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HomeMy WebLinkAbout865 Johnson-SchusterSTATE 308 ETHICS COMMISSION FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: File Docket: 87 -064 -C Barbara Johnson - Schuster Date Decided: September 15, 1992 . Date Mailed: October 8, 1992 Before: James M. Howley, Daneen E. Reese, Roy W. Wilt Austin M. Lee Allan M. Kluger Chair Vice Chair 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 deemed waived. The record is complete. 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 S2.38. 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). Johnson- Schuster, 87 -064 -C Page 2 I. ALLEGATION: That Barbara Johnson, 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 she voted to.set_her salary in 1986 and 1987 as a Board Member of the. Western Westmoreland Municipal.Authority. II. FINDINGS: 1. Barbara Johnson served as an:appointed of the Western Westmoreland Municipal Authority. a. .Mrs. Johnson has served - -.n ti;is".position since 1986 until the end of the year. b. Mrs. Johnson represents Manor Borough on the Authority. 2. The Western Westmoreland Municipal Authority 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 Bush 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 5) Hempfield Township 6) Borough of North Irwin • c. The agreement between the above identified u 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. The terms of office for the first appointees were as follows: 1) Township of North Huntingdon, -5 Years, . 3 Years, 1 Year Johnson - Schuster, 87 -064 -C Page 3 2) Borough of Irwin - 5 Years, 3 Years 3) Township of Penn - 4 Years, 2 Years 4) Borough of Manor - 4 Years 5) Borough. of North Irwin 1 Year 3. The by -laws of the Western Westmoreland ;,Municipal Authority originally provided the =following in relevant part: ARTICLE II - OFFICERS Section: 1 . - Officers: 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 Authority. Section 2 Chairman: The- Chairman:shall. at all meetings of the Board of the Authority. Except otherwise authorized by resolution of the Board of Authority, the chairman shall sign all contracts, deeds, and other instruments made by the Authority. At each meeting, the chairman shall submit such recommendations and information as he may consider proper concerning the business, affairs, and policies of the Authority. Section 3 - Vice Chairman: The vice chairman shall perform the duties of the chairman in the absence' or incapacity of the chairman; and in case of the resignation or death of the chairman, the vice chairman shall perform such duties as are imposed on the chairman until such time as the Board of the Authority shall appoint a new chairman. Section 4 - Secretary: The 'secretary shall keep the records of Authority, shall act as for the meetings of the Board of the Authority and record all votes, and shall keep a record of the proceedings of the Board of the Authority in a journal of proceedings to be kept for such purpose and shall perform all duties incident to his office. He shall keep in :safe custody the seal of the Authority, and shall have power to affix such seal to all proceedings and resolutions of the Board of the Authority and to all contracts and instruments authorized to be executed by the Authority. Johnson- Schuster, 87 -064 -C Page 4 Section 5 - Treasurer: The treasurer shall have the care- and custody of all funds of the Authority and . shall deposit the same in the name of the Authority in such bank -or banks as the Board of the Authority may select. The, treasurer shall sign all orders and checks for the payment money, and shall pay out and disburse such moneys under the direction of the Board of the. Authority. Except . as otherwise authorized by resolution of the Board of the Authority, all such orders and :checks shall be countersigned by the chairman. He shall, keep ,reguiar.ibooks. of accounts showing receipts and expenditures, and shall render to the Boa -rd of the Authority .