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HomeMy WebLinkAbout1693 GutonskiIn Re: Michael Gutonski, File Docket: 15 -027 Respondent X -ref: Order No. 1693 Date Decided: 6/22/16 Date Mailed: 6/29/16 Before: Nicholas A. Colafella, Chair Mark R. Corrigan, Vice Chair Roger Nick Kathryn Streeter Lewis Maria Feeley Melanie DePalma 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." 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. ALLEGATIONS: That Michael Gutonski, a public official /public employee in his capacity as a Member of the Tarentum Borough Council, violated Sections 1103(a), 1104(a), 1104(d), 1105(b)(1), 1105(b)(5), 1105(b)(6), 1105(b)(7), 1105(b)(8), 1105(b)(9), and 1105(b)(10) of the State Ethics Act (Act 93 of 1998) when he utilized the authority of his public position for the private pecuniary benefit of himself, when he participated in discussions and /or actions of Borough Council to influence Council decisions so that he would eventually be appointed to the position of Borough Manager, a salaried employment position within the Borough; and when he failed to disclose his governmental entity and the name and address of all direct or indirect sources of income totaling in the aggregate $1,300 or more on calendar year 2010 Statements of Financial Interests; when he failed to disclose his governmental entity, all direct or indirect sources of income, the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more, the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment, any office, directorship or employment of any nature whatsoever in any business entity, any financial interest in any legal entity engaged in business for profit, and the identity of any financial interest in a business which has been transferred to a member of the reporting person's immediate family for calendar year 2011 Statement of Financial Interests; and when he failed to file a calendar year 2012 and 2013 Statement of Financial Interests with his governmental entity. Gutonski, 15 -027 Page 2 II. FINDINGS: 1. Michael Gutonski served as a Member of Tarentum Borough Council from June 21, 1999, through January 4, 2010, and from January 2, 2012, to May 31, 2015. a. Gutonski served as the President of Council from November 17, 2014, to May 18, 2015. 2. Tarentum Borough (hereafter, "Borough ") is located in Allegheny County, Pennsylvania. a. At the 2010 census, the population was approximately 4,530 residents. b. The Borough is governed by a seven Member Council (hereafter, "Council ") and Mayor. 3. Council generally holds a regular monthly voting meeting at the Borough Municipal Building on the third Monday of each month. a. Council holds executive sessions on an as- needed basis. b. Council Members receive compensation in the amount of $125.00 monthly for their service. 4. Council meetings are stenographically recorded, and the transcript is utilized to generate the meeting minutes. a. The minutes are forwarded to the Borough Manager for review. b. The minutes are enclosed in a meeting packet that is distributed to Council by the Borough Manager. C. Council approves the prior month's meeting minutes at the subsequent regular voting meeting. 5. Voting at Council meetings occurs via a roll call [vote] or in group aye /nay fashion, depending on the issue under consideration. a. A roll call vote is utilized as needed and /or for personnel issues. b. A group aye /nay vote is generally utilized for the approval of minutes and monthly expenditures. C. All objections and abstentions are noted within the minutes, regardless of the type of vote (roll call /group voice vote). 6. The Borough Manager is responsible for setting the meeting agenda and compiling a meeting packet for each Council Member. a. The pre- meeting packet consists of an agenda, the prior month's meeting minutes, correspondences, finance reports, and bill listing. b. The pre- meeting packet is delivered to each Council Member by the Borough police the Friday before the regular meeting. 7. The Borough utilizes The Valley News Dispatch and /or Trib Media as the official print media for Borough related advertisements /postings /announcements. Gutonski, 15 -027 Page 3 a. With respect to union positions (of which there are approximately 15 -20, excluding police officers), Council motions and votes to authorize a Borough vacancy /employment opportunity to be advertised in one or both of the official Borough newspapers. b. Following the motion to advertise a vacancy, the Borough Manager then creates and submits the announcement to the respective news outlet. 1. Council does not normally review the announcement prior to its issuance to the news outlet. 8. The Borough adheres to the following hiring practices with respect to union positions: a. Council directs /authorizes the Borough Manager to announce a vacancy position in The Valley News Dispatch. b. Applications /resumes are received by the Borough Manager, which are then forwarded to the Personnel Committee for review. The Personnel Committee consists of Members of Borough Council. C. The Committee informs the Borough Manager which applicants are to be contacted for an interview. d. Interviews are conducted by the Personnel Committee, the respective department head, the Borough Manager, and the Council President or Vice President. e. In an executive session of the Borough Council meeting, the Personnel Committee offers a recommendation as to which applicant should be offered employment. After a recommendation is made in executive session, Council takes action to formally hire employees during the public session of its regular meeting. 9. Aside from police, there are four non -union positions in Tarentum Borough: Borough Manager, Public Works Director, Code Enforcement Officerand Accounts Receivable Secretary. a. Each of these positions has been filled by Counsel during the past 5 years without advertising or without going through the procedure set forth in Paragraph 14 above. b. As to the Borough Manager's position, Gutonski's predecessor, William Rossey, was appointed in 2006 without following the procedures set forth in Paragraph 14. 10. The current version of the Borough Code, Act 2014 -37, 8 Pa.C.S. § 101 et seq., was signed into law on April 18, 2014, and became effective sixty (60) days thereafter. 11. The Borough Code specifically sets forth the manner and procedure concerning the creation of the position of Borough Manager, as follows: § 1141. Borough manager created by ordinance and Gutonski, 15 -027 Page 4 election. (a) General rule. — The council of a borough may, at its discretion at any time, create by ordinance the office of borough manager and may in like manner abolish the office. While the office exists, the council shall, from time to time, and if there is a vacancy, elect, by a vote of a majority of all the members, one person to fill the office. (b) Subject to employment agreement. — The borough manager shall serve at the pleasure of council, subject to contractual rights that may arise under an employment agreement that maybe entered in accordance with section 1142 (relating to powers and duties). 8 Pa.C.S. § 1141. 12. Part 4 of the Tarentum Code provides that Borough Council shall appoint the Borough Manager based on executive and administrative experience. a. The Borough Manager's position is an at -will position, which reports to the Council as a whole. 