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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.