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HomeMy WebLinkAbout861 PainterIn re: Terry Painter STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: : Date Decided: : Date Mailed: Before: James M. Howley, Daneen E. Reese, Roy W. Wilt Austin M. Lee Allan M. Kluger 87 -066 -C September 1922 September 18, 1992 Chair Vice Chair The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of ' the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was held. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This__ adjudication_ is _final_ and _ will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code $2.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). Painted,, 87 -066 -C Page 2 I. ALLEGATION: That Terry Painter, a member of the Western Westmoreland Municipal Authority, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain, when he voted to set his salary in 1986 and 1987 as a board member of the Western Westmoreland Municipal Authority. II. FINDINGS: A. PLEADINGS: 1. Terry Painter served as an appointed member of the Western Westmoreland Municipal Authority. a. Mr. Painter served in this position from 1986 to 1990. b: Mr. Painter represents North Huntington Township on the Authority. 2. The Western Westmoreland Municipal Authority was created pursuant to the Pennsylvania Municipality Authorities Act of 1945 by way of agreement of December 15, 1971 between various municipalities. a. The Authority was created to finance, acquire, construct and _complete a joint municipal facility with the „„capa.ci of treating 'sewage ° and industrial ` raster frost =si"dents° who were located in the Lower Bush Creek project area. The municipalities comprising the. Western Westmoreland Municipal Authority' :Were: 1) North Huntingdon Township 2) Borough of Irwin 3) Penn Township 4) Borough of Manor 5) Hempfield Township 6) Borough of North Irwin c. The agreement between the above identified municipalities provides that the Authority was to consist of ten (10) members. Three appointed by North Huntingdon Township, two appointed by Irwin Borough, two appointed by Penn Township, and one each appointed by Manor Borough, North Irwin Borough and Hempfield Township. d. The terms of office for the first appointees were as follows: Painter, 87 -066 -C Page 3 1) Township of North Huntingdon - 5 Years, 3 Years, 1 Year 2) Borough of Irwin - 5 Years, 3 Years 3) Township of Penn - 4 Years, 2 Years 4) Borough of Manor - 4 Years 5) Borough of North Irwin - 1 Year 3. The by -laws of the Western Westmoreland Municipal Authority originally provided the following in relevant part: ARTICLE II - OFFICERS Section 1 - Officers: The officers of the Authority shall be a Chairman, a Vice Chairman, a Secretary, a Treasurer and an Assistant Secretary - Treasurer, to be elected from the members of the Board of the Authority. Section 2 - Chairman: The Chairman shall preside at all meetings of the Board of the Authority. Except as otherwise authorized by resolution of the Board of Authority, the chairman shall sign all contracts, deeds, and other instruments made by the Authority.` At each meeting, the chairman shall submit such recommendations and information as he may consider proper concerning the business, affairs, and policies of the Authority. Section 3 - Vice Chairman: The vice chairman shall perform the duties of the chairman in the absence or incapacity of the chairman; and in case of the resignation or death of the chairman, the vice chairman shall perform such duties as are imposed on the chairman until such time as the Board of the Authority shall appoint a new chairman. Section 4 - Secretary: The secretary shall keep the records of Authority, shall act as secretary for the meetings of the Board of the Authority and record all votes, and shall keep a record of the proceedings of the Board of the Authority in a journal of proceedings to be kept for such purpose and shall perform all duties incident to his office. He shall keep in safe custody the seal of the Authority, and shall have power to affix such P #inter, 87 -066 -C Page 4 seal to all proceedings and resolutions of the Board of the Authority and to all contracts and instruments authorized to be executed by the Authority. Section 5 - Treasurer: The treasurer shall have the care and custody of all funds of the Authority and shall deposit the same in the name of the Authority in such bank or banks as the Board of the Authority may select. The treasurer shall sign all orders and checks for the payment of money, and shall pay out and disburse such moneys under the direction of the Board of the Authority. Except as otherwise authorized by resolution of the Board of the Authority, all such orders and checks shall be countersigned by the chairman. He shall keep regular books of accounts showing receipts and expenditures, and shall render to the Board of the Authority at each regular meeting (or more often when requested) an account of his transactions and also of the financial condition of the Authority. He shall give such bond for the faithful performance of his duties as the Board of the Authority may determine and pay for. Section 6 - Assistant Secretary /Treasurer: The assistant secretary /treasurer shall perform all duties of either the secretary or treasurer in the absence or incapacity of the secretary or treasurer, the assistant shall perform such duties as are imposed k upon such deceased_ or resic, n secretary or . treasurer until such time as the ' °Boa Authority shall appoint a new secretary or treasurer. Section 7 - Additional Duties: The officers of the Authority shall perform such other duties and functions as may from time to time be required by the Board of the Authority or the by -laws or rules and regulations of the Authority. Section 10 - Additional Personnel: The Authority may from time to time employ such personnel as it deems necessary to exercise its powers, duties and functions, as prescribed by the Municipality Authorities Act of 1945, as amended, of Pennsylvania, and all other laws of the Commonwealth of Pennsylvania, applicable thereto. The selection and compensation of such personnel shall be determined by the Board of the Authority subject to the laws of the Commonwealth of Pennsylvania. ARTICLE V - AMENDMENTS Rainter, 87 -066 -C Page 5 The by -laws of the Authority (with the exception of any matters that are governed by the Articles of Incorporation) shall be amended only with the approval of at least six (6) of the members of the Board of the Authority at a regular or special meeting; provided that the amendment has been submitted in writing at a previous regular or special meeting. The above by -laws were subsequently amended by Authority board members. (See Finding No. 21[d].) 5. As a result of such amendment, six additional officer positions were created bringing the total number of offices to ten; one position for each board member. (See Finding No. 21[c].) 6. On July 1985, by way of Resolution Number 47, the Penn Township Board of Commissioners on motion of Mr. Cortazzo, seconded by Mrs. Painter, reappointed Robert Borgo and Joseph Mahkovec to the Board of the Western Westmoreland Municipal Authority. 7. Minutes of the North Irwin Borough Council meetings indicate the following regarding the appointment of a representative to the Western Westmoreland Municipal Authority: a . Section 1 - Amendments t By -Laws : January 3, 1984: Mr. Cannata made a motion to appoint Robert Zentner as the borough's representative to WWMA for a five year term. Rifer seconded; all agreed. b. December 12, 1988: Zontek made a motion to re- appoint all individuals whose terms are expiring, including . Robert Zentner to WWMA, for five years. Seconded by Towler; with all members agreeing. 8. By way of letter dated December 8, 1986 to Robert W. Zentner, North Irwin Borough Council President, Leonard H. Santimyer, requests that Mr. Zentner offer a motion that the Authority eliminate the $150.00 monthly salary of Authority members. 