Loading...
HomeMy WebLinkAbout957 BorgoIn re: Robert Borgo STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: File Docket: 87 -058 -C Date Decided: 02/23/95 Date Mailed: 03/31/95 Daneen E. Reese, Chair Roy W. Wilt Austin M. Lee Allan M. Kluger John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the State Ethics Law, Act 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 Conmaission 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 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. Any person who violates confidentiality of the Ethics Law 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). Confidentiality does not preclude discussing this case with an attorney at law. Borgo, 87 -058 -C Page 2 I. ALLEGATION: That Robert Borgo, a member of the Western Westmoreland 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 set his salary in 1986 and 1987 as a board member of the Western Westmoreland Municipal Authority. II. FINDINGS: 1. Robert Borgo served as an appointed member of the Western Westmoreland Municipal Authority. a. Mr. Borgo has served in this position since 1985. b. Mr. Borgo represents Penn Township on the Authority. 2. The Western Westmoreland Municipal Authority (WWMA) was created pursuant to the Pennsylvania Municipality Authorities Act of 1945 by way of agreement of December 15, 1971 between various municipalities. a. The Authority was created to finance, acquire, construct and complete a joint municipal facility with the capacity of treating sewage and industrial wastes from residents who were located in the Lower Brush Creek project area. b. The municipalities comprising the Western Westmoreland Municipal Authority were: 1) North Huntingdon Township 2) Borough of Irwin 3) Penn Township 4) Borough of Manor 5) Hempfield Township 6) Borough of North Irwin c. The agreement between the above identified municipalities provides that the Authority was to consist of ten (10) members. Three appointed by North Huntingdon Township, two appointed by Irwin Borough, two appointed by Penn Township, and one each appointed by Manor Borough, North Irwin Borough and Hempfield Township. 3. The by -laws of the Western Westmoreland Municipal Authority originally provided in Article II, Section 1, that "the officers of the Authority shall be a Chairman, a Vice Chairman, a Secretary, a Treasurer and an Assistant Secretary - Treasurer, to be elected from the members of the Board of the Borgo, 87 -058 -C Page 3 Authority." 4. Article V, Section 1, of the by -laws dealing with amendments provided as follows: The by -laws of the Authority (with the exception of any matters that are governed by the Articles of Incorporation) shall be amended only with the approval of at least six (6) of the members of the Board of the Authority at a regular or special meeting; provided that the amendment has been submitted in writing at a previous regular or special meeting. 5. The by -laws were subsequently amended by Authority board members on August 20, 1986. (See Finding No. 8(d)) a. As a result of such amendment, six additional officer positions were created bringing the total number of offices to eleven, one position for each board member. (See Finding No. 8 [d] ) b. The changes were made pursuant to Authority by -laws. 6. In July, 1985, by way of Resolution Number 47, Township Board of Commissioners on motion of Mr. seconded by Mrs. Painter, reappointed Robert Borgo Mahkovec to the Board of Western Westmoreland Authority. 7. The municipalities comprising the WWMA authorizing their representatives to be members. the Penn Cortazzo, and Joseph Municipal did not take action compensated as board 8. Minutes of the Western Westmoreland Municipal Authority meetings confirm the following in relation to the appointment of officers and the setting of compensation: a. February 19, 1986: Mr. Mance nominated Mr. Zentner for Chairman; the motion carried unanimously. Terry Painter was nominated by Thomas Mance for Vice Chairman and that motion carried unanimously. Mr. Zenter nominated Don Ewing for the position of Secretary, the motion carried unanimously. Roy Eiseman nominated Samuel Heasley for the position of Treasurer and that motion carried unanimously. Mr. Eiseman nominated Barbara Balcerek for the position of Assistant Secretary- Treasurer; Mr. Mace nominated Barbara Johnson for this position. Discussion ensued. Board Borgo, 87 -058 -C Page 4 members Heasley, Mahkovec, Borgo, Eiseman, Ewing and Zentner voted for