by Council at its meeting on August 12, 2010, and he was informed that he was required to submit a letter of resignation from his position on Council conditional upon his appointment as the Borough Manager. Scimio was on a family vacation in Ocean City, Maryland, from August 6, 2010, to August 13, 2010. Scimio prepared his letter of resignation in advance and dated it for the night of the August 12, 2010, Council meeting. While on vacation, Scimio communicated with various Council Members by telephone, and he either attempted to contact/communicate with or did contact/communicate with every Council Member on August 12, 2010, prior to the convening of the Council meeting. At the August 12, 2010, Borough Council meeting, the five Council Members present voted to hire Scimio as the first Borough Manager at a bi-weekly salary of $2,195.00. Scimio and another Council Member were absent from the meeting. Immediately after voting to hire Scimio as the Borough Manager, Council voted to accept Scimio’s letter of resignation from Council. Scimio began employment as the Borough Manager on August 23, 2010, and he was employed as the Borough Manager until he was released by Council on January 3, 2012. As the Borough Manager, Scimio received bi-weekly wages in the amount of $2,195.00 (gross) in calendar year 2010 and $2,260.85 (gross) in calendar year 2011. Scimio’s Use of a Borough Issued Credit Card: At varying times from about January 2006 through July 2010, the Borough utilized multiple credit accounts through various providers for convenience purposes in relation to the purchase of needed items, travel expenses, and the like. In or about June 2008, the Borough obtained a credit account through Citizens Bank. The Borough was assigned a main account number with specific sub-account numbers for individual credit cards that were assigned to specific Borough representatives. Scimio, as a Borough Council Member, received a Borough issued credit card in his name from Citizens Bank as of at least July 2, 2008. Scimio, 10-050 Page 28 The Borough provided an annual Christmas party/appreciation dinner for Borough representatives and employees from at least 2006 through 2009. The costs associated with the events were borne solely by the Borough. All members of the Borough Police Department (“Police Department”) were included among the individuals invited to the events. Scimio served as the Chairman of the Public Safety-Police Committee from at least January 2006 until or about August 12, 2010. Scimio, as a Borough Council Member, arranged for and authorized expenditures for private Christmas appreciation dinners in 2008 and 2009 for himself and selected members of the Police Department that were in addition to and separate from the Borough’s annual events. The concept or idea for these dinners originated with Scimio, who did not receive approval from Borough Council prior to organizing or incurring expenses for these dinners. Scimio, through then Chief of Police Shawn Fleming, invited various members of the Police Department to a Christmas appreciation dinner to be held on December 21, 2008, at Ichiban Hibachi and Sushi Bar (“Ichiban”) in Robinson, Pennsylvania. Six individuals, including Scimio and his spouse, were present for the dinner and placed orders in the total amount of $498.72. Scimio utilized his Borough issued credit card to pay the expenses incurred at the dinner. There was no vote of Borough Council authorizing Scimio to charge meals for himself and other Borough employees to the Borough issued credit card. At the February 12, 2009, Council meeting, payment to Citizens Bank for the main Borough credit card statement dated January 10, 2009, was presented for approval for charges associated with the use of Borough issued credit cards by various Borough representatives. Charges in the amount of $498.72 that were incurred by Scimio for the December 21, 2008, dinner appeared on the credit card statement. Scimio seconded the motion to pay the bills and voted to approve the list of bills which included his use of his Borough credit card and his authorization for expenses he incurred for taking members of the Police Department to dinner. On December 21, 2009, a Christmas appreciation dinner for the Police Department was held at Ichiban. Scimio, through then Assistant/Acting Chief of Police Santucci (“Santucci”), invited selected members of the Police Department to the dinner. Scimio was not among the nine individuals, including Santucci, who attended the dinner. Scimio’s wife, Paula (“Mrs. Scimio”), went to Ichiban and informed those present for the dinner that Scimio was experiencing back problems and would not be attending the dinner. Mrs. Scimio ordered takeout food from Ichiban for herself and Scimio and a $50 gift certificate, for a total purchase of $124.31. With Scimio’s knowledge, Mrs. Scimio utilized Scimio’s Borough issued credit card to pay for the items purchased from Ichiban for personal use. Scimio, through Mrs. Scimio, authorized Santucci to place the balance of the costs incurred by those present for the dinner on Scimio’s Borough issued credit card, and Mrs. Scimio offered the card to Santucci. Santucci did not utilize Scimio’s Borough issued credit card and instead utilized his own Borough issued credit card to pay expenses totaling $455.00 for the orders placed by the nine individuals in attendance at the