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 ,