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HomeMy WebLinkAbout822 MedicoIn Re: Philip T. Medico, Jr. STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 91- 005 -C2 : Date Decided: December 4.1991 . Date Mailed: December 11.1991 Chair Before: Dennis C. Harrington, James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher 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. 401 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 waived. A Consent Order was submitted by the parties to the Commission for consideration which was subsequently approved. 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. 409(e). Philip T. Medico, Jr., 91- 005 -C2 Page 2 I. ALLEGATION: That you, Solicitor for West Wyoming Borough, Luzerne County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when you contracted with the borough for the position of administrator /coordinator for the West Wyoming Sewer Project; and when you failed to file a Statement of Financial Interest for the 1989 calendar year: Section 3. Restricted activities (f) No public official or public employee or his spouse or child or any business in which the person or his spouse or child is associated shall enter into any contract valued at $500 or more with the governmental body with which the public official or public employee is associated or any subcontract valued at $500 or more with any person who has been awarded a contract with the governmental body with which the public official or public employee is associated, unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. In such a case, the public official or public employee shall not have any supervisory or overall responsibility for the implementation or administration of the contract. Any contract or subcontract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of the making of the contract or subcontract. 65 P.S. 5403(f). 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 Philip T. Medico, Jr., 91- 005 -C2 Page 3 II. FINDINGS: 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. S404(a). 1. Philip T. Medico, Jr. serves as Solicitor for West Wyoming Borough, Luzerne County. a. He was initially appointed to that position by Borough Council in January of 1986 and has been reappointed each successive year. 2. Medico has served as legal counsel /administrator and coordinator for the West Wyoming Borough Sewer Construction Project. a. He was appointed to that position by Borough Council on July 10, 1989. b. The appointment is to last until the completion of the construction project. 3. Medico is compensated at the rate of $60.00 per hour for both positions of Solicitor and Legal Counsel /Administrator. 4. Borough Council approved a contract with Reilly Engineering Company on May 9, 1988 authorizing Reilly to prepare funding applications to Pennvest and other agencies and to design and inspect the construction of a sanitary sewer collection system for the borough. Philip T. Medico, Jr., 9].- 005 -C2 Page 4 a. Some council members believed Reilly Engineering had only been appointed to handle the funding applications at that meeting and were surprised to learn that Reilly had also been appointed to design and inspect the construction of the system. b. Medico was not present at the meeting when Reilly Engineering was appointed to work on the sewer system. 5. A review of the minutes for West Wyoming Borough Council meetings held on 9/12/88, 10/10/88, 11/14/88, 12/12/88, 1/9/89, 2/13/89, 2/22/89, 3/13/89, 4/10/89, 5/1/89, 5/8/89 and 6/28/89 indicates the appointment of Medico to the position of Legal Counsel /Administrator and Coordinator for the West Wyoming Borough Sewer Construction Project was not discussed at these public meetings. 6. The minutes of the West Wyoming Council meeting held on July 10, 1989 contain the following information: Council went into executive session to discuss personnel matters. The session lasted approximately 30 minutes. Motion by Salvo, seconded by Thomas, to hire the law offices of Philip T. Medico, Jr. to act as Legal Counsel for the proposed Sewer Construction Project and to act as Administrator and Coordinator for the Sewer Construction Project. The firm of Reilly Associates and the borough administrator are directed that all correspondence, grant and loan applications that are presently submitted to any State or Federal Agency be submitted by Medico's office for legal review. Any and all future correspondence generated relating to the sewer construction project by the consulting engineer and /or administrator should first be sent to Medico's office for review and approval by his office. Attorney Medico will report monthly to council on the status of the proposed project. The professional service will be compensated at the rate of $60.00 per hour, and the term shall be from the date of this motion and authorization to the actual completion of the project which means the certification of completion from the Pennsylvania State DER and all funds are disbursed to the contractor and engineers. This position is a separate appointment from Medico's position as borough solicitor. Any and all services performed pursuant to the job description attached hereto must be communicated and officially authorized by Borough Council at an open and public meeting. Philip T. Medico, Jr., 91- 005 -C2 Page 5 Payment is contingent upon the projects funding. All in favor. 