• at- each regular meeting (or more often when requested an -of his transactions and also of the financia1. of the Au thority. He shall give such bond for the faithful performance of his duties as the Board of the Authority may determine and pay for. Section 6 Assistant Secretary /Treasur-er: The assistant secretary /treasurer shall perform all duties of either the secretary or treasurer in the absence or incapacity of the secretary or,treasurer, the assistant shall perform such duties as are imposed upon such deceased or resigning secretary or treasurer until such time as the Board of the Authority shall appoint a new secretary or treasurer. • Section 7 - ;Additional Duties: The officers , .,of the Authority shall perform such other duties and functions as may from time to time be required by the Board of the Authority or the by -laws or rules and regulations of the Authority. Section -10 - Additional Personnel: The Authority may from time to time employ such personnel as it deems necessary to exercise its powers, duties and functions, as prescribed -by the Municipality Authorities Act of ,1945, as amended, of_ and all other laws of the Commonwealth of- Pesylvania,, applicable thereto. The selection and compensation of such personnel shall be determined by the Board of the Authority subject to the , laws H of the Commonwealth of Pennsylvania. ARTICLE V - AMENDMENTS Johnson- Schuster, 87 -064 -C Page 5 Section 1 - Amendments to By .-Laws: 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. 4. The above by -laws were subsequently amended by Authority board members. (See Finding No. 20[d].) 5. As a result of such-' amendment, six - additironal officer positions were created " bringing the total number of offices to ten; one position for 'each bbard member. (See Finding No. 20[c).) 6. On July 1985, Township Board seconded by -Mrs. Mahkovec to the Authority. by way of Resolution Number 47, the Penn .of Commissioners on motion of Mr. Cortazzo, Painter, reappointed Robert Borgo and Joseph Board of the Western Westmoreland Municipal 7. Minutes of the North Irwin Borough Council meetings indicate the following regarding the appointment of a representative to the Western Westmoreland Municipal Authority: a. January 3, 1984: Mr. Cannata made .a motion to__appoint Robert. Zentner as the borough's representative to WWMA for a five year term. Rifer seconded; all agreed. b. December 12, 1988: Zontek made a motion to re- appoint all individuals whose terms are expiring_; .including. Robert Zentner to WWMA, for five years. Seconded by Towler; with all members agreeing. 8. By way of letter dated December 8, 1986 to Robert W. Zentner, North Irwin Borough Council President, Leonard H. Santimyer, requests that -Mr. Zentner offer a motion that the Authority eliminate the $150.00 monthly salary of Authority members. 9. By way of letter dated January 15, 1987 to Robert W. Zentner, From Leonard L. Santimyer, North Irwin Borough Council President, Mr. Santimyer expressed his appreciation of Mr. Zentner's motion at a December 17, 1986 WWMA board meeting to eliminate the salary of board meetings. Johnson- Schuster, 87 -064 -C Page 6 10. The members of - the North Irwin Borough never intended the position of borough representative to the Western Westmoreland Municipal Authority td be a compensated position. 11. Minutes of the meetings of the Irwin Borough Council indicate the following in 'relation to the appointment of a representative to the Western Westmoreland Municipal Authority: a. February 14, 1983: Mr. Cooper made "a.motion appoint Roy Eisaman to the WWMA term to expire 12/31/87. Seconded by Mr. Meredith; motion carried 6 -0 .:. r . • b. March 10, 1986: Mr. Rose made a motion to - appoint Bernard H. Mulvihill as the Borough Representative to the WWMA term to expire 12/31/90. Seconded 'by Mr. Geiger; carried 5 -0. c. February 8, 1988: Mr. Kaberer made motion to appoint Roy Eisaman as the Borough Representative to WWMA term to expire 12/31/90. 12. The Irwin Borough Council has never'taken any official action to approve compensation for the members of the Western Westmoreland Municipal Authori:ty including the Representatives from Irwin Borough, Roy Eisaman an Bernard Mulvihill. 13. Minutes of the meetings of the Manor Borough council members indicate the following in relation to the appointment of Borough representatives to the Western Westmoreland Municipal Authority: a. February 5, 1986: Council unanimously appointed Mrs. Barbara Johnson as the representative to WWMA for four years The secretary was instructed to notify WWMA of this decision. b. May 7, 1986: Barbara Johnson's'appointment was made incorrectly; Ms. Johnson is appointed until 1 (not to a 4 year term as previously reported). c. October 1, 1986 Barbara Johnson reports that a tentative agreement with Johnson - Schuster, 87 -064 -C Page 7 WWMA and the Personnel Committee has been WWMA board members will be receiving $150 compensation for their services. WWMA is trying to define the interceptor lines in all municipalities. d. January 7, 1987: Due to the expired term of Barbara Johnson, as the Borough Representative to. the WWMA, council unanimously appointed Mr. John Heffner to the WWMA effective immediately for a four year term. The secretary was instructed to notify WWMA of the appointment. 