HomeMy WebLinkAbout876 LewisSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
In Re: Robert Lewis • File Docket: 92- 022 -C2
Date Decided: Fe ruary 16, 1993
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, 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 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 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. S409(e).
Lewis, 92- 022 -C2
Page 2
I. ALLEGATION:
That Robert Lewis, a Member of the Bristol Township Council,
Bucks County, Violated the .following provisions of the State Ethics
Law, (Act 9 of 1989) when _he voted to appoint himself to the
position of Township Executive; and when he ,failed to list on
Statements of Financial Interests, filed in 1990 and 1991, direct
or indirect sources of income_.
Section 3. Restricted Activities
(a) No public official or public
employee shall engage in conduct that .
constitutes a confliht of interest. 65 P.S.
S403(a).
a:
Section 5. Statement of financial interests
(b) The statement shall include the
following information for the prior calendar
year with regard to the person required to
file the statement.
(5) The name and address of
any direct or indirect source of
income totalling in, the aggregate
$1,000 or more." However, this
provision shall not be construed to
'require the divulgence of
confidential information protected
by statute Or existing professional
codes of ethics or common law
privileges.
II. FIIN GS :
1. Robert Lewis served on the Bristol Township council from 1973
to 1986 and from January of 1990 to February 12, 1992.
2. Bristol Township is a township of the first .class and is
governed by the provisions of the Home Rule and Optional Plan
Law, Act 62 (July 15, 1957, P.L. 901), Executive /Council
Operational Charter Plan C.
3. In February of 1992, due to the death of James J.A. Gallagher,
a vacancy occurred in the position of Bristol Township
Executive /,Mayor.
4. The position of Executive /Mayor pays an annual salary of
$14,000.00.
Lewis, 92- 022 -C2
Page 3
5. The matter of making an appointment to fill the vacancy in the
Executive /Mayor position was discussed during an executive
session of the February 11, 1992, Township Council meeting.
a. Council members Robert Lewis, Anna Rogers, Vincent
Lattanzi, Anthony Cipullo and John Gieda were present
during discussions.
b. At least four members of council, including Robert Lewis,
expressed an interest in being appointed to the position.
6. The council members returned to the public meeting of February
11, 1992, were Councilman .Gieda made a motion, seconded by
Lattanzi,. t� appoint` Councilman Lewis to the position of
Township Executive /Mayor.
a. The motion was approved by a 3 to 2 vote.
b. Council members Lewis, Gieda and Lattanzi voted to
approve the appointment while Council members Rogers and
Cipullo voted against it.
7. There was no public discussion, prior to the vote, of a
possible conflict of interest should Lewis vote for himself.
a. An oral inquiry was made by
Waite, on whether a vote
appointment to the office of
Waite advised him that in his
b. The inquiry was made in a private conversation at the
beginning of the meeting of the Bristol Township Council
of February 11, 1992, at a side table in the meeting
auditorium.
Lewis to Solicitor, Clyde
by him for himself for
Executive would be legal.
opinion, it would be legal.
c. Lewis voted for himself for the appointment to the
position of Executive based on that legal advice.
8. There is no record of any written correspondence between Lewis
and Township Solicitor Clyde Waite on the subject of a
possible conflict of interest by Lewis voting on the matter.
9. Lewis' resigned from his Council position on February 12, 1992.
10. Lewis took the Oath of Office as Township Executive /Mayor on
February 12, 1992.
11. Township records confirm that Lewis received Township payroll
check #6339, dated February 14,, 1992, in the amount of
$212.78'.
ewis, 92- 022 -C2
Page 4
a. Payroll records indicate the check was the net payment
from Lewis gross salary of $94.08 for his Council
position and $161.52 for the Executive /Mayor position.
12. Township records indicate Lewis received Township payroll
check #6512, dated February 28, 1992, .in the amount of $455.95
for his work as Township Executive /Mayor.
a. Lewis approached Township Manager Carmen Raddi, after the
check was issued, and asked that the Township request the
bank place a stop payment order on the check as he had
signed it and misplaced it
b. Raddi complied with Lewis' request and the bank issued a
stop payment order and returned the check to Raddi.
13. Prior to October, 1991, Lewis received his compensation from
the Township by check on a quarterly basis in the net amount
of approximately $668.37.
a. In October, 1991, payment was changed from a quarterly
basis to a monthly basis.