13. In addition to outlining the creation and appointment of the borough manager position, the Borough Code further specifies powers and duties of the borough manager as follows: § 1142. Powers and duties. (a) General rule. — The powers and duties of the borough manager shall be regulated by ordinance. (b) Employment agreement. (1) Council may enter into an employment agreement with the borough manager that specifies the terms and conditions of employment. (2) The employment agreement may remain in effect for a specified period terminating no later than two years after the effective date of the agreement or the date of the organizational meeting of council following the next municipal election, whichever shall occurs first. (3) An employment agreement entered into under this section may specify conditions underwhich a borough manager will be entitled to severance compensation, but in no event may the employment agreement guarantee employment through the term of the agreement or confer upon the borough manager Gutonski, 15 -027 Page 5 any legal remedy based on specific performance. (4) An employment agreement with a borough manager executed on or after a municipal election but before the first meeting in January the year after the municipal election shall be void. (5) The council may delegate to the borough manager by ordinance and subject to recall, any of the nonlegislative and nonjudicial powers and duties of the council, the planning commission and the shade tree commission. With approval of council, the mayor may delegate to the borough manager any of the mayor's nonlegislative and nonjudicial powers and duties. 8 Pa.C.S. § 1142. 14. Part 4, Sections 2 and 3 of Tarentum Borough's Administrative Code sets forth numerous duties /responsibilities of the Borough Manager, including, in part, authority with respect to the hiring of Borough employees. a. The Borough Manager is responsible for recruiting and hiring Borough employees, with the exception of the Police Chief, Fire Chief and Department Directors, after receiving the advice of Council. b. In spite of the foregoing provision of Section 3, the Tarentum Borough Manager has not performed this function. Re: The 2006 Appointment of the Borough Manager 15. In 2006, Borough Manager Jeffrey Thomas informed Council of his impending retirement. 16. Prior to the June 2006 meeting of Council, both Councilmen William Rossey and Gutonski contacted Council Members to express their interest in the Borough Manager position. a. The Borough was not seeking or interviewing candidates for the position at that time. b. Gutonski did not pursue the position beyond that initial inquiry. 17. At the June 19, 2006, Council meeting, Councilman Joe Davidek motioned, seconded by Gutonski, to appoint Councilman William Rossey as the new Borough Manager, effective September 25, 2006, at the starting salary of $54,500.00, which included fringe benefits and two week paid vacation beginning January 1, 2007. a. The motion passed via 4 -2 vote, with Gutonski voting favorably and Rossey abstaining. Councilwomen Ginger Sopcak and Mary Newcomer were the dissenting votes. b. No prior advertisement of the position occurred and no interviews of potential candidates were conducted. C. Rossey served as the Borough Manager until his retirement from the position Gutonski, 15 -027 Page 6 in 2015. Re: The 2015 Appointment of the Borough Manager 18. During Council budget sessions of November /December 2014, Borough Manager William Rossey informed Council of his intentions to retire at the end of calendar year 2015. a. At the time of his announcement, Rossey did not submit a retirement letter or any other formal notice regarding his intentions to retire. b. Following Rossey's announcement, Council held no discussions concerning the procedure /process to fill the Borough Manager's position following Rossey's retirement. 19. Council approved the 2015 Borough budget at its December 15, 2014, regular meeting. a. The 2015 final budget included $1,500.00 to train a new Borough Manager. 1. To account for the $1,500.00 training allotment, the amount of $500.00 was transferred from each of the Borough's General, Electric, and Water accounts /funds. b. Gutonski voted affirmatively to approve the 2015 budget. 20. In early 2015, Rossey initiated a campaign seeking election to Tarentum Borough Council. a. The Borough Code prohibits [simultaneous service as a borough council member and borough manager, as well as] employment of council members where the population [is 3,000 or more]. [See, 8 Pa.C.S. § 1104(b) -(c)]. 1. The population of Tarentum exceeded 3,000. 2. If elected to Council, Rossey could not continue to be employed as the Borough Manager. 21. In early 2015, Gutonski directed that Rossey submit a resignation Ietterto formalize his retirement date. a. Rossey submitted his resignation letter at the regular meeting of Council on April 20, 2015. 1. Rossey initially submitted a retirement date of January 3, 2016; however, after discussion with Council at the April 2015 Council meeting, Rossey advanced his retirement date to November 3, 2015. aa. In light of Rossey's candidacy for Council, his retirement could not extend beyond December 31, 2015. bb. November 3, 2015, was selected by Rossey, claiming same was his birthday. cc. November 3, 2015, also was the date of the 2015 general election. Gutonski, 15 -027 Page 7 dd. Both Rossey and Gutonski were candidates for Tarentum Borough Council in 2015. 22. Following the April 20, 2015, meeting of Council, Council Member Tim Ferko commented that the Borough would advertise the manager vacancy and seek candidates in order to fill the position. a. Following Ferko's statement at the meeting, Ferko is quoted in The Valley News Dispatch as saying: "I n the near future, we have to start to advertise and get applicants for the position... Hopefully, a new candidate can step in, and Bill can show him the ropes and the things that need to be done. And it will be a smooth transition come November 3rd 23. Following the April 20, 2015 meeting, Council did not discuss, or establish, a timeframe to conduct a search of candidates to appoint a Borough Manager to replace Rossey. a. Other than Ferko's remarks, Council made no overt effort in an attempt to acquire a replacement prior to Rossey's retirement. 24. With the announcement/formalization of Rossey's retirement, Gutonski made known his interest in the Manager position. a. Gutonski was familiar with the appointment process and was cognizant of the fact that Council had made prior appointments without interviews or applications. b. Gutonski contacted the other Council Members and asked them to consider and support him for appointment as Borough Manager. C. As a Council Member, Gutonski was well positioned to get in touch with, and communicate with, all of the other Council Members with respect to his desire to fill the Borough Manager position. d. Gutonski was running for re- election to a seat on Council in 2015 at the time he contacted Members of Council regarding the Manager position. 25. Between the April 2015 and May 2015 meetings of Council, Gutonski initiated contact with each Member of Council and asked to be considered for the appointment of Borough Manager, as follows: a. Raymond E. Kerr has served as a Council Member for Tarentum Borough since approximately 2010 through 2015. 