Mrs. Balcerek. Board members Zontek, Mance and Painter voted for Mrs. Johnson. Mrs. Balcerek is appointed to the position. Mr. Zontek presented his ideas on compensation to board members. A motion was made by Zontek, seconded by Painter, authorizing the solicitor to prepare a resolution to designate each member of the authority as an officer and compensation to them would be $150.00 a month. Mr. Mahkovec reminded the board members that this very thing had been done in the past, and there had been many visitors present at the meeting when a vote was taken for this compensation. A role call vote was taken, and a motion failed due to a five to five tie with the members voting as follows: Samuel Heasley - No Barbara Johnson - Yes Daniel Zontek , Yes Joseph Mahkovec - No Robert Borgo - No b. May 21, 1986: Thomas Mance - Yes Terry Painter- Yes Roy Eiseman - No Don Ewing - Yes Robert Zentner - No Mr. Mahkovec was absent. Mr. Painter brought up the issue of board members being compensated. He stated that the dedication and services provided by the members should be justified by compensation. He further stated that his motion would be that the officers of the Authority be able to receive compensation. Mr. Snyder, the Solicitor, stated that the by-laws provide for five officers, the chairman, vice chairman, secretary, treasurer, and assistant secretary /treasurer. Mr. Snyder stated that the board members fall under the requirements of Section 309, Section 7, of the Municipal Authorities Act. This would have to be approved by all the municipalities for the Authority. In addition to that, in Mr. Snyder's opinion, it would be for the new members coming on at the end of the current term. It was noted that, approximately two years ago, there was a suggestion made that the by -laws be amended to make each of the committee chairmen officers in addition to the current officers. Mr. Snyder stated that he is not prepared to say unequivocally that compensation would pass legal challenge. Mr. Snyder questioned Mr. Painter if his intentions for compensation is for Board members or compensation for officers. Mr. Painter said that the vehicle for simplicity would be for documentation that all board members would be officers. Mr. Painter asked the chair to entertain the motion to authorize the Borgo, 87 -058 -C Page 5 solicitor for the best recommendation for allowing officers and board members to be compensated. Mr. Mulvihill seconded the motion, and the motion carried unanimously. The second part of Mr. Painter's suggestion is the amount to be compensated. It was budgeted in 1984 for $100.00 a month. A motion was not forthcoming at this particular meeting. c. June 18, 1986: Mr. Mahkovec was absent. Mr. Snyder, the Solicitor, reported that a notice of the proposed by -laws change requested at the last meeting, along with correspondences, was included in a package of materials for the board. Mr. Snyder's by -laws amendment proposed that the officers of the authority shall be a chairman, a vice chairman, a secretary, a treasurer, and assistant secretary /treasurer, and the chairmen of each of the following committees: Personnel, Finance & Budget, Sludge Disposal, Insurance, Grounds & Maintenance, and Legal & Engineering Service. All of which, with the exception of the assistant secretary /treasurer, shall be members of the board of the Authority. No person shall hold more than one office. The by -laws further provide that the chair of the respective committees shall preside at all meetings of the respective committees and shall report the recommendations of the committee to the board of the Authority of action by the board. The by -laws further provide that the officers of the Authority shall perform such other duties and functions as may from time be required by the Board of the Authority or the by -laws or rules and regulations of the Authority. The by -laws further provide that officers of the Authority shall be compensated as the board of the Authority shall determine by resolution adopted at the annual meeting of the board subsequent to the election of the officers. The by -laws further provide that the officers as above identified shall be elected at the annual meeting of the board of the Authority and shall serve one year terms or until their successors are elected and qualified. d. August 20, 1986: Terry Painter made a motion to adopt the amendment to the by -laws of the Authority as drafted by the solicitor revising the definition of officers