HomeMy WebLinkAbout862 ManceSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In re: Thomas Mance : File Docket: 87 -055 -C
: Date Decided: September 15, 1992
: Date Mailed: September 18, 1992
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
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
finality 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
52.38.
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).
Mance, 87 -055 -C
Page 2
z. ALLEGATION:
That Thomas Mance, a member of the North Huntingdon Township
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 appoint himself as an authority
officer and then voted to set the salary for this position; and
That Thomas Mance, 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 Wetern Westmoreland Municipal Authority.
II. FINDINGS:
A. PLEADINGS:
1. Thomas Mance served as a member of the North Huntingdon
Township Municipal Authority.
a. He has served in this position since 1976.
2. The North Huntingdon Township Municipal Authority was created
pursuant to the Pennsylvania Municipality Authorities Act of
1945.
a .
The Authority was created in 1946 for the purpose of
acquiring, holding, constructing, improving, monitoring,
operating, owing and leasing either as lessee or lessor,
water works, water supply_ works and water distribution
systems in the township.
b. In 1987, the articles of incorporation were amended to
include as a purpose of the Authority the construction
and operation of refuse disposal facilities, steam
production facilities and electrical power generation
facilities.
c. There were originally 7 members on the board, but it was
subsequently reduced to 5 members.
d. All members of the Authority are appointed by the North
Huntingdon Township Board of Commissioners.
e. The primary function of the Authority was the
construction and operation of a municipal sewer system.
3. The By -Laws of the North Huntingdon Township Municipal
Mane, 87 -055 -C
Page 3-
Authority provided in part as follows:
a. The members of the Authority shall constitute the Board
of Directors of the Authority. A majority of the members
shall constitute a quorum of the Board for the purpose of
conducting the business of the Authority, and for all
other purposes, and any and all action may be taken by
vote of the majority of the members present, provided
those present constitute a majority of the whole board
b. The officers of the Board shall consist of a Chairman, a
Vice - Chairman Secretary, Treasurer and Assistant
Secretary and Treasurer, who shall perform the usual and
customary duties of such officers. In case of the
absence of any officer, the Board may appoint any other
member of the Board to temporarily serve in his stead.
The term of office of said officers shall be for the
period of one (1) year or until their respective
successors are elected. The annual election of officers
shall be held on the first Thursday of February each
year.
c. The Chairman shall preside at all meetings of the Board
and shall have general control over the affairs of the
Authority, subject to the direction of the board form
time to time.
d. The Secretary shall keep a record of all votes and
minutes of the meetings of the Board. He shall have the
custody of all books, records and papers of the
Authority. In the absence of the Secretary, the
Assistant Secretary shall perform his duties.
e. The Treasurer shall keep accounts of all moneys of the
Authority received or disbursed, and shall deposit all
moneys and valuables in the name and to the credit of the
Authority in such banks, Trust Companies or Depositories,
and in such accounts, as are required by law, and as the
Board shall designate. The moneys in such accounts shall
be paid out on the warrant or other order of the Chairman
of the Authority, and such other person or persons as the
Board may from time to time authorize to execute such
warrants or orders. In the absence of the Treasurer, the
Assistant Treasurer shall perform his duties.
4. Minutes of the North Huntingdon Township Commission meetings
indicate the following in relation to the appointment of
authority members:
a. December 10, 1980:
ce, 87 -055 -C
Page 4
Motion by Mr. Abbot, seconded by Gross, to appoint Thomas
B. Mance to the North Huntingdon Township Municipal
Authority for a term of five years. Motion carried 7 -0.
Motion by Mr. Abbott, seconded by Batley, to appoint
Donald Rhodes to the Authority for a term of 5 years.
Motion carried 5 -2; Mr. Hagan and Mr. McCabe voting no.
b. January 17, 1981:
Motion by Mr. Gross, seconded by Mr. Abbott, that Mr.
Mance and Mr. Rhodes be appointed to full five year terms
on the Authority. Motion carried 7 -0.
c. January 4, 1982:
Motion by Tempero, seconded by Abbott, to appoint Terry
Koelsch and Robert Rebottini to full five year terms on
the North Huntingdon Municipal Authority. Motion carried
7 -0.
d. January 6, 1986:
Motion by Beeler to appoint Mr. Mance to the North
Huntingdon Township Municipal Authority. Motion carried
5 -0; Mr. Tempero and Mr. Gross voting no.
Motion by Beeler, seconded by Batley, to appoint Elias P.
.Abbott to the - North Huntingdon Municipal. Authority.
Motion carried 4 -2 -1; Mr. Gross and Mr. Tempero voting
no, and Mr. Abbott abstaining.
January 14, 1987:
Motion by Hagan that Mr. Koelsch be appointed to the
North Huntingdon Township Municipal Authority. Motion
carried 6 -1; Mr. Gross voting no.
f. Motion by Mr. Ludwicki, seconded by Batley, to appoint
John Abraham to the North Huntingdon Township Municipal
Authority. Motion carried 4 -3; with Mrssers. Tempero,
Gross and Beeler voting no.
5. Minutes of the North Huntingdon Township Municipal Authority
meetings indicate the following:
a. December 4, 1979:
Motion by D. Zontek, seconded by T. Koelsch, to increase
all board members expense reimbursement to $125.00 each
due to the reduction of the board to five members and the
Manse, 87 -055 -C
Page 5
additional time that will be spent in trying to
strengthen the total overall operation of the Authority.
L. Barefoot stated that the Authority is not authorized
to establish the expense account amount; it must first go
to the Commissioners. He noted that at the last PMAA
Conference, Solicitor Markos stated that authorities are
not allowed to fix the amount of their expense accounts:
c. January 14, 1980:
VOTE:
L. Barefoot - Abstain
J. McKeever - Nay
T. Koelsch - Aye
T. Mance - Abstain
D. Zontek - Aye
D. Kelly - Nay
Motion Failed.
b. January 7, 1980:
M. Zontek motioned, Mr. Koelsch seconded, to advise the
expense allowance of each board member to $100.00 each
beginning with the month of January 1980, for uniformity.
The motion was passed three ayes; no nay's; one
abstention (Mr. Mance).
