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HomeMy WebLinkAbout829 AbbottSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 1712.0 In re: Elias (Phil) Abbott File Docket: 87 -056 -C . Date Decided: February 20. 1992 : Date Mailed: February 27, 1992 Before: Dennis C. Harrington, Chair James M. Howley, Vice Chair 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, 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 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 52.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one yeas, 65 P.S. 409(e). I. ALLEGATIQN: That Elias Abbott, 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: 1. Elias Abbott served as a member of the North Huntingdon Township Municipal Authority. a. He has served in this position since 1986. b. He served as Treasurer from 1986 -1988. 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. 3. The By -Laws of the North Huntingdon Township Municipal Authority in effect during 1986 -1989 provided in part as follows in relation to the voting procedures of the board, the officer positions thereof and the duties and responsibilities of such officers: a. The members of the Authority shall constitute the Board of Directors of the Authority. A majority of the members shall constitute a quorum of the Board for the purpose of conducting the business of the Authority, and for all other purposes, and any and all action may be taken by vote of the majority of the members present, provided those present constitute a majority of the whole board. b. The officers of the Board shall consist of a Chairman, a Vice - Chairman Secretary, Treasurer and Assistant Secretary and Treasurer, who shall perform the usual and customary duties of such officers. In case of the absence of any officer, the Board may appoint any other member of the Board to temporarily serve in his stead. The term of office of said officers shall be for the period of one (1) year or until their respective successors are elected. The annual election of officers shall be held on the first Thursday of February each year. c. The Chairman shall preside at all meetings of the Board and shall have general control over the affairs of the Authority, subject to the direction of the board from time to time. d. The Secretary shall keep a record of all votes and minutes of the meetings of the Board. He shell 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 monies of the Authority received or disbursed, and shall deposit all monies 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 monies 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. The members of the North Huntingdon Township Municipal Authority were appointed to the Authority Board by the North Huntingdon Township Board of Commissioners. a. He was appointed to the Authority on January 6, 1986 by a vote of 4 -2 -1. b. Mr. Abbott was a member of the board of township commissioners at that time. c. He abstained in relation to the vote on his appointment the Authority. 5. During his term of service on the North Huntingdon Municipal Authority Elias Abbott voted in favor appointment to the officer positions in which he served. 6. During his term of service on the North Huntingdon to Township of his Township Municipal Authority Elias Abbott either made, seconded or voted in favor of motions establishing the amount of compensation or expenses to be paid to Authority members serving in officer positions. 7. On October 2, 1987 at a meeting of the North Huntingdon Township Municipal Authority John Abraham recommended tht all of the Authority Committees be dismissed because the board has a management staff. Mr. Abraham stated that the Authority Board should be a board of directors. a. Mr. Abraham stated that the managers of the Authority will report directly to the chairman and that any major problems will be directed to the board by the chairman. 8. On August 18, 1988 at a meeting of the North Huntingdon Township Municipal Authority Thomas Mance made a motion that all members and officers of the Authority forego their salary of $300 per month effective September 1. a. Mr. Abraham stated that in light of the amount of time he puts in for the Authority he does not feel it is feasible and he is personally against it. b. The motion was seconded by Mr. Koelsch and defeated by a vote of 1 -4 with Mr. Mance voting yes and Messrs. Abbott, Koelsch, Zontek and Abraham voting no. 9. The members of the North Huntingdon Municipal Authority including Elias Abbott routinely voted to approve payment of the lists of bills which included the officer salaries for such members. 10. Elias Abbott was compensated by North Huntingdon Township Municipal Authority as follows: Date Amount 1986 $ 3,600.00 1987 3,600.00 1988 3,600.00 1989 3,600.00 11. The North Huntingdon Township Board cf Commissioners never authorized the payment of any salary or compensation to the members of the North Huntingdon Township Municipal Authority. 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. b. In 1980, the Authority decided to pay expenses only as actually incurred. c. Subsequently in 1982, the Authority member set a fixed compensation for all officers and appointed each member to an officer position. d. After being removed from his Authority office in 1988, Thomas Mance received no further compensation for service as an officer of the Authority. 13. In voting to appoint board members to Authority offices and to approve payment of the lists of bills payable as aforesaid, Respondent's participation in the vote was not necessary to establish a quorum nor was his vote determinative of the question voted upon. III. DISCUSSION: As a North Huntingdon Township Municipal Authority Member, Elias Abbott, hereinafter Abbott, is a public official as that term is defined in the Ethics Act, 65 P.S. 402; 51 Pa. Code 1.1. As such, his conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989, P.L. 26, provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of 1978, P.L. 883, to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yogabet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. The issue before us in this case is whether Abbott as a member of the North Huntingdon Township Municipal Authority (NHTMA) used public office to obtain a financial gain for Aimself regarding voting to appoint himself to a position as an officer of the NHTMA and also voting to set the salary for that office. Factually, Abbott has served as a Board Member of NHTMA since 1986 wherein he held the position of Treasurer from 1986 through 1988. Abbott was appointed to the Board of NHTMA by the Borough of County Commissioners. Abbot was a Member of the Township Board at that time and abstained to his own appointment to the NHTMA. The Authority was created in 1946 but its Articles of Incorporation were amended in 1987 to expand its purposes for the construction and operation of refuse disposal facilities, steam production facilities and electrical power