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HomeMy WebLinkAbout852 ObernierSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Josef G. Obernier : File Docket: 90- 019 -C2 : Date Decided: September 10, 1992 : Date Mailed: September 10, 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, Act 9 of 1989, 65 P.S. 5401 et. seq. 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 Act 9 of 1989, 65 P.S. §408(h) 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. 5409(e). Obernier, 90- 019 -C2 Page 2 I. ALLEGATION: That Josef G. Obernier, a Supervisor in West Brandywine Township, Chester County, violated the following provisions of the State Ethics Act (Act 9 of 1889) when he participated in a decision by the Board of Supervisors to appoint his wife, Nancy L. Obernier, to the position of Township Tax Collector and when he failed to file Statements of Financial Interest for the years 1988 and 1989 when he held the position of Tax Collector: Section 3 (a) of Act 9 of 1889 provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. Section 4. Statement of financial interests required to be filed (a) Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such. a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. 65 P.S. S403(a); S404(a). II. FINDINGS: 1. Josef G. Obernier has served as a Supervisor in West Brandywine Township, Chester County, from January 6, 1992 to the present. Obernier, 90- 019 -C2 Page 3 2. Josef G. Obernier served as West Brandywine Township Tax Collector from 1988 to January 6, 1992. Obernier was appointed to the position of Tax Collector in 1988, to fill the unexpired term of a person who resigned. Obernier was elected to a four year term in 1989 and took office in January, 1990. 3. On January 6, 1992 Obernier submitted a letter of resignation from the position of West Brandywine Township Tax Collector to the township Secretary Treasurer. a. Obernier noted that the resignation was effective upon his becoming supervisor of West Brandywine Township. b. The resignation was made at the January 6, 1992 reorganizational meeting of the Board of Supervisors. 4. Obernier upon taking office as a Supervisor was concerned about the adverse fiscal situation of West Brandywine Township. a. The township actuary advised Obernier that a municipal obligation as to the pension fund had not been paid. b. The township had borrowed money on two occasions in 1991. c. It was anticipated that there would be a 6% increase in operating expenses for the township in 1992. d. Insufficient operating funds could cause township personnel layoffs. 1. The potential existed that most of the police department and road crews could be furloughed. S. In December, 1991 Warren Kuhn, West Brandywine Township Secretary /Treasurer, placed an advertisement in the Coatesville Daily Record requesting applications for the position of Tax Collector. 6. During the January 6, 1992 reorganizational meeting of the West Brandywine Board of Supervisors, Chairman Carl Lindborg announced that the township received four applications to fill the vacant Tax Collector position and that a selection would be announced at the February 6, 1992 meeting of the Board. a. The four applicants were identified as S. Martin, M. Williams, C. Jackwood and J. Helm. b. None of the applicants had experience in the field of tax collection. Obernier, 90- 019 -C2 Page 4 1. One applicant was a C.P.A. who was looking for a second job. (a) A concern existed that the applicant would not devote the time needed for the Tax Collector position. 7. An agenda of the West Brandywine Township Supervisors public work session for January 13, 1992 confirms that four applications (S. Martin, M. Williams, C. Jackwood, Joni Helm) had been received to date. a. The township subsequently received three other applications. b. One of those applicants was Nancy Obernier. 1. Nancy Obernier is the wife of Josef Obernier. 2. Nancy•. Obernier was familiar with the computer program that Josef G. Obernier had written when he was Tax Collector. 3. Nancy Obernier was familiar with the process of tax billing and collection. 8. The West Brandywine Board of Supervisors met for a regular meeting on February 6, 1992. Present were Chairman Carl S. Lindborg and Supervisors C. Thomas. Williams and Josef G. Obernier. Under old business, the issue of selecting a replacement for the position of Tax Collector was brought up by Chairman Lindborg. c. Supervisor Obernier was recognized by Chairman Lindborg and made a statement. a . It was his interpretation that the township is hurting for revenue. He was concerned that the township may suffer if a big transition in the tax collecting job occurs; the township may not receive tax revenues in a timely manner. He noted that he installed the software and developed the tax collection program used by the township. His wife Nancy worked with him in the collection of taxes and is familiar with the job. That is why he was nominating his wife, Nancy, to fill the vacancy. The Chair then called for nominations for the Obernier, 90- 019 -C2 Page 5 office of Tax Collector. Obernier made a motion that his wife, Nancy, be appointed to the office of Tax Collector to serve the (2) year unexpired term. The motion was seconded by Lindborg. Obernier and Lindborg voted in favor of the nomination. Williams voted no. Motion carried. d. The township solicitor does not attend meetings of the West Brandywine Board of Supervisors for cost reasons due to the township's limited financial resources. 9. Prior to the February 6, 1992 meeting Obernier discussed the appointment of his wife as Tax Collector with supervisors Williams and Lindborg. a. Supervisor. Williams was opposed due to the family relationship between Josef and Nancy Obernier. b. Supervisor Lindborg was in agreement and advised Obernier that if Obernier's wife needed help, he would be there. 