14. Robert Lewis received compensation : for the 'Period of six
months prior to and including February, 1992, as follows:
a. For the period ending September 15, 1991, gross pay is
shown as $875.00 and a net of $668.37.
b. For the period' ending October 31, 1991, 'or a period of
forty -five (45) days, gross pay is shown as $291.67 and
a net of $237..59. .
c. For the period ending November 30, 1991, or a period of
thirty (30) days, gross pay is shown as $291.67 and a net
of $237.58. This check was lost and payment was stopped.
A replacement check was issued and the original check,
when discovered, was voided.
d. For the period ending December 15, 1991, or a period of
fifteen (15) days, the number of days of compensation. is
Tess, but the check is still for the same amount. Gross
pay is shown as $291.67 and a net of $237.58.
e. For the period ending January 31, 1992, a period of
either forty -six (46) days from December 15, 1991, or
thirty -one (31) days from January 1,_1992, gross pay is
shown as $291.67 and a net pay of $239.54.
f. For the pay date of February 14, 1992, two (2) days after
lama, 92- 022 -C2
Page 5
his resignation ,and for_the period ending February 15,
1992, gross, pay is "$255:6O.and net pay of $212.78.
g. For the period ending February 29, 1992, or a period of
fourteen (,k4) days, payment was stopped.. No check was
ever issued to replace. it and Lewis does not have the
check in his possession:
15. Lewis has not accepted compensation for the Executive /Mayor
position since receiving the February 14, 1992 check.
16. On April 27, 1990, Lewis filed a Statement of Financial
Interests.
a. The statement indicated it was for the calendar year
1990.
b. Lewis indicated he held the position of Bristol Township
Councilman.
c. Lewis listed his occupation as Manager for Bell Telephone
of PA.
d. Under the section for Direct or Indirect Sources of
Income, Lewis checked the box marked "none ".
17. On April 22, 1991,. Lewis filed a Statement of Financial
Interests.
a. The statement indicated it was for the, calendar year
1990.
b. Lewis indicated he held the position of Bristol Township
Councilman.
c. Lewis listed his occupation as Manager for Bell Telephone
of PA.
d. Under the section for Direct or Indirect Sources of
Income Lewis checked the box marked "none ".
18. On April 5, 1992, Lewis filed a Statement of Financial
Interests for the 1991 calendar year.
a. Lewis reported his public position as councilman.
b. His occupation was listed as Manager for Bell Telephone
of PA, and Bristol Township.
19. Lewis failed to note Bell Telephone of PA and Bristol Township
as sources of income at the proper designated place .on the
Lewis, 92- 022 -C2
Page 6
Statements of Financial Interests filed on April 27, 1990, and
April 22, 1991.
20. Lewis asserts the information he provided on the Statements
fulfills his responsibilities under the Ethics Law and that he
checked the financial statements filed by other Township
officials before he completed his financial statement and
followed similar entries made on their. statements for his own
in regards to manner of handling information on direct and
indirect sources of income.
III. DISCUSSION:
As a Member of the Bristol Township :Council, Bucks County,
Robert Lewis, hereinafter Lewis, is a public official as that term
is defined under Act 9 of 1989. 65 F.S. S402'. As such, his
conduct is subject to the provisions of the Ethics Law and the
restrictions therein are applicable to him.
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
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.
The term "conflict of interest" is defined under Act 9 of 1989
as follows:
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
Letriz 92- 022 -c2
Page 7
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 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 or his immediate family or
a business with which he or a member of his
immediate is associated. 65 P.S. §402.
Section 5(b) of Act 9 of 1989 requires that every public
official/employee and candidate list the name and address of any
direct or indirect source of income totalling in the aggregate of
$1000 or more.
The allegations before are whether Lewis violated Section 3 (a),,
of Act 9 of 1989 when he voted to appoint himself to the position
of Township Executive and secondly whether he violated Section
5(b)(5) of Act 9 of 1989 when he failed to on his calendar
years 1990 and 1991 Financial Interests Statements (FIS) income
that he received both - from the Township and from Bell Telephone
Pennsylvania.
Factually, Lewis served on'Bristol Township Council from 1973
to 1986 and from January, 1990 to February 12, 1992. Although
Bristol Township is a first class township, it is governed by the
provisions of the Home Rule and Optional Plan Law which allows for
the position of Executive /Mayor. When a vacancy occurred in the
position of Executive /Mayor, several Members of Council including
Lewis expressed an interest in the position which has an annual
salary of $14,00G.