generation facilities. Although the Authority was originally constituted with 7 members, the membership was subsequently reduced to 5 members, all of whom were appointed by the North Huntingdon Township Beard of Commissioners. The by -laws for the NHTMA which were in effect between 1986 and 1989 provided in part that a majority of the members would constitute a quorum for the purpose of conducting business and taking action and further that the officers of the Board would consist of a Chairman, Vice-Chairman, Secretary, Treasurer and Assistant Secretary - Treasurer. The duties of the officers were delineated as follows: the Chairman presides over the meetings and has general control over the affairs of the Authority; the Secretary keeps a record of all minutes, has custody of the books, records and papers; the Assistant Secretary performs the same duties in the absence of the Secretary; the Treasurer keeps all the accounts and monies of the Authority received or disbursed and the Assistant Treasurer performs those duties in the absence of the Treasurer. During his term with NHTMA, Abbott voted in favor of his appointment to an officer position with the Authority. Furthermore, Abbot made, seconded and voted in favor of a various motions to set the compensation and expenses for the office positions. At the October 2, 1987 meeting of the NHTMA, Abraham recommended that all Committees be dismissed because the Board has a management staff and the Authority Board should have a Board of Directors. In particular, Abraham stated that the managers of the Authority should report directly to the Chairman and that any major problems should be directed to the Board by the Chairman. Thereafter, at the August 18, 1988 meeting of the NHTMA, Mance made a motion that all members and officers of the Authority forgo their monthly salary of $300 effective September 1. However, Abraham stated that in light of the amount of time that he worked, he did not feel that such action was feasible and was adverse to the motion which failed by a 1 -4 vote with Mance voting yes and Abbott, Koelsch, Zontek, and Abraham voting no. It is noted that the members of the NHTMA voted to pay the actual salaries for the members as part of a routine list of bills. As to Abbott, the total compensation he received as an officer for the NHTMA was $3,600 in each year from 1987 through 1989. The North Huntingdon Township Board of Commissioners never authorized payment of a salary or compensation for the members of the NHTMA. Although the NHTMA members were originally compensated in the form of expense payments which were originally at a fixed rate with no relationship to actual expenditures, the Authority in 1980 paid actual expenses until 1982 when the Authority set a fixed compensation for all officers. Lastly, it is noted (Fact Finding 13) that as to each member's officer position and salary, any given member's vote was not necessary to establish a quorum or to by the deciding vote for any given office position. In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the instant matter, we find that the actions of Abbott transgressed the above provision of the Ethics Law. It is clear that there has been a use of public office to obtain a financial gain other than compensation provided for by law in this case. In making this determination under the Ethics Law, we must consider the provisions of the Municipality Authority's Act. Although we do not per se interpret the Municipality Authority's Act, we must reference that law in making our determination as to what constitutes compensation provided for by law under Section 3(a) of Act 170 of 1978. The Municipality Authority's Act, Section 309C, does allow authority board members to establish offices and set the compensation for those offices. It is also clear that the Municipality Authority's Act does allow board members to serve as officers of the authority. Section 309C, supra. However, there is no provision in the Municipality Authority's Act which allows an authority member to vote for himself to a given office position and to set the salary for the office position which he would hold. This Commission has addressed the above issues on a number of prior occasions. Confidential Opinion 91 -001 and Swick /Aman, Opinion 91 -006 stand for the propositions that the offices which authority board members create must be normally cognizable offices wherein actual legitimate functions are performed and secondly that an authority board member should not vote for hi. own employment or set the salary for the office that he holds. In this case, Abbott voted in favor of his own appointment as Treasurer and also voted in favor of setting the salary for that position as well as all others. Clearly, such action on the part of Abbott violated Section 3(a) of Act 170 of 1978. Based upon the totality of facts and circumstances, we will take no further action in this case. However, Abbott is reminded that as to his future conduct, he must abstain as to participating or voting regarding his own appointment to an officer position with the Authority and as to setting the salary for his own particular office. In addition, we must emphasize that, in accordance with our above cited Opinions, the offices which are held must be legitimate offices wherein actual functions are being performed. The office held by Abbott is a cognizable office and there is no evidence to indicate that services were not performed as to that particular office. IV. CONCLUSIONS OF LAW: 1. Elias. Abbott as a member of the North Huntingdon Township Municipal Authority is a public official subject to the provisionsof Act 170 of 1978. 2. The actions of Abbott in voting to appoint himself to an officer position with the Authority and to set the salary for the officer position violated Section 3(a) of Act 170 of 1978 in that it was a use of office to obtain a financial gain other than compensation provided for by law. In re: Elias (Phil) Abbott : File Docket: 87 -056 -C : Date Decided: February 20, 1992 : Date Mailed: Fekruary 27. 1992 ORDER No. 829 1. Elias Abbott as a member of the North Huntingdon Township Municipal Authority is a public official subject to the provisions of Act 170 of 1978. 2. The actions of Abbott in voting to appoint himself to an officer position with the Authority and to set the salary for the officer position violated Section 3(a) of Act 170 of 1978 in that it was a use of office to obtain a financial gain other than compensation provided for by law. 3. Abbott is cautioned as to his future conduct that he must abstain and observe the disclosure requirements of Section 3(j) of Act 9 of 1989 regarding his appointment to an officer position with the Authority and the setting of the salary for the office position which he holds. 4. Based upon the totality of facts and circumstances in this case, this Commission will take no further actixn. BY THE COMMISSION, 1 .0 1 14 00 as . ' e• DENNIS C. HARRINGTON, "CHAIR