14. Manor Borough Council never took any official action in regard to approving compensation for the members of the Western Westmoreland Municipal Authority including the Representatives from Manor Borough Barbara Johnson and John Heffner. 15. Minutes of the Hempfield Township Board of Supervisors indicate that on December 31, 1976,' supervisors unanimously adopted Ordinance Number 71 -29: a. The ordinance signified the desire and intention of the township to organize a joint authority under the Municipality Authorities Act of 1945 to be known as the Western Westmoreland Municipal Authority; appointing members to the authority board; and setting further the proposed articles of information. b. The following individuals were identified in the ordinance as the WWMA board members: Name Edward J. Klotz Robert T. Lindsay Joseph Manvele John R. Stude Bainey Slotnick Raymond Taylor Donald G. Schirer Robert L. Rebottini Kenneth J. Attman John McKeever North Huntingdon Penn Irwin .Penn Irwin N. Irwin Hempfield North Huntingdon Manor North Huntingdon reached. .00 per month and carrier Municipality Term 1 2 3 4 5 1 2 3 4 5 16. Minutes of the Hempfield Township Board of Supervisors indicate that on February 14, 1972, the supervisors unanimously adopted Ordinance Number 72 -1: JoI} nson- Schus ter , 87 -064 -C Page 8 a. This ordinance was similar to Ordinance 71 -29. 17. Minutes of the Hempfield Township Board of Supervisors meeting of March 3, 1980 indicate that Mr. Ewing was appointed to fill a vacancy on the Western Westmoreland Municipal Authority. 1`$. The Hempfield Township Board of Supervisors neder took any action to approve compensation for the members of the Western Westmoreland Municipal Authority including the representatives of Hempfield Township. 19. Minutes of the meetings 'the North Huntingdon Township Commissioners indicate the following in relation to the appointment of representatives to the Western Westmoreland Municipal Authority: . January 9, 1980: Present: Gross, McCabe, Hagan, Batley, Beatty, Abbott and Tempero A resolution of the North Huntingdon Township Commissioners in regard to the appointment of a North Huntingdon Township Municipal Authority .Board Member to the Board of the Western Westmoreland Municipal Authority recommended to the Board -of Commissioners that Daniel -E. Zontek be appointed' to the next-available position on the Board of the Western Westmoreland Municipal Authority to be filled by a representative from the Township of North Huntingdon. Mr. Tempero, a Commissioner, states: With reference to the Western Westmoreland Municipal Auth.o ity, and due to the fact that Donald Glenn has not been attending meetings and in fact has' almost every meeting since his appointment to the Authority, the will entertain a motion that, his seat on the Western Westmoreland Municipa,l`Authority be made "vacant by the removal of ``Mr. "`Donald Glenrr" ` for cause, and a new member be appointed-to f ilF tire vacancy for the - Unexpired term. That motion passed and was immediately followed by a motion by Mr. Batley, seconded by Mr. Abbott, to the effect that Mr. Zontek be .appointed' to' the Western Westmoreland Municipal Authority Board to fulfill the unexpired term of Mr. Donald Glenn. That motion carried 7 to 0. b. September 10, 1980: Present: Gross, McCabe, Hagan, Batley, Beatty, Abbott J®tinson- lchuster, 87 -064 -C Page 9 and Tempero A letter from a Mr. Daniel. E. Zontek, which states, effective immediately, I am resigning from the Western Westmoreland Municipal Authority. At the time I accepted this appointment, the commitment on my time was such that I could not devote the necessary time to effectively represent the township on this Authority. Business commitments and family commitments have prevented me from fulfilling this obligation. There was then a motion by Mr. Abbott, seconded by Mr. Batley, to accept the resignation of Mr. Zontek from the Western Westmoreland Municipal Authority, .effective immediately. Motion carried, 6 -0. c. January 3, 1984: A motion by Mr. Batley, seconded by Mr. Abbott, to appoint Mr. Thomas Mance to the WWMA for a five year term. Ayes: Tempero, Gross, Hogan, Batley, Ludwicki, Abbott and Beeler d. June 13, 1984: A motion by Mr. Tempero, seconded by Mr. Ludwicki, to appoint Donald Rhodes to fill the unexpired term of John McWalter on WWMA. Ayes: Tempero, Beeler, Hogan, Batley, Ludwicki, Abbott and Pointer e. January 9, 1985: Present: Tempero, Beeler, Hagan, Batley, Ludwicki, Abbott and Painter A motion by Mr. Abbott, seconded by Mr. Ludwicki, to appoint Mr.