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HomeMy WebLinkAbout1005 PirolliIn Re: Michael Pirolli STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: 94- 048 -C2 Date Decided: 5/30/96 Date Mailed: 6/12/96 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Allan M. Kluger Rev. Joseph G. Quinn This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 r seq., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation. Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The ecord is complete. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h). Any person who violates confidentiality of the Ethics Law 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). Confidentiality does not preclude discussing this case with an attorney at law. Pirolli, 94- 048 -C2 Page 2 I. ALLEGATION: That Michael Pirolli, a public official in his capacity as a member of the Lower Bucks County Joint Municipal Authority violated Section 3(a) of the State Ethics Act (Act 9 of 1989) . when he used the authority of his office for a private pecuniary benefit by participating in discussions, actions and /or decisions which resulted in the receipt of additional funds and /or compensation for service on the Authority Board when such was not provided for by law. II. FINDINGS: 1. Michael Pirolli served as a member of the Board of the Lower Bucks County Joint Municipal Authority (LBCJMA) at various times between 1962 until resigning on October 4, 1994. 2. Michael Pirolli was appointed to the LBCJMA by Tullytown Borough, Bucks County, Pennsylvania. 3. The LBCJMA is a body corporate and politic incorporated by the Borough of Tullytown and the Township of Bristol on May 20, 1952, pursuant to the Municipality Authorities Act of 1945. a. The LBCJMA is empowered to acquire, hold, construct, improve, maintain, and operate, own, lease, either in the capacity of lessor or lessee, sewers, sewer systems or parts thereof, sewage treatment works, including works for treating and disposing of industrial waste, waterworks, water supply and water distribution systems. 4. The Authority Board consists of six members, three appointed by Bristol Township and three appointed by Tullytown Borough. 5. Article II, Section 1, of the LBCJMA By -Laws provides, in part, the following regarding the composition of the board. a. The Board of the Authority shall consist of a board of six (6) members, three (3) of whom shall be citizens of the Township of Bristol and three (3) of whom shall be citizens of the Borough of Tullytown. Whenever a vacancy in the Board has occurred, the Municipal Authorities of the municipality which appointed the member whose term has or is about to expire, or is terminated, shall appoint a member for a term of five (5) years to fill a vacancy occurring by reason of the expiration of the term and for the unexpired term when the vacancy has occurred otherwise. Members whose terms have expired shall hold office until their successors are appointed and may be appointed to succeed themselves. 6. Article II, Section 7, provides that officers of the LBCJMA shall be elected at the first regular meeting of the calendar year. a. The Board shall fix and determine the number of officers, agents and employees and their respective compensation and duties, and may delegate to one or more of their number, or to one or more of said officers, agents or employees, such powers and duties as it may deem proper. Pirolli, 94- 048 -C2 Page 3 7. Article I11, Sections 1 through 7 of the LBCJMA Bylaws outline the officer positions and qualifications. a. The Officers of Lower Bucks County Joint Municipal Authority shall be a Chair Person, Vice Chair person, Secretary, Assistant Secretary, Treasurer and Assistant Treasurer. These Officers shall be elected by members of the board (as provided for in Article II, Section 7) and shall hold office for a term of one (1) year and until their respective successors are duly elected and qualified. The Chair Person and Vice Chair Person shall be elected from the membership of the Board. The position of Chair Person shall alternate between a Board Member appointed by Bristol Township and a Board Member appointed by Tullytown Borough. This is to take place unless changed by the majority vote of the Board. b. The Chair Person, when present, shall preside at all meetings of the Board; he shall sign or countersign as may be necessary, all bills, notes, checks, contracts, and other instruments as may pertain to the ordinary course of business of the Authority; and he /she shall sign when duly authorized by the board, all contracts, orders, deeds, bonds, or any other instruments of a special nature. c. The Vice Chair Person shall in the absence, disability or the refusal of the Chair Person, to act, possess all of the powers and perform all of the duties of that officer. d. The Secretary shall keep full minutes of all meetings of the Board and shall read such minutes at the Board's subsequent meeting. He /she shall sign or countersign, as may be necessary, all bills, notes, checks, contracts and other instruments as may pertain to the ordinary course of business of the Authority and shall sign when duly authorized by the Board, all contracts, orders, deeds, bonds or any other instruments of a special nature. He /she shall attend to such correspondence and such other duties as may be incidental to the office or properly be assigned to the office of the Board. e. The Assistant Secretary shall in the absence, disability of the refusal of the Secretary, to act, possess all of the powers and perform all of the duties of that officer. f. The Treasurer shall sign and countersign such instruments as required by his /her signature and shall perform all duties incidental to this office, or that are properly required of him /her by the Board. The Assistant Treasurer shall in the absence, disability or the refusal of the Treasurer, to act, possess, all of the powers and perform all of the duties of that officer. g. 8. Salaries for members of the Authority are determined by the governing bodies of the municipalities of Tullytown Borough and Bristol Township. Pirolli, 94- 048 -C2 Page 4 9. Members of the LBCJMA serving as officers were compensated at the rate of $200 /month prior to 1988. 