Members Koelsch, Zontek and Mance were present, and the
board voted unanimously (5 -0) to pay the bills which
included the Authority members' salary of $530.00.
d. September 25, 1980:
Motion by D. Zontek, seconded by T. Mance, that effective
October 1, 1980, there will be no prepayment of expenses.
No funds will be given to a board member until an expense
voucher has been submitted. There will be no minimum or
maximum on the allowed expenses. Mr. McKeever stated
that there is no longer a set amount for expenses.
Motion carried 4 -0.
e. November 10 1980:
The board, on a motion by Zontek, seconded by Mance,
voted to approve the expense reports as submitted by the
board . members and reimburse the board for these expenses
that motion was passed 4 -0. ( Koelsch was also present.)
f. December 8, 1980:
Mance, 87 -055 -C
Page 6
g. January 19, 1981:
Present were Koelsch, Mance, Zontek and new board member,
Rhodes. Mr. Zontek made a motion, seconded by Mr.
Koelsch, to approve the expenses of the board members and
to reimburse the members for expenses. That motion was
passed unanimously 5 -0.
h. February 9, 1981:
Motion by T. Mance, seconded by T. Koelsch, to nominate
Daniel Zontek as Chairman, Terry Koelsch as Vice
Chairman, Thomas Mance as Secretary and Donald Rhodes as
Treasurer... Motion carried 3 -0. (Rhodes was absent.)
Motion by T. Koelsch, seconded by T. Mance, to reimburse
board members for expenses for January. Motion carried
4 -0.
i. March 9, 1981:
Board members and respondents Zontek, Koelsch, Mance,
Rhodes and Rebottini were present. A motion was made by-:r
Koelsch, seconded by Mance, to approve the expenses
submitted by the board members. That passed unanimously
5 -0. Mr. Koelsch made a motion, seconded by Mr.
Rebottini, to direct the solicitor to ;. Prepare _ ..a
resolution to pay the officers of the North Huntingdon
Township Municipal Authority a salary of $200.00 per
month, effective immediately. That motion was passed 5-
0.
. February 8, 1982:
Members Zontek, Koelsch, Mance and Rhodes were present.
The board elected officers as follows:
j
Mr. Zontek motioned, Mr. Koelsch seconded, to approve the
current expenses of the Authority board members and to
reimburse the board for these expenses. The vote four
ayes; no nays; one abstention (Mr. McKeever). Motion
carried. (Mance was also present.)
Daniel Zontek - Chairperson
Terry Koelsch - Vice Chairperson
Thomas Mance - Secretary
Donald Rhodes - Treasurer
Robert Rebottini - Assistant Secretary /Treasurer
All appointments were affirmed by votes of 4 -0.
11 4401., 87 - 055 -
Page 7
Mrs. Rhodes made a motion, seconded by Mr. Koelsch, to
pay the bills including officers' wages in the amount of
$1,000.00. That motion passed 4 -0.
k. April 13, 1982:
Members Rhodes, Koelsch, Rebottini, Mance and Zontek were
present. Motion by Koelsch, seconded by Rhodes, to adopt
Resolution Number 9, as to five officer positions and
fixing a salary of $250.00 per position. The positions
are chairman, vice chairman, secretary, treasurer,
assistant secretary /treasurer. Motion carried 5 -0.
1. September 21, 1982:
With all members of the board present, Mr. Mance made a
motion, seconded by Rebottini, that the board members,
Zontek and Koelsch, who attended the PMAA Convention, be
compensated for lost wages in the amount of $100.00 per
day. That passed 5 -0.
m. May 11, 1982:
Members Koelsch, Mance, Rhodes and Rebottini were
present. Motion by Rhodes, seconded by Mance, to pay
bills including officers' wages of $1,250.00.
n. October 12, 1982:
Mr. Zontek, Mr. Rhodes and Mr. Rebottini were present;
Mr. Koelsch and Mr. Mance were absent. Mr. Rhodes
motioned to pay the bills, seconded by Mr. Rebottini.
The bill list contained an amount for officers' wages of
$1,250.00 and lost wages for board of directors in the
amount of $600.00. That motion passed unanimously with
Mr. Zontek voting to pay his own loss wages.
o. November 9, 1982:
Motion by Rhodes, seconded by Mance, to pay bills
including officers' wages at $1,250.00. Motion carried
5 -0.
P•
January 11, 1983:
All members present. The board elected officers as
follows:
D. Zontek - Chairman
R. Rebottini - Vice Chairman
D. Rhodes - Treasurer
Manse, 87 -055 -C
Page 8
g.
s .
June 14, 1983:
T. Mance - Secretary
T. Koelsch - Assistant Secretary /Treasurer
All nominations were affirmed 5 -0.
Rebottini made a motion, seconded by Mr. Mance, to
increase the officers' salaries from $250.00 a month to
$300.00 a month. The motion passed 4 -0 with Mr. Rhodes
voting nay. Mr. Rebottini then made a motion, seconded
by Mr. Mance, to have the solicitor prepare a resolution
to validate the forgoing motion which motion was passed
5 -0.
February 8, 1983
Members Zontek, Rhodes, Mance and Koelsch were present.
Motion by Rhodes, seconded by Koelsch, to approve payment
of bills including officers' wages of $1,250.00. Motion
carried 4 -0.
r. May 10, 1983:
Members Zontek, Rhodes, Mance and Koelsch were present.
Motion by Rhodes, seconded by Mance, to approve payment
of bills including officers' wages of $1,500. Motion
carried 4 -0.
Members Zontek, Rhodes and Mance were present. Motion by
Rhodes, seconded by Mance, to approve payment of bills
including officers' wages of $1,500.00. Motion carried
3 -0.
t. Decem 13,.1983
With all board members being present (Zontek, Rebottini,
Rhodes, Koelsch and Mance), Mr. Rhodes made a motion,
seconded by Mr. Mance, to approve the bills payable list.