1. In approximately February or March of 2015, Rossey informed Kerr of his intent to retire from the position of Borough Manager. 2. Gutonski informed Kerr of his interest in becoming the Borough Manager immediately following Rossey's announcement of retirement. 3. Kerr informed Gutonski that he was a good candidate, however, Kerr would like to consider other candidates as well. Gutonski, 15 -027 Page 8 4. Kerr did not promise Gutonski a favorable vote for the Borough Manager position. 5. Prior to Gutonski informing Kerr of his desire to be considered for the position of Borough Manager, Kerr did not consider Gutonski a candidate for the position. 6. Between the April 20, 2015, meeting and the May 18, 2015, meeting of Council, Gutonski contacted Kerr again asking to be considered for appointment to the position of Borough Manager. 7. During this subsequent conversation with Gutonski, Kerr indicated that he would support Gutonski's candidacy and his appointment to the position of Borough Manager. 8. Kerr denied any other conversations with either Gutonski or any other Council Member regarding Gutonski's appointment as Borough Manager prior to the May 2015 meeting. 9. At the May 18, 2015, Council meeting, Kerrwas surprised that Council Member Joe Davidek motioned to appoint Gutonski as Manager, in that no prior discussions had occurred, including executive session discussions, review of other candidates, requests for applications, etc. 10. Kerr voted affirmatively to appoint Gutonski as Borough Manager. b. Council Member Peter J. Varos has served as a Council Member for Tarentum Borough since 1996. Varos stated that prior to Council's April 20, 2015, regular meeting, there were rumors that Rossey was planning on retiring as Borough Manager, but no specific date had been disclosed. 2. Following the April 20, 2015, meeting, Council had a brief conversation regarding the soon -to -be vacant Borough Manager position. At that time, Gutonski made a statement to Council that he would be interested in being the next Borough Manager. Gutonski's statement was made outside any meeting of Council — either executive session or public meeting. 3. Varos voted in favor of Gutonski's appointment, despite being unaware and surprised by the fact that Gutonski was nominated at the May 18, 2015, meeting. Varos was surprised at the motion to appoint Gutonski, in light of the fact that Council had no prior discussions regarding the appointment of Gutonski either in executive session and /or any other meeting or conversation regarding his appointment. 4. Varos knew Gutonski both as a Borough Council Member as well as through other non - Borough associations. Varos Gutonski, 15 -027 Page 9 confirmed that Gutonski had spoken to him on a number of occasions regarding his desire to be considered for appointment as Borough Manager; however, Varos could not verify dates that such conversations occurred. C. Greg Schmitt has served as a Council Member for Tarentum Borough since January of 2015. Schmitt was most recently appointed to fill the remaining term of former Council Member Tim Rapp. Schmitt indicated that in early 2015, possibly February or March, Rossey informed Council of his intention to retire at the conclusion of the 2015 calendar year. 2. Following Rossey's disclosure to Council of his intention to retire, Council had a brief discussion regarding a hiring process. 3. The general consensus was that Council would seek applicants and eventually conduct interviews prior to making a hiring and /or appointment to the position of Borough Manager. 4. Schmitt expected Council to take formal action regarding the hiring process and had no knowledge that Gutonski would be appointed Borough Manager at the May 2015 meeting. 5. Schmitt thought it was unusual and /or surprising that Council Member Joe Davidek motioned to appoint Gutonski as Borough Manager without [having] any prior discussion, including discussion in executive session, and /or reviewing any other candidates for the Borough Manager position. 6. As a recent appointee, Schmitt was unfamiliar with the Borough's hiring practices; however, he voted affirmatively for Gutonski's appointment based on the fact that no other Board Members expressed concern and /or voted negatively for Gutonski's appointment. d. Tim Ferko has served as a Member of Borough Council since October 2009. Ferko served as Vice - President of Council from 2014 until June 2015, at which time he was appointed President following the resignation of Gutonski. 2. Ferko confirmed that prior to Council's April 20, 2015, regular meeting, there was a rumor that Rossey was seeking a position on Council, and as such, he would be ineligible to continue to serve as Borough Manager. Ferko believed that Rossey would retire as Borough Manager in the event that he was successful at his candidacy for a position on Council. 3. Rossey officially announced his retirement at the April 20, 2015, meeting of Council, initially having his retirement effective January 3, 2016, but changing that to November 3, 2015, after speaking with Council. Gutonski, 15 -027 Page 10 4. Ferko confirmed that he had received a telephone call on his cellphone from Gutonski several days after the April 2015 meeting. During the conversation, Gutonski informed Ferko that it was his desire to be considered for the position of Borough Manager, and [he] further made a comment that he (Gutonski) "wasn't getting any younger," referring to his (Gutonski's) current position as the Maintenance Directorfora local church. It was Ferko's interpretation that Gutonski desired to leave his employment with the church and initiate employment with the Borough. 5. Ferko indicated to Gutonski that he would consider him for the position but did not promise to support his appointment. 6. Ferko had not considered Gutonski a candidate for the position until such time as Gutonski made his intentions known. 7. Ferko learned in speaking with other Council Members that Gutonski had contacted all Council Members regarding his interest in the position. 8. Ferko asserted that he had not considered Gutonski for the position of Borough Manager until such time as Gutonski contacted him and made his intentions known. e. Eric Carter has served as a Council Member for Tarentum Borough since 2006. Carter was initially appointed to fill a vacancy upon the departure of William Rossey, following Rossey's appointment as Borough Manager. 2. Several weeks after the April 2015 Council meeting, Gutonski contacted Carter by telephone and informed Carter of his desire to be considered for the position of Borough Manager. 3. Gutonski inquired if Carter would be supportive of Gutonski's appointment to the position of Borough Manager. 4. Carter indicated that he would consider Gutonski for the position but could not commit to his appointment. 5. The conversation between Carter and Gutonski continued for approximately one hour during which Gutonki stated why he would be a good Borough Manager. 6. Carter stated that during the hour -long telephone conversation, Gutonski informed Carter that he (Gutonski) had previously contacted other Council Members regarding his interest in the position and that other Council Members were supportive of his appointment. 7. Gutonski additionally stated that he would resign his Council seat in the event he was appointed Borough Manager. 