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HomeMy WebLinkAbout863 RhodesIn re: Donald Rhodes .d: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: : Date Decided: : Date Mailed: Before: James M. Howley, Daneen E. Reese, Roy W. Wilt Austin M. Lee Allan M. Kluger 87 -053 -C September 15, 1992 September 18, 1992 Chair Vice Chair The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, P.L. 883. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was held. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the 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 §2.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year, 65 P.S. 409(e). Rhodes,, 87 -053 -C Page 2 I. ALLEGATION That Donald Rhodes, 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. II. FINDINGS: A. PLEADINGS: 1. Donald Rhodes served as a member of the North Huntingdon Township Municipal Authority. a. He served in this position from 1981 until December 31, 1985. 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 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 Rhodes, 87 -053 -C Page 3 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: 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. R/iodes 87 -053 -C Page 4 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. e. January 14, 1987: Motion by_ _ Hagan, that = Mac ,.__noel sch b a appo.z ted I to yY t he North Huntingdon Township Municipal Authority.""' Motion " carried 6 -1; Mr. Gross voting no. 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 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 Rhodes, 87 -053 -C Page 5 not allowed to fix the amount of their expense accounts: VOTE: b. January 7, 1980: c. January 14, 1980: f. December 8, 1980: L. Barefoot - Abstain J. McKeever - Nay T. Koelsch - Aye T. Mance - Abstain D. Zontek - Aye D. Kelly - Nay Motion Failed. 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.) 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.) Rhodes, 87 -053 -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 9z 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 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 $. 1982: Members Zontek, Koelsch, Mance and Rhodes were present. The board elected officers as follows: 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. 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: Rhodes,, 87 -053 -C Page 7 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 motion 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 T. Mance - Secretary T. Koelsch - Assistant Secretary /Treasurer All nominations were affirmed 5 -0. Rebottini made a motion, seconded by Mr. Mance, to Rhodes,, 87 -053 -C Page 8 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. q. 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 1.0, 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. s. June 14, 1983: 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. Decembar 13; - 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 conducted with results as follows: Terry Koelsch - Chairman Robert Rebottini - Vice Chairman Donald Rhodes — Treasurer Thomas Mance - Secretary Rhodes, 87 -053 -C Page 9 w. June 14, 1984: y• Daniel Zontek - Assistant Secretary /Treasurer All nominations were affirmed 5 -0. Committee chairs were appointed as follows: D. Rhodes - Finance R. Rebottini - Human Resources D. Zontek - Project T. Mance -. Health & Safety 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. 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. 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: All members were present. An election of officers was conducted with results as follows: Robert Rebottini - Chairman Daniel Zontek - Vice Chairman Thomas Mance - Secretary jthodes 87 -053 -C Page 10 Donald Rhodes - Treasurer Terry Koelsch - Assistant Secretary /Treasurer aa. Jt}ne 13, 1985: 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. bb. July 11, 1985: 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 /2, 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. October 10, 1985: With all five members of the board present, Mr. Rhodes made a motion, seconded by Mr. Mance, to approve the 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, ]85: Rhodes, 87 -053 -C Page 11 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, J.R6 : 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 Koelsch - 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. gg. 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 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. Rhodes, 87 -053 -C Page 12 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: 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 for 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. Daniel Zontek - Chairman Terry Koelsch — Vice Chairman Thomas Mance - Secretary Phil Abbott - Treasurer John Abraham - Assistant Secretary /Treasurer 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 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, 19137: odes, 87 -053 -C Page 13 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. oo. January 21, 1988: All members were present. An election of officers was held with the following results: PP• 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. August 18, 1988: With all five board members being present, Mr. Mance was 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 RJodes, 87 -053 -C Page 14 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, seconded by Mr. Koelsch, that 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: qq. 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 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 ULo4es, 87 -053 -C Page 15 of Resolution No. 1 of 1983 as it would be in violation of 53 P.S.A., Section 309 B. b. Rhodes 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. Donald Rhodes 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 TOTAL $13,578.00 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. Donald Rhodes received the following as lost wage compensation: a. Lost wages from 3/11/84 to 3/12/84 (total $110.00). 