That list contained $1,500.00 for officers' salaries and
$1,457.00 for medical expenses and medical examinations,
which included some medical expenses and medical
examinations for certain board members. The Authority
had a standing policy that all employees and officers
undergo periodic physicals due to exposure to untreated
and treated sewage. That motion was passed unanimously
5 -0.
u. January 12, 1984:
All members present. An election of officers was
Manse, 87 -055 -C
Page 9
conducted with results as follows:
Terry Koelsch - Chairman
Robert Rebottini - vice Chairman
Donald Rhodes - Treasurer
Thomas Mance - Secretary
Daniel Zontek - Assistant Secretary /Treasurer
All nominations were affirmed 5 -0. Committee chairs were
appointed as follows:
v. April 12, 1984:
With all five officers present, Mr. Rhodes made a motion,
seconded by Rebottini, to approve the bills payable list
which included board of directors lost wages in the
amount of $235.00 and officers' salaries in the amount of
$1,500.00 relating to attending management workshops
sponsored by the PMMA and other groups. Motion was
passed unanimously.
w. June 14, 1984:
With all five officers present, Mr. Rhodes made a motion,
seconded by Mr. Mance, to approve the bills payable list
which included officers' salaries in the amount of
$1,500.00. Motion passed unanimously 5 -0.
x. September 13, 1984:
With all five officers present, Mr. Rhodes made a motion,
seconded by Mr. Rebottini, to approve the bills payable
list which included officers' salaries in the amount of
$1,500.00. That bill was passed unanimously 5 -0.
y. October 11, 1984:
Mr. Rhodes made a motion, seconded by Mr. Zontek, to
approve the bills payable list which included board of
directors' loss wages in the amount of $519.75 and
officers' salaries in the amount of $1,500.00 for
attending the annual convention sponsored by the PMMA.
Motion was passed unanimously 5 -0.
z. January 10, 1985:
D. Rhodes - Finance
R. Rebottini - Human Resources
D. Zontek - Project
T. Mance - Health & Safety
Sa{:ce,, 87 -055 -C
Page 10
All members were present. An election of officers was
conducted with results as follows:
Robert Rebottini - Chairman
Daniel Zontek - Vice Chairman
Thomas Mance - Secretary
Donald Rhodes - Treasurer
Terry Koelsch - Assistant Secretary /Treasurer
aa. June 13, 198:
All members were present. Motion by Mr. Zontek, seconded
by T. Koelsch, that any board member that chooses to go
in a convention be reimbursed at a rate of $90.00 a day
plus the cost of transportation and lodging. Mr. Mance
questioned what the $90.00 was for. Mr. Zontek indicated
it was for food and other expenses. Mr. Kaminski
indicated that it was for lost wages. Mr. Zontek stated
that they should not call it lost wages.
The motion was amended to indicate that the reimbursement
was $90.00 a day for services rendered plus the cost of
hotel and travel. Solicitor Myers stated that this might
be considered a salary. He would have to research it.
The motion was passed 5 -0 contingent upon the solicitor's
recommendation.
> b. 3ul 1 . . _
Members Rebottini, Rhodes and Mance were present. Motion
by Rhodes, seconded by Mance, to pay bills including
officers' salaries of $1,500.00. Motion carried 3 -0.
cc. September 12, 1985:
All members were present. Motion by Zontek, seconded by
Rhodes, that the board members coordinate, through Mr.
Zontek if they want to attend the Water Pollution Control
Federation Conference on October 6, 7, 8 and 9, 1985 in
Kansas City with all expenses reimbursed to board members
along with any lost wages up to $90.00 per day. Mr.
Mance questioned the lost wages and whether it was
legitimate for the Authority. The solicitor answered it
will have to be documented the same as it has been in the
past. That motion passed 4 -0.
dd. Qctober 10, 1985
With all five members of the board present, Mr. Rhodes
made a motion, seconded by Mr. Mance, to approve the
Mass 87 -055 -C
Page 11
bills payable list which included conferences in the
amount of $1,808.68; board of directors lost wages in the
amount of $270.00; officers' salaries in the amount of
$1,500.00. That motion was passed unanimously 5 -0.
ee. December 12, 1985:
Members Rebottini, Zontek, Rhodes and Mance were present.
Motion by Rhodes, seconded by Mance, to approve payment
of bills including officers' salaries of $1,500.00.
ff. January 9, 1986:
gg•
Members present were Rebottini, Zontek, Koelsch and
Mance. New member, Elias Abbott (Vice Rhodes) was
absent. The election of officers was held with the
results as follows:
Daniel Zontek - Chairman
Terry - Vice Chairman
Thomas Mance - Secretary
Elias Abbott - Treasurer
Robert Rebottini - Assistant Secretary /Treasurer
Motion by Koelsch, seconded by Mance, that the elected
officers of the Authority be compensated in accordance
with Resolution No. 1 of 1983. Motion carried 4 -0.
August 14, 1986 : - ,
With all board members being present, Mr. Koelsch made a
motion, seconded by Mr. Mance, that the members and staff
of the Authority board be authorized to attend the
Pennsylvania Municipal Authority Association Conference
in Lancaster, Pennsylvania on August 24 - 27, 1986. Mr.
Koelsch further moved that each board member attending
shall be reimbursed for the cost of registration lodging,
meals, travel and expenses incurred at the conference.
In addition, each member was to be reimbursed up to
$90.00 a day for lost wages or earnings from his regular
employment for attending the annual convention sponsored
by the PMMA, and all expenses and wages lost shall be
submitted on the standard expense form for reimbursement.
That motion passed 5 -0.
hh. September 11, 1986:
With all officers being present, Mr. Abbott made a
motion, seconded by Mr. Rebottini, to approve the bills
payable list which included conference expenditures in
the amount of $2,140.29 and officers' salaries in the
Mance, 87 -055 -C
Page 12
amount of $1,500.00, the vote was 5 -0, and the motion
carried.
ii. October 16, 1986:
With all members being present, Mr. Abbott made a motion
to approve the bills payable list; it was seconded by Mr.
Mance, and the bills payable list included board of
directors' lost wages in the amount of $450.00 and the
officers' salaries in the amount of $1,500.00. That
motion passed 5 -0 and was carried.
jj. January 15, 1987:
Members present were Zontek, Koelsch, Abbott, Mance and
new member, John Abraham (Vice Rebottini). An election
of officers was conducted with the following results:
Daniel Zontek - Chairman
Terry Koelsch - Vice Chairman
Thomas Mance - Secretary
Phil Abbott - Treasurer
John Abraham - Assistant Secretary /Treasurer
Mr. Zontek stated that a motion was needed to compensate
any board members up to $90.00 a day for lost wages plus
expenses for any trips relating to authority business.
