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HomeMy WebLinkAbout911 MathisIn re: Peter Mathis STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG. PENNSYLVANIA 17120 File Docket: 87 -138 -C Date Decided: December 7, 1993 Date Mailed: December 10, 1993 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III 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 not filed and a hearing was waived. A consent agreement 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 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). Mathis, 87 -138 -C Page 2 I. ALLEGATION: That Peter Mathis, a Wilkinsburg Borough Councilman, 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, in that he received payments from the borough to attend the 1986 Allegheny County Boroughs Association Seminar at Seven Springs in excess of actual costs incurred. Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or - any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). II. FINDINGS: 1. Peter Mathis served as a borough council member in Wilkinsburg Borough, Allegheny County during the year 1986. 2. Wilkinsburg Borough was a member of the Allegheny County Borough's Association. a. The Allegheny County Borough's Association holds various meetings and seminars throughout the year. 3. Minutes of the Wilkinsburg Borough Council meeting for January 1986 ill was appointed ointed the Borough's delegate to attend all Hill, Hill PP meetings of the Allegheny County Borough's Association. a. Mathis was appointed as the alternate delegate. 4. During 1986, the Allegheny County Borough's Association held a seminar at Seven Springs, Pennsylvania. a. The seminar was held from September 18, 1986, through September 21, 1986. 5. Seven Springs offered several plans which included lodging and various meals for seminar participants. a. Peter Mathis was on the Single American Plan. Mathis, 87 -138 -C Page 3 b. The Single American Plan included a room for the full conference period, dinner the first day, breakfast, lunch and dinner for each full day of the conference and breakfast the last day of the conference. c. Tax on food and lodging and gratuity was included. 6. In August, 1986, Wilkinsburg Borough forwarded payment in the amount of $260 to Seven Springs on behalf of Peter Mathis as payment for his attendance at the 1986 Allegheny County Borough's Association Seminar. 7. On September 12, 1986, Wilkinsburg Borough issued check no. 01 -7330 in the amount of $480 payable to Peter Mathis. a. An invoice attached to the check indicates that it is for the Seven Springs Seminar. b. The check was endorsed on the back by Peter Mathis and cashed. 8. Wilkinsburg Borough also paid the seminar registration fee for Peter Mathis in the amount of $110. 9 The borough code in effect during 1986 provided that: County and regional associations of boroughs The boroughs of any county or of two or more adjoining or nearby counties, may organize a county or regional association of boroughs, composed of elected and appointed borough officials in such county or counties, organized for the purpose of furthering the interests of the boroughs in the association and their inhabitants. Any borough may annually appropriate a sum of money, not exceeding seventy -five dollars ($75) for the support of such association, and may also appropriate and expend borough moneys to pay the actual expenses of officials of the borough in attending meetings of the county or regional association of which such borough is a member. Any such county or regional association of boroughs shall have the option of admitting to membership representatives of political subdivisions other than boroughs within such county or counties but representatives of such other political subdivisions shall have no voice or vote in any matter that is or may be of concern solely to boroughs. (emphasis added). Mathis, 87 -138 -C Page 4 10. Peter Mathis received $480 in excess expense reimbursement for the trip to Seven Springs as the borough had pre -paid both his registration as well as his hotel costs. 11. That at all relevant times Mathis and Hill were proceeding in accordance and pursuant to the advice of the borough solicitor. 12. That there is no evidence to indicate that Mathis or Hill intentionally violated the Ethics Law to the extent that the Ethics Law has in fact been violated. III. DISCUSSION: As a Wilkinsburg Borough Councilman, Peter Mathis, hereinafter Mathis, is a public official as that term is defined in the Ethics Act, 65 P.S. S402; 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); Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee Mathis, 87 -138 -C Page 5 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), allocatur denied, 520 Pa. 609, 553 A.2d 971 (1988). The issue before us is whether Mathis violated Section 3(a) of Act 170 of 1978 regarding the allegation that he received borough payments in excess of the actual costs and expenses incurred as to his attendance at the 1986 Allegheny County Borough Association seminar in Seven Springs. Mathis as Borough Councilman in Wilkinsburg Borough was selected in 1986 as an alternate delegate to attend the annual Allegheny County Borough Association meeting at Seven Springs Resort which was held between September 18 -21, 1986. At the Seven Springs Resort, Peter Mathis selected a plan which included a. room during the conference, dinner the first day, breakfast, lunch and dinner for each full day of the conference and breakfast on the last day of the conference with tax and gratuities included. Wilkinsburg Borough submitted payments to Seven Springs Resorts in the amount of $260.00 for Mathis' attendance as well as paid the seminar registration fee of $110.00. However, on September 12, 1986 Mathis received and cashed a Wilkinsburg Borough a check in the amount of $480.00 based upon his invoice for expenses relative to his attending the Seven Springs seminar. Thus, Mathis received $480.00 in reimbursements for the trip which had been prepaid both as to registration and hotel costs by the borough. This Commission, in the past, has reviewed the issue of expense allowances in relation to certain public officials and the retention of