10. In appointing a Tax Collector, Obernier was motivated in selecting a person who would immediately adapt to the position so that there would be no loss in flow of tax revenues. 11. Carl Lindborg has served as a member of the Board of Supervisors of Brandywine Township for approximately six years. a. Lindborg was a member and Chairman of the Board in 1992 when Nancy Obernier was appointed Tax Collector. b. The Tax Collector in Lindborg's view must have good organizational skills and understand the existing computer program so as to efficiently collect the tax revenues. c. Lindborg reviewed the resumes for the Tax Collector position but did not interview the applicants. 1. He was interested in appointing a Tax Collector who could immediately do the job, without having to learn the operation, so that there would be a continuous flow of tax revenues. 12. Tom McCaffrey is currently a member of the Brandywine Township Board of Supervisors. Obernier, 90- 019 -C2 Page 6 a. McCaffrey was not a member of the Board when Nancy Obernier was appointed Tax Collector. b. The township is in a dire financial condition. c. In retrospect McCaffrey believes that Obernier could have legally voted to break the Board deadlock between two of the three members of the Board. d. Obernier found an existing township contract which improved the township's financial situation when the other party to the contract paid up. e. When Obernier was Tax Collector, his wife Nancy helped him in the tax collection process so that she was familiar with the office operations. 13. The salary for Tax Collector set by the Board of Supervisors is $5,000.00 annually. a. The salary was set by the Township Board in 1988 before Obernier came on the Board. b. The salary was not increased for Nancy Obernier. 14. From February 6, 1992 through May 29, 1992 Nancy Obernier has been paid $1,668.00 for her duties as West Brandywine Township Tax Collector. 15. Josef G. Obernier did not file Statements of Financial Interests for the 1988 and 1989 calendar years while holding the position of West Brandywine Township Tax Collector. a. On April 28, 1992 Obernier filed Statements of Financial Interests for the 1988 and 1989 calendar years after being notified by the State Ethics Commission of his failure to file. III. DISCUSSION: As a Supervisor in West Brandywine Township, Chester County, Josef G. Obernier, hereinafter Obernier, is a public official as that term is defined under Act 9 of 1989. 65 P.S. 5402. As such, his conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective Obernier 90- 019 -C2 Page 7 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 after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family-is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. S402. As to Section 4(a) of Act 9 of 1989 quoted above, this provision of law provides that each public official /employee must file a Statement of Financial Interests for the preceding calendar year on or before May 1 of each year that he holds public position and for the year after he leaves such position. In the instant matter, we must determine whether Obernier violated Section 3(a) of Act 9 of 1989 regarding his participation and vote in the appointment of his wife Nancy Obernier to the Obernier, 90- 019 -C2 Page 8 position of West Brandywine Township Tax Collector, and secondly whether Obernier, when he was Tax Collector, violated Section 4(a) of Act 9 of 1989 regarding his failure to file Statements of Financial Interests for the calendar years 1988 and 1989. As to the first allegation, the facts reflect that Obernier was the Tax Collector in West Brandywine Township. Following Obernier's election to a four year term on the Township Board, Obernier resigned on January 6, 1992 from the position of West Brandywine Township Tax Collector. After the vacancy in the office of Tax Collector occurred as a result of Obernier's resignation, an advertisement was placed in the local paper for the submission of applications. At the time that Obernier came on the Township Board, he became concerned about the adverse financial situation of the Township which resulted from a number of circumstances such as the Township borrowing money, an anticipated increase in operating expenses and a municipal obligation by the Township as to the pension fund which had not been paid. Both Obernier and Board Chairman Carl Lindborg were concerned that the person who would be appointed to fill the Tax Collector position vacancy must be a person who had good organizational skills and knowledge of the existing computer program so that the person could readily adapt to the position without any loss in flow of tax revenues. West Brandywine Township received approximately seven applications for the position of Tax Collector including Nancy Obernier, Obernier's spouse. Aside from Obernier's spouse and one applicant who was a C.P.A., the applicants did not possess the necessary qualifications for the position of Tax Collector. As to the C.P.A., a concern existed whether the C.P.A. would devote the requisite amount of time to the position since the C.P.A. was looking for a "second job ". (Fact Finding 6(b)(1)). Prior to the Board considering the appointment for the Tax Collector position, the matter was discussed by Chairman Lindborg, Obernier and the third Supervisor, C. Thomas Williams. Although Lindborg was in favor of Nancy Obernier's appointment, Williams was opposed to her appointment in light of the family-relationship with Obernier. At the February 6, 1992 public meeting of the West Brandywine Township Board of Supervisors, Obernier made a motion to appoint his wife Nancy to the position of Tax Collector to serve for the remainder of the two year unexpired term. After Lindborg seconded Obernier's motion, it passed with Obernier and Lindborg voting in favor of the motion with Williams voting against said motion. The Township Solicitor did not attend this . meeting since it was the practice for the Township Board not to have the Solicitor