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 ,Rhodes, 87 -053 -C Page 16 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. 11 309 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. S309 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. §306 B(g). 14. The North Huntingdon Township Commissioner never fixed any compensation for the members of the Township Municipal Authority. 15. Rhodes raises the following defenses as to the State Ethics Commission investigation. a. Applicability of the statute of limitations. b. A notice requirement for advising the respondent within five days of the commencement of an investigation and the status every thirty days thereafter. c. Jurisdiction based upon a "sunset" application. d. Laches. B. TESTIMONY: 16. Donald W. Rhodes was appointed to the North Huntingdon c. Rhodes, 87 -053 -C Page 17 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. 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 f. All NHMA Board members had authority All the Board members and officers 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. g. 4. The problem of many outstanding assessments was attempted to be resolved by a recommendation to the Board by Rhodes. 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. disapproved bills. to sign checks. of the NHMA were 17. Robert L. Rebottini was a member of the North Huntingdon Municipal Authority (NHMA) from 1981 through December 31, 1986. a. Rebottini served in officer positions for each year that he served on NHMA. es, 87 -053 -C Page 18 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. Rebottini signed checks not by virtue of the uniqueness of the assistant secretary /treasurer position but because he was a NHMA Board member. h. Typical boards have positions of chair, vice chair, secretary and treasurer to implement the process and procedures necessary to conduct business. Thomas V. Mance was appointed to two municipal authorities. g . 1 e. Mrs. Kaminiski was the office manager for the NHMA. 1. Raminiski supervised the office staff. 2. The staff was approximately two other persons plus an accountant. f. The NHMA accountant handled budget matters. a . In 1976, Mance was appointed to the North Huntingdon Municipal Authority (NHMA). 1.. Mance became chairman of the ,NHMA on January 16, 1992. 2. In 1976, the NHMA had seven board members and five 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. seven to and then incoming outgoing 6. Mance was involved in certain right -of -way projects. Rhodes, 87 -053 -C Page 19 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 NINA. 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. 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 NINA. (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 Rhodes, 87 -053 -C Page 20 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 NI(A. 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. III. DISCUSSION: As a member of the North Huntingdon Township Municipal Authority Donald Rhodes, hereinafter Rhodes, was a public official as that term is defined in the Ethics Act, 65 P.S. 5402; 51 Pa. Code 51.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date 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): Moak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission, Rhodes, 87 -053 -C Page 21 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987) . Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own financial interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). A number of arguments have been proffered for a dismissal of the investigation: jurisdiction, statute of limitations, laches, 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 of the Leadership Committee postponement provision in Section 4(4) of the Sunset Act was timely raised and properly preserved at all stages of the adjudication." Id. at 1102. Subsequent to the above decision, Commonwealth Court did decide in M.P. v. State Ethics Commission, Pa. Commw. , 601 A.2d 902 (1992) , that the Commission was barred from proceeding with an investigation as to which the Commission had issued a preliminary decree prior to sunset. As to the M.P. case, there are two crucial distinguishing elements. First, M.P. was one of the consolidated appeals with Blackwell wherein "sunset" was found to apply with the only question before the court being how Blackwell would apply. Secondly, in the M.P. case, there was a proceeding pending since the Commission had issued a preliminary decree prior to sunset. Although M.P. v. State Ethics Commission is clearly inapplicable to the instant matter, the case of A.B. v. State Ethics Commission, an unreported opinion filed on May 18, 1992 at 180 M.D. 1992 in Commonwealth Court, is on point. 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. Rhodes, 87 -053 -C Page 22 In the most recent decision of Zontek, et al. v. State 41114cs Commission, an en banc decision of Commonwealth Court filed on August 10, 1992, at 49 M.D. 1991, the Court granted the Commission's motion for summary judgment against a petition for review which included a quo warranto claim, a request for equitable relief and declaratory judgment claim based upon a "sunset" challenge. The Court in rejecting the legal challenge by the petitioners, who are current or former members of the Western Westmoreland Municipal Authority, held that the petitioners were precluded from raising the "sunset" issue under the holding of the Pennsylvania Supreme Court in Blackwell V: In summary, because the commission commenced this proceeding in 1987 by-notifying the petitioners that it was investigating them, the proceeding was in existence before Blackwell II, so that the only way that decision could affect the outcome in this case is if it fitted within the condition of retrospective application the Supreme Court set out in Blackwell V - -- that is, by having raised the constitutional revival issue on or before December 13, 1989. Because this case clearly does not fall within the conditions set out in Blackwell V for retroactive application, this court concludes that the respondents_are entitled to summary judgment-.