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HomeMy WebLinkAbout930 CzekajSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: Theodore S. Czekaj File Docket: 93- 060 -C2 Date Decided: 06/23/94 Date Mailed: 06/30/94 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger The Investigative Division of the State Ethics Commission received complaints regarding possible violations of the State Ethics Law, Act No. 170 of 1978 and Act No. 9 of 1989. 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 52.38 and /or 51 Pa. Code §21.29(b). The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 and Act 9 of 1989, 65 P.S. 5408(h), during the fifteen day period and no one unless the right to challenge this Order is waived, may violate cbnfidentiality 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. 5409(e). Czekai, 93- 060 -C2 Page 2 I. ALLEGATION: That Theodore S. Czekaj, a public official /public employee, in his capacity as a member of the North Versailles Sanitary Authority, violated provisions of the State Ethics Act (Act 170 of 1978) when he accepted increases for monthly meeting pay without the approval of the appointing authority. • 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. 5403(a). and that Theodore Czekaj, a public official /public employee, in his capacity as a member of the North Versailles Sanitary Authority, violated provisions of the State Ethics Act (Act 9 of 1989) when he accepted increases for monthly meeting pay without the approval of the appointing authority; and when he increased his salary as chairman without approval of the board. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. 5403(a). Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or zeka', 93- 060 -C2 Page 3 II. FINDINGS: a business with which he or a member of his immediate family is associated. 65 P.S. S402. 1. Theodore Czekaj has served as a of the North Versailles Township Sanitary Authority (NVTSA) since 1985. 2. In 1988, Czekaj served as Assistant Treasurer. 3. In 1989 and 1990 Czekaj served as Assistant Treasurer and Vice - Chairman. 4. In 1991, Czekaj served as the Secretary of the NVTSA. 5. Czekaj served as the Chairman of the NVTSA in 1992. 6. The North Versailles Township Board of Commissioners enacted Ordinance No. 503 on December 18, 1961 creating the North Versailles Township Municipal Authority. a. The ordinance was passed pursuant to provisions of the Municipal Authorities Act of 1945 P.L. 382, as amended. b. The authority was created to acquire, hold, construct, improve, maintain, and operate, own, lease, either in the capacity of lessor or lessee, sewers, sewer systems or parts thereof, and sewage treatment works including works for treating and disposing of industrial waste. c. The ordinance authorized the appointment of seven board members. 7. The members of the North Versailles Township Sanitary Authority are appointed to the authority for five year terms by the North Versailles Township Board of Commissioners. 8. By -Laws for the North Versailles Township Sanitary Authority, have been in effect since the authority's inception in 1961. 9. The By -Laws of the NVTSA, Article II, Section I specifies the following officer positions: a. Chairman. b. Vice - Chairman. c. Secretary. Czekai, 93- 060 -C2 Page 4 d. e . f. g. c . Assistant Secretary. Treasurer. Assistant Treasurer. Controller. 10. Reorganizational Meeting minutes of the North Versailles Township Sanitary Authority include the appointment of board officers on the following occasions: a. January 7, 1987: Present: Czekaj, Marchitello, Marszalek, Pribanic and Valicenti. The board members will serve as follows: Chairman Vice Chairman Secretary Assistant Secretary Treasurer Assistant Treasurer Roll call vote unanimous, The board members will serve Chairman Vice Chairman Secretary Assistant Secretary Treasurer Assistant Treasurer Board Member John Pribanic A. J. Valicenti - Edward R. McGuire Dorothy A. Marszalek - Dan Marchitello Ted Czekaj. motion passed. b. January 6, 1988: Present: Czekaj, Marchitello, D. Marszalek, McGuire, Mullen, Pribanic, and Valicenti. as follows: - John Pribanic - A. J. Valicenti Edward R. McGuire Dorothy A. Marszalek Dan Marchitello - Ted Czekaj Lawrence Mullen Roll call vote unanimous, motion passed. January 4, 1989: Present: Czekaj, Marchitello, D. Marszalek, McGuire, Mullen, Reed and Valicenti. Czeka7, 93- 060 -C2 Page 5 Chairman Vice Chairman Secretary Assistant Secretary Treasurer Assistant Treasurer Board Members d. January 3, 1990: - A. J. Valicenti - Ted Czekaj - Edward R. McGuire Dorothy A. Marszalek - Daniel Marchitello - Ted Czekaj - John Reed, Larry Mullen Present: Czekaj, Marchitello, D. Marszalek, Mullen and McGuire. Mr. Ted Czekaj asked for nomination for Chairman for 1990. Mr. McGuire renominated A. J. Valicenti for Chairman. There being no other nominations Mr. Czekaj declared nominations closed. Motion McGuire, second Mullen to have the secretary cast unanimous ballet. Mr. Marchitello made a motion asking that the Vice Chairman, Secretary, Treasurer, Assistant Secretary and Assistant Treasurer hold the same positions for the year 1990. Vice Chairman -Ted Czekaj, Secretary -E. McGuire, Treasurer -D. Marchitello, Assistant Secretary -D. Marszalek and Assistant Treasurer -Ted Czekaj. e. January 9, 1991: Present: Czekaj, Marchitello, D. Marszalek, Petrus and Valicenti. Mr. Czekaj asked for nominations for Chairman. Dorothy Marszalek nominates A.J. Valicenti for Chairman. Since there were no other nomination, Mr. Czekaj declared nominations closed. Motion D. Marszalek, second Marchitello that the secretary cast a unanimous ballet for Mr. Valicenti. Motion passed. Chairman Valicenti asks for nominations for Treasurer. Dorothy Marszalek nominated Dan Marchitello for Treasurer. Since there, were no other nominations for Treasurer Chairman Valicenti, declared nominations closed. Motion Czekaj, second D. Marszalek that the secretary cast a unanimous ballet for Dan Marchitello. Motion passed. Chairman Valicenti asked for nominations for Secretary. Dorothy Marszalek nominated Ted Czekaj for Secretary. Since there were no other nominations for Secretary, Czeka , 93- 060 -C2 Page 6 g. Chairman Valicenti declared nominations closed. Motion Marchitello, second D. Marszalek that the secretary cast a unanimous ballet for Ted Czekaj. Motion passed. Chairman Valicenti asks for motion to hire present employees for 1991. Motion Marchitello to hire present employees and Mr. Edward McGuire, 3713 Bevan Road, North Versailles as Temporary Administrative Secretary due to need of his expertise on Authority Procedures and 23 years of experience as a member of this board which will be beneficial to all authority members. His duties as Temporary Administrative Secretary are identified in the job description. Duties on file in sanitary authority office. Second, Czekaj. Roll call vote. Motion passed unanimously. f. January 8, 1992: Present: Marchitello, Czekaj, Dorothy Marszalek, Mullen, Petrus, Brown, Ziska, and Administrative Secretary Edward R. McGuire. Dorothy Marszalek asked for nominations for Chairman. Marchitello nominates Ted Czekaj for Chairman. Since there were no other nominations, D. Marszalek declared nominations closed. Motion Marchitello, second Ziska that the secretary cast a unanimous ballet for Mr. Czekaj. Chairman Czekaj asks for nominations for Treasurer. Dorothy Marszalek nominates Dan Marchitello for Treasurer. Since there were no other nominations for Treasurer Chairman, Czekaj declared nominations closed. Motion Marszalek, second Petrus that the secretary cast a unanimous ballet for Dan Marchitello. Motion passed. Chairman Czekaj asked for nominations for Secretary. Marchitello nominates Dorothy Marszalek for Secretary. Since there were no other nominations for Secretary, Chairman, Czekaj declared nominations closed. Motion Ziska, second Marchitello that the secretary cast a unanimous ballet for Dorothy Marszalek. Motion passed. Chairman Czekaj asks for motion to hire present employees for 1992. Motion Marchitello second Petrus to hire all present employees including Adm. Sec. Edward R. McGuire. Motion passed. • January 6, 1993: Present: Brown, Czekaj, Marchitello, Marszalek, Petrus, zeka', 93- 060 -C2 Page 7 Tabb and Ziska. Board members served as follows: Chairman - Frank Ziska; Vice Chairman Paul Petrus; Secretary - Dorothy Marszalek; Treasurer - Emmett Tabb; Assistant Secretary - Paul Petrus; Assistant Treasurer - John Brown; Board members - Daniel Marchitello, and Ted Czekaj. 