8. Carter informed Gutonski that he had been persuaded by Gutonski, 15 -027 Page 11 Gutonski's conversation and that he would support Gutsonski's appointment as Borough Manager. 9. Carter texted and /or otherwise contacted Gutonski prior to the May 18, 2015, meeting to determine whether Gutonski could begin employment in June of 2015. Gutonski is reported to have replied "yes." 10. Carter also stated that he requested Gutonski contact the other Council Members to confirm and /or inquire as to whether or not they would be supportive of a June 2015 start date for Gutonski's employment. Carter recalled that Gutonski responded to Carter via text message indicating that Council was supportive of a start date in June. 11. Carter had no prior knowledge of Davidek's motion prior to the May 18, 2015, meeting, and Carter did not discuss his conversation with Gutonski with any other Member of Council. Joseph Davidek has served as a Council Member of Tarentum Borough at varying times from 1995 until 2015. Davidek served as Borough Secretary from June of 1980 until March of 1993. 2. In addition to being affiliated with Gutonski through his service as a Council Member, Davidek has known Gutonski for approximately thirty /forty years, as his sons grew up with Gutonski and Davidek was close friends with Gutonski's father. 3. Although there were rumors that Rossey was planning to retire in 2016, Davidek does not recall anyone on the Council asking Rossey to submit a notice of resignation or give an effective date of resignation. 4. Davidek confirmed that Council did not have any discussions regarding Rossey's replacement between the April meeting and the May meeting, in which Davidek motioned to appoint Gutonski. 5. After the April meeting, Davidek claims that he approached Gutonski to make inquiry as to Gutonski's interest in appointment to the Borough Manager position. 6. Davidek claims that following his conversation with Gutonski, Davidek did not discuss the subject of Gutonski as Borough Manager with any of the other Council Members, with the possible exception of Ferko. 7. Davidek did not seek the inclusion of the motion to appoint Gutonski on the May 2015 meeting agenda. 8. At the May 2015 meeting, Davidek made the motion to appoint Gutonski as Borough Manager with a proposed start date effective June 1, 2015, and a salary of $54,000. Gutonski, 15 -027 Page 12 26. At the time Gutonski was seeking the appointment as Borough Manager in 2015, he was employed as the Buildings & Grounds Manager for Holy Martyrs Church in Tarentum. a. Gutonski had been employed with Holy Martyrs Church since 1998. b. Gutonski had served as a Tarentum Borough Council Member for almost 4 years and had considerable knowledge and experience with respect to the Borough's functioning, its employees and its budget. 27. When contacting the Members of Council: a. Gutonski informed each of the Council Members that he wanted to be considered for appointment to the Borough Manager position. b. Gutonski did not recommend or inquire about advertising the position, interviewing candidates, or potential salary ranges during his conversations. C. Gutonski informed Council Member Eric Carter that he had spoken with other Council Members and that all were supportive of his appointment. d. Although Council was generally surprised by the speed /manner of Davidek's motion, all voted in favor of Gutonski's appointment. 28. At the Council's May 18, 2015, regular meeting, Davidek motioned, seconded by Carter, to appoint Gutonski as Borough Manager, effective June 1, 2015, at the annual salary of $54,000.00, to include fringe benefits and a training period to commence June 1, 2015. a. Gutonski would assume all duties as Borough Manager effective November 3, 2015. b. Davidek's motion was made at the first regular Council meeting following Gutonski's request that Council Members consider him for the position of Borough Manager. C. Council held no discussion regarding the appointment of Gutonski prior to the May 18, 2015, meeting. d. Solicitor Clark (who was also surprised by the motion) advised Council that there was precedent for appointing the Borough Manager in this fashion (referring to Mr. Rossey's appointment). e. The motion to appoint Gutonski as Borough Manager passed via unanimous vote, with Gutonski abstaining. f. The motion to appoint Gutonski as Borough Manager was not listed on the meeting's agenda. 29. During the May 18, 2015, Council meeting, Gutonski was directed by Solicitor Charles Clark to pass the gavel to the Vice President prior to the vote to appoint Gutonski as Borough Manager, and to refrain from action on the vote. 30. Following Gutonski's appointment, Council discussed filling Gutonski's vacant Council seat and whether Gutonski should continue to run for Council in the May 19, 2015, primary election the following day. Gutonski, 15 -027 Page 13 a. A member of the audience asked if Gutonski's name would remain on the ballot and was advised that it would because there was not enough time to remove it. b. Gutonski was advised by the Borough Solicitor to cease campaigning activities and not to go to the polls the next day. Gutonski abided by the Solicitor's advice and caution. He did no campaigning on election day. C. Gutonski was defeated in the primary election. 1. Pursuant to the Borough Code, Gutonski was ineligible to serve as both a Council Member and an employee of the Borough, and a public announcement of that fact was made at the May 18, 2015, meeting. 31. Following the discussion as to Gutonski remaining a candidate for a Council seat in the primary election, Gutonski submitted his letter of resignation from Borough Council effective May 31, 2015. a. The letter noted that Gutonski was resigning from Council to serve as the Borough Manager. b. The letter was generated by Gutonski prior to the May 18, 2015, meeting with the expectation and understanding that Council would appoint him Borough Manager on May 18, 2015. C. Although at least five (5) Council Members indicated they were surprised by Davidek's motion and claimed to have no knowledge of his intentions, Gutonski nonetheless had a letter of resignation prepared, with an effective date of May 31, 2015. 32. Immediately following the submittal of Gutonski's resignation letter, Davidek motioned, seconded by Kerr, to accept Gutonski's resignation effective May 31, 2015. a. The motion passed via unanimous vote with Gutonski abstaining. b. Ferko was appointed Council President following Council's acceptance of Gutonski's resignation. 33. Gutonski completed a Borough employment application for the Borough Manager position, dated May 18, 2015, immediately following his appointment to the position. 34. By contacting Members of Council individually, Gutonski was able to seek the necessary support for his appointment as Borough Manager. This resulted in the Council taking official action at the May 18, 2015, Council meeting to appoint Gutonski as Borough Manager. a. Gutonski was able to obtain an audience with the individual Members of Council, at least in part, due to his position on Tarentum Borough Council. 35. Gutonski assumed the duties of Borough Manager effective June 1, 2015, and worked in conjunction with Rossey until Rossey retired from the Borough, effective August 3, 2015. a. Rossey retired from the Borough prior to the accepted November 3, 2015, retirement date in order to take a Borough Manager's position at Sharpsburg Gutonski, 15 -027 Page 14 Borough, a neighboring municipality. b. Gutonski fully assumed the Borough Manager duties immediately following Rossey's retirement. 