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HomeMy WebLinkAbout913 O'LearyIn re: Dennis O'Leary STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG. PENNSYLVANIA 17120 File Docket: 87 -166 -C Date Decided: December 7, 1993 Date Mailed: December 10, 1993 Bef_re: 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 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). O'Leary, 87 -166 -C Page 2 I. ALLEGATION: That Dennis O'Leary, a former Wilkinsburg Borough Councilman, violated the following provisions of the State Ethics Act, in that he received expenses to attend a seminar in Las Vegas, Nevada in April, 1986, and failed to attend the seminar or return the money to the borough. 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. Dennis O'Leary served as a Borough Council Member in Wilkinsburg Borough, Allegheny County in 1986. 2. During 1986, the Seventh Annual National Road and Street Maintenance Conference and Product Equipment display was held at the Riveria Hotel, Las Vegas, Nevada. a. The event was held from April 21 to April 23, 1986. 3. Wilkinsburg Borough Council Member Dennis O'Leary and Borough Employees John Curry and William Weiland were authorized by the borough to attend this conference. a. O'Leary was attending in place of Borough Employee Ed Funkhouser. 4. Records of Wilkinsburg Borough indicate the issuance of check no. 01 -06294 on April 15, 1986 payable to Dennis O'Leary in the amount of $595. a. These funds were an advance for meals ($275) and a Room ($320). b. These funds were for the Las Vegas trip. 5. The borough also paid $632 in airfare for Dennis O'Leary to fly to Las Vegas. 6. O'Leary, Curry and Weiland traveled to Las Vegas for the convention. O'Leary, 87 -166 -C Page 3 a. The men left on a Saturday although the conference began on Monday. 7. After one or two nights at the hotel, O'Leary left and did not return. a. He did not attend the conference. 8. O'Leary had left some baggage in Las Vegas which Weiland and Curry brought back. 9. No reimbursements were made by O'Leary to the borough. 10. There is no evidence to indicate that O'Leary intended to violate the Ethics Law. III. DISCUSSION: As a former Wilkinsburg Borough Councilman, Dennis O'Leary, hereinafter O'Leary, is a public official as that term is defined in the Ethics Act, 65 P.S. S402; 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 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. O'Leary, 87 -166 -C Page 4 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 from using public office to advance his own financial interests; 1374 Koslow (1 State Ethics allocatur denied, 520 Pa. 609, A.2d•971, A.2d (198 ). 1374 ( ), The issue before us is whether O'Leary violated Section 3(a) of Act 170 of 1978 when he received expenses from the borough for attending a seminar in Las Vegas, Nevada which he did not attend. O'Leary as a Borough Councilman in Wilkinsburg Borough, Allegheny County was authorized in 1986 to attend a National Road and Street Maintenance Conference and Product Equipment display held in the Riviera Hotel in Las Vegas, Nevada from April 21 -23, 1986. Wilkinsburg Borough issued a check to O'Leary in the amount of $595.00 to cover meals and a hotel room for the Las Vegas trip. In addition, the borough also paid $632.00 for airfare for O'Leary to and from Las Vegas. Although O'Leary and two other councilmen, who were also authorized to attend the conference, traveled to Las Vegas for the convention, O'Leary and the others left on Saturday before the conference even began. Thus, O'Leary did not attend the conference and never made any reimbursement to 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, Opinion 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 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 O'Leary, 87 -166 -C Page 5 attending a convention of the official's organization if such individual did not, in fac 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 O'Leary through public office obtained a financial gain in the form of excess e xpense 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, O'Leary received $1,227.00 ($595.00 meal /lodging expense plus $632.00 travel expense). 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. We do note from the findings that there was no intent on the part of O'Leary to violate the Ethics Law. 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 O'Leary, 87 -166 -C Page 6 thereafter, recommended no further action. The financial gain that O'Leary received equaled $1,227.00. There was no basis in law for receiving the $1,227.00 expense reimbursement. O'Leary did not incur such an expense and, as such, O'Leary secured a financial gain other than compensation provided by law. As o pann an d the consent agreement O'Leary has parties, agreed to pay $1,227.00 l to Division Wilkinsburg Borough. O'Leary must, therefore, forward payment -through this Commission in the amount of $1,227.00 payable to the Wilkinsburg Borough in a timely manner. 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. Dennis O'Leary as a Wilkinsburg Borough Councilman was a public official subject to the provisions of Act 170 of 1978. 2. O'Leary violated Section 3(a) of Act 170 of 1978 when he received a financial gain consisting of borough paid expenses for a conference in Las Vegas which he did not attend. 3. The financial gain which O'Leary received that was not compensation provided for by law amounted to $1,227.00. In re: Dennis O'Leary File Docket: 87 -166 -C Date Decided: December 7, 1993 Date Mailed: Dece 10, 1993 ORDER NO. 913 1. Dennis O'Leary as a Wilkinsburg Borough Councilman violated Section 3(a) when he received a financial gain consisting of borough paid expenses for a conference in Las Vegas which he did not attend. 2. The financial gain which O'Leary received that was not compensation provided for by amounted to $1,227.00. 3. O'Leary is directed in a timely manner to forward a check or payment to this Commission payable to the order of Wilkinsburg Borough in the amount of $1,227.00 as per the consent agreement between the Investigative Division and O'Leary. 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 J ,