9. By way of letter dated January 15, 1987 to Robert W. Zentner, From Leonard L. Santimyer, North Irwin Borough Council President, Mr. Santimyer expressed his appreciation of Mr. Zentner's motion at a December 17, 1986 WWMA board meeting to eliminate the salary of board meetings. Painter, 87 -066 -C Page 6 10. The members of the North Irwin Borough Council never intended the position of borough representative to the Western Westmoreland Municipal Authority to be a compensated position. 11. Minutes of the meetings of the Irwin Borough Council indicate the following in relation to the appointment of a representative to the Western Westmoreland Municipal Authority: a. February 14, 1983: Mr. Cooper made a motion to appoint Roy Eisaman to the WWMA term to expire 12/31/87. Seconded by Mr. Meredith; motion carried 6 -0. b. March 10, 1986: Mr. Rose made a motion to appoint Bernard H. Mulvihill as the Borough Representative to the WWMA term to expire 12/31/90. ..Seconded by Mr. Geiger; motion carried 5 -0. c. February 8, 1988: Mr. Kaberer made a motion to appoint Roy Eisaman as the Borough Representative to WWMA term to expire 12/31/90. 12. The Irwin Borough Council has never taken any official action to approve compensation for_ the members of the Western Westmoreland Municipal Anthciiii including the"Itei ices` f rom Irwin Borough, Roy Eisaman an Bernard Mulvihill. 13. Minutes of the meetings of the Manor Borough council members indicate the ' following ` in - relation : to the appointment Borough representatives to the Western Westmoreland Municipal Authority: a. February 5, 1986: Council unanimously appointed Mrs. Barbara Johnson as the representative to WWMA for four years. The secretary was instructed to notify WWMA of this decision. b. Mav 7, 1986: Barbara Johnson's appointment was made incorrectly; Ms. Johnson is appointed until 12/31/86 (not to a 4 year term as previously reported). c. October 1, 1986: Barbara Johnson reports that a tentative agreement with paint @r, 87 -066 -C Page 7 WWMA and the Personnel Committee has been reached. WWMA board members will be receiving $150.00 per month compensation for their services. WWMA is trying to define the interceptor and carrier lines in all municipalities. d. January 7, 1987: Due to the expired term of Barbara Johnson, as the Borough Representative to the WWMA, council unanimously appointed Mr. John Heffner to the WWMA effective immediately for a four year term. The secretary was instructed to notify WWMA of the appointment. 14. Manor Borough Council never took any official action in regard to approving compensation for the members of the Western Westmoreland Municipal Authority including the Representatives from Manor Borough, Barbara Johnson and John Heffner. 15. Minutes of the Hempfield Township Board of Supervisors indicate that on December 31, 1976, the supervisors unanimously adopted Ordinance Number 71 -29: a. The ordinance signified the desire and intention of the township to organize a joint authority under the Municipality Authorities Act of 1945 to be known as the Western Westmoreland Municipal Authority; appointing members to the authority board; and setting further the proposed articles of information. b. The - following individuals were identified in the ordinance as the WWMA board members: Name Edward J. Klotz Robert T. Lindsay Joseph Manvele John R. Stude Bainey Slotnick Raymond Taylor Donald G. Schirer Robert L. Rebottini Kenneth J. Attman John McKeever Municipality Term North Huntingdon Penn Irwin Penn Irwin N. Irwin Hempfield North Huntingdon Manor North Huntingdon 1 2 3 4 5 1 2 3 4 5 16. Minutes of the Hempfield Township Board of Supervisors indicate that on February 14, 1972, the supervisors unanimously adopted Ordinance Number 72 -1: Painter, 87 -066 -C Page 8 a. This ordinance was similar to Ordinance 71 -29. 17. Minutes of the Hempfield Township Board of Supervisors meeting of March 3, 1980 indicate that Mr. Don Ewing was appointed to fill a vacancy on the Western Westmoreland Municipal Authority. 18. The Hempfield Township Board of Supervisors never took any action to approve compensation for the members of the Western Westmoreland Municipal Authority including the representatives of Hempfield Township. 19. Minutes of the meetings of the North Huntingdon Township Commissioners indicate the following in relation to the appointment of representatives to the Western Westmoreland Municipal Authority: a. January 9, 1980: Present: Gross, McCabe, Hagan, Batley, Beatty, Abbott and Tempero A resolution of the North Huntingdon Township Commissioners in regard to the appointment of a North Huntingdon Township Municipal Authority Board Member to the Board of the Western Westmoreland Municipal Authority - recommended to the Board of Commissioners that Daniel E. Zontek be appo to the next available pcisiti.on the Board of the Western Westmoreland Munidtpa1 Atx iertt to be filled by a representative from the Township of North Huntingdon. Mr.` `Tempera, i states: With .:reference ;to- the Western Westmoreland Municipal Authority, and due to the fact that Mr. Donald Glenn has not been attending meetings and in fact has missed almost every meeting since his appointment to the Authority, the Chair will entertain a motion that his seat on the Western Westmoreland Municipal Authority be made vacant by the removal of Mr. Donald Glenn for cause, and a new member be appointed to fill the vacancy for the unexpired term. That motion passed and was immediately followed by a motion by Mr. Batley, seconded by Mr. Abbott, to the effect that Mr. Zontek be appointed to the Western Westmoreland Municipal Authority Board to fulfill the unexpired term of Mr. Donald Glenn. That motion carried 7 to 0. b. September 10, 19$0: Present: Gross, McCabe, Hagan, Batley, Beatty, Abbott jiinter, 87 -066 -C Page 9 and Tempero A letter from a Mr. Daniel E. Zontek, which states, effective immediately, I am resigning from the Western Westmoreland Municipal Authority. At the time I accepted this appointment, the commitment on my time was such that I could not devote the necessary time to effectively represent the township on this Authority. Business commitments and family commitments have prevented me from fulfilling this obligation. There was then a motion by Mr. Abbott, seconded by Mr. Batley, to accept the resignation of Mr. Zontek from the Western Westmoreland Municipal Authority, effective immediately. Motion carried, 6 -0. c. January 3, 1984: A motion by Mr. Batley, seconded by Mr. Abbott, to appoint Mr. Thomas Mance to the WWMA for a five year term. Ayes: Tempero, Gross, Hogan, Batley, Ludwicki, Abbott and Beeler d. June 13, 1984: A motion by Mr. Tempero, seconded by Mr. Ludwicki, to appoint Donald Rhodes to fill the unexpired term of John McWalter on WWMA. Ayes: Tempero, Beeler, Hogan, Batley, Ludwicki, Abbott and Pointer e. January 9, 1985: Present: Tempero, Beeler, Hagan, Batley, Ludwicki, Abbott and Painter A motion by Mr. Abbott, seconded by Mr. Ludwicki, to appoint Mr. Zontek to the Western Westmoreland Municipal Authority for the term that expires December 31, 1987. Motion carried, 7 -0. f. January 6, 1986: Motion by Abbott, seconded by Ludwicki, to nominate Terry L. Painter to the WWMA for a five year term. Ayes: Hagan, Batley, Ludwicki, Abbott and Beeler No: Tempero and Gross 'nter, Page 10 g - 87 -066 -C January 4, 1988: Present: Tempero, Furlin, Huberle, Batley, Ludwicki, Abbott and Hagan A motion by Mr. Batley, seconded by Mr. Abbott, that Mr. Zontek be appointed to a five year term on the Western Westmoreland Municipal Authority. That motion carried 6 to 1 with Mr. Tempero voting no. h. June 12, 1990: Present: Tempero, Furlin, Phillips, Batley, Krause, Abbott and Auberle Appointment to the Western Westmoreland Authority: Mrs. Petrosky stated that this item was to fill the vacancy created by the resignation of Mr. Zontek to the Westmoreland Municipal Authority. Mr. Zontek's term would have on December 31, 1992. 