for the authority; motion was seconded by Daniel Zontek. Mr. Painter then withdrew his motion and made the following: A motion was made by Terry Painter, seconded by Daniel Zontek, to adopt the amendment of the by -laws as presented to the Borgo, 87 -058 -C Page 6 board by the solicitor as recorded in the minutes of the meeting of June 18, 1986 and included the amendment of December 1984. A roll call vote was taken and a motion passed by a vote of eight to one with Mr. Zentner voting no. Mr. Ewing resigned as Chairman of the Legal and Engineering Services Committee as it conflicts with his position as Secretary of the Authority. Mr. Eisaman resigned as Chairman of the Grounds and Maintenance Committee, as it conflicts with his position as Treasurer of the Authority. Mr. Painter resigned as Chairman of the Finance and Budget Committee, as it conflicts with his position as Vice- Chairman. A motion was then made by Terry Painter, seconded by Daniel Zontek, for officers to be compensated at a rate of $300.00 a month effective August 1986. A discussion ensued on this matter as to interpretation as to when this compensation could become effective. Mr. Zentner stated that according to the resolution read, by the assistant secretary /treasurer, the amount of compensation could not be set until after the February reorganization meeting. Mr. Eisaman suggested that the amount be lowered to $150.00. The chairman called for a roll call vote on a motion presented by Mr. Painter, and a motion passed the vote being six yeas and 3 nays as follows: Bernard Mulvihill - Yes Barbara Johnson - Yes Robert Borgo - No Thomas Mance - Yes Robert Zentner - No e. September 17, 1986: Bernard Mulvihill - Yes Barbara Johnson - Yes Daniel Zontek - No Robert Borgo - Yes Terry Painter - Yes Daniel Zontek - Yes Roy Eisaman - No Don Ewing - Yes Mahkovec - Absent A number of individuals present at the meeting questioned the board about the reasons for the compensation authorized for board members. Mr. Mance addressed the comments made by the visitors. Mr. Painter and Mr. Mahkovec were absent. A motion was made by Bernard Mulvihill, seconded by Robert Borgo, to rescind the original motion of compensation made at the August meeting and to change the amount of compensation to $150.00 a month retroactive to August 1, 1986. A roll call vote was requested, and a motion passed the vote being six yeas and two nays as follows: Thomas Mance - No Roy Eisaman - Yes Don Ewing - Yes Robert Zentner - Yes Borgo, 87 -058 -C Page 7 At this time, Mr. Zontek and Mr. Mance changed their nay votes to yes votes, and the motion passes unanimously. f. December 17, 1986: g. The absentee board member was Joseph Mahkovec. The chairman requested a motion to rescind the compensation to board members. A motion was made by Don Ewing, seconded by Roy Eiseman, to rescind the action made by this board to compensate the officers of this authority or board members at the rate of $150.00 per month and restrict such compensation to board members to reimbursable expenses. This motion will be effected January 1, 1987. A roll call vote was taken, and the motion failed as follows: Bernard Mulvihill - No Barbara Johnson - No Daniel Zontek - No Robert Borgo - No Thomas Mance - No Terry Painter - No Roy Eiseman - Yes Don Ewing - yes Robert Zentner - Yes February 18, 1987: A reorganization meeting of the Authority board was held. The following members were appointed to officer positions: Robert Zentner - Chair John Hoffner - Vice Chair Don Ewing - Secretary Roy Eiseman - Treasurer Barbara Balcerek - Assistant Secretary /Treasurer A motion was made by Painter, seconded by Eiseman, to set the compensation for board members serving as officers as provided by the by -laws at the rate of $150.00 per month for the year. All of the members voted for the motion with the exception for Robert Zentner. h. May 19, 1987: It was determined that an oversight had occurred in the election of certain officers of the Authority as provided in the August, 1986, by -law amendment. The oversight was corrected by the following members being appointed to officer positions: Terry Painter - Grounds and Maintenance Committee Officer Robert Borgo - Personnel Committee Officer Bernard Mulvihill - Finance and Budget Committee Officer Borcro, 87 -058 -C Page 8 Thomas Mance - Insurance Committee Officer Daniel Zontek - Sludge Committee Officer Joseph Mahkovec - Legal and Engineering Services Committee Officer i. October 21, 1987: The solicitor stated that he was instructed to prepare amendment to the by -laws to provide for the position Committee Vice - Chair. A motion to amend the by -laws the next meeting was unanimously carried. November 18, 1987: k. February 17, 1988: Bernard Mulvihill - No John Hoffner - No Daniel Zontek - No Robert Borgo - No Robert Zentner - Yes Thomas Mance - No Terry Painter - No Roy Eisaman - No Don Ewing - No A motion was then made by Hoffner, seconded by Eisaman, to have the same salary set at $150.00 per month for the an of at The Solicitor, Mr. Campfield, had prepared an amendment to the by -laws which provides for a vice chairman for each of the committees. A motion was made by Ewing, seconded by Mance, to adopt this amendment to the by -laws as presented. At a re- organizational meeting of the Authority, the following members were elected to officer positions: Robert Zentner - Chair John Hoffner - Vice Chair Don Ewing - Secretary Roy Eisaman - Treasurer Bernard Mulvihill - Finance & Budget Committee Chair Terry Painter - Grounds & Maintenance Committee Chair Thomas Mance - Insurance Committee Chair Daniel Zontek - Legal & Engineering Services Chair Robert Borgo - Personnel Committee Chair Joseph Mahkovec - Sludge Committee Chair Don Ewing made .a motion, seconded by Eisaman, to have zero salary per month for the next year. Roll call vote was taken and the vote failed by a vote of one to eight as follows: Boran, 87 -058 -C Page 9 coming year that motion passed by a vote of six to three as follows: Bernard Mulvihill - Yes John Hoffner - Yes Daniel Zontek - Yes Robert Borgo - Yes Robert Zentner - No 1. January 18, 1989: Mr. Mance was not reappointed to the Authority and his place was taken by Lawrence Chrzan. Mr. Chrzan was appointed Chairman of the Insurance Committee. m. February 15, 1989: Thomas Mance - Yes Terry Painter - No Roy Eiseman - Yes Don Ewing - No A reorganization meeting of the Authority was held, and the following members were appointed as officers: John Hoffner - Chair Terry Painter - Vice Chair Bernard Mulvihill - Secretary Roy Eiseman - Treasurer Robert Zentner - Grounds & Maintenance Committee Chair Robert Borgo - Personnel Committee Chair Don Ewing - Finance & Budget Committee Chair Lawrence Mahkovec - Sludge Committee Chair Daniel Zontek - Legal & Engineering Srvcs. Comm. Chair A motion was made by Mulvihill, seconded by Eiseman, to keep the compensation to officers at the same amount. Motion carried with two opposing votes by Zentner and Painter, with Mr. Zontek absent due to a phone call. n. March 15, 1989: At this time, Terry Painter expressed his opinion of an increase in compensation to the board members. A discussion ensued along with the solicitor stating legal remarks. Mr. Campfield explained that the basic resolution that amended the by -laws and created the various offices would have to be amended to provide that compensation could be changed or established at a time other than at the time of the annual reorganization meeting. Then a resolution would have to be adopted establishing the compensation. Terry Painter made a motion, seconded by Daniel Zontek, to pass a resolution to amend the original resolution upon the advice of the Borcro, 87 -058 -C Page 10 solicitor for correct language of the resolution. A roll call vote was taken: John Hoffner - No Don Ewing - Abstain Roy Eisaman - Yes Terry Painter - Yes A motion was made by Mr. Zontek, seconded by Mr. Chrzan to increase the compensation of officers from $150.00 to $300.00 per month effective April 1, 1989. A roll call vote was taken and the motion failed, due to four nays, two yeas and two abstentions, with the members voting as follows: Terry Painter - Yes Daniel Zontek - Yes Robert Borgo - No Joseph Mahkovec - No Daniel Zontek - Yes Robert Borgo - No Joseph Mahkovec - No Lawrence Chrzan - Yes Roy Eisaman - No Don Ewing - Abstain John Hoffner - No Lawrence Chrzan - Abstain 9. The members of the Authority Board voted monthly to pay the bills of the Authority, including compensation to Authority members serving in various positions. 10. Robert Borgo voted against the motion at the August 20, 1986, meeting. 11. The amendment to the by -laws of August 20, 1986, provided that officers of the Authority shall be compensated as determined by resolution adopted at the annual meeting of the board subsequent to the election of officers. (See Finding No. 8) 12. Payment to board members began in August 1986, and ceased in March, 1990. 