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HomeMy WebLinkAbout869 BlossSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG. PENNSYLVANIA 17120 In Re: Floriana M. Bloss : File Docket: 92- 004 -C2 Date Decided: December 10, 1992 Date Mailed: December 15, 1992 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Dennis C. Harrington Roy W. Wilt Austin M. Lee Allan M. Kluger The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. §401 et. seq. 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 held. 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 §2.38. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h) 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). Bloss, 92- 004 -C2 Page 2 I. ALLEGATION: That Floriana M. Bloss, a Commissioner for Montgomery County, violated the following provisions of the State Ethics Act (Act 9 of 1989), when she seconded the motion and then voted to appoint herself to a $45,525, a.year, position with the Montgomery County Board of Assessment Appeals. 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 a business with which he or a member of his immediate family is associated. 65 P.S. §402. Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. S403(a). II. FINDINGS: A. PLEADINGS: 1. Floriana M. Bloss was appointed to fulfill an unexpired term and served as a Montgomery County Commissioner from November of 1989 to January 3, 1992. a. Bloss lost her bid for election in the primary election in May, 1991. 2. The Montgomery County Board of Assessment Appeals is responsible for conducting public hearings to determine the fair market value of an appellants' real or personal property and to extrapolate the assessment as per the General County Assessment Law. loss, 92- 004 -C2 Page 3 3. The three members of the Montgomery County Board of Assessment Appeals are appointed by the Montgomery County Board of Commissioners. 4. Members of the County Board of Assessment Appeals are paid a salary which is set by the Montgomery County Salary Board. a. The Salary Board is made up of the three County Commissioners, the County Controller and, if appropriate, the head of the department or agency to which the employee is assigned. 5. Board of Assessment Appeals Member Charles reappointed to that position, in September term was scheduled to 6. On December 19, 1991 the Montgomery Commissioners appointed Dennis Sharkey to D. Garner was not of 1991, when his County Board of fill the vacancy. 7. On December 19 1991 the Montgomery County Salary Board Sharkey's salary at $40,000 a year. a. Floriana Bloss, as a member of the Salary Board, voted to approve Sharkey's salary. 8. Board of Assessment Appeals Member Andrew Y. Michie submitted his resignation from the Board on December 3, 1991. a. Michie set December 30, 1991 as the effective date of his resignation. 9. Bloss first decided to seek a position on the County Board of Assessment Appeals subsequent to the May of 1991 primary after a defeat in her bid for election to the position of County Commissioner. 10. Bloss notified Board of Commissioners Chairman Paul B. Bartle that she was interested in the position on the Board of Assessment Appeals. 11. Bloss conferred with County Solicitor Frederic M. Wentz who informed her that she could vote to appoint herself to the position if she followed the procedure outlined in Section 403 (j) of the Ethics Act. a. This advice was not in writing. (1) By letter dated March 24, 1992 to Bloss's counsel, Wentz outlined his recollection of the advice he had given. set Gloss, 92- 004 -C2 Page 4 b. Wentz supplied a photocopy of Section 3(j) of Act 9 of 1989 to Gloss prior to any vote. 12. The Board of County Commissioners met on December 19, 1991. a. One of the items on the Board's agenda was to fill the vacancy created by Michie's resignation. 13. County Commissioner Bloss, in a letter dated December 19, 1991 to the Secretary of the Board of Commissioners, stated the following: I am interested in becoming a member of the Montgomery County: Board -of Assessment Appeals. Members of :this board receive a salary from Montgomery County so I believe it could constitute a conflict of interest if, as Commissioner, I vote for my appointment to that position. Consequently, I will abstain from voting unless I am requested to vote to break a tie on the Board of Commissioners. 14. The matter of Bloss' appointment was brought up by Chairman Bartle. 15. Bloss informed the Board that she was interested in becoming a member of the Board of Assessment Appeals and then read the letter which she stated was delivered that morning to the Secretary of the Board and to the Chief Clerk. 16. Bartle made a motion to appoint Bloss to the position. 17. Bloss seconded the motion. 18. Bloss abstained from voting on the matter. 19. Commissioner Rita C. Banning voted "NO" on the motion. 