HomeMy WebLinkAbout875 PomeroySTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In re: Gary Pomeroy File Docket: 87 -004 -C
Date Decided: February 16, 1991
Date Mailed: February 19, 1993
Before: James M. Howley, Chair
Daneen E. Reese, Vice Chair
Dennis C. Harrington
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
Joseph W. Marshall, III
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. A Consent
Order was submitted by the parties to the Commission for
consideration which was subsequently approved. This adjudication
of the Commission is hereby issued which sets forth the individual
Allegations, Findings of Fact, Discussion, Conclusions of Law and
Order.
This adjudication is final and will be made available as a
public document fifteen days after issuance. However,
reconsideration may be requested which will defer public release of
this adjudication pending action on the request by the Commission.
A request for reconsideration, however, does not affect the
finality of this adjudication. A reconsideration request must be
received at this Commission within fifteen days of issuance and
must include a detailed explanation of the reasons as to why
reconsideration should be granted in conformity with 51 Pa. Code
$2.38.
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).
Pomeroy,, 87 -004 -C
Page 2
I. ALLEGATION:
That Gary Pomeroy, a member of the Cranesville Borough Sewer
Authority violated the following provisions of the State Ethics Act
(Act 170 of 1978) when he participated in the decisions by the
Authority to use his firm, H.L. Pomeroy & Son, to perform various
repairs, including, but not limited to sewer line, and pump station
repairs; and when he served as Sewer Line Inspector for the
Authority:
Section 3. Restricted Activities.
(a) No public official or public employee
shall use his public office or any
confidential information received through his
holding public office to obtain financial gain
other than compensation provided by law for
himself, a member of his immediate family, or
a business with which he is associated. 65
P.S. 5403(a).
Section 3(c) of the Ethics Act provides:
(c) No public official or public employee
or a member of his immediate family or any
business in which the person or a member of
the person's immediate family is a director,
officer, owner or holder of stock exceeding 5%
of the equity at fair market value of the
business shall enter into any contract valued
at $500 or more with a governmental body
unless the contract has been awarded through
an open and public process, including prior .
public notice and •subsequent disclosure
of all proposals considered and contracts
awarded. Any contract made in violation of
this subsection shall be voidable by a Court
of competent jurisdiction if the suit is
commenced within 90 days of making of the
contract. 65 P.S. 5403(c).
II. FINDINGS:
1. Gary Pomeroy has served as an appointed member of Cranesville
Borough Sewer Authority since December, 1980.
a. He has served as Sewer Authority Chairman since
approximately 1990.
b. He was appointed as an Authority member by Cranesville
Borough Council.
Pomeroy, 87 -004 -C
Page 3
c .
He has also served as a lateral and connection inspector
for the Authority. from April 6, 1981, until. September 6,
1990. .
Gary Pomeroy owns an excavating business known as H.L. Pomeroy
& Son, 10400 Bowman Avenue, Cranesville, PA 16410.
a. H.L. Pomeroy is Gary Pomeroy's father.
b. Gary Pomeroy purchased the business froth nis father (H.L.
Pomeroy) in 1983.
c. H.L. Pomeroy continued to work for the business until his
retirement, approximately in January, 1991.
3. H.L. Pomeroy & Son specializes in backhoe, grading, excavating
and bulldozer work.
a. Excavation of grave sites and sewer systems is the
business's mainstay.
4. H.L. Pomeroy & Son is the only such contractor within
Cranesville Borough.
Cranesville Borough has a population of approximately 600
people.
5. Effective December 1, 1984, a lease agreement was entered into
between the Cranesville Sewer Authority and Cranesville
Borough.
a. Terms of the lease were from December 1, 1984, through
November 28, 2026.
b. Semi - annual rental payments due on or before May 28 and
November 28 of each year were due the Authority from the
Borough. .
c. Section 3 of the Lease Agreement requires that the
Borough will enact and keep in force . an - ordinance
imposing annual sewer rentals and other` charges upon
users of the sewer system. The Borough shall deposit all
revenue collected in a Sewer Revenue ;account.
1.
Tap -in fees of $350 and inspection fees of $25 were
required.
2. These fees are. co].lected by the Borough.
6. Section 5 of the 1984 lease agreement provides that the
Borough, out of sewer revenues, shall maintain the sewer
Pomeroy, 87 -004 -C
Page 4
system in good repair, working order and condition; and make
all needful proper repairs, renewals, replacements and
improvements in order to maintain adequate service.