20. Minutes of the Western Westmoreland Municipal Authority meetings indicate the following in relation to the instant situation: a. February 19, 1986: Mr. Ma ce,nominatedMr....iketatner for Cha t . t mot' carries - unannimously: is± y _Painter Thomas Mance for Vice Chairman and that motion carried unanimously. Roy Eisaman nominated Samuel Heasley for the position of Treasurer and that motion carried unanimously: Eiseman nominated Barbara Balcerek fo the position of Assistant Secretary - Treasurer; Mr. Mace nominated Barbara Johnson for this position. Discussion ensued. Board members Heasley, Mahkovec, Borgo, Eisaman, Ewing and Zentner voted for Mrs. Balcerek. Board members Zontek, Mance and Painter voted for Mrs. Johnson. Mrs. Balcerek is appointed to the position. Mr. Zontek presented his ideas on compensation to board members. A motion was made by Zontek, seconded by Painter, authorizing the solicitor to prepare a resolution to designate each member of the authority as an officer and compensation to them would be $150.00 a month. Mr. Mahkovec reminded the board members that this very thing had been done in the past, and there had been many visitors present at the meeting when a vote was taken for this compensation. A role call vote was taken, and a motion failed due to a five to five tie with the members voting as follows: Painter, 87 -066 -C Page 11 b. Mav 21, 1986: Mr. Mahkovec was absent. Mr. Painter brought up the issue of board members being compensated. He stated that the dedication and services provided by the members should be justified by compensation. Mr. Snyder, the Solicitor, stated that the by -laws provide for five officers, the chairman, vice chairman, secretary, treasurer, and assistant secretary /treasurer. Mr. Snyder stated that the board members fall under the requirements of Section 309, Section 7, of the Municipal Authorities Act. This would have to be approved by all the municipalities for the Authority. In addition to that, in Mr. Snyder's opinion, it would be for the new members coming on at the end of the current term. It was noted that, approximately two years ago, there was a suggestion made that the by -laws be amended to make each of the committee chairmen officers in addition to the current officers. Mr. Snyder stated that he is not prepared to say unequivocally that compensation would pass legal challenge. Mr. Painter said that the vehicle for simplicity would be for documentation that all board members would be officers. Mr. Painter asked the chair to entertain the motion to authorize the solicitor for the best recommendation for allowing officers and board members to be compensated. Mr. Mulvihill seconded the motion, and the motion carried unanimously. The second part of Mr. Painter's suggestion is the amount to be compensated. It was budgeted in 1984 for $100.00 a month. A motion was not forthcoming at this particular meeting. Samuel Heasley - No Barbara Johnson - Yes Daniel Zontek - Yes Joseph Mahkovec - No Robert Borgo - No c. June 18, 1986: Thomas Mance - Yes Terry Painter - Yes Roy Eisaman - No Don Ewing - Yes Robert Zentner - No Mr. Mahkovec was absent. Mr. Snyder, the Solicitor, reported that a notice of the proposed by -laws change requested at the last meeting, along with correspondences, was included in a package of materials for the board. Mr. Snyder's by -laws amendment proposed that the officers of the authority shall be a chairman, a vice chairman, a secretary, a treasurer, and assistant secretary /treasurer, and the chairmen of each of the following committees: Personnel, Finance & Budget, Sludge Disposal, Insurance, Grounds & Maintenance, and Legal & Engineering Service. All of which, with the Painter, 87 -066 -C Page 12 exception of the assistant secretary /treasurer, shall be members of the board of the Authority. No person shall hold more than one office. The by -laws further provide that the chair of the respective committees shall preside at all meetings of the respective committees and shall report the recommendations of the committee to the board of the Authority of action by the board. The by -laws further provide that officers of the Authority shall be compensated as the board of the Authority shall determine by resolution adopted at the annual meeting of the board subsequent to the election of the officers. The by -laws further provide that the officers as above identified shall be elected at the annual meeting of the board of the Authority and shall serve one year terms. d. August 20, 1986: Terry made a motion to adopt the amendment to the by -laws of the Authority as drafted by the solicitor revising the definition of officers for the authority; motion was seconded by Daniel Zontek. Mr. Painter then withdrew his motion and made the following: A motion was made by Terry Painter, seconded by Daniel Zontek, to adopt the amendment of the by -laws as presented to the board by the solicitor as recorded in the minutes of the meeting of June 18, 1986 and included the amendment of December 1984. _A roll call vote was taken ,,and _ and .a _ motson, passed vote of fight -to one with Mr. Zentner voting" no. A motion was then made by Terry Painter, seconded by Daniel Zontek, for offices to be compensated at a rate of $300.00 a month effective August 1986. A discussion ensued on ` this matter as "to interpretation as to when this compensation could become effective. Mr. Zentner stated that according to the resolution read, by the assistant secretary /treasurer, the amount of compensation could not be set until after the February reorganization meeting. The chairman called for a roll call vote on a motion presented by Mr. Painter, and a motion passed the vote being six yeas and 3 nays as follows: Bernard Mulvihill - Yes Barbara Johnson - Yes Robert Borgo - No Thomas Mance - Yes Robert Zentner - No Terry Painter - Yes Daniel Zontek - Yes Roy Eiseman - No Don Ewing - Yes e. September 17, 1986: A number of individuals present at the meeting questioned the board about the reasons for the compensation Painter, 87 -066 -C Page 13 authorized for board members. Mr. Painter and Mr. Mahkovec were absent. A motion was made by Bernard Mulvihill, seconded by Robert Borgo, to rescind the original motion of . compensation made at the August meeting and to change the amount of compensation to $150.00 a month retroactive to August 1, 1986. A roll call vote was requested, and a motion passed the vote being six yeas and two nays as follows: Bernard Mulvihill - Yes Barbara Johnson - Yes Daniel Zontek - No Robert Borgo - Yes Bernard Mulvihill - No Barbara Johnson - No Daniel Zontek - No Robert Borgo - No Thomas Mance - No Thomas Mance - No Roy Eisaman - Yes Don Ewing - Yes Robert Zentner - Yes At this time, Mr. Zontek and Mr. Mance changed their nay votes to yes votes, and the motion passes unanimously. f. November 19, 1986: A motion to pay expenditures including board member compensation totaling was $1,295.10 (net) was made by Mr. Eisaman seconded by Mr. Borgo. The motion carried 8- 1 with Mr. Mulvihill being the opposing vote. 1) Painter asserts that the compensation was paid to Authority officers in accordance with the change in the by -laws and not as an Authority member. December 17, 1986: The absentee board member was Joseph Mahkovec. The chairman requested a motion to rescind the compensation to board members. A motion was made by Don Ewing, seconded by Roy Eisaman, to rescind the action made by this board to compensate the officers of this authority or board members at the rate of $150.00 per month and restrict such compensation to board members to reimbursable expenses. This motion will be effected January 1, 1987. A roll call vote was taken, and the motion failed as follows: Terry Painter - No Roy Eisaman - Yes Don Ewing - yes Robert Zentner - Yes h. February 18, 1987: A reorganization meeting of the Authority board was held. Painter, 87 -066 -C Page 14 j The following members were appointed to officer positions: Robert Zentner - Chair John Hoffner - Vice Chair Don Ewing - Secretary Roy Eisaman - Treasurer Barbara Balcerek - Assistant Secretary /Treasurer A motion was made by Painter, seconded by Eiseman, to set the compensation for board members serving as officers as provided by the by -laws at the rate of $150.00 per month for the year. All of the