20. Bartle voted "YES" on the motion and declared the vote a tie. a. Bartle informed Bloss that she was now permitted to vote to break the 21. Bloss voted "YES" and the motion carried. 22. Gloss, in a letter dated December 19, 1991, to the Secretary of the Salary Board, stated the following: I have been appointed- a member of the Montgomery County Board of Assessment Appeals. Members of this board receive a salary from Bloss,, 92- 004 -C2 Page 5 Montgomery County as set by the Salary Board so it would constitute a conflict of interest if I vote on my salary for that position. Consequently, I will abstain from voting unless I am requested to vote to break a tie vote. 23. Bloss' salary was set at $45,525 a year the Salary Board, with her abstaining. 24. The Salary Board met on January 16, 1992 to reset her salary at $40,000 a year. 25. Bloss' term on the Board of Assessment close of the business day on January 3, to run until December 31, 1995. , by a 3 to 1 vote of and voted unanimously Appeals began at the 1992 and is scheduled B. TESTIMONY: 26 Paul Bartle was a Montgomery County Commissioner from 1980 to 1991. a. Bartle, as Chairman from 1983 to 1991 presided over board meetings. b. Under the practice of the Montgomery County Board of Commissioners, no motion or second requirement existed for voting on nomination. c. As to the appointment of Bloss to the Board of Assessment Appeals, Bloss initially abstained on the. vote. 1. The first vote was one -to -one with Bartle voting in favor and Mrs. Banning voting in opposition to the Bloss appointment. d. When Parkhouse was Chairman of the Board, a second was utilized after a motion was made. e. Members of the Board of Assessment are compensated. 27. Frederick Wentz was the Solicitor for Montgomery County a. legal interpretation of Section 3(j) of Act 9 of 1989. b. As to the appointment of Bloss, she prepared a letter memorandum disclosing her conflict. c. Bartle made the motion for the Bloss appointment. between 1980 and 1992. Wentz advised Bloss about his Bloss, 92- 004 -C2 Page 6 1. Bloss seconded the motion of Bartle. 2. The vote on the motion produced a deadlock with Bartle voting yes and Banning voting no. d. Bartle called upon Bloss to break the tie as to her appointment. 1. Bloss voted for herself to break the tie. e. The Bloss appointment carried no salary until action was taken by the salary board. 1. Bloss abstained on the vote to set her salary by the five member salary board. f. Montgomery County Commissioners never adopted rules of procedure. 1. Even under Robert's Rules, a second is not required for a nomination. 2. The practice of the Board was to use seconds for motions. g. Members of the Board of Assessment Appeals are traditionally accorded a salary after appointment. III. DISCUSSION: As a Commissioner for Montgomery County, Floriana M. Bloss, hereinafter Bloss, was a public official as that term is defined under Act 9 of 1989. 65 P.S. §402. As such, her conduct is subject to the provisions of the Ethics Law and the restrictions therein after applicable to her. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired after the Sloss, 92- 004 -C2 Page 7 effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest. Section 3(j) of Act 9 of 1989 provides: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure Shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes'the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 P.S. S403(j). The allegation before us is whether Bloss as a Montgomery County Commission violated Section 3(a) of Act 9 of 1989 when she seconded a motion and then voted to appoint herself to the position of Montgomery County Board of Assessment Appeals. Bloss, 92- 004 -C2 Page 8 Factually, Bloss was appointed to fulfill an unexpired term on the Montgomery County Board of Commissioners and served from November 1989 to January 3, 1992. When Bloss lost her bid for election in the May 1991 primary, she expressed an interest in becoming a Member of the Montgomery County Board of Assessment Appeals. The Members of the County Board of Assessment Appeals are paid a salary which is set by the Salary Board made up of the three County Commissioners, the County Comptroller and, where appropriate, the head of the department or agency to which the employee is assigned. After Bloss notified the Chairman of the Montgomery County Board of Commissioners, Paul B. Bartle, of her interest in the position on the Board of Assessment Appeals, she conferred with County Solicitor Frederic M. Wentz who informed Gloss that she could vote for her own appointment to the position provided she follow the procedures outlined in Section 3(j) of the Ethics Law. At the December 19, 1991 meeting of the County Board of Commissioners, one of the items on the agenda was an appointment to fill the vacancy created by resignation of Assessment Appeals Member Andrew Y. Michie. At that meeting, Bloss gave a letter to the