7. The Cranesville's Borough sewer system has a lift station as
an integral component part.
a. The initial lift station was designed by Hill & Hill
Engineering, Northeast, PA.
8. As part of the system designed,, all pumps, compressors and
electrical components were housed below ground.
a. This created a continual overheating problem.
b. Motors were burned up at a rate of approximately three
per year.
1. The Sewer Authority had secured a fund by way of
settlement with the consulting .engineer in an
amount of $10,000 to provide for lift station
repairs.
9. On June 20, 1986, aweld on a holding pot ruptured flooding
the lift station and overflowing it into adjacent Temple
Creek.
a. The - damage was discovered by Edward Jones during his .
routine morning maintenance check.
10. On June 20, 1986, Cranesville Borough Council held a special
meeting to discuss the damage to the sewer lift station.
a. The meeting convened at the garage of Gary Pomeroy.
b. Maintenance man, Edward Jones, discovered the shutdown,
and that pumps and compressors were not working.
c. Council agreed that they needed to acquire pumps and
compressors immediately to get the lift station working.
d. Gary Pomeroy offered suggestions where to get sludge
trucks, pumps and compressors.
e. A motion was passed authorizing Gary Pomeroy to do the
necessary work on the lift station.
1. Borough Council believed that the repairs would not
exceed $4,000.
11. Members of Cranesville Borough Council characterized the
Pomeroy, 87 -004 -C
Page 5
shutdown as an emergency situation.
a. Council did not the project out for bids due to the
emergency situation.
b. Pomeroy was chosen to_clothe repair as he was considered
the most knowledgeable- of the system because of his
familiarity with the construction of the lift station.
12. Cranesville Borough _Council conducted a special meeting on
June 23,1986, to discuss the sewer lift - station repairs.
a. Gary Pomeroy and George Thomas, Mayor of Cranesville,
reported on the temporary repairs and various options.
b. Bills for a shutdown on June 4, 1986, Were discussed.
The secretary /treasurer reported that the bills amounted
to $4,400 and the Borough had less than $300 in the sewer
fund.
c. The Sewer Authority Chairman, Harold Goeble, advised that
the Sewer Authority would assume responsibility for the
bills with the exception of $2,400 for compressors and
motors.
13.. At the July 7, 1986, meeting of Cranesville Borough, Council
discussed the lack -of funds available to repair the sewer
system. Minutes confirm as follows:
a. The Sewer Authority needed a resolution from Council to
pay bills incurred at the lift station since the Borough
did not have the funds available.
b. Motion to. .form a resolution for the Sewer Authority to
pay bills known as Resolution 86 -G made and seconded. No
record of vote taken.
c. Listing of bills for repairs to the' lift station
included`:
Aon Kinney (sludge removal) $2,800.00
H.L. Pomeroy $2,346.00
Tri -State Electric $.1,232.74
Compressor - Rental $ 720.00
Total $ 7,098.72
14. By invoice dated August 4, 1986, LL. Pomeroy & Son billed
Cranesville Borough for services performed in relation to the
lift station shut - down.
a. Services rendered:
Pomeroy, 87 -004 -C
Page 6
Lift Station Cleanup:
Beginning June 20, 1986:
Cleaning Materials /Supplies
(Kennedy's) $ 50.00
Boyer's Rental - -2" sump pump 32.80
Knickerbocker's Rental - -2" pump 159.00
Knickerbocker's Rental - -3" pump 209.88
Accumulated Labor 175 Hrs. @ $10 1,750.00
4 nylon slings 80.00
Telephone calls 23.32
Total $ 2,305.00
b. Pomeroy billed for accumulated labor and telephone calls.
15. At the August 4, 1986, meeting of Cranesville Borough Council
bills in relation to the lift- station repairs were reviewed
and discussed.
a. Bills included:
Ron Kinney (sludge removal) $ 2, 0 0 0. 0 0
(Adjusted)
H.L. Pomeroy $ 2,305.00
Knox Air (compressor rental) $ 1,440.00
Tri -State Electric $ 235.80
b. The Borough Treasurer reported that the Borough could
possibly pay the Tri -State Electric bill but not the
others as the balance (Borough checking account) is only
$1,031.00 after bills are paid.
c. Harold Geoble (Chairman of the Cranesville, Sewer
Authority) stated that the Sewer Authority could possibly
loan the Borough the money to pay the remainder due this
month.
d. The secretary was to supply a copy of bills to Geoble.
