HomeMy WebLinkAbout876R LewisIn re: Robert W. Lewis
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 92- 022 -C2
Date Decided: Mav 6, 1993
: Date Mailed: pfav 11, 1993
Before; James M. Howley, Chair
Daneen E. Reese, Vice Chair
Roy W. Wilt
Austin M. Lee
Allan M. Kluger
The State Ethics Commission received a request for
reconsideration on March 3, 1993, with respect to Order 876 issued
on February 19, 1993. Pursuant to Section 2.38 of the regulations
of the Commission, the discretion of the State Ethics Commission to
grant reconsideration is properly invoked as follows:
(b) Any party may ask the Commission to reconsider an
order within 15 days of service of the order. The
person requesting reconsideration should present a
detailed explanation setting forth the reason why
the order should be reconsidered. Reconsideration
may be granted at the discretion of the Commission
only where any of the following occur:
(1) A material error of law has been made.
(2) A material error of fact has been made.
(3) New facts or evidence are provided which would
lead to reversal or modification of the order
and where these could not be or were not
discovered previously by the exercise of due
diligence.
51 Pa. Code §2.38(b).
This adjudication of the Commission is hereby issued which
sets forth the Discussion and Reconsideration Order.
This Reconsideration Order is final and shall be made
available along with Order 876 as public documents on the fifth
(5th) business day following the date of issuance of this Order.
AJUDtCAtION
DISCUSSION:
Robert W. Lewis, hereinafter Lewis, has timely requested
reconsideration of Lewis, Order No. 876, issued on February 19,
1993.
In the foregoing Order, we determined that Lewis, as a Member
of the Bristol Township Council, 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 and further violated
Section 5(b)(5) of Act 9 of 1989 when he failed to list, as sources
of income of $1000.00 or more, Bristol Township and Bell of
Pennsylvania on his 1990 and 1991 calendar year Financial Interests
Statements.
In requesting reconsideration Lewis raises several legal
arguments in support of his request which shall be addressed
seriatim.
First, Lewis argues that, o ur'determination that he received a
private pecuniary benefit is erroneous on the theory that the
decision in Koslow v. State Ethics Commission, 116 Pa. Commw. Ct.
19, 540 A.2d 1374, allocatur'denied, - Pa. , 553 A.2d 971
(1988), turned upon Koslow' continuing in his township position
while simultaneously holding a with the authority. Lewis
argues that since he is not holding' two positions nor increasing
the salary in his present position, there can be no private
pecuniary benefit as in' Koslow.
As to Koslow, neither this Commission nor Commonwealth Court
made any legal distinction regarding Koslow's continuing service on
the township while holding the position with the authority. Since
Koslow's simultaneous service was not at issue in the case and was
not material to our finding of a violation, we reject this argument
in that it proffers an irrelevant consideration. Lewis'
determinative vote to appoint himself to the compensation position
of Executive /Mayor was a private pecuniary benefit.
Second, Lewis argues that there are instances' where other
public officials regularly vote for themselves without apparent
violation of the Ethics Law. Lewis references the actions of
county commissioners which he asserts is akin to his own action.
Although the argument is devoid of specifics, it appears that the
argument reduces to the theory that the possible undetected
violation of the Ethics Law by one public official creates a
defense or an excuse as to the violation of Lewis. Clearly, such
a theory is not the law in Pennsylvania. Second, we recognize that
there are certain statutes which specifically authorize a public
official to vote for his own appointment to a compensated position.
See, the Second Class Township Code which allows supervisors of
three - member boards to vote for their own appointments to the
enumerated township working positions, 53 P.S. S65514. In such
instances, since the compensation would be provided for by law,
there would be no private p ,benefit. Such was not the case
with Lewis who cast the ec - - 'vote to appoint himself to a
compensated position without any statutory authorization to do so.
Third, Lewis asserts that an essential fact was overlooked in
our adjudication regarding : vote Bristol Township Council at
its following meeting to confirm Lewis in his position of Executive
which was done without Lewis' participation, involvement for vote.
Although lacking specificity_, it appears that the argument of Lewis
reduces to a theory that_a; violation of the Ethics Law can be
subsequently exonerated through curative action. The error in this
argument is that it ignores the parameters of our deliberation
which was to the allegation before us, namely, the original action
by Lewis as a Council Member he cast the deciding vote to
appoint himself to the comp�ens'ated: position. Further, we note that
the argument a person who coitmits a violation of the law can
subsequently undo that violation with impunity is in error.
Fourth, Lewis argues that we erred in finding him in violation
of Se 5(b)(5) of Act 9 the failure to list sources
of income in that Lewis did reflect his source of employment and
his sourceof_public. service._ By so doing, Lewis asserts that the
requirement to list the income would merely shift information from
one line to another.. The fallacy with this argument is that it is
premised on the theory that the listing' of a financial interest in
one category absolves a public official /employee or candidate from
listing that financial - nterest in other applicable categories.
See, Section 5(a) - of : Act 9 which provides - in part:
Section 5.
Statement "of "financial interests
(a) . . ,.. All information requested on
the statement" §hall be provided to the best of
the knowledge, information and belief of the
person - required to file and shall be signed
under oath or equivalent affirmation.
65 P.S. §405(a). Thus,_ where "a public official /employee or
candidate has a financial interest which is required to be listed
in more than one category, that person must list such information
in each category and the failure to do so is a deficient filing.
- Lewis, however, argues that nothing would be added and no purpose
would, be served by requiring such an amendment. The simple answer
to Mr. Lewis' assertion is that the law requires such disclosure
and his failure to make such disclosure constituted a violation of
Section 5(b)(5) of Act 9 of 1989. In this regard, see also 51 Pa.
Code 517.10 which provides:
517.10. Reporting in multiple categories.
The required disclosure of information in
one category does not excuse the nondisclosure
of that information in other categories when
so required.. Therefore, the same information
may be required in more; than one category.
51 Pa. Code 517.10.
Upon review of
which have been made,
or evidence has been
the Order,,in conjunction with the arguments
no material error of law Or fact or new facts
shown which would warrant reconsideration.
in re:
mfik%-
Robert 1 '1",1 - 92-022-C2
May 6, 1993
: Date Mailed: May 11, 1993
• •RECONSIDERATION ORDER 876-R
-
1. The request to reconsider Order 876 issued on February 19,
1993, is denied.
BY THE COMMISSION,
olow 00
JAMES M. HOWLEY,