excess funds relating to such allowances. We determined that any funds in excess of authorized amounts, received and retained by said officials through their official positions, would constitute financial gain other than the compensation provided for by law contrary to Section 3(a) of the State Ethics Act. See Bigler, 85 -020. Specifically, we determined that when a code only permitted expense reimbursements for actual expenses or within a certain dollar amount, funds requested and received in excess of the permitted amount through the public official's office and retained by said public official would constitute a financial gain other than the compensation provided by law. Public officials who, through their public positions, received and retained excess funds would thus be in violation of Section 3(a) of the State Ethics Act. In Hawkins, Order 368, we determined that a county sheriff violated Section 3(a) of the State Ethics Act when, through his position, he requested and received expense allowances for attendance at a state sheriff's convention in excess of that which was permitted by the code. Specifically, the county sheriff received certain funds even though he had not attended the Mathis, 87 -138 -C Page 6 convention. Additionally, he had received funds in excess of that specifically allowed by the county code. We held that a county official would not be permitted to receive reimbursement for attending a convention of the official's organization if such individual did not, in fact, attend. See Shultz, Order 369. Our analysis was based upon long standing judicial interpretation of this area of law. See Bechak v. Corak, 414 Pa. 522, 201 A.2d 213, (1964); Susquehanna County Auditor's Report, 118 Pa. Super 47, 180 A.148, (1935); Walker v. Somerset County, 26 D & C 2d 775, (1961). We have applied the above principles to supervisors in second class townships. Thus in Vachon, Order, 607, we held that a township supervisor violated Section 3(a) of Act 170 of 1978 when he received reimbursement for expenses he did not incur in attending a supervisors convention. In Hagen, Order 554 -R, we held that a first class township commissioner violated Section 3(a) of Act 170 when he received township funds for attending various conventions, conferences and schools in excess of that which was authorized in law. In the instant situation, in order to determine whether Section 3(a) of the Ethics Act has been implicated, compensation in the form of expense allowances permitted by the Borough Code, must be reviewed. Based upon a determination as to what compensation is permitted, we will then be able to determine if Mathis through public office obtained a financial gain in the form of excess expense allowances that were not provided for by law. The Borough Code in effect in 1986, when the above occurrence transpired, provided that the expenditure of borough funds was limited to the "actual expenses" incurred. Hence, the receipt by a borough official of any money which was in excess of an actual expense was contrary to the Borough Code and the Ethics Law. In this case, Mathis received $480.00 over his actual expenses. The receipt of such an amount through public office was a financial gain not provided in law. Such action constituted a violation of Section 3(a) of Act 170 of 1978. This Commission has the authority to make an affirmative recommendation to an appropriate law enforcement authority for the initiation of criminal charges pursuant to the above provision of the law. This Commission has also been granted the authority to offer the opportunity to an individual who has obtained financial gain as a result of a violation of the Ethics Law the opportunity to divest himself of said gain. See McCutcheon v. State Ethics Commission, Commw. Ct. 529, (1982); Yocabet v. State Ethics Commission, supra. We have on a number of occasions offered individuals the opportunity to divest themselves of the gain received and Mathis, 87 -138 -C Page 7 thereafter, recommended no further action. The financial gain that Mathis received in the instant situation equaled $480.00. There was no justification whatsoever or reasonable excuse for receiving the $480.00 expense reimbursement. Mathis clearly did not incur such an expense and, as such, Mathis clearly secured a financial gain for his own personal benefit. As per the consent agreement of the parties, the Investigative Division and the Respondent, Mathis has agreed to pay $480.00 to Wilkinsburg Borough. Mathis must, therefore, forward payment in the amount of $480.00 payable to the Wilkinsburg Borough within thirty (30) days of the date of issuance of this order. Failure to comply with the foregoing will result in the initiation of an order enforcement action. Compliance will result in a closing of the file with no further action by the Commission. IV. CONCLUSIONS OF LAW: 1. Peter Mathis as a Wilkinsburg Borough Councilman was a public official subject to the provisions of Act 170 of 1978. Mathis violated Section 3(a) of Act 170 of 1978 when he received a financial gain consisting of excess expenses for attending a borough association seminar in Seven Springs. 3. The financial gain which Mathis received that was not compensation provided for by law amounted to $480.00. In re: Peter Mathis File e Decided: December 7, 1993 Date Mailed: December 10, 1993 ORDER NO. 911 1. Peter Mathis as a Wilkinsburg Borough Councilman violated Section 3(a) when he received a financial gain consisting of excess expenses for attending a borough association seminar in Seven Springs. 2. The financial gai1 which Mathis received that was not compensation provided for by law amounted to $480.00. 3. Mathis is directed within thirty (30) days of issuance of this order to forward a check or payment to this Commission payable to the order of Wilkinsburg Borough in the amount of $480.00 as per the consent agreement between the Investigative Division and Mathis. a. Failure to comply with the foregoing will result in the initiation of an order enforcement action. b. Compliance with the foregoing will result in the closing of this file with no further action by the Commission BY THE COMMISSION, JAMES M. HOWLEY, IR