10. Since January, 1989, officer of the LBCJMA have been compensated $300 /month. a. b. c. a. The increase was approved by the board of the LBCJMA on December 19, 1988. 11. In 1991, the members of the LBCJMA sought an increase from the respective appointing authorities, Bristol Township and Tullytown Borough. 12. A resolution to increase the compensation of the members was presented to the Bristol Township Council at its work session on June 11, 1991. a. A motion to table the resolution was approved unanimously. 13. On June 18, 1991, Bristol Township Council decided not to act on the resolution concerning the compensation of members of the LBCJMA. 14. On June 3, 1991, Tullytown Borough Council passed Resolution #88, setting an increase in compensation for members of LBCJMA. a. The motion was passed by 4 to 0 vote, with two abstentions. 15. Resolution #88 of Tullytown Borough established compensation for LBCJMA members as follows: A salary of $3,600 per year payable in monthly installments. The salary set was to constitute the sole compensation of members for services in connection with the position. The resolution provided that no board member shall hold any other office, job or position with the Authority for which compensation is paid. 16. The resolution would become effective only if a similar resolution was adopted by Bristol Township. a. Bristol Township did not pass a similar resolution. 17. At the January 25, 1994, meeting of the LBCJMA the positions were appointed. William Huhn - John Servis - Micky Pirolli - Edward Czyzyk - Chairman Vice Chairman Treasurer Assistant Secretary following officer 18. For a period of time prior to June 20, 1994, members of the LBCJMA discussed the need for additional compensation for members of the board. PiroIli, 94- 048 -C2 Page 5 a. Board members believed that they should receive additional compensation for the number of duties they perform. 19. At the June 20, 1994, meeting of the LBCJMA additional compensation was approved for board members. a. A motion was made by Servis, seconded by Czyzyk that the Chair Person of any standing committee receive $100.00 form meetings of the committee per month. b. The motion carried unanimously. c. Pirolli was present at that meeting and participated in the vote. d. Solicitor Kevin Bradway advised the Board that it is permissible to create such positions and set compensation for those positions. 20. In a memorandum, dated June 27, 1994, authored by Chairman William Huhn, the following Committee Chairmen were appointed: Personnel Insurance Finance Negotiation Water Plant Facilities Sewer Plant Facilities Michael Pirolli Anthony Gesauldi James Pekarski William Huhn John Servis Edward Czyzyk These positions were not approved at a meeting of the LBCJMA. 21. During the July 11, 1994, LBCJMA Board Meeting, Pirolli requested a written legal opinion from the Authority's solicitor regarding the recent increase of $100.00 compensation for all Board Members of the Authority. a. Pirolli wanted to be certain the compensation that was approved would be legal. 22. The minutes of the July 18, 1994, LBCJMA Board Meeting confirm that Solicitor Cordisco distributed a legal opinion to the Board regarding the increase in Board Member's salaries. a. All Board Members were to review the opinion and so that it could be discussed at the next Board Meeting. 23. By letter dated July 18, 1994, Solicitor Kevin M. Bradway provided Michael A. Pirolli a legal opinion as follows regarding board member compensation: a. Pursuant to your request for an opinion regarding the recent action which provided compensation to Board Members for additional duties in officer positions please find the following: The Pennsylvania Municipality Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended, Pirolli, 94- 048 -C2 Page 6 (53 P.S. §309 (B), provides in pertinent part that members: shall receive such salaries as may be determined by the governing body or bodies of the Municipality or Municipalities, but none of such salaries shall be increased or diminished by such governing body or bodies during the term for which the member receiving the same shall have been appointed. b. It is my understanding that the current salary Board Members receive ($300 /month) was approved years ago. It is my further understanding that no current members were involved in the decision which sez the salary. c. At its June meeting the Authority approved the creation of the "officer positions" and approved a salary of one hundred dollars ($100) per month. Section 7C of the Municipal Authorities Act of 1945, al amended, 53 P.S. §309c is an affirmative grant of authority expressly giving Board Members the power to create officer positions, appoint Board Members to officer positions and set officer salaries. This section contains no exceptions prohibiting Board Members from voting on their own appointment to officer positions and their salary associated with those positions. In a recent decision the commonwealth Court, in Rebottini v State Ethics Commission, found there is no violation of the Authorities Act when Board Members elect themselves to paid officer positions and set their salary. Specifically, the court noted "Under the Municipality Authorities Act, their officer salary is compensation as provided by law." d. By taking action at its June meeting the Authority created "officer positions." During the meeting of July 18, 1994, the Managing Director provided all Board Members with a copy of the officer positions created and the assignments to those positions. The creation of the officer position clearly changed the function, duties, and responsibilities of Authority members. Consequently, under the circumstances, the creation of these officer positions is permitted under law. 24. On June 20, 1994, the LBCJMA discussed holding work sessions before regularly scheduled board meetings. 25. The Committee for which Pirolli was appointed chairman at the June 20, 1994, meeting did not meet on a regular basis. a. Pirolli was not aware of any other members serving on this committee. 