At a public meeting of Council on February 11, 1992, attended
by Council Members Lewis, Rogers, Lattanzi, Cipullo and Gieda,
Gieda made a motion, seconded by Lattanzi, to appoint Lewis to the
position of Township Executive /Mayor. The motion passed on a three
to two vote with Lewis, Gieda and Lattanzi voting in favor and
Rogers and Cipullo voting against the motion. Prior to the vote,
Lewis made a private oral inquiry of the solicitor as to whether
Lewis would have a conflict if he voted for himself. Based upon
the solicitor's advice that it would be legal, Lewis voted for his
own appointment. The advice from the solicitor was never reduced
to writing.
Lewis resigned from Council and took the oath of office as
Lewis, 92- 022 -C2
Page 8
Executive /Mayor. Subsequently, 'on' February 14, 1992, Lewis
received a check from the' Township which was payment in part for
service on Council and payment' part for service as
Executive /Mayor. . On February 28, 1992, Lewis received a second
check in payment for his service as Executive /Mayor; however, as to
the second check, Lewis requested a stop payment order on the check
which was accomplished by the bank as per the direction of the
Township. Thereafter, Lewis has not accepted compensation for the
position of Executive /Mayor. 'r
Regarding the FIS's filed by Lewis for ' 1990 and 1991
calendar years, although Lewis did list his position -with Bristol
Township and his occupation as 'a manager of Bell Telephone of
Pennsylvania, he did not list any sources of - income from his public
and private positions.
A violation of Section 3(a) of Act 9 of 1989 necessitates.a
determination that there is a public official /employee who has:
first, used the authority of office; second, obtained a private
pecuniary benefit; and third, obtained that private pecuniary
benefit for either himself or a member of his immediate family or
a biness with which he or a member of his immediate family is
associated. It is clear that Lewis is a public official who cast
the deciding vote to appoint himself to the position of
Executive /Mayor which is a compensated position.
In Koslow-v. SEC, 116-Pa. Commw. Ct. 19, 540 A.2d 1374 (1988),
allocatur denied, Pa , 553 A.2d 971 (1988), the
Commonwealth Court upheld a determination of this Commission that
a first class township Commissioner violated Section 3(a) of Act
170 when he cast the deciding vote to appoint, himself to a
compensated authority position. The 'Court did not accept the
argument by Koslow that the compensation was provided by law for
such authority position. -
Therefore, Lewis did violate Section 3(a) of Act 9 of 1989
when he used the authority of office by casting the deciding vote
to appoint himself to a compensated position which is a private
pecuniary benefit to himself. Koslow, supra; Obernier, Order 852;
Juliante, Order 809.
Lewis proffers numerous arguments for the proposition that
there can be no violation of Section 3(a) of Act 9 of 1989:
violations only relate to dishonest practices; voting is
permissible under the Optional Plan of Governmental Law;• a judge
may vote for himself to the position of county president judge;
compensation out of public funds cannot be a- private pecuniary
benefit; the Optional Plan Law, 53 P.S. 1- 524(a), 1- 811(a) allows
and requires all members of council to vote for the mayor /council
president; the Optional Plan Law preempts the Ethics Law; Ordinance
Section 302C requires all council members to vote for the
Lewis, 92- 022 -C2
Page 9
president, vice president or secretary of council; Bloss, Order 869
of this Commission allows for such voting and lastly, such voting
is permissible under- Section _3 ( j) of the Ethics Law.
The arguments above raised by Lewis will be addressed
seriatim. Regarding violations for dishonest practices only, such
theory is predicated upon a need for a me:is rea or intent for a
violation of the Ethics Law. However, Commonwealth Court in
Yocabet vs. SEC, 109 PA Commonwealth Court 432, 531 A.2d 536
(1987), has held that no such intent is necessary as a prerequisite
to finding a violation. _
As to the permissibility of voting under the Optional Plan of
Government Law, there is no provision in our review that
specifically allows a council member to vote his his own
appointment to a compensated position.
Regarding the matter of a judge voting to appoint himself as
county president judge, we note that the judiciary is not subject
to the provisions of the Ethics Law. See Kremer vs. SEC, 503 Pa.
358, 469 A.2d 593 (1983).
As to the argument that there cannot be a private pecuniary
benefit or compensation out of public funds, that argument was
proffered and rejected in Koslow,. supra.