present due to financial constraints. The record reflects that the motivation of both Lindborg and Obernier in appointing Nancy Obernier as Tax Collector was to insure that there would be a Tax Obernier, 90- 019 -C2 Page 9 Collector who could immediately adapt to the position without any loss in the flow of tax revenues given the dire financial straits of the Township. In applying the provisions of Section 3(a) of Act 9 of 1989 to the facts of this case, we have no latitude but to find a violation in this case. First, it is clear that there was participation by Obernier in terms of reviewing resumes or interviewing applicants for the position of Tax Collector as well as making a motion and voting in favor of the appointment of his. wife.. Secondly, such use of the authority of public office did result in a private pecuniary benefit consisting of the salary which Nancy Obernier .would receive as Tax Collector. We do note that Obernier did not vote to set the salary of the Tax Collector position which was done by a Board of Supervisors in 1988 prior to Obernier being on the Township Board. Further, the salary for Nancy Obernier as Tax Collector was not increased by the current Board. Nevertheless, the appointment of Nancy Obernier to the Tax Collector position with the existing salary is a pecuniary benefit which occurred as a result of Obernier casting the vote for her appointment. Finally, the private pecuniary benefit is to a member of Obernier's immediate family. The term immediate family is defined under Act 9 of 1989 as follows: 65 P.S. §402. Section 2. Definitions "Immediate family." A parent, spouse, child, brother or sister. Our finding of a violation in this case is consonant with our decision in Rowand, Order 795, where we found that a borough councilman violated Section 3(a) of Act 9 of 1989 when he seconded a successful motion to appoint his spouse to the compensated position of borough treasurer. In finding a violation of Section 3(a) of Act 9 of 1989 under these circumstances, we do not believe that Obernier had any intent to violate the Ethics Law. After a review of the record, we believe that Obernier was motivated solely out of concern for the financial stability of the Township. However, it is clear that there need not be any mens rea or intent necessary to find a violation of the Ethics Law. ggsl, Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). As a postscript to this allegation, we take note of a proffered argument that there could be no violation of the Ethics Law because the West Brandywine Township Board is a three member board and Obernier voted to break the deadlock. Section 3(j) of Act 9 of 1989 provides: Obernier, 90- 019 -C2 Page 10 ,Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of 'a three - member governing body of a political subdivision, where one member has abstained from voting as a result . of a conflict of interest, and the remaining two members of °the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 P.S. §403(j). Under the above provision of law there is a i mechanism whereby, as to three member boards only, if the member who has a conflict abstains and the remaining two members cast opposing votes, only then may the member who has abstained vote to break the tie provided that the disclosure requirements of Section 3(j) are made. Section 3(j) has no application in the instant matter since Obernier did not initially abstain but rather made the motion and voted in favor of that motion. Since the conditions of Section 3(j) have not been met, it is clear that a conflict did exist and hence a violation occurred in this case. However, given the totality of the facts and circumstances in this case, as noted in the findings and this discussion, we will take no further action. As to the second allegation, the findings reflect that Obernier while holding the position of West Brandywine Township Tax Obernier, 90- 019 -C2 Page 11 Collector did not file Statements of Financial Interests (SFI) for the 1988 and 1989 calendar years. Upon receipt of the notification that Obernier had failed to file, SFI's were then filed by him on April 28, 1992. (Fact Finding 15). Accordingly, as to the second allegation, we find a violation of Section 4(a) of Act 170 of 1978 as to the 1988 calendar year SFI and of Act 9 of 1989 as to the 1989 calendar year SFI but once again will take no further action given the fact that Obernier has now filed the requisite SFI's. IV. CONCLUSIONS OF LAW: 1. Josef G. Obernier, a Supervisor in West Brandywine Township, Chester County, is a public official subject to the provisions of Act 9 of 1989. 2. Obernier violated Section 3(a) of Act 9 of 1989 when he participated, made a motion and cast the deciding vote to appoint his wife Nancy Obernier to the compensated position of Tax Collector of West Brandywine Township. 3. Obernier violated Section 4(a) of the Ethics Law when he as Tax Collector for West Brandywine Township failed to timely file Statements of Financial Interests for calendar years 1988 and 1989. In Re: Josef G. Obernier : File Docket: 90- 019-C2 : Date Decided: September 10. 1992 : Date Mailed: September 10, 1992 ORDER NO. 852 1. Josef G. Obernier, a Supervisor in West Brandywine Township, Chester County, violated Section 3(a) of Act 9 of 1989 when he participated, made a motion and cast the deciding vote to appoint his wife Nancy Obernier to the compensated position of Tax Collector of West Brandywine. Township. 2. Obernier violated Section 4(a) of the Ethics Law when he as Tax Collector for West Brandywine Township failed to timely file Statements of Financial Interests for calendar years 1988 and 1989. 3. Based upon the totality-of the facts and circumstances in this case, we will take no further action. BY THE COMMISSION, Commissioner Austin M. Lee did not participate in this matter because he acted as single hearing officer and recused himself pursuant to 51 Pa. Code §2.34(d)