members voted for the motion with the exception for Robert Zentner. i. October 21, 1987: The solicitor stated that he was instructed to prepare an amendment to the by -laws to provide for the position of Committee Vice- Chair. A motion to amend the by -laws at the next meeting was unanimously carried. November 18, 1987: The Solicitor, Mr. Campfield, had prepared an amendment to the by -laws which provides for a vice chairman for each of the committees. A motion was made by Ewing, seconded by Mance, toadop this amendment to,theby laws as Jpresented ye ..., k. February 17, 1988: At a re- organizational meeting of the Authority, r following members were elected to officer positions: Robert Zentner - Chair John Hoffner - Vice Chair Don Ewing - Secretary Roy Eiseman - Treasurer Bernard Mulvihill - Finance & Budget Committee Chair Terry Painter - Grounds & Maintenance Committee Chair Thomas Mance - Insurance Committee Chair Daniel Zontek - Legal & Engineering Services Chair Robert Borgo - Personnel Committee Chair Joseph Mahkovec - Sludge Committee Chair Don Ewing made a motion, seconded by Eisaman, to have zero salary per month for the next year. Roll call vote was taken and the vote failed by a vote of one to eight as follows: Painter, 87 -066 -C Page 15 Bernard Mulvihill - No John Hoffner - No Daniel Zontek - No Robert Borgo - No Robert Zentner - Yes Thomas Mance - No Terry Painter - No Roy Eisaman - No Don Ewing - No A motion was then made by Hoffner, seconded by Eisaman, to have the same salary set at $150.00 per month for the coming year that motion passed by a vote of six to three as follows: Bernard Mulvihill - Yes John Hoffner - Yes Daniel Zontek - Yes Robert Borgo - Yes Robert Zentner - No 1. January 18, 1989: Thomas Mance - Yes Terry Painter - No Roy Eisaman - Yes Don Ewing - No Mr. Mance was not reappointed to the Authority and his place was taken by Lawrence Chrzan. Mr. Chrzan was appointed Chairman of the Insurance Committee. m. February 15, 1989: A reorganization meeting of the Authority was held, and the following members were appointed as officers: A motion was made by Mulvihill, seconded by Eisaman, to keep the compensation to officers at the same amount. Motion carried with two opposing votes by Zentner and Painter. n. March 15, 1989: J o h n Hof frier ` -_ Chair Terry Painter - Vice Chair Bernard Mulvihill - Secretary Roy Eisaman - Treasurer Robert Zentner - Grounds & Maintenance Committee Chair Robert Borgo - Personnel Committee Chair Don Ewing - Finance & Budget Committee Chair Lawrence Mahkovec - Sludge Committee Chair Daniel Zontek - Legal & Engineering Services Committee Chair At this time, Terry Painter expressed his opinion of an increase in compensation to the board members. A discussion ensued along with the solicitor stating legal remarks. Mr. Hempfield explained that the basic Painter, 87 -066 -C Page 16 resolution that amended the by -laws and created the various offices would have to be amended to provide that compensation could be changed or established at a time other than at the time of the annual reorganization meeting. Then a resolution would have to be adopted establishing the compensation. Terry Painter made a motion, seconded by Daniel Zontek, to pass a resolution to amend the original resolution upon the advice of the solicitor for correct language of the resolution. A roll call vote was taken: John Hoffner - No Don Ewing - Abstain Roy Eisaman - Yes Terry Painter Yes 21. The members of the Authority Board voted monthly to pay bills including their compensation. a. Painter asserts that he received compensation for only a portion of the time that he was on the Authority board and that he received the compensation as an officer of the Authority and not as a board member. 22. Records of the Western Westmoreland Municipal Authority indicate that Terry Painter was compensated in accordance with the foregoing as follows: 1986 1987 1988 ., 1989 $ 750 1,800 - 1 800 _ 1,800 TOTAL $6,150 Daniel Zontek - Yes Robert Borgo - No Joseph Mahkovec - No Lawrence Chrzan - Yes 23. The above was based upon a compensation rate of $150.00 per month as established by the authority members (see Findings 21[a] & [e]). 24. This compensation was not based upon attendance at meetings or services rendered but was rather automatically paid to each Authority member regardless of attendance or service. a. Painter asserts that he performed the duties assigned to him as. an Authority officer. 25. One Authority Board Member, Joseph H. Mahkovec, was incapacitated for an extended period of time and did not attend any board meetings during that period. fainter, 87 -066 -C Page 17 26. The amendment to the by -laws of May 21, 1986 provided that officers of the Authority shall be compensated as determined by resolution adopted at the annual meeting of the board subsequent to the election of officers (see Findings 21[b], [c] & [d]). 27. Regardless of the above payment to board members began in August 1986. 28. There was no change in the functions, duties and responsibilities of Authority members after the amendment to the by -laws through which the six additional committee positions were created. a. Painter denies the above and asserts that he actively chaired his committees. 29. There were no position descriptions for the six additional positions other than those as set forth in the amendment to the by -laws; such function being presiding over committee meetings and reporting the result and recommendations thereof to the Authority board (see Finding No. 21[c]). 30. The Municipality Authorities Act of 1945 provides in relevant part as follows: a. Members shall hold office until their successors have been appointed, and may succeed themselves, and except members of the boards of Authorities Organized or created by a school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the member receiving the same shall have been appointed. 53 P.S. 5309B. b. The board shall fix and determine the number of officers, agents and employees of the Authority and their respective powers, duties and compensation and may appoint to such office or offices any member of the board with such powers, duties and compensation as the board deem proper. 53 P.S. 5309C. c. The Authority has the power: "To appoint officers, agents, employees and servants to prescribe their duties and to fix their compensation." 53 P.S. 53058(g). 31. Painter raises the following defenses as to the State Ethics Commission investigation. Pa rater, 87 -066 -C Page 18 a. Applicability of the statute of limitations. b. A notice requirement for advising the respondent within five days of the commencement of an investigation and the status every thirty days thereafter. c. Jurisdiction based upon a "sunset" application. d. Laches. e. Demurrer as to the allegation and findings. B. TESTIMONY: 32. Terry L. Painter was appointed to the Western Westmoreland Municipal Authority (WWMA). a. Painter was appointed in 1985 to the WWMA board due to various operational problems. b. In 1986, Painter observed that the WWMA was not billing other municipalities for their EDU's. c. At the WWMA, Painter held the officer positions of vice chair, grounds and maintenance chair, secretary. d. Following his appointment, Painter requested that he be given a tour of the WWMA plant. e . The concept of having board members compensated was initially rejected by the WWMA board. 1. The proposal was subsequently considered a second time and passed. h. In addition to the officer positions, committee chairs were created so that there were eleven officers. g. i. As chair of grounds and maintenance, Painter would look after the grounds, plant and equipment. Painter looked into the matter of extracting more water from the solids so that there would be less sludge for disposal. Painter questioned the efficacy of utilizing microstrainers which cost $20,000 per year to operate. Compensation had to originate from the aatnic pality- (appointing authority) if a board member were not an officer. Painter, 87 -066 -C Paw, 19 1. The planning and installation of a belt filter press to remove more water took about two years. k. Compensation paid to officers was suspended in 1990. 