11. The North Versailles Township Commissioners set the compensation for members of the North Versailles Township Sanitary Authority. 12. On September 23, 1963, the township commissioners approved Ordinance #539, which authorized for the members of the sanitary authority a salary of $25.00 per meeting, and it was not to include more than fifteen meetings per year. 13. On December 29, 1993, the township commissioners approved the following monthly compensation for the members of the sanitary authority and those members who also serve as officers: Members Officer Total Chairman $ 105.00 $ 50.00 $ 155.00 Secretary 100.00 200.00 300.00 Treasurer 150.00 170.00 320.00 Members (4/$100.00) 400.00 - 100.00 14. From 1963 until December 29, 1993, the North Versailles Township Commissioners took no official action to increase the compensation of members of the NVTSA. a. The township commissioners annually approved the authority budget which included the compensation for board members. 15. The North Versailles Township Sanitary Authority took the following actions authorizing compensation for officers of the authority: a. September 26, 1963: Present: Leslie„ Marszalek, Miller, Nesby, Paich, Triano, Zivkovich, Solicitor Gaydos, Bond Counsel McMillan, Fiscal Agent Lambing. Compensation of members and officers was discussed: The commissioners set a rate of $25.00 per meeting, up to 15 meetings a year for the board members. b. March 14, 1964: Czeka , 93- 060 -C2 Page 8 Present: Leslie, Marchitello, Marszalek, Nesby, Paich, Zivkovich, Solicitor Gaydos, Engineer Galie, Contractor (Botch). Motion Paich, second Marchitello authorizing the payment of a salary of $100.00 per month for the secretary of the authority, and $50.00 per month for the treasurer of the authority retroactive to January 1, 1964. On roll call vote all members present voted yea, and motion passes. c. October 5, 1965: The minutes do not indicate what authority members were present at this meeting. At their meeting of September 23, 1965, the Township Commissioners passed an Ordinance setting sewer rental rates effective for billings after April 1, 1965. They also passed an Ordinance approving budget for the calendar year 1965. In line with provisions of budget, motion Paich, second Marchitello that Secretary be paid $100.00 per month, and Treasurer $50.00 per month retroactive to January 1, 1965 for cost of reports. Motion passed. d. January 29, 1968: Present: Kukurin, Leslie, Marchitello, Marszalek, Nesby, Paich and Triano. It is duly noted that many hours have been given in the past and with Phase II many more hours will be expended in the future. It is for this reason that it is moved by Marchitello, second by Kukurin, that the following monthly remuneration be made from Administrative Fund: Chairman - $50.00; Vice Chairman - $40.00; Secretary - $50.00; Assistant Secretary - $40.00; Treasurer - $50.00; Assistant Treasurer - $40.00; Controller - $40.00; and that monthly payments to Secretary and Treasurer for quarterly reports and office work in the amounts of $200.00 and $100.00 respectively, be paid from the Operating Fund retroactive to January 1, 1968. Upon roll call vote, all members voted yea. Motion passed. e. January 15, 1975: Present: Pribanic, Since it received Katch, Marchitello, Marszalek, McGuire, Nesby, Triano, Engineer Neilan, Solicitor Banes. has been some time since Authority officers a raise, motion Triano, second Nesby that the zeka', 93- 060 -C2 Page 9 f. December 1, 1977: g. following raises be put in effect January 1, 1975; Chairman and Treasurer $10.00 per month; Secretary, $5.00 per month; Vice Chairman, Assistant Secretary, Assistant Treasurer and Controller, $15.00 per month from General Fund. Upon roll call vote, all members voted yea, and motion passed. Present: Batch, Marchitello, McGuire, Marszalek, Nesby, Pribanic, and