dinner. Santucci’s Borough issued credit card was utilized only because Scimio was not present at the dinner. Expenses totaling $579.31 for the Police Department dinner on December 21, 2009, were charged to Scimio’s and Santucci’s Borough issued credit cards and appeared on the January 10, 2010, Citizens Bank statement issued to the Borough. At the January 14, 2010, Council meeting, Scimio voted to approve the list of bills which included his use of his Borough credit card and his authorization of Santucci’s credit card use for expenses incurred for the Police Department dinner. Scimio, 10-050 Page 29 The parties have stipulated that Scimio received a private pecuniary gain of $1,078.03 when he authorized personal expenditures on his Borough issued credit card and subsequently voted, as a Council Member, to approve payment of those expenditures. 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 Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio being hired as a Borough Manager, as there is insufficient evidence to establish that Scimio utilized the authority of his office as Leetsdale Borough Council Member, to secure the Borough Manager Position. b. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio’s use of a Borough issued credit card for personal expenses. 4. Scimio agrees to make payment in the amount of $1,078.03 in settlement of this matter, payable to the Leetsdale Borough, and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. Scimio agrees to not accept any reimbursement, compensation or other payment from Leetsdale Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 6. Scimio agrees, subject to paragraph seven (7) below, that he will neither seek nor hold any position of public office or public employment in the Commonwealth of Pennsylvania for a period of five (5) years from the date of the issuance of the final adjudication in this matter. 7. The foregoing is not intended to prohibit Scimio from rendering services to any governmental body as an independent contractor (either directly or through subcontractors). 8. 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 Scimio, 10-050 Page 30 cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1-2. In considering the Consent Agreement of the parties, we accept the recommendation of the parties for a finding that no violation of Section 1103(a) of the Ethics Act occurred in relation to Scimio being hired as a Borough Manager based upon an insufficiency of evidence to establish that Scimio utilized the authority of his office as a Borough Council Member to secure the Borough Manager position. Per the Stipulated Findings, Scimio used the authority of office when he participated in Borough Council votes: (1) to have the Borough Solicitor prepare an ordinance establishing the position of Borough Manager; (2) to approve the ordinance which established the office of Borough Manager; and (3) to advertise for applicants for the position of Borough Manager. Although the Stipulated Findings establish that the aforesaid uses of authority of office occurred at times when Scimio had a reasonable expectation that he would be an applicant for the Borough Manager position, the parties have stipulated that there is insufficient evidence to establish that Scimio utilized the authority of his office as a Council Member to secure the Borough Manager position. Accordingly, based upon the parties’ stipulations and Consent Agreement, we hold that no violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio being hired as a Borough Manager, as there is insufficient evidence to establish that Scimio utilized the authority of his office as a Borough Council Member to secure the Borough Manager position. We accept the recommendation of the parties that a violation of Section 1103(a) of the Ethics Act occurred in relation to Scimio’s use of a Borough issued credit card for personal expenses. Each element of the recommended violation has been established. Scimio, in his capacity as a Borough Council Member, arranged for and authorized expenditures for private Christmas appreciation dinners in 2008 and 2009 for himself and selected members of the Police Department. Scimio did not receive approval from Borough Council prior to organizing or incurring expenses for these dinners. For the December 21, 2008, dinner at Ichiban, Scimio utilized his Borough issued credit card to pay expenses totaling $498.72 that were incurred by him and others in attendance at the dinner. Although Scimio did not attend the December 21, 2009, dinner at Ichiban, with his knowledge, Mrs. Scimio utilized Scimio’s Borough issued credit card to make a personal purchase of $124.31 from Ichiban at the time of the dinner. Scimio authorized the use of his Borough issued credit card to pay additional expenses totaling $455.00 for the orders placed by the nine individuals in attendance at the dinner, but the expenses were instead charged to Santucci’s Borough issued credit card only because Scimio was not present at the dinner. Scimio used the authority of office by authorizing expenditures for the private Christmas appreciation dinners in 2008 and 2009 and by voting to approve bill lists that included payments for such expenditures. The parties have stipulated that Scimio received a private pecuniary gain of $1,078.03 when he authorized personal expenditures on his Borough issued credit card and