The argument that such voting is allowed under 53 P.S. - 1-
524(a) and 1- 811(a) has been considered and rejected above.
As to the assertion that the Optional Plan Law may preempt the
Ethics Law, that argument is summarily dismissed by Section 12 of
=Act 9 of 1989 which provides:
Section 12. Conflict of law
If the provisions of this act conflict
with any other statute, ordinance, regulation
or rule, the provisions of this act shall
control. 65 F.S. 5412.
Concerning Ordinance Section 302C, we note that the section is
limited in its application to the president, vice president or
secretary of council.
Concerning Bloss, Order 869, we held that Bloss as a member of
three county commission board did not violate Section 3(a) of Act
9 of 1989 when she cast the deciding vote to break a tie after she
had recused herself, disclosed her conflict and filed a written
memorandum to that effect. In the instant matter, Lewis was a
member of a five member board and Lewis did not observe the
abstention and disclosure requirements as provided for and required
Lewis, 92- 022 -C2
Page 10
by Section 3(j). For the foregoing reason, Section 3(j) does not
exonerate the action and derivative violation by Lewis when he cast
the deciding vote to appoint himself.
As to the FIS allegation before us, we do find a violation
Section 5(b)(5) of Act 9 of 1989 when Lewis failed to list Bristol
Township and Bell of Pennsylvania as sources of income for the
calendar years 1990 and 1991. As to the sources of income from
Bristol Township from 1990 as well as from Lewis' employment as
manager of Bell of Pennsylvania, it is clear that both of these are
compensated positions and Lewis received income of $1000 or more
from both of these positions.
Although it is argued that Lewis assumed that he would only
have to report sources of income other than those from his public
position or private employment, the Ethics Law does -not provide any
exclusion from such sources but is definitive in requiring that all
sources of income of a $1000 in aggregate or more must be reported.
Likewise, we reject the argument that Lewis reviewed the FIS's of
other Councilmen and followed their example in that it is his
responsibility to comply with the law and the possible non-
compliance of other public officials is no excuse or legal defense
to such a deficient filing.
Lewis is directed within thirty (30 of issuance of this
Order to also file amended FIS's -for the calendar years '1990 and
1991 including Bristol Township and Bell of Pennsylvania as sources
of income.
IV. CONCLUSIONS OF LAW:
1. Robert W. Lewis as a Member of Bristol Township Council and as
Executive /Mayor is a public official subject to the provisions
of Act 9 of 1989.
2. Lewis violated Section 3(a) of Act 9 of 1989 when he cast the
deciding vote to appoint himself to the compensated position
of Executive /Mayor.
3. Lewis violated Section 5(b)(5) of Act 9 of 1989 when he failed
to list Bristol Township as a source of income of $1000 or
more for his 1990 and 1991 calendar years Financial Interests
Statements.
4. Lewis violated Section 5(b)(5) of Act 9 of 1989 when he failed
to list Bell of Pennsylvania as a source of income of $1000 or
more for the 1990 and 1991 calendar years Financial Interests
Statements.
In Re: Robert Lewis
File Docket:
Date Decided:
Date Mailed:
ORDER NO. 876
1. Robert W. Lewis, as a Member of Bristol Township
violated Section 3(a) of Act 9 of 1989 when he
deciding vote to appoint himself to the compensated
of Executive /Mayor.
2. Lewis violated Section 5(b)(5) of Act 9 of 1989 when
to list Bristol,.. Township as _ a source of income of
more for his 1990 and 1991 -calendar years Financial
Statements.
BY THE COMMISSION,
JAMES M. HOWLEY,
92- 022 -C2
February 16, 1993
February ,j9, 193
Council,
cast . the
position
he failed
$1000 or
Interests
3. Lewis violated Section 51-b)(5) of Act 9 of 1989 when he failed
to list - Bell -of Pennsylvania as a source of income of $1000 or
more for the 1 %90 and 1991 calendar years Financial Interests
Statements.
4. Lewis is directed within- thirty (30) days of issuance of this
Order to file amended Financial Interests Statements listing
Bristol Township and Bell of Pennsylvania as sources of income
for the 1990 and 1991 .calendar years Financial Interests
Statements.
5. Failure to comply with the provisions of this Order for filing
amended Financial Interests Statements will result in a
directive of this Commission to institute an order enforcement
action.