36. From June 2015 through at least December 2015, Gutonski has regularly been issued direct deposit paychecks, totaling $30,125.20 (gross), as compensation for his service as Borough Manager. 37. In addition to monetary compensation, from June 2015 through December 2015, Gutonski has received fringe benefits (including health, vision, and dental coverage as well as life insurance) totaling $3,400.22 in association with his status as a Borough employee. 38. On October 29, 2015, Gutonski provided a voluntary sworn statement to Commission Investigators and conveyed the following information: a. Gutonski had also expressed interest to Council Members in 2006 concerning his appointment as Borough Manager; however, another Council member, Rossey, was appointed to the position. b. Gutonski did not seriously consider possibly becoming the Borough Manager until after Council accepted Rossey's resignation at the April 2015 Council meeting. C. Gutonski contacted each Council Member after the April 2015 Council meeting to express interest in becoming the next Borough Manager. d. Gutonski recommended to Council Members that he could start in September based on his knowledge that the 2015 budgetwas able to fiscally support that start time. e. Gutonski did not offer any favors or promises to Council Members in exchange for their support of his appointment to the Borough Manager position. Gutonski prepared his resignation letter in advance and in the event that Council should take action on his appointment at the May 18, 2015, meeting or thereafter. g. Gutonski inquired of the Solicitor at the time of the motion for his appointment as Borough Manager whether the action was permissible. The Solicitor responded that the appointment corresponded with the Borough's past practice. h. Gutonski would not have accepted the appointment of Borough Manager, had the Solicitor advised that the appointment was done improperly. 39. Section 1104(a) of the State Ethics Act sets forth that each public official of the Commonwealth shall file a Statement of Financial Interests for the preceding calendar year with the Commission no later than May 1 of each year that he holds such position and of the year after he leaves such position. a. Local public employees or public officials shall file a Statement of Financial Interests with the governing authority of the political subdivision by which they are employed or within which they are appointed or elected no later Gutonski, 15 -027 Page 15 than May 1 of each year that they hold such a position and of the year after they leave such a position. b. Gutonski was required to file a Statement of Financial Interests ( "SFI ") for calendar years 2010 through 2013 as a Council Member for Tarentum Borough. 40. During Gutonski's tenure, Council Members were provided with blank SFIs at the beginning of each calendar year by the Borough Manager. a. The forms were typically placed in each Council Member's mailbox, located in the Borough Municipal Building. b. The SFIs were submitted to the Borough Manager upon completion for filing purposes. 41. On July 28, 2015, a Statement of Financial Interests compliance review of Borough officials /employees was conducted at the Tarentum Borough Municipal Building. 42. Discrepancies on Gutonski's SFI calendar year 2010 form, dated March 6, 2011, were found as a result of the review. a. Block 5 requires the listing of the governmental entity [as to which the filer is presently seeking a public office /position as a candidate (incumbent or non - incumbent) or nominee, presently holds a public office /position, and /or previously held a public office /position] during all or any portion of the respective calendar year. Block 5 was blank and otherwise not completed on Gutonski's 2010 calendar year SFI form. 43. Discrepancies on Gutonski's SFI calendar year 2011 form, dated April 10, 2012, were found as a result of the review. a. Block 5 was blank and otherwise not completed on Gutonski's 2011 calendar year SFI form. b. Block 11 requires the disclosure of the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more [and the circumstances of each gift]. Block 11 was blank and otherwise not completed on Gutonski's 2011 calendar year SFI form. C. Block 12 requires the disclosure of the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment [where such actual expenses exceed $650 in an aggregate amount per year]. 1. Block 12 was blank and otherwise not completed on Gutonski's 2011 calendar year SFI form. d. Block 13 requires the disclosure of any office, directorship or employment of any nature whatsoever in any business entity. Block 13 was blank and otherwise not completed on Gutonski's 2011 Gutonski, 15 -027 Page 16 calendar year SFI form. Block 14 requires the disclosure of any financial interest in any legal entity engaged in business for profit. Block 14 was blank and otherwise not completed on Gutonski's 2011 calendar year SFI form. Block 15 requires the disclosure of the identity of any financial interest in a business which has been transferred to a member of the reporting person's immediate family. Block 15 was blank and otherwise not completed on Gutonski's 2011 calendar year SFI form. 44. No SFIs for Gutonski are on file for calendar years 2012 and 2013. Section 1104(d) of the State Ethics Act sets forth that no public official shall be allowed to take the oath of office or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he /she has filed an SFI. 1. Gutonski received compensation from the Borough in 2012 and 2013 for performing duties as a Council Member. 45. Gutonski, a public official /public employee in his capacity as a Member of the Tarentum Borough Council, experienced a private pecuniary benefit of $4,000.00 as a result of utilizing the authority of his public position for the private pecuniary benefit of himself, when he participated in discussions and /or actions of Borough Council to seek appointment to the position of Borough Manager, a salaried employment position within the Borough; and when he failed to disclose his governmental entity [on his] calendar year 2010 Statement of Financial Interests; when he failed to disclose his governmental entity, the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more, the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment, any office, directorship or employment of any nature whatsoever in any business entity, any financial interest in any legal entity engaged in business for profit, and the identity of any financial interest in a business which has been transferred to a member of the reporting person's immediate family [on his] calendar year 2011 Statement of Financial Interests; and when he failed to file a calendar year 2012 and 2013 Statement of Financial Interests with his governmental entity. DISCUSSION: As a Council Member of Tarentum Borough ( "Borough "), Allegheny County, Pennsylvania, from June 21, 1999, through January 4, 2010, and from January 2, 2012, to May 31, 2015, Respondent Michael Gutonski, hereinafter also referred to as "Respondent," "Respondent Gutonski," and "Gutonski," was a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The allegations are that Gutonski violated Sections 