1. Painter left the WWMA board at the expiration of his term in 1990. m. When Painter was appointed vice chair in 1986, he was not compensated for that officer position. 1. Any money saved the WWMA by shutting down a building was done as a board member since Painter did not chair a committee at that time. n. Painter believes that board members should be compensated for serving on authority boards. o. Painter states that his statement in the 1989 certified minutes that board members be compensated related to officers rather than board members. p. 1. The solicitor's commentary in the minutes reflect that compensation of board members must be approved by the municipalities for the joint authority WWMA. The WWMA minutes of May 21, 1986 reflect Painter saying that the vehicle for simplicity would be documentation that all board members would be officers. As to the belt press, the plant superintendent Barry Riley and the consulting engineers were at the plant on a regular daily basis overseeing the construction. 1. The board voted on authorizing the consulting engineer to draft specifications. r. In 1986, although there were some committees, Painter was not compensated for serving on a committee. s. At WWMA, no person could hold more than one officer position. q. 1. Except for assistant secretary /treasurer, only board members could hold officer positions. 2. The ten officer positions for the ten board members was the vehicle to accomplish this (compensating board members). 33. Thomas V. Mance was appointed to two municipal authorities. Painter, 87 -066 -C Page 20 a. In 1984, Mance was appointed to the Western Westmoreland Municipal Authority (WWMA). 1. Mance sought membership on the WWMA due to a concern about billing procedures. 2. At the time of Mance's appointment, the chairman of the WWMA was Mr. Emmanuel. 3. Due to questions about equivalent dwelling units (EDU's), Mance discussed a more formal audit procedure with a team which included of a certified public accountant. 4. Discussions occurred at the WWMA at some point regarding the payment of officers. (a) Mance questioned the solicitor about the legality of such payments to WWMA board members. (b) In 1984, no officers' salaries were set. (c) Discussions reoccurred in 1986 about such compensation and committees we being formed. 5. Mance served as chairman of the insurance committee. 6. Mance began receiving payment as an officer of WWMA in 1986. 7 . Mance left -" the WWMA. board in Decembe 31 J988. 8. When Mance suggested the EDU process, the WWMA had no committees. 9. The formation of committees for the WWMA occurred around 1986. (a) For the ten members, there were five officer position of chair, vice - chair, treasurer, secretary, and assistant secretary /treasurer. (b) Six committees were created consisting of finance and budget, grounds and maintenance, insurance, legal engineering, personnel and sludge. (c) The five officer positions were the rest of the WWMA board. Painte ;, 87 -066 -C Page 21 III. DISCUSSION: (d) One WWMA employee was designated to the position of assistant secretary. (e) There were ten officer position, one for each member of the WWMA board. 10. All of Mance's work as to EDU audits was not by virtue of his chairing the insurance committee but because he was a board member. 11. The WWMA board members believed more compensation for making plant. 12. Plant tours by Mance to view review the minutes was not done insurance committee chair. that they deserved a more efficient the operation or by virtue of being C. DERIVATIVE FINDINGS: 34. Terry Painter devised a mechanism to circumvent the statutory requirement that the compensation of authority board members be set by the governing body. a. Painter wanted WWMA board members compensated for their service on the board. b. The solicitor opined that compensation for board members must be approved 'b the - overnin body. PP Y g g Y - c. Painter proposed that WWMA board members be officers. 1. The WWMA board members would create additional officer positions. 2. Only board members could hold officer positions. 3. The officer positions of the WWMA would be compensated as determined by the WWMA Board. 4. The services performed by Painter were in his capacity as WWMA board member and not as an officer. 5. The creation of officer positions for each WWMA board member was devised by Painter as a means for the WWMA board members to set their salaries as board members rather than the governing bodies. Painter, 87 -066 -C Page 22 As a member of the Western Westmoreland Municipal Authority, Terry Painter, hereinafter Painter, was a public official as that term is defined in the Ethics Act, 65 P.S. 5402; 51 Pa. Code S1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, . it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business wits = Ile IS- 'essocz$teti which is not' r a for`I _- law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, _77•Pa ,Cow. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow-v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). A number of arguments have been proffered for a dismissal of the investigation: jurisdiction, statute of limitations, laches, demurrer, and the Municipality Authorities Act. We shall address each of these arguments seriatim. As to the claim that this Commission has no jurisdiction over the matter, it is argued that the Investigative Division is precluded from going forward with the investigation based upon a "sunset" argument. In particular, it is asserted that the Investigative Division is precluded from continuing this investigation after the period of legal non - existence of the Painter, 87 -066 -C Page 23 Commission under "sunset ". As to the "sunset" issue, the Pennsylvania Supreme Court in Blackwell v. State Ethics Commission (Blackwell V), Pa. , 589 A.2d 1094 (1991), held that the "sunset" issue would ave h limited application to the Cohen, Rafferty and Blackwell case, the appeals which were consolidated with that case, "and to all proceedings pending at the time of our decision in Blackwell II (December 13, 1989), wherein the issue of the constitutionality of the Leadership Committee postponement provision in Section 4(4) of the Sunset Act was timely raised and properly preserved at all stages of the adjudication." Id. at 1102. Subsequent to the above decision, Commonwealth Court did decide in M.P. v. State Ethics Commission, Pa. Commw. , 601 A.2d . 902 (19 9 2) , that the Commission was barred from proceeding with an investigation as to which the Commission had issued .a preliminary decree prior to sunset. As to the M.P. case, there are two crucial distinguishing elements. First, M.P. was one of the consolidated appeals.with Blackwell wherein "sunset" was found to apply with the only question before the court being how Blackwell would apply. Secondly, in the M.P. case, there was a proceeding pending since the Commission had issued a preliminary decree prior to sunset. Although M.P. v. State Ethics Commission is clearly inapplicable to the instant matter, the case of A.B. v. State Ethics Commission, an unreported opinion filed on May 18, 1992 at 180 M.D. 1992 in Commonwealth Court, is on point; 4 In - the cited - - case, President Judge Craig held that an undisclosed public official who raised the "sunset" issue by the filing of the law suit in May, 1992, was absolutely barred from raising the issue due to the failure to meet the jurisdictional requirements mandated by the Pennsylvania Supreme Court in Blackwell V. In the most recent decision of Zontek, et al. v. State Ethics Commission, an en banc decision of Commonwealth Court filed on August 10, 1992, at 49 M.D. 1991, the Court granted the Commission's motion for summary judgment against a petition for review which included a quo warranto claim, a request for equitable relief and declaratory judgment claim based upon a "sunset" challenge. The Court in rejecting the legal challenge by the petitioners, who are current or former members of the