Triano. It was also noted that Authority officers had not received a raise in three years. Motion Marchitello, second Nesby to grant a $20.00 per month raise effective January 1, 1978 to the Chairman, Vice Chairman, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer and Controller. Upon roll call vote, all members voted yea, and motion passed. December 15, 1983: Present: Marchitello, Marszalek, McGuire, Nesby, Pribanic, Triano, and Valicenti. Recommended by Chairman that the Treasurer's position should be increased by $20.00, due to extra man at work. Motion McGuire, second Valicenti to increase Treasurer's pay. Roll call vote, motion passed. Increase will start in January, 1984. h. December 27, 1993: Present: Brown, Czekaj, Marchitello, Marszalek, Petrus, Tabb, and Ziska. Marszalek read the letter sent to the commissioners by Marchitello dated April 2, 1992, regarding compensation of the board members and officers. After a full discussion, the members came up with the following compensation: Members Chairperson $ 105.00 Vice Chairperson 100.00 Secretary 100.00 Assistant Secretary 100.00 Treasurer 105.00 Assistant Treasurer 100.00 Board member 100.00 $ 710.00 Officers $ 50.00 10.00 200.00 25.00 170.00 25.00 .00 $ 480.00 Monthly Total $ 155.00 110.00 300.00 125.00 275.00 125.00 100.00 $1,190.00 zeka ', 93- 060 -C2 Page 10 A motion by Petrus with a second by Marchitello, to send a letter to the commissioners notifying them of the compensation changes and asking their approval of these changes. Motion passes with an aye response. (Reference Finding #12). 16. The budgets of the North Versailles Township Sanitary Authority are approved by the members of the authority. a. The budgets include the salaries and wages paid to the members of the sanitary authority as well as the employees. 17. Theodore Czekaj was present and participated in official action of the NVTSA to approve operating budgets during the following years. a. December 17, 1986. b. December 16, 1987. c. December 21, 1988. d. December 20, 1989. e. December 21, 1990. f. December 18, 1991. g. December 16, 1992. h. All of the budgets were approved by unanimous vote. 18. Total compensation received by Theodore Czekaj in his position as secretary to the NVTSA is as follows: Approved Actual 1988 $ 1,800 $ 0 1989 $ 1,800 $ 0 1990 $ 1,800 $ 0 1991 $ 3,300 $ 600 1992 $ 960 $ 600 $ 9,660 $ 1,200 19. Mr. Czekaj was also entitled to receive $375 /year as a board member for attending up to fifteen (15)) meetings each year. NVTSA records confirm actual payments in excess of $.375. This was computed as follows: Approved Actual 1988 $ 375 $ 1,500 Czekaj, 93- 060 -C2 Page 11 1989 1990 1991 1992 1993 $ 375 $ 375 $ 375 $ 375 $ 375 $ 2,250 $ 1,500 $ 1,500 $ 1,470 $ 1,575 $ 1,500 $ 9,045 20. Mr. Czekaj's total compensation as a NVTSA member was as follows: Approved Actual Secretary $ 9,660 $ 1,200 Member $ 2,250 $ 9,045 Total $11,910 $ 10,245 Difference $ (1,665) 21. Mr. Czekaj received $1,665 less th that to what he was entitled. III. DISCUSSION: Initially, it is noted that the allegations in this case relate to both Act 9 of 1989 and Act 170 of 1978. In this regard, Section 9 of Act 9 of 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 violations occurred prior thereto. Under both Act 170 of 1978 and Act 9 of 1989, as a member of the North Versailles Sanitary Authority, Theodore S. Czekaj, hereinafter Czekaj, is a public official /employee as that term is defined under both acts. See also 51 Pa. Code. As such, his conduct is subject to the provisions of both laws and the restrictions therein are applicable to him. Under Section 3(a) of Act 9 of 1989 quoted in the allegations, a public official shall not engage in conduct that constitutes a conflict of interest. Under Section 3(a), of Act 170 of 1978 quoted in the allegations, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a Czekai, 93- 060 -C2 Page 12 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 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 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). The questions before us are whether Czekaj as a North