16. By letter dated August 11, 1986, Harold Goeble, Chairman of
the Cranesville Sewer Authority, forwarded the Cranesville
Borough Sewer Authority check #392 in an amount of $4,259.11
as a loan to cover expenses related to the shut -down of the
sewer system lift station. The covered expenses included:
a. Earl Knox Co. Invoice #85 -2693 $ 720.00
Earl Knox Co. Invoice #85 -2740 734.11
H.L. Pomeroy's Son 2,305.00
Ron's Septic Tank Cleaning 500.00
Total $ 4.259.11
fomerov, 87 -004 -C
Page 7
b. Check No. 392 was signed by Edward Podell and Gary
Pomeroy.
c .
1. Podell and Pomeroy were the only authorized
signatories and Authority checks required both
signatures.
This check was not approved by the Authority prior to
being sent to the Borough.
1. The Authority previously approved a motion at its
March 7, 1986, meeting to authorize the chairman to
sign a Borough request to have lift station repairs
paid by the Authority.
d. The Borough has not repaid this loan.
17. At a special meeting of Cranesville Borough held on August 11,
1986, the Borough acknowledged receipt of the Goeble letter
and the check in an amount of $4,259.11
a. The following items were noted to be paid:
Know Air $ 1,454.11
H.L. Pomeroy 2,305.00
Ron Kinney 500.00
Total $ ,4.259.11
18. At a special meeting
on October 14, 1986,
included the $4,259.
1986.
of the Cranesville Sewer Authority held
the Authority voted to pay bills which
11 loaned to the Borough in August 11,
a. The motion was made by Gary Pomeroy seconded by Ed Podoll
and carried unanimously.
19., At the November 18, 1986, meeting of the Cranesville Borough
Sewer Authority bills, which included an invoice in an amount
of $690.55 from H.L. Pomeroy & Son, were approved.
a. Gary Pomeroy abstained from the paying of bills.
b. A motion was approved to pay any on -going bills before
the next scheduled meeting.
20. Minutes of the May 19, 1987, meeting of the Sewer Authority
confirm that (10) bills were paid based on the approval of the
Authority members at November 18, 1986, meeting (see Finding
19b).
a. Included was a bill from H.L. Pomeroy & Son in an amount
Pomeroy, 87 -004 -C
Page 8
of $1,159.80 for repairs to the lift station.
21. Minutes of the November 17, 1987, meeting of the Cranesville
Borough Sewer Authority confirm that bills were approved
including a $350.00 bill from H.L. Pomeroy & Son for work on
the lift- station.
a. The motion to pay bills carried.
b. Gary Pomeroy was present at this meeting.
c. No roll call vote was recorded.
22. Invoices sent by H.L. Pomeroy & Son to the Cranesville Borough
Sewer Authority for repairs and related work to the lift -
station included the following:
a. November 18, 1986:
b.
Work on Lift Station Building:
10/02/86 16 Hrs. Labor @ $10
Gravel, delivered
2 Hrs. Backhoe @ $35
11/04/86 9 Hrs. Labor
11/05/86 8 Hrs. Labor
11/15/86 16 Hrs. Labor
Material, Zurns
Phone Calls relative to Lift Station:
07/16/86
06/26/86
07/15/86
07/15/86
09/02/86
08/15/86
08/18/86
09/08/86
09/18/86
10/06/87
10/07/86
10/07/86
Total
606- 283 -2133
455 -9076
455 -907.6
455 -9076
455 -9076
606 - 283 -2133
606 - 283 -2121
606- 283 -2133
606- 283 -2121
606 - 283 =2-133
606 - 283 -2121
606 - 283 -2121
Clow
Tri- State
Tri-State
Tri -State
Tri -State
Clow
Clow
Clow
Clow
Clow
Clow
Clow
January 7, 1987:
Life Station installation of new equipment:
160.00
84.80
70.00
90.00
80.00
160.00
1 27.03
3.97
.47
.47
.23
.83
.77
5.25
3.01
.77
.77
.45
1.73
690.55
Pomeroy, 87 -004 -C
Page 9
c .
a. DATE
11/18/86
01/17/87
11/17/87
Total
11/25/86
11/25/86
12/06/86
12/08/86
12/08/86
12/09/86
12/10/86
12/12/86
12/18/86
12/05 to
Total
02/26/87
02/26/87.