26. From August, 1994, through October 4, 1994, Pirolli made no reports to the LBCJMA as chairman of the Personnel Committee. Pirolli, 94- 048 -C2 Page 7 a. Pirolli's duties as a member of the LBCJMA did not change after his appointment to the Personnel Committee. b. Pirolli performed no additional duties as chairman of the Personnel Committee. c. Pirolli did not meet with other members of the Authority as part of this committee. 27. Pirolli accepted no compensation as chairman of the Personnel Committee. III. DISCUSSION: At all times relevant to this matter, the Respondent, Michael Pirolli, hereinafter Pirolli, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, The issue before us is whether Pirolli violated Section 3(a) of Act 9 of 1989 as to the allegation that he used the authority of his office for a private pecuniary benefit by participating in actions which resulted in the receipt of additional compensation, unauthorized in law, for service on the Authority Board. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: 65 P.S. §402. facts. 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 or his immediate family or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the salient Pirolli served as a Member of the Board of Lower Bucks County Joint Municipal Authority (Authority) between 1962 until his resignation on October 4, 1994. The Authority is a joint authority created pursuant to the Municipality Authorities Act of Pirolli, 94- 048 -C2 Page 8 1945 by the Borough of Tullytown and the Township of Bristol. The Authority had a six member Board with three members appointed from each governing body. Pirolli was appointed by Tullytown Borough. The By -laws of the Authority make provisions for: the qualifications and appointments of Board Members; the determination of Authority officers, agents and employees with their compensation and duties; and the allowable officer positions for the Board together with their duties and responsibilities. The salaries of the Authority are set by the governing bodies; however, the compensation for the Authority officers are determined by the Authority Board. The Members of the Authority in 1991 sought an increase in compensation from their respective governing authorities. Tullytown Borough passed Resolution 88 which raised the compensation to an annual salary of $3,600 in monthly installments; however, Bristol Township did not enact a resolution concerning the compensation. Since there was no dual adoption of a compensation package by the governing bodies, no increase in compensation occurred. In June, 1994, Authority Members had discussions regarding additional compensation for themselves. The Board Members felt that they should receive additional compensation for the duties they performed. At a June 20, 1994 meeting of the Authority Board, additional compensation was voted through a motion which carried unanimously. The motion provided that the Chairperson of any Standing Committee would receive $100 per month for the committee meetings. Solicitor Bradway advised the Board that it was permissible to create such positions and set the compensation. On June 27, 1994, action was taken to appoint members to the following committees: personnel, insurance, finance, negotiation, water plant facilities and sewer plant facilities. Such positions were not approved at a meeting of the Authority. During a July, 1994 Authority Board meeting, Pirolli requested an opinion from the Solicitor regarding the increase of compensation of $100 per month for the Board Members because he wanted to be certain that the compensation would be legal. In an opinion dated July 18, 1994, Solicitor Bradway stated that the creation of the positions was permitted under law. As to the committee to which Pirolli was appointed, there were no meetings on a regular basis and Pirolli was not aware of any other Members serving on his committee. From August, 1994 through October 4, 1994, Pirolli made no reports to the Authority as Chairman of the Personnel Committee. PiroIli's duties as an Authority Board Member did not change after his appointment to the Personnel Committee and he performed no additional duties as Committee Chairman. Pirolli did not meet with other Authority Board Members as part of the Personnel Committee. Lastly, Pirolli accepted no compensation as the Chairman of the Personnel Committee. Having summarized the above relevant facts, we must now determine whether the actions of Pirolli violated Section 3(a) of Act 9 of 1989. In applying Section 3(a) of the Ethics Law to the instant matter, we find no violation of that provision. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. If one of the pirolli, 94- 048 -C2 Page 9 requisite elements of Section 3(a) is absent, there can be no violation. In this case, Pirolli, as a public official, did not receive any compensation as Chairman of the Personnel Committee. Since Pirolli received no financial gain, there was no private pecuniary benefit. On that basis, we find no violation of Section 3(a) of Act 9 of 1989. Our decision in this matter is consistent with prior Commission precedent. See, Deeds, Order 988. Lastly, we note that the parties have filed a consent agreement which sets forth a proposed resolution of the allegations. We believe that the consent agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Michael Pirolli, as a Member of the Lower Bucks County Joint Municipal Authority, was a public official subject to the provisions of Act 9 of 1989. 2. Pirolli did not violate Section 3(a) of Act 9 of 1989 as to holding the position of Chairman of the Personnel Committee of the Authority in that he did not accept any compensation and hence received no private pecuniary benefit. In Re: Michael Pirolli ORDER NO. 1005 File Docket: 94- 048 -C2 Date Decided: 5/30/96 Date Mailed: 6/12/96 1. Michael Pirolli, as a Member of the Lower Bucks County Joint Municipal Authority, did not violate Section 3(a) of Act 9 of 1989 . as to holding the position of Chairman of the Personnel Committee of the Authority in that he did not accept any compensation and hence received no private pecuniary benefit. BY THE COMMISSION, aup_, DANEEN E. REESE, CHAIR