secretary of the Board of Commissioners which stated that Bloss was interested in the position but would have a conflict so that she would abstain from voting unless requested to vote to break a tie. After Chairman Bartle brought up the matter of the vacancy and made a motion to appoint Bloss to the position, Bloss seconded the motion and then abstained from voting. The motion did not pass since Bartle voted in favor of the motion and the third Commissioner Rita C. Banning voted against it. After Bartle declared the vote a tie, Bartle informed Bloss that she was permitted to vote and Bloss voted in favor of the motion which then carried. On the same date, the matter of salary for Bloss as a Member of the County Board of Assessment Appeals came before the Salary Board. Once again, Bloss submitted a letter to the secretary of that Board advising that since the position was a salaried one, she would have a conflict and would not vote on the salary and abstain unless requested to vote to break a tie. Her salary was set at $45,525 a year by a three to one vote with .Bloss abstaining. Finally, the record reflects that although the practice of the Montgomery County Board of Commissioners was for motions and seconds, no such requirements existed for voting as to nominations. In applying the provisions of Section 3(a) of the Ethics Law to the instant matter, it is clear that Bloss did indeed have a conflict as to the matter of her own appointment to a compensated position on the County Board of Assessment Appeals. See, Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988), allocatur denied, Pa. , 553 A.2d 971 (1988). The question before us is whether a violation of Section 3(a) of Act 9 Bloss, 92- 004 -C2 Page 9 of 1989 occurred as to Bloss' conflict when certain procedures were undertaken relative to the requirements of Section 3(j) of the Ethics Law. Since the Montgomery County Board of Commissioners is a three - member board, the last sentence of Section 3(j) has application to this matter. That provision in Section 3(j) specifically provides that where there is a three - member governing body of a political subdivision wherein one member has abstained as the result of conflict and the two remaining members have cast opposing votes, the member with the conflict may vote to break a tie vote if disclosure has otherwise been made. In this case, we do note that Bloss did make a written disclosure to the secretary of the County Board of Commissioners. Further, Bloss did abstain as to the vote on her appointment while the remaining two Members cast opposing votes. Under such circumstances it is clear that Section 3(j) does permit the member with the conflict to vote to break the tie. However, an issue exists as to the seconding of Bartle's motion by Bloss relative to her own appointment to this compensated position. We have held that participation, lobbying, making motions, seconding motions or voting is a use of authority of office. See, Juliante, Order No. 809. As to the second of the Bartle's motion by Bloss, Section 3(j) is silent regarding the mechanism as to how the tie vote occurs. We do not believe it is necessary to resolve the conumdrum as to the seconding of the motion. First, in the context of the unique factual circumstances of this case, we note that as to the first motion, although Bloss did second the motion, there was a tie vote so that the appointment did not occur at that point in time. Second, it is clear that Section 3(j) did allow Bloss to vote on the second vote in light of the tie. Third, at the point in time when Bloss voted, there was no compensation as to this position which was subsequently set by action of the Salary Board. Fourth, a questions exists as to the practice and significance, if any, of making a second as to a nomination. In light of the above and the totality of the facts and circumstances of this case, we are compelled to find no violation of Section 3(a) of Act 9 of 1989. IV. CONCLUSIONS OF LAW: 1. Floriana M. Bloss as a Montgomery County Commissioner was a public official - subject to the provisions of Act 9 of 1989. 2. Bloss did not violate Section 3(a) of Act 9 of 1989 when, pursuant to Section 3(j) of the Ethics Law, she voted to break a tie vote as to her own appointment to the County Board of Assessment Appeals. In Re: Floriana M. Bloss File Docket: 92- 004 -C2 Date Decided: December 10, 1992 Date Mailed: December 15, 1992 ORDER NO. 869 1. Floriana M. Bloss as a Montgomery County Commissioner did not violate Section 3(a) of Act 9 of 1989 when, pursuant to Section 3(j) of the Ethics Law, she voted to break a tie vote as to her own appointment to the County Board of Assessment Appeals. BY THE COMMISSION, ES M. HOWLEY, CH IR Commissioner Austin M. Lee did not participate in this matter because he acted as single hearing officer and recused himself pursuant to 51 Pa. Code §2.34(d).