1103(a), 1104(a), 1104(d), 1105(b)(1), 1105(b)(5), 1105(b)(6), 1105(b)(7), 1105(b)(8), 1105(b)(9), and 1105(b)(10) of the Ethics Act: (1) when he utilized the authority of his public position for the private pecuniary benefit of himself, when he participated in discussions and /or actions of Gutonski, 15 -027 Page 17 Borough Council to influence Council decisions so that he would eventually be appointed to the position of Borough Manager, a salaried employment position within the Borough; (2) when he failed to disclose his governmental entity and the name and address of all direct or indirect sources of income totaling in the aggregate $1,300 or more on his calendar year 2010 Statement of Financial Interests; (3) when he failed to disclose his governmental entity, all direct or indirect sources of income, the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more, the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment, any office, directorship or employment of any nature whatsoever in any business entity, any financial interest in any legal entity engaged in business for profit, and the identity of any financial interest in a business transferred to a member of immediate family on his calendar year 2011 Statement of Financial Interests; and (4) when he failed to file calendar year 2012 and 2013 Statements of Financial Interests with his governmental entity. 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. Section 1104(a) of the Ethics Act provides that each public official /public employee must file a Statement of Financial Interests ( "SFI ") for the preceding calendar year, each year that he holds the position and the year after he leaves it. Gutonski, 15 -027 Page 18 Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, or enter or continue upon his duties, nor shall he receive compensation from public funds, unless he has filed an SFI as required by the Ethics Act. Section 1105(b) of the Ethics Act and its subsections detail the financial disclosure that a person required to file the SFI form must provide. Section 1105(b)(1) of the Ethics Act requires the filer to disclose on the SFI his name, address, and public position. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(5) of the Ethics Act requires the filer to disclose on the SFI the name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(6) of the Ethics Act requires the filer to disclose on the SFI the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. Subject to certain statutory exceptions not applicable to this matter, Section 1105(b)(7) of the Ethics Act requires the filer to disclose on the SFI the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses exceed $650 in an aggregate amount per year. Section 1105(b)(8) of the Ethics Act requires the filer to disclose on the SFI any office, directorship or employment in any business entity. Section 1105(b)(9) of the Ethics Act requires the filer to disclose on the SFI any financial interest in any legal entity engaged in business for profit. The term "financial interest" is defined in the Ethics Act as "[a]ny financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness." 65 Pa.C.S. § 1102. Section 1105(b)(10) of the Ethics Act requires the filer to disclose on the SFI any financial interest in a business with which he is or has been associated in the preceding calendar year which has been transferred to a member of his immediate family. 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. Respondent Gutonski served as a Member of Borough Council (also referred to herein as "Council ") from June 21, 1999, through January 4, 2010, and from January 2, 2012, to May 31, 2015. Respondent served as President of Borough Council from November 17, 2014, to May 18, 2015. Borough Council consists of seven Members. The Borough employs a Borough Manager. In 2006, when the individual then serving as Borough Manager informed Council of his impending retirement, both Respondent and another Council Member, William Rossey ( "Rossey "), contacted Council Members to express their interest in the Borough Manager position. At the June 19, 2006, Council meeting, Council Member Joe Davidek ( "Davidek ") motioned, seconded by Respondent, to appoint Rossey as the new Borough Manager effective September 25, 2006, at the starting salary of $54,500.00, which included fringe benefits and two week paid vacation beginning January 1, 2007. The motion passed via a 4 -2 vote, with Respondent voting favorably and Rossey abstaining. No prior advertisement of the position occurred, and no interviews of potential candidates were conducted. Gutonski, 15 -027 Page 19 During Council budget sessions of November /December 2014, Rossey informed Council of his intention to retire from the Borough Manager position at the end of calendar year 2015. Following Rossey's announcement, Council held no discussions concerning the procedure /process to fill the Borough Manager position after Rossey's retirement. At the December 15, 2014, Borough Council meeting, Council approved the 2015 Borough budget, which included $1,500.00 to train a new Borough Manager. Respondent voted affirmatively to approve the 2015 budget. Both Respondent and Rossey were candidates for Borough Council in 2015. If elected to Council, Rossey could not remain employed as the Borough Manager due to certain prohibitions contained within the Borough Code, 8 Pa.C.S. § 1104(b) -(c). In early 2015, Respondent directed that Rossey submit a resignation letter to formalize his retirement date. Rossey submitted his resignation letter at the regular meeting of Council on April 20, 2015. Rossey initially submitted a retirement date of January 3, 2016; however, after discussion with Council at the April 2015 Council meeting, Rossey advanced his retirement date to November 3, 2015. Following the April 20, 2015, meeting of Council, Council Member Tim Ferko commented that the Borough would advertise the Borough Manager vacancy and seek candidates in order to fill the position. However, following the April 20, 2015, meeting, Council did not discuss or establish a timeframe to conduct a search of candidates to appoint a Borough Manager to replace Rossey. Other than Ferko's remarks, Council made no overt effort in an attempt to acquire a replacement prior to Rossey's retirement. With the announcement/formalization of Rossey's retirement, Respondent made known his interest in the Borough Manager position. Respondent was familiar with the appointment process and was cognizant of the fact that Council had made prior appointments without interviews or applications. Respondent contacted the other Council Members and asked them to consider and support him for appointment as Borough Manager. See, Fact Findings 24 b, 25 -25 f. When contacting the Members of Borough Council, Respondent informed each of the Council Members that he wanted to be considered for appointment to the Borough Manager position. Respondent did not recommend or inquire about advertising the position, interviewing candidates, or potential salary ranges during these conversations. Respondent informed Council Member Eric Carter that he had spoken with other Council Members and that all were supportive of his appointment. By contacting Members of Borough Council individually, Respondent was able to seek the necessary support for his appointment as Borough Manager. This resulted in the Council