Western Westmoreland Municipal Authority, held that the petitioners were precluded from raising the "sunset" issue under the holding of the Pennsylvania Supreme Court in Blackwell V: In summary, because the commission commenced this proceeding in 1987 by notifying fainter, 87- 066 -C Page 24 the petitioners that it was investigating them, the proceeding was in existence before Blackwell II, so that the only way that decision could affect the outcome in this case is if it fitted within the condition of retrospective application the Supreme Court set out in Blackwell V - -- that is, by having raised the constitutional revival issue on or before December 13, 1989. Because this case clearly does not fall within the conditions set out in Blackwell V for retroactive application, this court concludes that the respondents are entitled to summary judgment. Slip Opinion at 9 -10. In this case, the first point in time when the sunset issue was specifically raised occurred by letter dated April 6, 1990, which was treated as a motion to dismiss which was denied by this Commission in an interlocutory order issued on May 29, 1990, on the basis that the sunset issue had not been timely raised in accord with the time limitations of Blackwell v. State Ethics. Commission, (Blackwell III), 130 Pa. Commw. 646, 569 A.2d 378 (1990), affirmed Blackwell V. Parenthetically, the Respondent by letter dated November 6, 1989 did question the jurisdiction of the Commission but did so in the context of the Municipality Authorities Act but not the Sunset Act. The correctness of our decision in that case has been validated by the Pennsylvania Supreme Court's decision in Blackwell "`V arid° the Coon realth Court f s decisions Ethics Commission and Zontek m et al. v. State Ethics Commission. A second defense which is raised is that of statute of limitations. Two =ar ents are gum proffered in this regard:..; . First it is contended that the investigation is barred due to the tolling of the statute in 42 Pa.C.S.A. §5552(c)(2) which provides: S5552. Other offenses. (a) General rule. -- Except as otherwise provided in this chapter, a prosecution for an offense other than murder or voluntary manslaughter must be commenced within two years after it is committed. (c) Exceptions. -- If the period prescribed in subsection (a) or subsection (b) has expired, a prosecution may nevertheless be commenced for: Painter, 87 -066 -C Page 25 * (2) Any offense committed by a public officer or employee in the course of or in connection with his office or employment at any time when the defendant is in public office or employment or within five years thereafter, but in no case shall this paragraph extend the period of time of limitation otherwise applicable by more than eight years. 42 Pa.C.S.A. SS5552(a), (c)(2). Secondly, it is argued that even though the allegation in the case is under Act 170 of 1978, the five year statute of limitations and the 360 day limitation as to the issuance of an investigative complaint under Act 9 of 1989 should apply for equitable reasons. As to 42 Pa.C.S.A. S5552(c)(2), that provision of the Judicial Code does preclude a prosecution of a public official as to matters unless initiated either while the individual remains in office or within five years after leaving public office but in no case more than eight years after the date of the occurrence. As to this argument, we question whether this statute of limitation as to the prosecution of a public official would have application to proceedings of this Commission which are not prosecutions but rather are administrative proceedings. Secondly, assuming arguendo that the provision would apply, the "statute would not be tolled Y in any event because in this case the investigation against the Respondent was instituted in May, 1987 which was within the ambit of 42 Pa.C.S.A. 55552(c)(2). As to the assertion that the time limitations of Act 9 of 1989 should apply to this case based upon equitable considerations, Section 9 of Act 9 of 1989 quoted above delineates that Act 9 of 1989 has no application to the instant case. Accordingly, we must follow the provisions of Act 170 of 1978 in their totality which do not have any statute of limitations. The Investigative Division is not barred in proceeding with this case by any statute of limitations. As to the laches argument, it is asserted that the Investigation Division has not diligently prosecuted this matter and therefore the investigation should be dismissed based upon an application of the laches principle. The doctrine of laches is inapplicable in that there is no showing of an inexcusable delay by the Investigative Division resulting in prejudice or injury to the Respondent. Loverich v. Warner Co., 118 F.2d 690 (1940), cent denied 313 U.S. 577 (1940); Bianco v. Pullo, 195 Pa. Super. 623, 171 A.2d 620 (1961). Painter, 87 -066 -C Page 26 A "demurrer" has also been raised as to proceeding. In essence, the Respondent is asserting that even if the findings in the Investigative Complaint are assumed to be true, there still would not be a basis for finding a violation of Section 3(a) of Act 170 of 1978. We must disagree. The Investigative Complaint on its face makes out an allegation of conduct which if proven would establish a requisite element for a violation of Section 3(a) of Act 170 of 1978, namely, a use of public office, a financial gain to the public official, and a financial gain which is other than compensation provided for by law. Accordingly, we deny the demurrer. Another argument raised by the Respondent is that the Complaint should be dismissed on the theory that the Investigative Division did not comply with the notice requirements of the Ethics Law by failing to notify the Respondent within five days of the existence of the investigation and advising the Respondent every thirty days thereafter of the status of the investigation. The first part of the argument is factually incorrect and the second part is legally incorrect. First, the record in this case does contain a copy of the notice which was sent to the Respondent within five days of the commencement of the investigation. As to the second part of the argument, it is true that the Respondent was not notified every thirty days of the status of the investigation; however, there is no such statutory requirement for a periodic thirty -day notice. To the contrary, Act 170 of 1978 requires that the complainant, not the respondent, be advised of the status of the investigation on a thirty -day basis. Accordingly, the foregoing argumen tr -of- zo -merit =and-we= 'reject "same.-7- Lastly, it is argued that the Complaint should be dismissed because the activity in question is specifically authorized by the Municipality Authorities - Act. Although it would perhaps be more appropriate to discuss the Municipal Authorities Act at the subsequent juncture of analyzing the allegation in the context of Section 3(a) of Act 170 of 1978, we will nevertheless address the legal argument since it is proffered as a basis for dismissing the investigation. The linchpin of the argument is that the Municipal Authorities Act does allow the authority members to establish and set this type of compensation as well as specifically vote for their appointments and the payment of the compensation to themselves. The Municipality Authorities Act provides in part as follows: Every Authority is hereby granted, and shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the foregoing, the following rights and powers: 53 P.S. §306B. Painter, 87 -066 -C Page 27 (f) To make by -laws for regulation of its affairs. (g) To appoint officers, and servants, to prescribe fix their compensation. 