Mr. Koelsch made a motion, seconded by Mr. Abraham, to
compensate any board members up to $90.00 'per "day - four
lost wages plus expenses for authority related business.
The vote on that was 5 -0, and the motion carried.
Motion by Koelsch, seconded by Abraham, that the
appointed officers be compensated at a rate of $300.00 a
month. Motion carried 5 -0.
kk. April 16, 1987:
Mr. Zontek, Mr. Koelsch, Mr. Abbott and Mr. Abraham were
present. Mr. Mance was absent. Mr. Abbott made a motion
to approve the bills payable list which was seconded by
Mr. Koelsch. The bills payable list included board of
directors insurance in the amount of $6,581.00 and
officers' salaries in the amount of $1,500.00. Motion
carried 4 -0.
11. September 17, 1987:
With all board members being present, Mr. Abraham made a
motion to approve the bills payable list, and Mr. Abbott
seconded that motion. The bills list contained a
Mance, 87 -055 -C
Page 13
conference expenditure of $1,000.00; board of directors
insurance is $7,568.00; officers' salaries in the amount
of $1,500.00; and medical expenses and medical
examinations expenditures in the amount of $89.92.
Motion was passed 5 -0.
mm. October 2, 1987:
Members Zontek, Koelsch, Abraham and Abbott were present.
Mr. Zontek resigned as Chairman. John Abraham was
appointed to that position. Mr. Zontek was appointed as
Assistant Secretary /Treasurer.
Mr. Abraham stated that he recommended that all
committees be dismissed, because the Authority has a good
staff. The board should be a board of directors. The
managers will report directly-to the chairman. Any major
problems will be directed to the board through the
chairman.
nn. October 15, 1987:
With all five members of the board being present, Mr.
Abbott made a motion, seconded by Mr. Koelsch, to approve
the bills payable list. The list of bills payable
included conference expenditures of $59.93; board of
directors' lost wages in the amount of $270.00; officers'
salaries in the amount of $1,500.00; and medical expense
and medical examinations in the amount of $44.10. That
motion was passed 5 -0.
00 . January 21, 1988:
All members were present. An election of officers was
held with the following results:
John Abraham - Chairman
Terry Koelsch - Vice Chairman
Thomas Mance - Secretary
Phil Abbott - Treasurer
Daniel Zontek - Secretary /Treasurer
Motion by D. Zontek, seconded by T. Koelsch, that all
members that have been elected as board members of this
Authority also be officers in holding the same position
on the board with the same compensation as in the past.
Motion carried 5 -0.
pp. August 18, 1988:
With all five board members being present, Mr. Mance was
dance, 87 -055 -C
Page 14
q q•
removed as Secretary, and Mr. Zontek was made Secretary.
Mary Louis Kaminski was nominated and appointed to fill
the position left vacant by Mr. Zontek when she was made
Assistant Secretary /Treasurer of the Authority. From
that point on, Mr. Mance was not entitled to salary,
according to the board members. On that same day, August
18, 1988, Mr. Mance motioned, seconded by Mr. Koelsch,
that all members and officers of the North Huntingdon
Township Municipal Authority forego their current salary
of $300.00 effective September 1. Mr. Abraham stated
that for the amount of time he puts in for the Authority,
he does not feel it is feasible, and he is personally
against it. Mr. Abbott stated that he thinks that is as
low and disgraceful as anyone can be. Commenting on
Mr. Mance's conduct, Mr. Zontek said that he feels that
Mr. Mance questioned his personal integrity, and he
objects to that, and he wants Mr. Mance to know publicly
that he objects to that. The motion to have the board
members forego their salary was defeated four votes nay;
one vote aye, which was made by Mr. Mance.
January 19, 1989:
Mr. Zontek made a motion, and seconded by Koelsch, to
nominate John Abraham for Chairman of the Board of the
Authority. Motion carried 4 -0; with Mr. Mance
abstaining.
Mr. ° Zontek 'made - ` a motion, " by Mr : ` Koe is clf "` that"M' ' "`
all Board members be elected to the same position as
officers with the same compensation as in the past for
the officers except for the assistant secretary/
treasurer. Motion carried 5 -0.
6. By way of letter dated March 9, 1983 to the North Huntingdon
Township Board of Commissioners from Solicitor, Thomas P.
Cole, III, the issue of the North Huntingdon Township
Municipal Authority's creation of five officers for the five
members and fixing compensation for service therein is
addressed:
a. Mr. Cole in part stated that:
The resolution appears to mean that the officers
are also the board members and since there are 5
board members and 5 officers, I am assuming for the
purposes herein that they are one and the same. If
the positions are with reference to board functions
only, then the Authority Board is clearly out of
line, because only the commissioners of the
township can set the board members' salaries, see
Mapce, 87 -055 -C
Page 15
53 P.S.A., Section 309 B.
Therefore, I am of the professional opinion that if
the positions listed are Municipal Authority board
members receiving $300.00 a month salary, then the
Authority board was way out of line in the adoption
of Resolution No. 1 of 1983 as it would be in
violation of 53 P.S.A., Section 309 B.
b. Mance challenges Cole's opinion asserting that Section
309 C does allow board members to appoint officers and
fix the compensation for such positions.
7. The conclusion of Solicitor Cole outlined above was a
reiteration of an opinion that he previously authorized and
forwarded to the North Huntingdon Township Board of
Commissioners by way of letter dated September 24, 1981.
8. The North Huntingdon township Board of Commissioners never
authorized the payment of any salary or compensation to the
members of the North Huntingdon Township Municipal Authority.
9. Thomas Mance was compensated for serving on the North
Huntingdon Township Municipal Authority as follows:
Date Amount
1982 $ 2,828.00
1983 3,550.00
1984 3,600.00
1985 3,600.00
1986 3,600.00
1987 3,600.00
1988 2,274.19
TOTAL $23,052.19
10. In addition to the regular monthly compensation paid to the
Authority members, the Authority also compensated some members
for lost wages incurred for attending conventions, seminars
and other events for the Authority.
a. Said lost wages payments were intended to compensate the
members for wages lost from their regular employment.
b. The payment of lost wages was the subject of Authority
meetings. [See Finding 5(aa) (cc).]