subsequently voted, as a Council Member, to approve payment of those expenditures. Based upon the above, we accept the recommendation of the parties, and we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio’s use of a Borough issued credit card for personal expenses. Scimio, 10-050 Page 31 As part of the Consent Agreement, Scimio has agreed to make payment in the amount of $1,078.03 payable to Leetsdale Borough and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. Scimio has agreed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Scimio has further agreed that he will neither seek nor hold any position of public office or public employment in the Commonwealth of Pennsylvania for a period of five (5) years from the date of the issuance of the final adjudication in this matter. The parties have agreed that this is not intended to prohibit Scimio from rendering services to any governmental body as an independent contractor (either directly or through subcontractors). We note, however, that by operation of law, the parties’ aforesaid agreement is subject to the following exception. Upon termination of service as the Borough Manager on January 3, 2012, Scimio became a “former public official/public employee” subject to the restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). Such restrictions, which would apply for the first year following Scimio’s termination of service as the Borough Manager, would prohibit Scimio from contracting with the Borough/Borough Council or otherwise representing a person before Borough Council, with promised or actual compensation, on any matter before Borough Council, including but not limited to contract(s) with the Borough/Borough Council. See, e.g., Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005. We determine that the Consent Agreement submitted by the parties sets forth a proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, per the Consent Agreement of the parties, Scimio is directed to make payment in the amount of $1,078.03 payable to Leetsdale Borough and forwarded to this th Commission by no later than the thirtieth (30) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Scimio is directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Per the Consent Agreement of the parties, Scimio is further directed that he is to neither seek nor hold any position of public office or public employment in the Commonwealth of Pennsylvania for a period of five (5) years from the mailing date of this adjudication and Order. This is not intended to prohibit Scimio from rendering services to a governmental body as an independent contractor (either directly or through subcontractors), except to the extent such conduct would be prohibited by Section 1103(g) of the Ethics Act. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV.CONCLUSIONS OF LAW: 1. As a Council Member for Leetsdale Borough (“Borough”), Allegheny County, from January 7, 2002, through August 12, 2010, Respondent Paul Scimio (“Scimio”) 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. Scimio, 10-050 Page 32 2. No violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio being hired as a Borough Manager, as there is insufficient evidence to establish that Scimio utilized the authority of his office as a Borough Council Member to secure the Borough Manager position. 3. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio’s use of a Borough issued credit card for personal expenses. In Re: Paul Scimio, : File Docket: 10-050 Respondent : Date Decided: 4/12/12 : Date Mailed: 5/3/12 ORDER NO. 1602 1. No violation of Section 1103(a) of the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1103(a), occurred in relation to Paul Scimio (“Scimio”), a Council Member for Leetsdale Borough (“Borough”), Allegheny County, being hired as a Borough Manager, as there is insufficient evidence to establish that Scimio utilized the authority of his office as a Borough Council Member to secure the Borough Manager position. 2. A violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred in relation to Scimio’s use of a Borough issued credit card for personal expenses. 3. Per the Consent Agreement of the parties, Scimio is directed to make payment in the amount of $1,078.03 payable to Leetsdale Borough and forwarded to the th Pennsylvania State Ethics Commission by no later than the thirtieth (30) day after the mailing date of this Order. 4. Per the Consent Agreement of the parties, Scimio is directed to not accept any reimbursement, compensation or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 5. Per the Consent Agreement of the parties, Scimio is further directed that he is to neither seek nor hold any position of public office or public employment in the Commonwealth of Pennsylvania for a period of five (5) years from the mailing date of this Order. This is not intended to prohibit Scimio from rendering services to a governmental body as an independent contractor (either directly or through subcontractors), except to the extent such conduct would be prohibited by Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). 6. Compliance with Paragraphs 3, 4, and 5 of this Order will result in the closing of this case with no further action by this Commission. a. Non-compliance will result in the institution of an order enforcement action. BY THE COMMISSION, ___________________________ Louis W. Fryman, Chair