53 P.S. §S309B, C (emphasis added). the management and agents, employees their duties and to The Municipality Authorities Act further provides: B. Members shall hold office until their successors have been appointed, and may succeed themselves, and, except members of the boards of Authorities organized or created by a school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the member receiving the same shall have been appointed. . . . C. A majority of the members shall constitute a quorum of the board for the purpose of organizing the Authority and conducting the business thereof and for all other purposes, and all action may be taken by vote of a majority of the members present, unless in any case the by- laws shall require a larger number. The board shall have full authority to manage the properties and business of the Authority and to prescribe, amend and repeal by- laws, rules and regulations governing the manner in which the business of the Authority may be conducted, and the powers granted to it may be exercised and embodied. The board shall fix and determine the number of officers, agents and employees of the Authority and their respective powers, duties and compensation and may appoint to such office or offices anv member of the board with such powers, duties and compensation as the board may deem proper. fainter, 87 -066 -C Page 28 Section 7 of Municipality Authorities Act of 1945, 53 P.S. §307, does grant an authority with all powers necessary or convenient for the carrying out of the purposes of the Act. Subsection C provides that all actions of an authority may be taken by a vote of the majority of the members present and further empowers an authority to fix and determine the number of officers, agents and employees of the authority and the respective, powers, duties and compensation and may appoint to such office or offices any member of the board with such powers, duties and compensation as the board may deem proper. As to the three different references to the phraseology of the Municipality Authorities Act, we do not agree that the generalized language of the first phrase forms a basis for a specific authorization to appoint oneself to an authority office or position and then vote to set the salary for such position. See, Swick /Arran, Opinion 91 -006. As to the second phrase which authorizes all actions to be taken by a vote of the majority of the members present, such language is merely a statement that a majority vote is sufficient to take official action. It would take a great leap of faith in our view to suggest that the foregoing phraseology countenances or authorizes votes by authority members in cases where they have a conflict. We do not accept such a tortured construction. If it were the - intent of the General Assembly to allow municipal authority members to vote in matters wherein they had a personal financial interest, the General Assembly would have done so with very clear specific language. For example, the Second Class Township Code as to three member boards makes it clear that the members of those boards' may ;specifically vote for= °thse - tt" enumerated township compensated positions. See, 53 P.S. §65514. Thus, if the General Assembly had the intent for municipal authority members to vote in all instances through a majority vote of the members present, specific language would have been utilized :r for such purpose. As noted above, the instant phraseology merely directs that official action occur by a vote of the majority of the members present but does not condone a blanket voting in cases where conflicts would exist as to the individual member so voting. As to the third referenced phrase concerning the fixing of officers, agents and employees with compensation and appointments to those positions by board members, we must once again note the express absence of any language which would authorize an individual member of a municipal board to vote for his own appointment or to vote for the setting of the compensation for his own position. Absent such an express authorization, we have concluded that it is contrary to the Ethics Law for a municipal authority board member to vote for his own appointment and compensation. See, Swick /Arran supra. It is important to note that the Municipality Authorities Act, 53 P.S. §309B, does require that the compensation of an authority board member must be determined by the appointing authority. Such was not done in this case. Painter, 87 -066 -C Page 29 As we noted in Swick /Amen, we are particularly concerned about those instances where a municipal board attempts to create so called officer positions and set the compensation for those positions and appoint board members as a means of circumventing the statutory limitations that the compensation for a municipal authority board member be set by the governing body. Having rejected the various arguments which have been proffered for dismissal, we must now review the allegation in this case in the context of the facts of record to determine whether there has been a violation of Section 3(a) of Act 170 of 1978. The issue before us is whether Painter violated Section 3(a) of Act 170 of 1978 by using public office to obtain a financial gain when he voted to appoint himself as an authority officer and voted to set the salary for that position from 1986 to 1990 as a member of the Western Westmoreland Municipal Authority (WWMA). The governing bodies for the WWMA are North Huntingdon Township, Irwin Borough, Penn Township, Manor Borough, Hempfield Township, and North I Borough. (Fact Finding 2b). North Irwin Borough Council did not intend that its representative on WWMA would be compensated for service. (Fact Finding 11). Irwin Borough Council never took any action to approve compensation for the members of the WWMA board. (Fact Finding 12). Likewise, Manor Borough Council never took any action to approve compensation for the members of the WWMA board. (Fact Findings 14). The Hempfield Township Board of Supervisors never took any action to approve compensation for the WWMA board members. (Fact Finding 18). - The minutes of the WWMA reflect in part the following: 1. On February 19, 1986, WWMA board members were appointed to officer positions followed by a presentation of Zontek on compensating board members followed in turn by a motion by Zontek seconded by Painter authorizing the solicitor to prepare a resolution to designate each member of the WWMA as an officer with compensation of $150 a month with the motion failing by a five to five vote with Mance and Painter voting in favor of the motion; 2. On May 21, 1986, Painter renewed the issue of compensating board members followed by advice from the solicitor that such compensation would have to be approved by all the municipalities for the authority for new members only; Painter then commented that the "vehicle for simplicity would be for documentation that all board members would be officers" with Painter making a motion to authorize the solicitor for the best recommendation to allow officers and board members to be compensated which motion carried unanimously; Painter, 87 -066 -C Page 30 3. On June 18, 1986, the solicitor advised as to the notice of the proposed by -laws change with provision that officers would be compensated as determined by the WWMA board as to the ten officer positions for each of the board members; 4. On August 20, 1986, Painter made a motion to adopt the amendment to the by -laws which motion passed with Painter and Mance voting in favor of the motion followed by the passage of a second motion made by Painter that the compensation be at $300 a month which motion passed with Painter and Mance voting in favor of the motion; 5. On September 17, 1986, with Painter being absent, . a motion was passed to rescind the original motion as to compensation and reduce the compensation to $150 per month retroactive to August 1, 1986, with Mance voting against that motion followed by Mance then revoting in favor of that motion which resulted in the motion being carried unanimously; 6. On December 17,..1986 both Painter and Mance voted against a motion which would rescind the action by the WWMA board to compensate its officers which motion failed; 7. On February 18, 1987, action was taken by the WWMA board to appoint officers and set the compensation at the rate of $150 a month with all members except Zentner voting in favor of the successful motion; At the February :17 ` 198f3 f " `redk nizational