- Zontek to the Western Westmoreland Municipal Authority for the term that expires December 31, 1987. Motion carried, 7 -0. f. January 6, 1986: Motion by Abbott, seconded by Ludwicki, to nominate Terry L. Painter to the WWMA for a five year term. Ayes: Hagan, Batley, Ludwicki, Abbott and Beeler No: Tempera and Gross Johnson- Schuster, 87 -064 -C Page 10 g• January 4;'1988: Present: Tempero, Furlin, Huberle, Batley, Ludwicki, Abbott and Hagan A motion by Mr. Batley, seconded by Mr. Abbott, that Mr. Zontek be appointed to a five year term on the Western Westmoreland Municipal Authority. That motion carried 6 to with Mr. Tempero voting no h. June 12.:1990: Present: 'Tempero; Furlin, Phillips, Batley, Krause, Abbott and Auberle Appointment to the'lWestern Westmoreland Authority: Mrs. Petrosky stated that this item was to fill the vacancy created by the resignation of Mr. Zontek to the Westmoreland Municipal Authority. Mr. Zontek's term would have expired on December 31, 1992. 20. Minutes' of the Western Westmoreland Municipal Authority meetings indicate the following in relation to the instant situation: a. February 19', 1:9861 Mr. Mance nominated Mr. _ Zentner "for Chairman; the motion carried unanimously. Terry 'Painter':aas'nominated by Thomas Mance for Vice Chairman and-that carried .unanimously. • Roy Eisaman nominated - Samuel Heasley for the position of Treasurer and that motion carried unanimously. Mr.'Eisaman nominated Barbara:Balcerek for the of Assistant - Secretary- Treasurer; Mr. Mace nominated Johnson for this position. Discussion ensued. Board members Heasley, Borgo, Eisaman, 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 meitcbers . A motion wwas made 'by Zontek, - seconded by Painter, authorizing the solicitor to.' prepare a resolution designate each member'of the authority as an officer and compensation to-them would be $150.00 a month. Mr. Iiahkovec 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: Johnson- Sc4uster, 87 -064 -C Page 11 Samuel Heasley - No Barbara Johnson Yes Daniel Zontek - Yes Joseph Mahkovec - No Robert Borgo - No June 18, 1986: c.. Thomas Mance - Yes Terry Painter - Yes Roy Eisaman - No Don Ewing - Yes Robert Zentner - No b. May 21, 1986: . 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. 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,.Sec 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. 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 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. 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 Bernard Mulvihill - Yes Barbara Johnson - Yes Robert Borgo - No Thomas Mance - Yes Robert Zentner - No Johnson- SchuEtter, 87 -064 -C Page 12 exception of the assistant secretary /treasurer, shall be members of the board of the Authority. No person shall hold mote 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; 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. 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 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. A motion was then made . by-Terry Painter, seconded by Daniel Zontek, for officee 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. The chairman called for a roll call vote on a motion presented by Mr. Painter, and a motion passed the vote being 6 yeas and 3 nays as follows: Terry Painter - Yes Daniel Zontek - Yes Roy Eisaman - No :Don :Yes e. September 17, 1986: A number of individuals present at the meeting questioned the board about the reasons: for the compensation Johnson - Schuster, 87 -064 -C Page 13 authorized for board members. 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 years and nays as follows: g- Bernard Mulvihill - Yes Barbara Johnson - Yes Daniel Zontek: ?. No Robert. Borgo Yes At this time, Mr. Zontek and Mr. Mance changed their nay votes to yes votes, and the motion passes unanimously. f. November 19,.1986: A motion to pay expenditures including board member compensation_totaling was $1,295.10 (net was made by Mr. Eisaman seconded by Mr. Borgo. The - motion carried 8- 1 with Mr. Mulvihill being the opposing vote. December 17, 1986: 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 Eisaman, 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 Thomas Mance Roy Eisaman - Yes Don Ewing Yes Robert Zentner - Yes Terry Painter - No Roy Eisaman -,Yes Don Ewing - yes Robert Zentner - Yes h. February 18, 1987: A reorganization meeting of the Authority board was held. The following members were appointed to officer positions: Robert Zentner - Chair No Johnson - Schuster 87 -064 -C Page 14 John Hoffner - Vice Chair Don Ewing - Secretary Roy Eisaman - Treasurer Barbara Balcerek - Assistant Secretary /Treasurer A motion was made by Painter, seconded by Eisaman, 