03/12/87
04/16/87
07/10/87
08/28/87
2 Hrs. Backhoe @ $35 $
Gravel
Built Steps, NC Labor
Labor, with Clow 16 Hrs.
1 Hr. Backhoe
Labor, with Clow 16 Hrs.
Labor, with Clow 16 Hrs.
Backhoe, NC
Truck to take rental compressor
back to now
12/14 Labor (Ed Jones)
,46 1/2 Hrs.
November 17, 1987:
Final renovations to Lift Station:
Putting on latches
Floor Braces -
Re-plumbing
Know Air Inspection
Air vents and Staining
Installing check valves
Total labor for above
23. The Cranesville Borough Sewer Authority made direct payments
to H.L. Pomeroy & Sons for repairs to the lift station at the
sewer treatment facility. (see finding #22)
AMOUNT
$ 690.55
1,159.80
350.
$ 2,200.35
CHECK NO.
:408
412
434
70.00
84.80
.00
160.00
35.00
160.00
160.00
.00
25.00
465.00
1,159.80
$ 350.00
All of the payments made to H.L. Pomeroy & Son were co-
signed by Edward Podoll and Gary Pomeroy, sole members of
the Authority authorized to sign checks.
24. H.L. Pomeroy & Son was paid a total of $4,505.35 for repairs
to the lift station from June, 1986, through November, 1987.
a. The sums paid to Pomeroy were reasonable compensation for
the services performed.
b. Pomeroy and the Cranesville Borough Sewer Authority
believed they -were acting in good faith in securing
repairs to the lift station.
Pomeroy, 87 -004 -C
Page 10
25. Gary Pomeroy was appointed inspector of laterals and
connections for the Cranesville Sewer Authority on April 6,
1981.
a. He responded to advertisement by Sewer Authority
Chairman, Harold Geoble.
b. He served in this position until September 6, 1990.
26. Prior to applying for the inspector's position, Pomeroy
checked with Solicitor Lawrence C. Bolla for an opinion on
whether he could serve as . line inspector and be a member of
the Authority.
27. By way of undated correspondence to Pomeroy, Bolla referenced
to State Ethics Commission Opinion No. 80 -019, determining
that an Authority can employ a member of the Authority or a
member of that Authority's family, providing there is a prior
public notice of the position available, it's terms, and
subsequent public disclosure of the identity of the individual
receiving the position.
a. These conditions were all met.
28. A $25.00 inspection fee is included as part of the sewer tap
application process.
a. This amountjs paid by the property owner.:_
b. The Borough in turn pays $20.00. of the $25.00 to the
inspector.
29. Pomeroy inspected all laterals and connections to the sewer
system from April, 1981, until his resignation effective
September 6, 1990.
30. Since 1981, Pomeroy's business, H.L. Pomeroy & Son has
installed (93) laterals and connections.
a. 1981- 89
1982 - 1
1984 - 1
1989 - 2
b. All of the laterals and connections installed by H.L.
Pomeroy & Sons were inspected by Gary Pomeroy.
1. This included a tap -in to Pomeroy's personal
residence in 1989.
31. Gary Pomeroy was paid $2,360 by the Cranesville Sewer
Pomeroy, 87 -004 -C
Page 11
Authority for sewer lateral and connection inspections between
1981 and 1990.
a. Of this amount, $1,860 was for inspections of his own
work.
32. Pomeroy sought the position of sewer lateral and connection
inspector to save time while installing the Borough's sewer
system.
a. Pomeroy believed it was quicker for him to serve as
inspector than arranging independent outside inspections
and minimized the period of time during which the lateral
was exposed.
III. DISCUSSION:
As a Member of the Cranesville Borough Sewer Authority, Gary
Pomeroy, hereinafter Pomeroy, 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."
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 /KcCutcheon v. State Ethics Commission, 77 Pa. Commw.
Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics Commission,
Pomeroy, 87 -004 -C
Page 12
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, Pa. , 553 A.2d 971 (1988).
In addition, Section 3(c) of Act 170 of 1978 specifically
provides in part that no public official or member of his immediate
family or business with which he or a member of his immediate
family is a director, officer, owner or holder of stock exceeding
five percent of the equity at fair market value may enter into a
contract with his governmental body valued at five hundred dollars
or more unless the contract is awarded through an open and public
process.