13. Mr. Bofgo did not assume his offices in bad faith. 14. Mr. Borgo carried out the duties and services required of the offices held 15. The Municipality Authorities Act of 1945 provides in relevant part as follows: a. Members shall hold office until their successors have been appointed, and may succeed themselves, and except members of the boards of Authorities organized or created by a school district or school districts, shall receive such salaries as may be determined by the governing body or bodies of the municipality or municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the largo, 87 -058 -C Page 11 Since effective provisions Ethics Act member receiving the same shall have been appointed. 53 P.S. -U 309 B b. The board shall fix and determine the number of officers, agents and employees of the Authority and their respective powers, duties and compensation and may appoint to such office or offices any member of the board with such powers, duties and compensation as the board deem proper. 5B P.S. 1 309 C c. The Authority has the power: "To appoint officers, agents, employees and servants to prescribe their duties and to fix their compensation." 53 - P.S. 305 B(g) 16. The Ethics Act, Act 170 of 1978, P.L. 883, as amended, and relevant to these matters, provides in. Section 3(a) "No public official or public employee shall use his 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." III. DISCUSSION: As a member of the Western Westmoreland Municipal Authority, Robert Borgo, hereinafter Borgo, 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. the occurrences in this case transpired prior to the date of Act 9 (June 26, 1989), we must apply the of Act 170 of 1978, P.L. 883, to determine whether the was violated. Borgo, 87 -058 -C Page 12 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 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 Borgo as a member of the Western Westmoreland Municipal Authority, hereinafter WWMA, violated Section 3(a) of Act 170 of 1978 when he allegedly voted to set the salary of the WWMA board members. Factually, Borgo served on the WWMA since 1985. The WWMA is a municipal authority which was created by agreement between six municipalities: North Huntingdon Township, Borough of Irwin, Penn Township, Borough of Manor, Hempfield Township and Borough of North Irwin. The original by -laws of the WWMA provided for the traditional officers of chairman, vice - chairman, secretary, treasurer and assistant secretary /treasurer. However, the by -laws of the WWMA were amended whereby six additional officer positions were created bringing the total number of offices to eleven. None of the municipalities which comprise the appointing authority of WWMA took any action to compensate the WWMA board members. The minutes of the WWMA reflect the following actions'as to the appointment of officers and the setting of compensation. On February 19, 1986 an unsuccessful motion for a resolution was made by Zontek to designate each Member of the WWMA as an officer with compensation at $150.00 per month. The foregoing motion failed due to a tie 5 to 5 vote. However, on May 21, 1986, despite certain legal concerns of the solicitor, Painter asked the Chair to entertain a motion to authorize the solicitor for the best recommendation for allowing officers and board members to be compensated. Following a report of the proposed changes to the by- laws at a June 18, 1986 meeting of the WWMA, Painter at an August 20, 1986 WWMA meeting made a motion to adopt the amendments as recorded in the minutes of the June 18, 1986 meeting, including a December, 1984 amendment, which motion passed on a 8 to 1 vote with Zentner voting no. Another motion was made by Painter to fix the compensation for the officers at a rate $300.00 per month which motion passed on a 6 to 3 vote with Mulvihill, Painter, Johnson, Zontek, Mance and Ewing voting in favor of the motion and Borgo, Eiseman and Zentner voting against the motion. At a September 17, Borgo, 87 -058 -C Page 13 1986 WWMA meeting, a motion was made to reduce the compensation to $150.00 a month retroactive to August 1, 1986 and said motion carried by a vote of 6 to 2 with Mulvihill, Johnson, Eisaman, Ewing, Borgo and Zentner voting with the majority and Mance and Zontek voting no. However, Mance and Zontek changed their votes so that the motion carried unanimously. When a motion was made by Ewing on December 17, 1986 to rescind the action of paying board members at