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. I. October 21, 1987: The solicitor stated that he was instructed to prepare an amendment to the by -laws to provide -for- the position of Committee Vice- Chair. A motion to amend the by -laws at the next meeting was -unanimously' carried. November 18, 1987: The Solicitor, Mr. Campfield, 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. k. February 17, 1988 : 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 - Inturance Cdthmittee Chair Daniel Zontek - Legal & Engineering Services Chair Robert Borgo - Personnel Committee Char . Joseph Mahkovec - Sludge Committee Chair Don Ewing made a motion, ~ S 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: Bernard Mulvihill - No John Hoffner - No Daniel Zontek - No Robert Borgo - No Thomas Mance - No Terry Painter - No Roy Eisaman - No Don Ewing - No Johnson - Schuster, 87 -064 -C Page 15 Robert Zentner - Yes A motion was then made by Hoffner, seconded by Eisaman, to have the same salary set at $150.00 per month for the 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: Thomas Mance - Yes Terry Painter - No Roy Eisaman - Yes Don Ewing - No 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: 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 Eisaman - 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 Eisaman, to keep the compensation . to officers at the same amount. Motion carried with two opposing votes by Zentner and Painter. 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 Johnson - Schuster, 87 -064 -C Page 16 motion, seconded by Daniel Zontek, to pass_ a resolution to amend the original resolu upon the.'advice of the solicitor for correot language of the resolution. A roll call vote was taken: John Hoffner - No Don Ewing - _Abstain RoyEisaman - Yes Terry Painter Yes • Daniel Zontek - Yes Robert Borgo - No Joseph Mahkovec - No Lawrence Chrzan - Yes 21. The members of the Authoprity Board voted monthly to pay bills including their compensation. 22. Records of the Western Westmoreland - Municipal Authority indicate that Barbara Johnsen was compensated`in accordance with the foregoing as follows: Year Amount 1986 $750 TOTS $750 23. The above was based upon a compensation rate of $150.00 per month as established by the authority members (see Findings 21[a] & [e])• 24. This compensation was not based upon'` attendance at meetings or services rendered but was rather automatically paid to each Authority member regardless of attendance or service. 25. One Authority Board Member, "J'oseph H. Mahkovec, was incapacitated for an` extended Period of time and did not attend any board meetings during period. 26. The amendment to the by -laws of May 21, 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 Findings 21[b], [c] &[d]). 27. Regardless of the above payment . board ' members began in August 1986. 28. There was no change in the functions, duties and responsibilities of Authority members after the amendment to the by -laws through which the additional committee positions were created. '.. 29. There were no position descriptions for the six additional positions other than those as set forth in the amendment to Johnson- Schuster, 87 -064 -C Page 17 the by -laws; such function being presiding over committee meetings - and reporting the result and recommendations thereof to the Authority board '(see Finding No. 21(c]). 30. 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'deter;ained 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 bodies' wring the term for which the member receiving the same.shall have been, appointed. 53 P.S. 5309B 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. 53 P.S. 5309C. 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. §305B(g) III. DISCUSSION: As a member of the Western Westmoreland Municipal Authority, Barbara Johnson- Schuster, hereinafter Johnson, is a public official as that term is defined in the tthics Act, 65 P.S. S402; 51 Pa. Code §1.1. As such, her conduct is subject to the provisions of the Ethics Act and the restrictions therein are applicable to her. 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." Johnson- Schuster 87 -064 -C Page 18 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. Qt. 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 issue before us is whether Johnson as a member of the Western Westmoreland 'Municipal Authority, hereinafter WWMA, violated Section 3(a) of Act 170 of 1978 when she voted in 1986 to set the salary of the WWMA board members. Factually, Johnson was appointed to ,the WWMA on February 5, 1986 to complete a term ; which expired on - December 31, 1986, by Manor Borough which never took any official action in regard to approving compensation for WWMA board members. (Fact Findings 13, 14). The WWMA is, a municipal authority which was created by agreement between -six-, municipalities (Fact Finding 2b). 