Versailles Sanitary Authority (NVSA) Member violated Section 3(a) of Act 170 of 1978 regarding accepting monthly meeting pay as an authority board member without approval of the appointing authority and secondly whether he violated Section 3(a) of Act 9 of 1989 when he accepted monthly meeting pay as an authority board member and an increase in his salary as chairman without the approval of the authority board. Czekaj has been a member of NVSA since 1985. In 1988 Czekaj served as Assistant Treasurer, in 1988 and 1989 as Assistant Treasurer and Vice Chairman, in 1991 as Secretary and in 1992 as Chairman. The actions taken by the governing authority of NVSA, the North Versailles Township Board of Commissioners, as to the setting the compensation of the NVSA members is reflected in Fact Findings 12 and 13. The actions taken by the NVSA Sanitary Board from 1987 through 1993 are reflected in a summarization of the minutes. See Fact Finding 10. The amount of compensation which was authorized for Czekaj versus the actual compensation received as a NVSA Authority Officer is reflected in Fact Finding 18. The compensation to which Czekaj was entitled as a Board Member in terms of what was approved and what he actually received is reflected in Fact Finding 19. What is significant in this case, as reflected by a Stipulation of Finding filed by the parties, is that Czekaj received less compensation than that which was approved. Fact Finding 20. In particular, Czekaj received $1,665 less than that to which he was entitled. Fact Finding 21. In order to establish to establish a violation of Section 3(a) of Act 170 of 1978 it is necessary to establish a use of authority use of office to obtain a financial gain other than compensation provided for by law; under Act 9 of 1989 it is necessary to establish a use of authority of office to obtain a private pecuniary benefit. In the instant matter there was a use of office and a use of authority of office under Acts 170 and Act 9. Further, the receipt Czekai, 93- 060 -C2 Page 13 of compensation by Czekaj reflects that he received a financial gain under Act 170 of 1978 and a pecuniary benefit under Act 9 of 1989. The issue is whether the financial gain was other than compensation provided for by law under Act 170 or a private pecuniary benefit under Act 9. In light of the fact that the stipulation of findings filed by the parties reflect that Czekaj received less compensation than he was entitled, it is clear that Czekaj did not receive a financial gain other than compensation provided for by law nor a private pecuniary benefit. Therefore, based upon the above, did not violate section 3(a) of Act 170 of 1978 regarding the receipt of compensation as to NVSA monthly meeting pay and did not receive a private pecuniary benefit as to the receipt of monthly meeting pay or an increase in officer salary under Act 9 of 1989. IV. CONCLUSIONS OF LAW: 1. Theodore S. Czekaj as a North Versailles Township Sanitary Authority Board Member is a public official subject to the provisions of Act 170 of 1978 and Act 9 of 1989. 2. Czekaj did not violate Section 3(a) of Act 170 of 1978 regarding monthly meeting pay as North Versailles Township Authority Board Member in that he did not receive a financial gain other than compensation provided for by law. 3. Czekaj did not violate Section 3(a) of Act 9 of 1989 regarding the receipt of meeting pay or an increase as a board member in that such compensation was not a private pecuniary benefit. In re: Theodore S. Czekaj File Docket: 93- 060 -C2 Date Decided: 06/23/94 Date Mailed: 06/30/94 ORDER NO. 930 1. Theodore S. Czekaj as a North Versailles Township Sanitary Authority Board Member did not violate Section 3(a) of Act 170 of 1978 regarding monthly meeting pay as North Versailles Township Authority Board Member in that he did not receive a financial gain other than compensation provided for by law. 2. Czekaj did not violate Section 3(a) of Act 9 of 1989 regarding the receipt of meeting pay-or an increase as a board member in that such compensation was not a private pecuniary benefit. BY THE COMMISSION, JAMES M. HO , C HAIR