11. Records of the North Huntingdon Municipal Authority indicate
Inca, 87 -055 -C
Page 16
no lost wage payments for Thomas Mance.
12. The Authority members were originally compensated in the form
of expense payments.
a. At first the payments were for a fixed rate with no
relationship to actual expenditures. (See Finding 5A.)
b. In 1980, the Authority decided to pay expenses only as
actually incurred. (See Finding 5D.)
c. Subsequent in 1982, the Authority members set a fixed
compensation for all officers and appointed each member
to an officer position. (See Finding 5K.)
13. The Municipalities Authority 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. 5309
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. 5B P.S. 5309 C.
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. 5306 B(g).
14. The North Huntingdon Township Commissioners never fixed any
compensation for the members of the Township Municipal
Authority.
15. Thomas Mance served as an appointed member of the Western
Westmoreland Municipal Authority.
a. Mr. Mance served in this position from 1984 to 1989.
b. Mr. Mance represents North Huntington Township on the
Authority.
b.
mom, 87 -055 -C
Page 17
16. 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 capacity
of treating sewage and industrial wastes from residents
who were located in the Lower Bush Creek project area.
b. 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:
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
17. 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
Mance, 87-055 -C
Page 18
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
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.
Manse, 87 -055 -C
Page 19
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 upon such deceased or resigning
secretary or treasurer until such time as the Board of the
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
Section 1 - Amendments to By -Laws:
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.
18. The above by -laws were subsequently amended by Authority board
members. (See Finding No. 21(d].)
19. 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].)
20. 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.
Musa, 87 -055 -C
Page 20
21. Minutes of the North Irwin Borough Council meetings indicate
the following regarding the appointment of a representative to
the Western Westmoreland Municipal Authority:
a. January 3, 1984:
Mr. Cannata made a motion to appoint Robert Zentner as
the borough's representative to WWMA for a five year
term. Kifer 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 Towier; with all members
agreeing.
22. 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.
23. 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.
24. 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.
25. 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 Eiseman 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:
Ma ce, 87 -055 -C
Page 21
Mr. Kaberer made a motion to appoint Roy Eisaman as the
Borough Representative to WWMA term to expire 12/31/90.
26. The Irwin Borough Council has never taken any official action
to approve compensation for the members of the Western
Westmoreland Municipal Authority including the Representatives
from Irwin Borough, Roy Eisaman an Bernard Mulvihill.
27. Minutes of the meetings of the Manor Borough council members
indicate the following in relation to the appointment of
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
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.
28. 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.
29. Minutes of the Hempfield Township Board of Supervisors
indicate that on December 31, 1976, the supervisors
use, 87 -055 -C
Page 22
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
Hempf ield
North Huntingdon
Manor
North Huntingdon
1
2
3
4
5
1
2
3
4
5
30. Minutes of the Hempfield Township Board of Supervisors
indicate that on February 14, 1972, the supervisors
unanimously adopted Ordinance Number 72 -1:
a. This ordinance was similar to Ordinance 71 -29.
31. 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.
32. 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.
33. 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 Tempera
}ce, 87 -055 -C
Page 23
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 appointed to the next available position on
the Board of the Western Westmoreland Municipal Authority
to be filled by a representative from the Township of
North Huntingdon.
Mr. Tempero, a Commissioner, 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, 1980:
Present: Gross, McCabe, Hagan, Batley, Beatty, Abbott
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
},cam, 87 -055 -C
Page 24
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,
Present:
Abbott and
and Beeler
1985:
Tempero, Beeler, Hagan, Batley, Ludwicki,
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 add Grciss
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 expired on December 31, 1992.
Mance, 87 -055 -C
Page 25
34. Minutes of the Western Westmoreland Municipal Authority
meetings indicate the following in relation to the instant
situation:
a. February 19, 1986:
Mr. Mance nominated Mr. Zentner for Chairman; the motion
carried unanimously. Terry Painter was nominated by
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. Mr. Eisaman nominated Barbara Balcerek for
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:
Samuel Heasley - No
Barbara Johnson - Yes
Daniel Zontek - Yes
Joseph Mahkovec - No
Robert Borgo - No
Thomas Mance - Yes
Terry Painter - Yes
Roy Eisaman - No
Don Ewing - Yes
Robert Zentner - Na
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
Mance,, 87 -055 -C
Page 26
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.
c. June 18, 1986:
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
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 Painter made a motion to adopt the amendment to the
by -laws of the Authority as drafted by the solicitor
muse, 87 -055 -C
Page 27
e.
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 a motion
passed by a vote of eight 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 Eisaman - No
Don Ewing - Yes
September 17, 1986:
A number of individuals present at the meeting questioned
the board about the reasons for the compensation
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
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:
Nance, 87 -055 -C
Page 28
g •
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) Mance asserts that the compensation was paid to
Authority officers in accordance with the change in
the by -laws and not as an Authority member.
pecember 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:
Bernard Mulvihill - No
Barbara Johnson - No
Daniel Zontek - No
Robert Borgo - No
Thomas Mance - No
Terry Painter - No
Roy Eisaman - Yes
Don Ewing - yes
Robert Zentner - Yes
Febr8 $7 :
A reorganization meeting of the Authority board was held.
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 Eisaman, 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
Mance, 87 -055 -C
Page 29
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, to adopt this amendment to the by -laws
as presented.
k. February 17, 1988:
At a re- organizational meeting of the Authority, the
following members were elected to officer positions:
Robert Zentner -Chair
John Hoffner - Vice Chair
Don Ewing - Secretary
Roy Eisaman - 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:
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. ganuary 18, 1989:
Mr. Mance was not reappointed
Thomas Mance - Yes
Terry Painter - No
Roy Eisaman - Yes
Don Ewing - No
to the Authority and his
Mance, 87 -055 -C
Page 30
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:
John Hoffner - 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 Comm. Chair
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:
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. Frempf veld " 'explained that ` the - basic'
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
Daniel Zontek - Yes
Robert Borgo - No
Joseph Mahkovec - No
Lawrence Chrzan - Yes
35. The members of the Authority Board voted monthly to pay bills
including their compensation.
a. Mance 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
Mane, 87 -055 -C
Page 31
the Authority and not as a board member.