7. Borough Council discussed the appointment of Medico to the position of legal counsel /administrator and coordinator for the sewer construction project in executive session during the July 10, 1989 council meeting and then made the appointment during the public session of the meeting. a. Council choose to use a legal advisor /administrator for the sewer project as opposed to establishing a sewer authority. b. Council decided they needed someone to make sure they were kept informed and to protect their interests in regards to the construction of the sewer project. c. Borough Council sought Medico's advice and assistance. Council members wanted it spelled out that all matters relating to the sewer construction project were to be reviewed by Medico and decided to appoint him Administrator /Legal Counselor. d. Council wanted to make it clear what he was authorized to do. 8. Medico discussed the matter of him serving as legal advisor /administrator with council during an executive session at a prior meeting and then returned to the July 10, 1989 executive session with a written proposal for council's review. a. It was discussed in executive session because council considered it a personnel matter. 9. Medico normally attended the executive sessions as borough solicitor. 10. West Wyoming Borough Council did not advertise an opening for the position and did not request applications prior to the appointment. 11. Medico presented council with a job description or contract during the executive session of the July 10, 1989 council meeting. a. Council requested and Medico provided them with a job description or contract for the position. Philip T. Medico, Jr., 91- 005 -C2 Page 6 12. Council asked Medico if it would be a conflict for him to be appointed to that position, and Medico informed them that he checked into the matter and determined it would not be a conflict of interest. a. Medico researched the State Ethics Act, Act 170, and determined that the appointment would not be a conflict of interest. b. Medico relied on the Ballou decision. c. Medico was unaware of changes in the Ethics Act in 1989. 13. The duties performed by Medico as Administrator /Legal Adviser are the same type of duties he performs as solicitor. These duties could have been handled by Medico in his capacity as solicitor. 14. A review of West Wyoming Borough records indicates the following payments were made to Philip T. Medico, Jr. as compensation for his services as Legal Counselor /Administrator for the Borough Sewer Project: 1990 Date Amount 3/14/90 $10,000.00 9/10/90 2,580.00 9/10/90 7,338.00 9/10/90 1,545.00 9/10/90 1,800.00 9/10/90 1,485.00 10/10/90 7,666.90 11/13/90 6,784.00 12/11/90 12,532.00 1991 ate Amount 1/15/91 $ 1,732.10 1/15/91 13,385.00 2/13/91 3,300.00 4/3/91 5,157.25 4/12/91 3,195.00 6/11/91 2,325.50 6/21/91 1,575.00 6/21/91 810.00 7/10/91 8,245.00 TOTAL $94,260.75 Philip T. Medico, Jr., 91- 005 -C2 Page 7 This total is as of July 22, 1991. 15. A review of West Wyoming Borough records indicates that Philip T. Medico has filed Statements of Financial Interest for the years 1989 and 1990. a. Medico previously informed the West Wyoming Borough Business Manager that he was not required to file. b. Medico's decision was based on his review of Act 170 and related decisions affecting attorneys serving as solicitors. c. Medico filed a Financial Interest Statement for the 1989, 1990, and 1991 calendar years on October 1, 1991. (1) Medico subsequently filed a Financial Intrest Statement for the calendar year 1990 on November 19, 1991. III. DISCUSSION: As the Solicitor for West Wyoming Borough, Luzerne County, Philip T. Medico, Jr., hereinafter Medico, is a public employee as that term is defined under Act 9 of 1989. 65 P.S. 402. 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 amendektory 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 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(f) of Act 9 of 1989 quoted above, a public official /employee, his spouse or child or any business in which the person, his spouse or child is associated with may contract with his Philip T. Medico, Jr., 91- 005 -C2 Page 8 governmental body as to contract of $500.00 or more but the contract must be awarded through an open and public process including prior public notice and subsequent public disclosure. Section 4(a) of the Ethics Law quoted above requires public officials /employees to file Statements of Financial Interests (FIS) for each year that they hold public position and for the year after they leave such position. In this case we must determine whether Medico as Solicitor for West Wyoming Valley Borough violated Section 3(f) of Act 9 of 1989 quoted above regarding his contracting with the Borough for the position of administrator /coordinator as to the West Wyoming Sewer Project and secondly whether he violated Section 4(a) of Act 9 of 1989 regarding the failure to file a Statement of Financial Interests for the 1989 calendar year. In this case Medico has served as Solicitor for West Wyoming