a rate of $150.00 per month, the motion failed by a 3 to 6 vote with Mulvihill, Painter, Johnson, Zontek, Borgo and Mance voting against the motion and Eisaman, Ewing and Zentner voting for the motion. At the February 18, 1987 WWMA meeting, a motion passed to set the compensation for board members serving as officers at $150.00 per month with all members except Zentner voting for the motion; at that meeting appointments were made to the traditional five officer positions. Appointments were made as to six committee officer positions at the May 19, 1987 WWMA meeting. After each member of the WWMA was elected to an officer position at the February 17, 1988 meeting, Ewing made a motion to have a zero salary per month for the following year which motion failed by an 8 -1 vote with only Zentner voting in favor of the motion. A subsequent motion for the same salary of $150.00 per month passed by a 6 -3 vote with Mulvihill, Hoffner, Zontek, Borgo, Mance and Eisaman voting for the motion and Zentner, Painter and Ewing voting against the motion. At the February 15, 1989 WWMA meeting, following the appointment of members to nine positions, the motion by Mulvihill to keep the compensation at the same amount carried with Zentner and Painter voting against the motion. When Painter indicated at the March 15, 1989 WWMA meeting that the compensation should be increased, the solicitor advised that the by -laws would have to be amended so that the compensation could be changed at a time other than at the reorganizational meeting. Painter made a motion to amend the original resolution which passed in a 4 -3 -1 vote with Hoffner, Borgo and Mahkovec voting no and Ewing abstaining; a motion by Zontek to increase officers compensation from $150 to $300 per month failed in a 2 -4 -2 vote with Painter and Zontek voting yes, Eisaman, Hoffner, Borgo and Mahkovec voting no and Ewing and Chrzan abstaining. The WWMA members voted on a monthly basis to pay the Authority bills including compensation to the board members in the various officer positions. Payment to board members began in August, 1986 and ended in March, 1990. Borgo did not assume his office in bad faith and carried out the duties associated with the offices held. At the August 20, 1986 meeting when the compensation was approved, Borgo voted against the motion. Borg°, 87 -058 -C Page 14 In applying the stipulated facts to Section 3(a) of Act 170 of 1978, we take note of Rebottini et al v. SEC, Pa. Commw. Ct. , 634 A.2d 743 (1993), allocatur denied SEC v. Rebottini, Painter, Rhodes and Mance, at 581 M.D. Allocatur Docket, 1993 on December 15, 1994, wherein Commonwealth Court affirmed our decisions which found that Thomas Mance, Order 862 and Terry Painter, Order 861 as members of the WWMA violated Section 3(a) of Act 170 of 1978 when they used office to vote themselves to officer positions with the WWMA: "The facts as found by the Commission show that the WWMA board members did more than just vote on their officer election and salaries. They created officer positions specifically to circumvent the § 7B requirement that board member salaries be set by the authority's governing bodies. This is an abuse of public office and is precisely the type of conduct which the Act was intended to prevent." Id at 747. In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the instant matter, we find that Borgo did not violate the Ethics Law because he voted against the motion at the August 20, 1986 meeting to set the compensation. Thus, without the requisite use of office to obtain a financial gain, which is here lacking, there is no violation of Section 3(a) of Act 170 of 1978. IV. CONCLUSIONS OF LAW: 1. Robert Borgo as a Member of the Western Westmoreland Municipal Authority Board is a public official subject to the provisions of Act 170 of 1978. 2. Borgo did not violate Section 3(a) of Act 170 of 1978 regarding the receipt of compensation as a WWMA board member in that he voted against the motion at the August 20, 1986 meeting to set the compensation. In re: Robert Borgo : File Docket: : Date Decided: . Date Mailed: ORDER NO. 957 BY THE COMMISSION, 87 -058 -C 02/23/95 03/31/95 1. Robert Borgo, as a Member of the Western Westmoreland Municipal Authority Board, did not violate Section 3(a) of Act 170 of 1978 regarding the receipt of compensation as a WWMA board member in that he voted against the motion at the August 20, 1986 meeting to set the compensation. cO&Ismi E &ij1J DANEEN E. REESE, CHAIR