--- Slip Opinion at 9 -10. In this case, the "sunset" issue has been raised for the first time by the filing of the Answer to the Investigative Complaint in February, 1991. The raising of that issue occurred well over a year after the deadline set forth by the Pennsylvania Supreme Court in Blackwell V. Based upon the decisions of Commonwealth Court in Zontek, et al. v. State Ethics Commission and A.B. v. State Ethics Commission, and the Pennsylvania Supreme Court's decision in Blackwell V, it is clear that such argument cannot be raised at this time on a jurisdictional basis based upon clear and emphatic judicial precedent. 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. (a) General rule. -- Except as otherwise Rhodes, 87 -053 -C Page 23 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 limitations and the 360 day limitation as to the issuance of an investigative complaint under Act 9 of 1989 should apply for equitable reasons. As to 42 Pa.C.S.A. §5552(c)(2), that provision of the Judicial Code does preclude a prosecution of a public official as to matters unless initiated either while the individual remains in office or within five years after leaving public office but in no case more than eight years after the date of the occurrence. As to this argument, we question whether this statute of limitation as to the prosecution of a public official would have application to proceedings of this Commission which are not prosecutions but rather are administrative proceedings. Secondly, assuming arguendo that the provision would apply, the statute would not be tolled 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. 0552(c)(2). As to the assertion that the time limitations of Act 9 of 1989 should apply to this case based upon equitable considerations, Section 9 of Act 9 of 1989 quoted above delineates that Act 9 of 1989 has no application to the instant case. Accordingly, we must follow the provisions of Act 170 of 1978 in their totality which do not have any statute of limitations. The Investigative Division is Rhodes, 87- 053 -C Page 24 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 (19 4 0) , cert denied 313 U.S. 577 (1940); Bianco v. Pullo, 195 Pa. Super. 623, 171 A.2d 620 (1961). 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 i the investigation o a `= thirty - day' ` basis. ___ Aecdrdi l n th .a 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 investigation. The linchpin of the argument is that the Municipal Authorities Act does allow the authority members to establish and set this type of compensation as well as specifically vote for their appointments and the payment of the compensation to themselves. The Municipality Authorities Act provides in part as follows: Every Authority is hereby granted, and shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the Rhodes, 87 -053 -C Page 25 53 P.S. 5306B. 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 management and agents, employees their duties and to The Municipality Authorities Act further provides: B. Members shall hold office until their successors have been appointed, and may succeed themselves, and, except members of the boards of Authorities organized or created by a school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the member receiving the same shall have been appointed. . . . C. A majority of the members shall constitute a quorum of the board for the purpose of organizing the Authority and conducting the business thereof and for. all other purposes, and all action may be taken by vote of a majority of the members present, unless in any case the by -laws shall require a larger number. The board shall have full authority to manage the properties and business of the Authority and to prescribe, amend and repeal by -laws, rules and regulations governing the manner in which the business of the Authority may be conducted, and the powers granted to it may be exercised and embodied. The board shall fix and determine the number of officers, agents and employees of the Authority and their respective powers, duties and compensation and may appoint to such office or offices any member of the board with such powers, duties and compensation as the board may deem proper. Rhodes, 87 -053 -C Page 26 53 P.S. §S309B, 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. at Swick /Arran, Opinion 91 -006. As to the second phrase which authorizes all actions to be taken by a vote of the majority of the members present, such language is merely a statement that a majority vote is sufficient to take official action. It would take a great leap of faith in our view to suggest that the foregoing phraseology countenances or authorizes votes by authority members in cases where they have a conflict. We do not accept such a tortured construction. If it were the intent of the General Assembly to allow municipal authority members to vote in matters wherein they had a personal financial . interest, the General Assembly would have done _ sa 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. See, 53 P.S. §65514. Thus, if the General Assembly had the intent for municipal authority members to vote in all instances through a majority vote of the members present, specific language would have been utilized for such purpose. As noted above, the instant phraseology merely directs that official action occur by a vote of the