The allegation before us is whether Pomeroy as an Authority
board member violated either Section 3(a) or 3(c) of Act 170 of
1978 quoted above regarding various repairs that were performed by
H.L. Pomeroy & Son relative to sewer line and pump station repair
work for the Authority. A second allegation is whether Pomeroy
violated Section 3(a) of Act 170 of 1978 as to his service as a
Sewer Line Inspector for the Authority.
Factually, Cranesville Borough Sewer Authority appointed
Pomeroy to the Authority in 1980 wherein Pomeroy also served as a
Lateral and Connection Inspector between April, 1981, and September,
1990. . In a private capacity, Pomeroy is the owner of the
excavating business known as H.L. Pomeroy & Son since 1983. H.L.
Pomeroy & Son specializes in backhoe grading, excavating and
bulldozer work, being the only such contractor within the Borough.
A contractual lease agreement exists between the Cranesville
Borough and Cranesville Sewer Authority regarding the Borough's
sewer system. The lease agreement provides in part that the
Borough will impose and collect user fees for the sewer system
which it will segregate in a separate account; however, the Borough
is required to maintain the sewer system in good repair and working
order. Part of the sewer system in the Borough consists of a lift
station which is comprised of pumps, compressors and electrical
components. The housing of such components below ground created
continuous overheating problems and motor burnups.
In June, 1986, a holding pot rupture occurred which resulted
in the flooding of the lift station. On that day, Borough council
held a special meeting in Pomeroy's garage to deal with the
emergency situation. After Pomeroy offered suggestions for a quick
restart by obtaining sludge trucks, pumps and compressors, Pomeroy
was chosen to do the repairs in that he was considered most
knowledgeable; council, did not put the project out for bids due to
the emergency situation. The bills for the lift station shutdown
amounted to $4400 and the Borough only had $300 in the sewer fund.
Pomeroy, 87 -004 -C
Page 13
The sewer Authority agreed to assume all bills with the exception
of $2400 for the compressors and motors.
At a July 7, 1986, Cranesville Borough Council meeting, the
minutes reflect that a resolution was passed which'authorized the
Authority to pay the bills incurred relative to the lift station
shutdown which included a bill from H.L. Pomeroy in the amount of
$2346. The actual invoice submitted by H.L. Pomeroy & Son dated
August 4, 1986 amounted to $2305. At the August 4, 1986 Borough
Council meeting, it was determined that the Borough could not pay
any of the bills with the exception of one submitted electric bill.
Thereafter, on August 11, 1986 the Authority forwarded a check in
the amount of $4259.11 to the Borough as a loan to cover expenses
resulting from the shutdown of the sewer system lift station. The
check was not approved by the Authority until after it was sent by
the Borough; approval came at an October 14, 1986 Authority meeting
based upon a motion of Pomeroy which carried unanimously.
At a November 18, 1986 Authority board meeting, Pomeroy
abstained on paying a bill which included an invoice in the amount
of $4690.55 of H.L. Pomeroy & Son.
The minutes of a November 17, 1987 meeting of the Authority
reflect that bills including one from H.L. Pomeroy & Son in the
amount of $350 for work on the lift station were approved although
no roil call vote is recorded for such vote. Based upon the
various invoices submitted by 'H.L. Pomeroy & Son relative to work
on the lift station building, the installation of new equipment and
renovations, a total of $4505.35 was paid to H.L. Pomeroy & Son.
Lastly, regarding the appointment of Pomeroy as Inspector of
Laterals and Connections for the Authority, prior to undertaking
such position, Pomeroy checked with the solicitor who advised that
the opinion of this Commission No. 80 -19 reflected that an
Authority member could be employed by the Authority if certain
conditions were met. Pomeroy did meet those conditions. Pomeroy
performed the inspections which generated a fee of $25 per
inspection as to which $20 was paid to Pomeroy. Pomeroy performed
eighty -nine inspections in 1981, one inspection in 1982 and 1984
and two inspections in 1989. In this regard, we should
parenthetically mote that we did not determine that Authority board
members were covered and had to file Financial Interest Statements
until our decision in Dice, Opinion 85 -021.
In applying the provisions of Act 170 of 1978 to the instant
matter, we find that Pomeroy did violate. Section 3(a),but not 3(c)
regarding the work that H.L. Pomeroy & did with respect to the
lift station work. Although it was Borough Council that decided to
use Authority Board Member `Pomeroy to perform services for the
emergency work at the lift station, Pomeroy did use public office
regarding making the motion and voting as an Authority board member
Pomeroy, 87 -004 -C
Page 14
to pay the Borough's bill for such services by H.L. Pomeroy & Son.