me ric r tom - -_ board members were each appointed to officer positions followed by an unsuccessful motion by Ewing to have no salary for the WWMA board members which motion failed with Painter and Mance voting against the motion followed by a motion of Hoffner to have the salary at $150 per month which motion passed with Mance voting in favor of the motion and Painter voting against said motion; 9. On January 18, 1989, it was reflected that Mance was not reappointed to the WWMA; 10. On February 15, 1989, reorganizational meeting, Painter was appointed to the position of Vice -Chair followed by a motion to keep the compensation for officers at the same amount which motion carried with Painter voting against said motion; and 11. On March 15, 1989, following an explanation from Solicitor Campfield that the basic resolution which amended the by -laws and created the officer positions would have to be amended so that the compensation could be established at a time other than the annual organizational meeting, a motion was made to that effect by Painter which motion apparently failed on a 4- Painter, 87 -066 -C Page 31 3 -1 vote (Ewing abstaining) with Painter voting in favor of the motion. In addition, there are several references in the WWMA minutes reflecting action by the board to vote to pay the monthly bills including their compensation which for Painter is in the amount of $6,150.00. (Fact Finding 22). Despite the amendment in the WWMA By -laws, there was no change in the functions, duties and responsibilities of the board members after the amendment of the By -laws which created the six additional officer positions. (Fact Finding 28). In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the instant matter, we find that Painter violated the Ethics Law by voting in favor of motions to create so- called officer positions and set the compensation for such positions. ee, Abraham, Order No. 827; Koelsch, Order No. 828; and Abbott, Order No. 829. It is clear that there has been a use of office by Painter in voting in . favor of these various motions. As a result of such use of office, Painter received a financial gain consisting of the compensation which he received on a monthly basis as a result of his voting in favor of successful motions to set such compensation. Lastly, the financial gain received was other than compensation provided for by law. On this issue, we need only summarize our review of the Municipality Authorities Act as to whether the compensation was other than provided for in law. As noted above, although it is true that the Municipality Authorities Act does allow "a municipal authority board to fix and determine ` the number of officers and appoint board members to those offices (53 P.S. §309C) and further provides that the authority may appoint officers and fix their compensation (53 P.S. 5305B(g)), a board member may not vote for his own appointment as an officer nor set the salary for his officer position, even assuming the officer positions are bona fide positions. See, Swick /Arran, supra. Finally, the setting of the compensation for the board members themselves must be set by the governing authority as per 53 P.S. §309B. In the context of the WWMA, it is clear that the board members were trying to fix their compensation as board members. In this context we must look at the substance over form. Baehr Brothers v. Commonwealth of Pennsylvania, 487 Pa. 233, 409 A.2d 326 (1977). It is clear from the record before us that the substance of this transaction was for the WWMA board members to receive compensation and in order to achieve that result the WWMA board used officer positions. Thus, although the form of the transaction was the utilization of the officer positions, the substance was the WWMA board compensating its board members in derogation of the Municipality Authorities Act which requires that such action be done by the appointing authority. Painter, 87 -066 -C Page 32 Having found that the substance of the WWMA board action was to compensate authority members through officer positions, it is clear that such is not compensation which is provided for by law. In fact, such compensation is strictly prohibited by the Municipality Authorities Act, 53 P.S. 5309B. Therefore, Painter did use public office by voting to obtain a financial gain consisting of compensation which was other than provided for by law in violation of Section 3(a) of Act 170 of 1978. We are particularly concerned about the conduct of Painter in this matter. It is clear from the record that Painter was the instigator in circumventing the requirements of the Municipality Authorities Act which requires that the compensation for authority board members be set by the governing body. Painter went on record in the minutes that the WWMA Board members should be compensated. Despite the advice from the prior solicitor, Painter was determined to have the board members compensated and to that end, he resolved that the "vehicle for simplicity" would be to create officer positions for the WrIMA and have the board members appointed to those so- called officer positions; through that machination the WWMA Board member could compensate themselves even though any work which was done was as a board member and not as an officer. We find such conduct of Painter to be particularly unconscionable given the fact that the solicitor at that time specifically advised that authority board members could not vote to compensate themselves which was contrary to the Municipality Authorities Act. Given the fact that Painter continued on such a course, despite the strong concerns raised by the solicitor, it is indicative"'afs-a ». blatant disregard of the Municipality Authorities Act as well as the Ethics Law. The ability of this Commission to impose restitution has been upheld by Commonwealth Court in Yacobet v. State Ethics Commission, supra. Giving consideration to the fact that Painter was the movant of this scheme to create bogus officer positions in order to have the WWMA board in effect to set its own compensation, coupled with Painter's going forward despite the solicitor's misgiving, we conclude that restitution is appropriate in the instant matter. Accordingly, we direct Painter to forward a check to this Commission in the amount of $6,150.00 within thirty (30) days of the issuance of this Order. Failure to comply with the directive of this Commission will result in the directive to institute an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Terry Painter as a member of the Western Westmoreland Municipal Authority (WWMA) was a public official subject to the provisions of Act 170 of 1978. Painter, 87 -066 -C Page 33 2. Painter violated Section 3(a) of Act 170 of 1978 when he used public office to obtain a financial gain for himself which was other than compensation provided for by law when he voted to set his salary in 1986 and 1987 as a WWMA Board member. 3. The financial gain received by Painter in violation of Section 3(a) of Act 170 of 1978 is $6,150.00. In re: Terry Painter : File Docket: 87 -066 -C : Date Decided: September 15, 1992 : Date Mailed: September 18, 1992 ORDER NO. 861 1. Terry Painter as a member of the Western Westmoreland Municipal Authority (WWMA) violated Section 3(a) of Act 170 of 1978 when he used public office to obtain a financial gain for himself which was other than compensation provided for by law when he voted to set his salary in 1986 and 1987 as a WWMA Board member. 2. The financial gain received by Painter in violation of Section 3(a) of Act 170 of 1978 is $6,150.00. 3. Painter is directed within thirty (30) days of issuance of this Order to forward a check or payment to this Commission in the amount of $6,150.00 payable to the order to the WWMA. 4. Failure to comply with the provisions of Paragraph 3 above will result in a directive of this Commission to institute an order enforcement action. BY THE COMMISSION, Commissioner Austin M. Lee did not participate in this matter because he acted as single hearing officer and recused himself pursuant to 51 Pa. Code §2.34(d).