36. Records of the Western Westmoreland Municipal Authority
indicate that Thomas Mance was compensated in accordance with
the foregoing as follows:
Year, Amount
1986 $ 750
1987 1,800
1988 1,800
TOTAL 3,350
37. The above was based upon a compensation rate of $150.00 per
month as established by the authority members (see Findings
21[a] & [e]).
38. 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. Mance asserts that he performed the duties assigned to
him as an Authority officer.
39. 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.
40. - - 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])
41. Regardless of the above payment to board members began in
August 1986.
42. 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. Mance denies the above and asserts that he actively
chaired his committees.
43. 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]).
Mance, 87 -055 -C
Page 32
44. 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. 1 309 B
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. 5B P.S. 5309 C
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. 5305 B(g)
45. Mance raises the following defenses as to the State Ethics
Commission investigation.
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 as to the
Western Westmoreland Municipal Authority.
B. TESTIMONY:
46. Thomas V. Mance was appointed to two municipal authorities.
a. In 1976, Mance was appointed to the North Huntingdon
Municipal Authority (NHMA).
1. Mance became chairman of the NHMA on January. 16,
1992.
Mance, 87 -055 -C
Page 33
2. In 1976, the NHMA had seven board members
officers.
3. The number of board members reduced from
five in 1979 by amendment as to the NHMA.
4. Mance became assistant secretary /treasurer
secretary of the NHMA.
5. As the NHMA secretary, Mance reviewed
letters as well as composed and signed
letters.
and five
seven to
and then
incoming
outgoing
6. Mance was involved in certain right -of -way
projects.
7. Mance was engaged in seeing that people were tapped
into the system in compliance and that there were
no illegal taps.
8. In 1981, the NHMA passed a resolution to compensate
officers.
9. Mance was removed from the position of secretary to
the NHMA in August 1988 due to a dispute with other
board members.
10. In 1991, Mance was reappointed to the NHMA.
11. Mance stopped receiving compensation in August 1988
but the other board members who were officers
continued to receive compensation.
12. Compensation for officers was terminated during the
1992 reorganizational meetings.
13. Mance, as secretary to the NHMA, did not record or
keep minutes.
(a) The office manager kept the minutes.
14. Records of the NHMA purchases, invoices, contracts
are kept in the office.
(a) Mance did not have custody of such documents.
15. Mance did not prepare or write any records relating
to accounts nor did he have physical custody.
16. During the years Mance served as secretary, he
played no role in personnel or payroll records.
MAnol 87 -055 -C
Page 34
17. All five NHMA members /officers had authority to
sign checks.
18. Mance signed or released liens by virtue of his
position as secretary to the NHMA.
(a) Mrs. Kaminiski, the office manager, did all of
the preparation and processing.
19. Mance volunteered to do right -of -way acquisitions
not by virtue of his secretary position but because
he was a NHMA member and the job had to be done.
20. The work that Mance performed as to the process
involving board of reviews was not due to his
position as assistant secretary /treasurer but
because of the interest he developed in the area.
21. At a point in time when Mance had limited access to
records, it was due to his reporting of an alleged
bid rigging scheme and not by virtue of the fact
that he was removed as an officer of the NHMA.
22. Around 1982 the NHMA ran more efficiently due to
the work of the members as a board together with
staff.
23. A NHMA board member could be appointed to a
committee even -if -here-were not in office.
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.
Mange, 87 -055 -C
Page 35
(b) In 1984, no officers' salaries were set.
(c) Discussions reoccurred in 1986 about such
compensation and committees were 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 December 31, 1988.
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.
(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 that they deserved
more compensation for making a more efficient
plant.
12. Plant tours by Mance to view the operation or
review the minutes was not done by virtue of being
insurance committee chair.
47. Robert L. Rebottini was a member of the North Huntingdon
Municipal Authority (NHMA) from 1981 through December 31,
1986.
Mance, 87 -055 -C
Page 36
a. Rebottini served in officer positions for each year that
he served on NHMA.
b. While in the position of secretary /treasurer, Rebottini
signed checks, signed or released liens.
c. When Rebottini served as chairman, he had direct
operational control of the NHMA.
d. Rebottini held the following officer positions: vice
chair in 1982 and 1984, chair in 1985 and assistant
secretary /treasurer in 1986.
e. Mrs. Kaminiski was the office manager for the NHMA.
1. Kaminiski supervised the office staff.
2. The staff was approximately two other persons plus
an accountant.
f. The NHMA accountant handled budget matters.
g. Rebottini signed checks not by virtue of the uniqueness
of the assistant secretary /treasurer position but because
he was a NHMA Board member.
Typical- : shave -pos tions : of chair i c iir .
secretary and treasurer'to implement the process and
procedures necessary to conduct business.
4 . Donald W. Rhodes was appointed to the North y Huntingdon
Municipal Authority (NHMA) in 1981.
a. During his five year term, Rhodes served in the officer
position of treasurer.
b. Rhodes observed operation problems at the NHMA such as
paying taxes as to which the NHMA was exempt.
1. Rhodes eliminated the payments.
2. Rhodes received every bill received by NHMA.
3. Rhodes implemented a telephone log at NHMA to track
the calls.
4. The problem of many outstanding assessments was
attempted to be resolved by a recommendation to the
Board by Rhodes.
fig, 87 -055 -C
Page 37
g.
5. Rhodes was in charge of overlooking NHMA
investments.
6. The idea of sweeping accounts every day to place
money in interest bearing accounts was suggested by
Rhodes.
c. The NHMA Board as a group decided what action should be
taken in relation to investments.
d. As Finance Chairman, Rhodes investigated problems in
operations such as delinquent accounts, investments,
money sweeps; as treasurer, he checked the bills.
e. The NHMA Board as a group approved or disapproved bills.
f. All NHMA Board members had authority to sign checks.
All the Board members and officers of the NHMA were
compensated in their positions.
h. Rhodes would have made suggestions to improve the NHMA as
a Board member regardless of what his office or position
would have been.
49. Terry L. Painter was appointed to
Municipal Authority (WWMA).
a. Painter was appointed in 1985 .
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. Painter questioned the efficacy of utilizing
microstrainers which cost $20,000 per year to operate.
f. Compensation had to originate from the municipality
(appointing authority) if a board member were not an
officer.
the Western Westmoreland
- tothe WWMA board due-to-
g. The concept of having board members compensated was
initially rejected by the WWMA board.