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 so that each of the ten members of the Board of WWMA would serve in one and only one of ten designated officer positions. (Fact Finding 5). In a letter dated December 8, 1986, the president of North Irwin Borough Council, one of the participating members of the WWMA, requested that their appointee., Mr Zentner, offer a motion that the WWMA eliminate the monthly salary for Authority. Members. (Fact Finding 8). In a follow -up letter dated. January 15, 1987 to Mr. Zentner, the North Irwin Borough,COuncil president expressed his appreciation to Zentner for making the motion at a December 11, 1986 WWMA board meeting to eliminate such salaries for Board Members. (Fact Finding 9). The minutes of the WWMA reflect the following actions On February 19, 1986, Johnson voted in favor of an unsuccessful ;motion by Zontek, seconded by Painter, for a resolution to designate each Johnson - Schuster, 87 -064 -C Page 19 Member of the WWMA as an officer with compensation at $150.00 per month. The foregoing motion failed to due to a tie 5 to 5 vote. However, on May` 21, 1986, Painter made a motion to authorize the solicitor for the best recommendation for allowing officers and board members to be compensated which motion was seconded by Mulvihill and carried unanimously. At this meeting, the solicitor questioned whether such compensation would pass a legal challenge and Painter indicated "that the vehicle for simplicity would be for documentation that all board members would be officers ". (Fact Finding 20b). Following the submission of proposed amendments to the by -laws at a June 18,'1986•meeting of the WWMA, Terry Painter at an - .August 20, 1986 WWMA meeting made a motion to adopt the amendments as drafted by the solicitor which motion was seconded by Zontek and passed on a 8 to 1 vote with. Johnson voting with the majority. A second .motion was made by Painter to fix the compensation for the offices at a - rate $300.00 per month which motion passed on a 6 to 3 vote with Johnson voting in favor of the motion. At a September 17, 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 Johnson voting with the majority. 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 Johnson voting against the motion. In applying the provisions of Section 3(a) of Act 170 of 1978 quoted above to the instant:matter, we find that Johnson violated the Ethics Law by voting in favor of motions to create so- called officer positions and set the- compensation for such positions. ee, Abraham, Order No. 827; Koe sch, -Order No. 828; and Abbott, Order No. 829. It is clear that there has been a use of office by Johnson in voting in favor of these various motions. As a result of such use of office, Johnson received a financial gain consisting of the compensation which she received on a monthly basis as a result of her voting in favor of the successful motion to set such compensation. Lastly, the financial gain received was other than compensation provided for by law. On this issue, it is necessary for us to review the Municipality. Authorities Act to determine whether the compensation was other than provided for in law. Although it is true that the Municipality Authorities Act does allow a municipal authority board to fix and determine the number of officers and appoint board members to those offices (53 P.S. 5309C) and further provides that the authority may appoint officers and fix their compensation (53 P.S. §305B(g)), the setting of the `compensation for the board members themselves must be set by the governing authority as per 53 P.S. 5309B. In the context of the WWMA, it is clear that the board members were trying to fix their compensation as board members. (Fact Finding 20b). However, when the solicitor stated that such action was not in conformity with Section 309 of the Municipality Johnson - Schuster, 87 -064 -C Page 20 Authorities Act, a scheme was proffered by Painter whereby all board members would be designated as officers who would then be compensated. The foregoing "vehicle fbr simplicity" as described by Painter was clearly a means to circumvent the restrictions - of the Municipality Authorities ; Act so that the ; WWMA and not ,the appointing authorities could fix, the compensation of board members. Through the machination of adding, officer labels to all of the ten WWMA board members, the plan was for to set the salaty'of its board members through