majority of the members present but does not condone a blanket voting in cases where conflicts would exist as to the individual member so voting. As to the third referenced phrase concerning the fixing of officers, agents and employees with compensation and appointments to those positions by . board members, we must once again note the express absence of any language which would authorize an individual member of a municipal board to vote for his own appointment or to vote for the setting of the compensation for his own position. Absent such an express authorization, we have concluded that it is contrary to the Ethics Law for a municipal authority board member to vote for his own appointment and compensation. atgl, Swick/Aman, supra. It is important to note that the Municipality Authorities Act, 53 P.S. §3098, does require that the compensation of an Rhodeq, 87 -053 -C Page 27 authority board member must be determined by the appointing authority. Such was not done in this case. As we noted in Swick /A,gnan, we are particularly concerned about those instances where a municipal board attempts to create so called officer positions and set the compensation for those positions and appoint board members as a means of circumventing the statutory limitations that the compensation for a municipal authority board member be set by the governing body. Having rejected the various arguments which have been proffered for dismissal, we must now review the allegation in this case in the context of the facts of record to determine whether there has been a violation of Section 3(a) of Act 170 of 1978. The issue before us is whether Rhodes 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. A review of the record indicates that Rhodes served as a member of the North Huntingdon Township Municipal Authority ( NHTMA) from 1981 until December 31, 1985. 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 Rhodes on the board: 1. On February 9, 1981, officers are nominated with . Donald Rhodes being appointed to the position of treasurer although Rhodes was not present at this meeting; 2. On March 9, 1981, a motion 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; 3. On February 8, 1982, an election of officers with Rhodes being appointed Treasurer, followed by a successful motion to pay officers wages in the amount of $1000; 4. On April 13, 1982, a successful motion, seconded by Rhodes, to adopt the resolution fixing the officer positions at $250 a month per position with the motion carrying unanimously; 5. On January 11, 1983, all members of the Board elected officers =As a, 87 -053 -C Page 28 with Rhodes being appointed Treasure, followed by a motion 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 by a motion to have the solicitor prepare a resolution to validate the foregoing motion; 6. On January 12, 1984, an election of officers was conducted with Rhodes appointed Treasurer and all nominations were affirmed by unanimous vote with Rhodes present; and -7. On January 10, 1985, with all members present, an election was conducted with Rhodes being appointed Treasurer. The minutes of the NHTMA as outlined in Fact Finding 5 reflect several meetings where Rhodes 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 commisstone.rs_c ouldwaet, he._ 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. 5309B." 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), Rhodes was compensated for serving on the NHTMA for the amounts and during the time enumerated in Fact Finding 9. In addition, Rhodes received other compensation consisting of lost wages and expenses. (Fact Findings 11, 12). In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the instant matter, we find that Rhodes violated the Ethics Law by voting in favor of motions to create 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 Rhodes in voting in favor of these various motions. As a result of such use of office, Rhodes 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. Rhodes, 87 -053 -C Page 29 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. S309C) and further provides that the authority may appoint officers and fix their compensation (53 P.S. 5305B(g)), a board member may not vote for his own appointment as an officer nor set the salary for his officer position, even assuming the officer positions are bona fide positions. ee, Swick /Aman, suvra. Finally, the setting of the compensation for the board members themselves must be set by the governing authority as per 53 P.S. 5309B. In the context of the NHTMA, it is clear that the board members used public office to fix their compensation as board members. In this context we must look at the substance over form. Baehr Brothers v. Commonwealth of Pennsylvania, 487 Pa. 233, 409 A.2d 326 (1977). It clear from the record before us -that the substance of this transaction was for the NHTMA board members to receive compensation through the use of officer positions. Such is not compensation which is provided for by law. In fact, such compensation is strictly prohibited by the Municipality Authorities Act, 53 P.S. 5309B. Therefore, Rhodes 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. IV. CONCLUSIONS OF LAW: 1. Donald Rhodes as a member of the North Huntingdon Township Municipal Authority (NHTMA) was a public official subject to the provisions of Act 170 of 1978. 2. Rhodes 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. In re: Donald Rhodes : File Docket: 87 -053 -C : Date Decided: September 15, 1992 Date Mailed: September 18. 1992 ORDER NO. 863 1. Donald Rhodes, as a member of the North Huntingdon Township Municipal Authority (NHTMA), 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. BY THE COMMISSION, Commissioner Austin M. Lee did not participate in this matter because he acted as single hearing officer and recused himself pursuant to 51 Pa. Code 52.34(d).