The term business with which he is associated is defined under Act
170 of 1978 as follows:
Section 2. Definitions.
"Business with which is associated." Any
business in which the person or a member of
the person's immediate family is a director,
officer, owner, employee or holder of stock.
65 P.S. S402.
Clearly, since Pomeroy owned the business, H.L. Pomeroy & Son was
indeed a business with which he was associated. In addition,
there was a financial gain consisting of the profit which was
made by H.L. Pomeroy & Son. Lastly, the financial gain is other
than compensation provided for by law because there is no
provision in the Municipality Authorities Act of 1945 which
authorizes such compensation. In fact, Section 10D of the
Municipality Authorities Act, 53 P.S. 312D, explicitly states
that no Authority member may be directly or indirectly involved
in any contract on agreement with the Authority. Hence, we have
a violation of Section 3(a).
As to.Section.3(c),:we do not believe that a violation
occurred in this instance. Section 3(c) of Act. 170 of 1978
restricts contracting between a public official and his
governmental body. In the instant : matter, the facts., of_: record_
=;:
reflect that the contracting occurred between the Borough and
Pomeroy's business H.L. Pomeroy & Son; conversely, such
contracting was not between the business and the Authority on
which Pomeroy served. Since Pomeroy is not 'a member of Council
but sits on the Authority, we find no violation of Section 3(c)
of Act 170 because the contracting did not occur with Pomeroy's
governmental. body.
Turning to the matter of Pomeroy's service as a sewer line
inspector for the Authority, we are constrained to find no
violation in this case because uncompensated members of
Authorities were not covered by the Ethics Law prior to our 1985
opinion in Dice, supra. Thus, since ninety -one of the ninety -
three inspections that Pomeroy performed occurred prior to 1985
which was prior to the point in time where we said that there was
Ethics Law coverage, we must find no violation as to Section 3(a)
of Act 170 of 1978 regarding Pomeroy's service as a sewer line
inspector.
Lastly, as to the violation of Section 3(a) of Act 170 of
1978 concerning the lift station repairs /services by H.L. Pomeroy
& Son, we will take no further action based upon the total
totality of facts and circumstances as outlined in the findings.
Pomeroy, 87 -004 -C
Page 15
IV. CONCLUSIONS OF LAW:
1. Gary Pomeroy as a member of the Cranesville Borough Sewer
Authority is a public dfficial subject to the,provisions of
Act 170 of 1978. •
2. Pomeroy violated Section 3(a) of Act 170 of 1978 when he
participated in Authority decisioois.r-elative to repair
services which were performed by H.L. Pomeroy & Son, a
business with which he was associated which constituted a
financial gain other than ':compensation provided for by law.
3. Pomeroy did not violate Section 3(c) of Act 170 of 1978
regarding various repairs which were contracted between H.L.
Pomeroy & Son, a business with which he was associated and
the Cranesville Borough in-that the Council was not the
governmental body of Pomeroy who served on the Authority.
4. Pomeroy did not violate Section 3(a) of Act 170 of 1978
regarding his service as a sewer line inspector for the
Authority relative to sewer inspection-fees he received at a
time when non - compensated Authority Board Members were not
considered covered by the Ethics Law. - __
In re: Gary Pomeroy
File Docket: 87 -004 -C
Date Decided: February 16, 1993
Date Mailed: February 19, 1993
ORDER NO. 875
1. Gary Pomeroy as a member of the Cranesville Borough Sewer
Authority violated Section 3(a) of Act 170 of 1978 when he
participated in Authority decisions relative to repair
services which were performed by H.L. Pomeroy & Son, a
business with which he was associated which constituted a
financial gain other than compensation provided for by law.
2. Pomeroy did not violate. Section 3(c) of Act 170 of 1978
regarding various repairs which were contracted between H.L.
Pomeroy & Son, a business with which he was associated -and
the Cranesville Borough in that the Council was not the
governmental body of Pomeroy who served on the Authority.
3. Pomeroy did not violate Section 3(a) of Act 170 of 1978
regarding his service as a sewer line inspector for the
Authority relative to sewer inspection fees he received at a
time when non - compensated Authority Board Members were not
considered covered by the Ethics Law.
4. Based upon the totality of facts and circumstances of this
case, this Commission will take no further action.
BY THE COMMISSION,
JAMES M. H
HAIR