the "vehicle" of officer positions. In this context we must look at the substance over. form. Baehr Brothers v. Commonwealth of Pennsylvania, 487 Pa. 233, 409 A.2d 326 (1977);. It is clear from the,record before us that the substance of this transaction was fot _the WWMA authority' board members to receive compensation by their' own desi,n and in order to achieve that result the WWMA board = used the "vehicle" of the officer positions.. Thus, although the form of the transaction was the utilization of the so- called officer positions, the substance was the WWMA board compensating its board,mentbers in derogation - of the Municipality Authorities - Act which'Trequirs that such action be done by the appointing Having found that the substance of the. WWMA board action was to use a "vehicle to compensate authority= members through so- called officer positions, it is clear that such is not compensation which is provided for by law. In fact, such compensation is strictly prohibited by the Municipality Authorities Act, 53 P.S. S309B. Therefore, Johnson did use public office by voting to obtain a financial gain consisting of compensation which was other than provided for by law in violation of Section 3(a) of Act 170 of 1978. Although it is clear from the record that Painter instigated the circumvention of the requirements of the Municipaly Authorities Act and Painter went on record in the minutes that the WWMA board members should be compensated, despite the advice from the solicitor, Johnson and other board members readily accepted and participated in the scheme to have board members compensated. Johnson, Painter and the other WWMA members created officer positions for the WWMA and had the board members appointed to those so called officer positions; through that machination the WWMA board members could compensate themselves. We find such conduct to be particularly unconscionable given the fact that the solicitor at that time specifically advised that authority board members could not vote to compensate themselves which was contrary to the Municipality Authorities Act. Given the fact that such a course of conduct occurred and continued, despite the strong concerns raised by the solicitor, it is indicative of a blatant disregard of the Municipality Authorities Act as well as the Ethics Law. The ability of this Commission to impose restitution has been upheld by Commonwealth Court in Yacobet v. State Ethics Commission, Johnson- Schuster, 87 -064 -C Page 21 supra. Giving consideration to the egregious nature of such conduct, coupled with Johnson and other WWMA members going forward despite the solicitor's misgivings, we conclude that restitution is appropriate in the instant matter. Accordingly, we direct Johnson to forward a check to this Commission payable to the WWMA in the amount of $750.00 within thirty (30) days of the issuance of this Order. Failure to comply with the directive of this Commission will result in the directive to institute an order enforcement action. 111. CONCLUSIONS OF LAW: 1. Barbara Johnson as a Member of the Western Westmoreland Municipality Authority Board was apublic official subject to the provisions of Act 170 of 1978. • 2. Johnson violated ".Secti.on 3(a) of Act 170 of 1978 by using public office through_ voting in favor of motions which effectively set the salary of the WWMA board members which compensation was other than provided for by law, being prohibited by the Municipality Authorities Act, 53 P.S. $309B. 3. The financial gain received by Johnson in violation of Section 3(a) of Act 170 of 1978 amounted to $750.00. In re: Barbara Johnson - Schuster : File Docket: 87 -064 -C : Date Decided: September 15, 1992 Date Mailed: October 8, 1992 ORDER NO. 865 1. Barbara Johnson as a Member of the Western Westmoreland Municipality Authority Board violated Section 3(a) of Act 170 of 1978 by using public office through voting in favor of motions which effectively set the salary of the WWMA board members which compensation was other than provided for by law, being prohibited by the Municipality Authorities Act, 53 P.S. 5309B. 2. The financial gain received by Johnson in violation of Act 170 of 1978 amounted to $750.00. 3. Johnson is directed within thirty (30) days of the issuance of this Order to forward a check or payment to this Commission payable to the order of the Western Westmoreland Municipal Authority in the amount of $750.00. 4. Failure by Johnson to comply with the provision of paragraph 3 will result in a directive of this Commission to institute an order enforcement action. BY THE COMMISSION, Commissioner Austin M. Lee did not participate in this matter.