1. The proposal was subsequently considered a second
fig, 87- 055 -C
Page 38
n .
time and passed.
h. In addition to the officer positions, committee chairs
were created so that there were eleven officers.
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.
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.
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.
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.
p. 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.
g•
Mance, 87 -055 -C
Page 39
s. At WWMA, no person could hold more than one officer
position.
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).
III. DISCUSSIQN:
As a member of the North Huntingdon Township Municipal
Authority and the Western Westmoreland Municipal Authority, Thomas
Mance, hereinafter Mance, is a public official as that term is
defined in the Ethics Act, 65 P.S. §402, 51 Pa. Code S1.1. As
such, his conduct is subject to the provisions of the Ethics Act
and the restrictions therein are application 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 with which he is associated which is not provided for in
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. Commw.
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
}ce, 87 -055 -C
Page 40
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
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 have
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
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 (19.92}, that the Commission was barred from proceeding-
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'Blackweil
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. 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 bane decision of Commonwealth Court filed on
August 10, 1992, at 49 M.D. 1991, the Court granted the
Mance, 87 -055 -C
Page 41
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
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 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.4ated 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 and the Commonwealth Court's decisions in A.B. v. State
Ethics Commission and Zontek, et al. v. State Ethics Commission.
A second defense which is raised is that of statute of
limitations. Two arguments are 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. 55552(c)(2) which provides:
S5552. Other offenses.
BAn21, 87 -055 -C
Page 42
(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:
* * *
(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. §S5552(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 i tatio - -
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.55552(c)(2), that provision of the Judicial
Code does preclude a prosecution of a public official as tl3 '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 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
Mange, 87 -055 -C
Page 43
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), cert
denied 313 U.S. 577 (1940); Bianco v. Pullo, 195 Pa. Super. 623,
171 A.2d 620 (1961).
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 argument is of no merit and we reject same.
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
Mance 87 -055 -C
Page 44
investigation. The linchpin of
Authorities Act does allow the
set this type of compensation
their appointments and the
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:
(f) To make by -laws for
regulation of its affairs.
(g) To appoint officers,
and servants, to prescribe
fix their compensation.
the argument is that the Municipal
authority members to establish and
as well as specifically vote for
payment of the compensation to
the management and
agents, employees
their duties and to
53 P.S. 5306B.
The Municipality Authorities Act further provides:
B. --Members shall = hold office _ until
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,
Mance,, 87 -055 -C
Page 45
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 z accents and
employees of the Authority and their
respective powers, duties and compensation an
may appoint to such office or offices any
member of the board with such powers, duties
and compensation as the board may deem proper.
53 P.S. 85309B, C (emphasis added).
Section 7 of Municipality Authorities Act of 1945, 53 P.S.
5307, 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 /Aman, 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 themselves to
enumerated township compensated positions. ea, 53 P.S. 565514.
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
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
Mance, 87 -055 -C
Page 46
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.
As we noted in Swick /Arran, 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 befo =its is wheth ` fance-as_ member` of 'the t"_`
Huntingdon Township Municipal Authority ( NHTMA) 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 and - secondly,
whether Mance as a member of the Western Westmoreland Municipal .
Authority (WWMA) violated Section 3(a) when he voted to set his
salary in 1986 and 1987.
A review of the record indicates that Mance served as a member
of the NHTMA from 1976 until December 31, 1986. The NHTMA was
established to construct and operate a municipal sewer system with
North Huntingdon Township being the governing authority. Although
the NHTMA originally had seven members, the complement was reduced
to five members with officer positions consisting of a chairman,
vice- chairman, secretary /treasurer, and assistant
secretary /treasurer.
The minutes of NHTMA reflect the following action taken during
the tenure of Mance on the board:
1. On December 4, 1979, Mance abstained on a motion to increase
board member expense reimbursements;
Mance, 87 -055 -C
Page 47
2. On January 7, 1980, Mance abstained as to a vote on expense
allowances for board members;
3. On February 9, 1981, an election of officers occurred with
Mance being appointed secretary;
4. On March 9, 1981, a motion, seconded by Mance, was passed
unanimously to approve expenses submitted by board members,
followed by a successful motion to direct the solicitor to
prepare a resolution to pay NHTMA officers a monthly salary of
$200 effective immediately which motion passed unanimously;
5. On February 8, 1982, an election of officers occurred with
Mance being appointed Secretary, followed by a successful
motion to pay officers wages in the amount of $1000;
6. On April 13, 1982, a successful motion to adopt the resolution
fixing the officer positions at $250 a month per position with
the motion carrying unanimously with Mance present;
7. On January 11, 1983, all members of the Board elected officers
with Mance being appointed Secretary, followed by a motion,
seconded by Mance, to increase the officer salaries from $250
a month to $300 a month which passed by a four -one vote with
Rhodes voting in the negative followed a motion seconded by
Mance to have the solicitor prepare a resolution to validate
the foregoing motion;
8 . On January 12, 1984, an election of officers occurred with
Mance being appointed Secretary and all nominations affirmed
by unanimous vote with Mance present;
9. On January 10, 1985, with all members present, an election was
conducted with Mance being appointed Secretary;
10. On January 9, 1986, with Mance present, an election of
officers occurred with Mance being appointed Secretary;
11. On January 15, 1987, Mance was appointed Secretary and voted
in favor of a successful motion to compensate NHTMA officers
at a rate of $300 a month;
-12. On January 21, 1988, Mance was appointed secretary followed by
a motion that passed unanimously that all NHTMA members who
were officers would be compensated at the same rate as in the
past;
13. On August 18, 1988, action was taken to remove Mance as
secretary followed by a motion by Mance to have the NHTMA
members and officers forego their current salary of $300 a
month which motion was defeated with Mance voting in favor of
Mance, 87 -055 -C
Page 48
the motion and the other four members voting against said
motion; and
14. On January 19, 1989, Mance abstained on the motion to appoint
Abraham as chair of the NHTMA board but voted in favor of a
motion that all board members be elected to the same position
as officers with the compensation as in the past.
