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).