Borough since his initial appointment in January 1986. Medico was appointed as administrator and coordinator for the West Wyoming Borough Sewer Construction Project on July 10, 1989, which appointment is scheduled to last until completion of the project. Medico receives compensation at the rate of $60.00 per hour for both positions of Solicitor and Legal Counsel /Administrator as to the construction project. The minutes of the West Wyoming Council Borough for July 10, 1989 for its executive session reflect a successful motion to hire Medico as Legal Counsel and Administrator /Coordinator for the sewer construction project followed by the actual appointment in a public Council meeting on the same date. West Wyoming Valley Borough did not advertise an opening for that position nor did it request applications for the appointment. Medico presented Council with a job description or contract for the position. In response to an inquiry by Council as to whether Medico would have a conflict, Medico indicated that he researched the State Ethics Act, Act 170, and the Ballou decision and concluded that he did not have a conflict. Medico was unaware that Act 9 of 1989 was enacted on June 26, 1989, and amended the Ethics Law to include Solicitors as public employees subject in part to the filing requirements under the Ethics Law. The duties performed by Medico as administrator /legal advisor are the same as he performs for the position as Solicitor and in fact such duties could have been handled by Medico in his capacity as Solicitor (Fact Finding 13). In 1990 and 1991, Medico received a total of $94,260.75 in compensation for his services as legal counsel /administrator for the borough sewer project. Lastly, Medico has filed Statements of Financial Interests for the 1989 calendar and 1990 years. Philip T. Medico, Jr., 91- 005 -C2 Page 9 In applying the above quoted provisions of the Ethics Law to the instant matter, we do not find a violation of Section 3(f) of the Act quoted above as to the services performed by Medico relative to the West Wyoming Sewer Project for two reasons. First, the duties that Medico performed as administrator or legal advisor were the same that he could perform in his capacity as Solicitor and therefore those duties are encompassed within such position. Secondly, the statutory definition of contract under the Ethics Law provides: "Contract." An agreement or arrangement for the acquisition, use or disposal by the Commonwealth or a political subdivision of consulting or other services or of supplies, materials, equipment, land or other personal or real property. "Contract" shall not mean an agreement or arrangement between the State or political subdivision as one party and a public official or public employee as the other party, concerning his expense, reimbursement, salary, wage, retirement or other benefit, tenure or other matters in consideration of his current public employment with the Commonwealth or a political subdivision. 65 P.S. 5402. Since there is an exclusion within the above quoted definition of contract as to agreements between a public employee and his governmental body relative to salary, wages and other benefits, we find no violation of Section 3(f) of Act 9 of 1989. However, we find a violation of Section 4(a) of Act 9 of 1989 in that Medico as a Solicitor is required and failed to timely file a Statement of Financial Interests for the 1989 calendar year. Since Medico has now filed a Financial Interest Statement for the 1989 calendar year as well as for 1990, we will take no further action in this case. IV. CONCLUSIONS OF LAW: 1. Philip T. Medico, Jr., as the Solicitor for West Wyoming Borough, Luzerne County, is a public employee subject to the provisions of Act 9 of 1989. 2. Medico did not violate Section 3(f) of Act 9 of 1989 regarding contracting for administrative /coordinator services with the Borough as to a sewer project in that such activities were encompassed within his position as solicitor and the contracting provision of the Ethics Law does not apply to agreements between a governmental body and a public employee concerning wages, salaries or other benefits. Philip T. Medico, Jr., 91- 005 -C2 Page 10 3. Medico violated Section 4(a) of Act 9 of 1989 when he failed to timely file a 1989 calendar year Statement of Financial Interests. In Re: Philip T. Medico, Jr. : File Docket: 91- 005 -C2 : Date Decided: December 4.1991 : Date Mailed: December 11,1991 ORDER No. 822 1. Philip T. Medico, Jr., as the Solicitor for West Wyoming Borough, Luzerne County, did not violate Section 3(f) of Act 9 of 1989 regarding contracting for administrator /coordinator services with the Borough as to a sewer project in that such activities were encompass within his position as solicitor and the contracting provision of the Ethics Law does not apply to agreements between a governmental body and a public employee concerning wages, salaries or other benefits. 2. Medico violated Section 4(a) of Act 9 of 1989 when he failed to timely file a 1989 calendar year Statement of Financial Interests. BY THE COMMISSION, la €;/ 4 44. 1 44- DENNIS C. HARRINGTON, CHAIR Commissioner Allan M. Rluger did not participate in this matter.