taking official action at the May 18, 2015, Council meeting to appoint Respondent as Borough Manager. The parties have stipulated that Respondent was able to obtain an audience with the individual Members of Council, at least in part, due to his position on Borough Council. At Council's May 18, 2015, regular meeting, Council Member Davidek motioned, seconded by Council Member Carter, to appoint Respondent as Borough Manager, effective June 1, 2015, at the annual salary of $54 000.00, to include fringe benefits and a training period to commence June 1, 2015. Davidek's motion was made at the first regular Council meeting following Respondent's request that Council Members consider him for the position of Borough Manager. Council held no discussion regarding the appointment of Respondent prior to the May 18, 2015, meeting. The motion to appoint Respondent as Borough Manager was not listed on the meeting's agenda. The motion passed via unanimous vote with Respondent abstaining. Gutonski, 15 -027 Page 20 At the May 18, 2015, meeting, there was a public announcement that Respondent was ineligible to serve as both a Council Member and an employee of the Borough. Respondent submitted his letter of resignation from Borough Council effective May 31, 2015. The letter noted that Respondent was resigning from Council to serve as the Borough Manager. The letter was generated by Respondent prior to the May 18, 2015, meeting with the expectation and understanding that Council would appoint him Borough Manager on May 18, 2015. Respondent also completed a Borough employment application for the Borough Manager position, dated May 18, 2015, immediately following his appointment to the position. Respondent assumed the duties of Borough Manager effective June 1, 2015, and worked in conjunction with Rossey until Rossey retired from the Borough effective August 3, 2015. Respondent fully assumed the Borough Manager duties immediately following Rossey's retirement. From June 2015 through at least December 2015, Respondent has regularly been issued direct deposit paychecks, totaling $30,125.20 (gross), as compensation for his service as Borough Manager. In addition to monetary compensation, from June 2015 through December 2015, Respondent has received fringe benefits (including health, vision, and dental coverage as well as life insurance) totaling $3,400.22 in association with his status as a Borough employee. Pursuant to Section 1104(a) of the Ethics Act, Respondent was required to file SFIs for calendar years 2010, 2011, 2012, and 2013 as a Borough Council Member. On July 28, 2015, an SFI compliance review of Borough officials /employees was conducted at the Borough Municipal Building. Respondent's SFIs for calendar years 2010 and 2011 were deficient, and there are /were no SFIs on file for Respondent for calendar years 2012 and 2013. Respondent's SFI for calendar year 2010 was deficient in that Block 5 was not completed. Block 5 requires the listing of the governmental entity as to which the filer is presently seeking a public office /position as a candidate (incumbent or non - incumbent) or nominee, presently holds a public office /position, and /or previously held a public office /position during all or any portion of the respective calendar year. Respondent's SFI for calendar year 2011 was deficient in that Blocks 5, 11, 12, 13, 14, and 15 were not completed. Block 11 requires the disclosure of the name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. Block 12 requires the disclosure of the name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses exceed $650 in an aggregate amount per year. Block 13 requires the disclosure of any office, directorship or employment of any nature whatsoever in any business entity. Block 14 requires the disclosure of any financial interest in any legal entity engaged in business for profit. Block 15 requires the disclosure of the identity of any financial interest in a business which has been transferred to a member of the reporting person's immediate family. The parties have stipulated that Respondent Gutonski, a public official /public employee in his capacity as a Member of Borough Council, experienced a private pecuniary benefit of $4,000.00 as a result of utilizing the authority of his public position for the private pecuniary benefit of himself, when he participated in discussions and /or actions of Borough Council to seek appointment to the position of Borough Manager, a salaried employment position within the Borough; when he failed to make the aforesaid requisite Gutonski, 15 -027 Page 21 disclosures on his 2010 and 2011 calendar year SFIs; and when he failed to file SFIs for calendar years 2012 and 2013 with the Borough. See, Fact Finding 45. 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: The Investigative Division will recommend the following in relation to the above allegations: That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1103(a) occurred when Gutonski, in his capacity as a Member of the Tarentum Borough Council, used the authority of his office when he contacted members of the council individually to solicit their approval of his appointment as Borough manager. His actions directly led to his appointment and no other candidates were discussed for the position. That violations of [Section] 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1104(a) occurred in regards to Gutonski failing to file Statements of Financial Interests for calendar years 2012 and 2013, and violations of [Section] 1105(b) occurred in regards to filing deficient statements [for] calendar years 2010 and 2011. 4. Gutonski agrees to make a payment in the amount of $4,000.00 in settlement of this matter. The $4,000.00 shall be made payable to the Borough of Tarentum and sent to the Pennsylvania State Ethics Commission. 5. Gutonski agrees to file a complete and accurate Statement of Financial Interests with the Borough of Tarentum through the Pennsylvania State Ethics Commission, for the 2010, 2011, 2012, and 2013 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. 6. Gutonski agrees to not accept any reimbursement, compensation (other than the compensation he currently receives) or other payment from the Borough of Tarentum representing a full or partial reimbursement of the amount paid in settlement of this matter. 7. 