The minutes of the NHTMA as outlined in Fact Finding 5 reflect
several meetings where Mance participated in voting on such
compensation as reimbursing board members for expenses, setting the
monthly salary for officers, voting to pay for lost wages for
attending the PMAA convention or lost wages in general, for medical
expenses and medical examinations, and per diem expenses plus
transportation and lodging for going to the convention.
The solicitor for the governing body, North Huntingdon
Township, by letter dated March 9, 1983 rendered an opinion as to
the propriety of the NHTMA creating five officer positions for the
five members and fixing compensation for services. The solicitor
opined that if the positions were in reference to board functions
such would be "clearly out of line" (Fact Finding 6), because only
the township commissioners could set the NHTMA board members salary
and further that if the positions listed are board members
receiving such salary then the NHTMA board was "way out of line. .
[and]. . . in violation of 53 P.S.A. S309B." The foregoing
opinion was a restatement of a previous conclusion submitted by the
solicitor to the governing body by letter dated September 24, 1981.
Although the North Huntingdon Township Board of Commissioners
never authorized the payment of any salary or compensation for
NHTMA members (Fact Finding 8), Mance was compensated for serving
on the NHTMA for the amounts and during the time enumerated in Fact
Finding 9. In addition, Mance received other compensation
consisting of expenses. (Fact Finding 12).
As to the service of Mance on the WWMA, the record reflects
that the WWMA was created as a ten member board through joint
action of six governing bodies. The By -laws of the WWMA provided
for the offices of chairman, vice- chairman, secretary /treasurer,
and assistant secretary /treasurer. (Fact Finding 17). These By-
laws were subsequently amended by the WWMA board members so as to
create six additional officer positions thereby creating a total of
ten officer positions for the ten members of the WWMA board. (Fact
Findings 18, 19).
The governing bodies for the WWMA are North Huntingdon
Township, Irwin Borough, Penn Township, Manor Borough, Hempfield
Township, and North Irwin Borough. (Fact Finding 16b). North
Irwin Borough Council did not intend that its representative on
WWMA would be compensated for service. (Fact Finding 24). Irwin
=gel, 87 -055 -C
Page 49
Borough Council never took any action to approve compensation for
the members of the WWMA board. (Fact Finding 26). Likewise, Manor
Borough Council never took any action to approve compensation for
the members of the WWMA board. (Fact Finding 28). The Hempfield
Township Board of Supervisors never took any action to approve
compensation for the WWMA board members. (Fact Finding 32).
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;
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, 1987, 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;
Mance, 87 -055 -C
Page 50
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;
8. At the February 17, 1988, reorganizational meeting, the WWMA
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; and
9. On January 18, 1989, it was reflected that Mance was not
reappointed to the WWMA.
In addition, there are several .references in the WWMA reflecting
action by the board to vote to pay the monthly bills including
their compensation which for Mance is reflected in Fact Finding 36.
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 42).
In applying the provisions of Section 3(a) of Act 170 of 1978
quoted above to the instant matter, we find that Mance violated the
Ethics Law by voting °in favor of to create so- called ° -
officer positions and set the compensation for such positions.
See, 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
Mance in voting in favor of these various motions. As a result of
such use of office, Mance 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. §305B(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. ee, 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.
S309B.
Mance, 87 -055 -C
Page 51
In the context of the NHTMA and 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 Brotherp v. Commonwealth of Pennsvlvania, 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 NHTMA and WWMA authority
board members to receive compensation and in order to achieve that
result the NHTMA and WWMA board used officer positions. Thus,
although the form of the transaction was the utilization of the
officer positions, the substance was the NHTMA and WWMA board
compensating its board members in derogation of the Municipality
Authorities Act which requires that such action be done by the
appointing authority.
Having found that the substance of the NHTMA and 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. 53098.
Therefore, Mance 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.
Although it is clear from the record that Painter instigated
the circumvention of the requirements of the Municipality
Authorities Act and Painter went on record in the minutes that the
WWMA board members should be compensated, despite the advice from
the solicitor, Mance and other board members readily accepted and
participated in the scheme to have board members compensated.
Mance, Painter and the other WWMA members created officer positions
for the WWMA and had the board members appointed to those so called
officer positions; through that machination the WWMA board members
could compensate themselves even though any work which was done was
as a board member and not as an officer. We find such conduct to
be particularly disturbing 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 such a course of
conduct occurred and continued, despite the strong concerns raised
by the solicitor, it is indicative of a conscious 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 nature of such conduct, coupled
with Mance and other WWMA members going forward despite the
solicitor's misgivings, we conclude that restitution is appropriate
in the instant matter. Accordingly, we direct Mance to forward a
check to this Commission in the amount of $3350.00 payable to the
WWMA within thirty (30) days of the issuance of this Order.
Mance, 87 -055 -C
Page 52
Failure to comply with the directive of this Commission will result
in the directive to institute an order enforcement action.
IV . CON LUS IONS OF LAW:
1. Thomas Mance as a member of the North Huntingdon Township
Municipal Authority (NHTMA) and Western Westmoreland Municipal
Authority (WWMA) is a public official subject to the
provisions of Act 170 of 1978.
2. Mance 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
appoint himself to NHTMA officer positions and voted to set
the salary for those positions.
3. Mance 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 board member of the WWMA.
4. The financial gain received by Mance as a WWMA board member in
violation of Section 3(a) of Act 170 of 1978 amounted to
$3350.00.
In re: Thomas Mance : File Docket: 87 -055 -C
: Date Decided: September 15, 1992
: Date Mailed: September 18. 1992
ORDER NO. 862
1. Thomas Mance as a member of the North Huntingdon Township
Municipal Authority (NHTMA) and 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 appoint himself to NHTMA officer positions and voted
to set the salary for those positions.
2. Mance 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 board member of the WWMA.
3. The financial gain received by Mance as a WWMA board member in
violation of Act 170 of 1978 amounted to $3350.00.
4. Mance is directed within thirty (30) days of the issuance of
this Order to forward a check or payment to this Commission
payable to the order of the Western Westmoreland Municipal
Authority in the amount of $3350.00.
5. Failure by Mance to comply with the provision of paragraph 4
will result .in_a directive of this Commission to institute an
order enforcement action.
BY THE COMMISSION,
JAMES M. HOWLE
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 52.34(d).