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 Gutonski, 15 -027 Page 22 cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 2. It appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros the portion of the allegations pertaining to Section 1104(d) of the Ethics Act. In considering the Consent Agreement, we agree with the parties that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent Gutonski, in his capacity as a Member of Borough Council, used the authority of his office when he contacted Members of Borough Council individually to solicit their approval of his appointment as Borough Manager, his actions directly led to his appointment, and no other candidates were discussed for the position. With the announcement/formalization of Rossey's retirement, Respondent made known his interest in the Borough Manager position. Respondent contacted the other Council Members and asked them to consider and support him for appointment as Borough Manager. When contacting the Members of Borough Council, Respondent informed each of the Council Members that he wanted to be considered for appointment to the Borough Manager position. Respondent did not recommend or inquire about advertising the position, interviewing candidates, or potential salary ranges during these conversations. Respondent informed Council Member Eric Carter that he had spoken with other Council Members and that all were supportive of his appointment. By contacting Members of Borough Council individually, Respondent was able to seek the necessary support for his appointment as Borough Manager. This resulted in the Council taking official action at the May 18, 2015, Council meeting to appoint Respondent as Borough Manager. The parties have stipulated that Respondent was able to obtain an audience with the individual Members of Council, at least in part, due to his position on Borough Council. At Council's May 18, 2015, regular meeting, Council Member Davidek motioned, seconded by Council Member Carter, to appoint Respondent as Borough Manager, effective June 1, 2015, at the annual salary of $54 000.00, to include fringe benefits and a training period to commence June 1, 2015. Davidek's motion was made at the first regular Council meeting following Respondent's request that Council Members consider him for the position of Borough Manager. Council held no discussion regarding the appointment of Respondent prior to the May 18, 2015, meeting. The motion to appoint Respondent as Borough Manager was not listed on the meeting's agenda. The motion passed via unanimous vote with Respondent abstaining. From June 2015 through at least December 2015, Respondent has regularly been issued direct deposit paychecks, totaling $30,125.20 (gross), as compensation for his service as Borough Manager. In addition to monetary compensation, from June 2015 through December 2015, Respondent has received fringe benefits (including health, vision, and dental coverage as well as life insurance) totaling $3,400.22 in association with his status as a Borough employee. Based upon the Stipulated Findings and Consent Agreement, we hold that a violation of Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), occurred when Respondent Gutonski, in his capacity as a Member of Borough Council, used the authority of his office when he contacted Members of Borough Council individually to solicit their approval of his appointment as Borough Manager, his actions directly led to his Gutonski, 15 -027 Page 23 appointment, and no other candidates were discussed for the position. Cf., Petro, Order 1652; Sulc, Orders 1639 and 1639 -R. We further hold that violations of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in regards to Gutonski failing to file SFIs for calendar years 2012 and 2013, and violations of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in regards to Gutonski filing deficient SFIs for calendar years 2010 and 2011. As part of the Consent Agreement, Gutonski has agreed to make a payment in the amount of $4,000.00 payable to the Borough of Tarentum and sent to this Commission. Gutonski has agreed to not accept any reimbursement, compensation (other than the compensation he currently receives) or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Gutonski has further agreed to file with the Borough, through this Commission, complete and accurate SFIs for the 2010, 20117 2012, and 2013 calendar years within thirty (30) days of the issuance of the final adjudication in this matter. 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, Respondent Gutonski is directed to make payment in the amount of $4,000.00 payable to the Borough of Tarentum and forwarded to this Commission by no later than the thirtieth (30th) day after the mailing date of this adjudication and Order. Per the Consent Agreement of the parties, Respondent Gutonski is further directed to not accept any reimbursement, compensation (other than the compensation he currently receives) or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. Respondent Gutonski is directed to file with the Borough, through this Commission, complete and accurate SFIs for the 2010, 20117 2012, and 2013 calendaryears by no later than the thirtieth (30th) day after the mailing date of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. As a Council Member of Tarentum Borough ( "Borough "), Allegheny County, Pennsylvania, from June 21, 1999, through January 4, 2010, and from January 2, 2012, to May 31, 2015, Respondent Michael Gutonski ( "Gutonski ") was a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act ") , 65 Pa.C.S. § 1101 et seq. 2. Based upon the Stipulated Findings and Consent Agreement, Gutonski violated Section 1103(a) of the Ethics Act, 65 Pa.C.S. § 1103(a), when he, in his capacity as a Member of Borough Council, used the authority of his office when he contacted Members of Borough Council individually to solicit their approval of his appointment as Borough Manager, his actions directly led to his appointment, and no other candidates were discussed for the position. Gutonski, 15 -027 Page 24 Violations of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in regards to Gutonski failing to file Statements of Financial Interests for calendar years 2012 and 2013, and violations of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in regards to Gutonski filing deficient Statements of Financial Interests for calendar years 2010 and 2011. In Re: Michael Gutonski, File Docket: 15 -027 Respondent Date Decided: 6/22/16 Date Mailed: 6/29/16 ORDER NO. 1693 Based upon the Stipulated Findings and Consent Agreement, Michael Gutonski ( "Gutonski ") violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when he, in his capacity as a Council Member of Tarentum Borough ( "Borough "), Allegheny County, Pennsylvania, used the authority of his office when he contacted Members of Borough Council individually to solicit their approval of his appointment as Borough Manager, his actions directly led to his appointment, and no other candidates were discussed for the position. 2. Violations of Section 1104(a) of the Ethics Act, 65 Pa.C.S. § 1104(a), occurred in regards to Gutonski failing to file Statements of Financial Interests for calendar years 2012 and 2013, and violations of Section 1105(b) of the Ethics Act, 65 Pa.C.S. § 1105(b), occurred in regards to Gutonski filing deficient Statements of Financial Interests for calendar years 2010 and 2011. 3. Per the Consent Agreement of the parties, Gutonski is directed to make payment in the amount of $4,000.00 payable to the Borough of Tarentum and forwarded to the Pennsylvania State Ethics Commission by no later than the thirtieth (30th) day after the mailing date of this Order. 4. Per the Consent Agreement of the parties, Gutonski is further directed to not accept any reimbursement, compensation (other than the compensation he currently receives) or other payment from the Borough representing a full or partial reimbursement of the amount paid in settlement of this matter. 5. Gutonski is directed to file with the Borough, through the Pennsylvania State Ethics Commission, complete and accurate Statements of Financial Interests fQr the 2010, 2011, 2012, and 2013 calendar years by no later than the thirtieth (30t ) day after the mailing date of this Order. 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. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Nicholas A. Colafella, Chair