HomeMy WebLinkAbout1012 CzyzykIn Re: Edward Czyzyk
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 94- 047 -C2
Date Decided: 8/27/96
Date Mailed: 9/6/96
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
Rev. Joseph G. Quinn
Boyd E. Wolff
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 g am, by the above -
named Respondent. At the commencement of its investigation, the Investigative
Division served upon Respondent written notice of the specific allegation(s). 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. 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.
Czyzyk, 94- 047 -C2
Page 2
I. ALLEGATION:
That Edward Czyzyk, 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. Edward Czyzyk served as a member of the Board of the Lower Bucks County
Joint Municipal Authority (LBCJMA) from January, 1994, to the present.
2. Edward Czyzyk was appointed to the LBCJMA by Tullytown Borough.
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.
Czvzvk, 94- 047 -C2
Page 3
7. Article III, Sections 1 through 7 of the LBCJMA Bylaws outline the officer
positions and qualifications.
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.
8. Salaries for Board Members of the Authority are determined by the governing
bodies of the municipalities of Tullytown Borough and Bristol Township.
g.
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.
Czyzyk, 94- 047 -C2
Page 4
9. For a period of time prior June 20, 1994, members of the LBCJMA discussed
the need for additional compensation for members of the board. Board
members believed that they should receive additional compensation for the
number of duties they perform.
10. At the June 20, 1994, meeting of the LBCJMA additional compensation was
approved for board members serving in committee positions, which members
believed to be newly created officer positions.
a. The Municipal Authority's Meeting Minutes state that a motion was
made by Servis, seconded by Czyzyk that the Chair Person of any
standing committee receive $ 100.00 for meetings of the committee per
month.
b. The motion carried unanimously.
c. Czyzyk was present at that meeting and participated in the vote.
d. Solicitor Kevin Bradway advised the Board that it is permissible to create
officer positions within the organizational structures of the Authority and
set compensation for those positions.
11. 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.
12. During the July 11, 1994, LBCJMA Board Meeting, Board Member 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.
13. 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 Members' salaries.
a. All Board Members were to review the opinion so that it could be
discussed at the next Board Meeting.
14. 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:
Czvzvk, 94- 047 -C2
Page 5
The Pennsylvania Municipality Authorities Act of
1945, Act of May 2, 1945, P.L. 382, as amended,
(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 set 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.
15. On February 20, 1995, the LBCJMA amended the by -laws to reflect an increase
in the number of meetings held.
a. Workshop /Committee meetings shall be held on the first Tuesday of each
month at 7:00 p.m.
b. Regular board meetings shall be held on the third Tuesday of each month
at 7:00 p.m.
Czyzyk, 94- 047 -C2
Page 6
16. The Authority had previously created Committees /positions similar to those
appointed by Chairman Huhn in June, 1994.
a. These committees included Finance, Personnel and Negotiation.
b. These committees performed similar functions as the current committees.
c. Members of these various committees were not compensated for these
services.
d. The duties of the current Committees, however, were expanded beyond
the scope of the work of the earlier committees.
17. Since July, 1994, Czyzyk has received $100 per month for service on the
Sewer Plant Committee /position.
18. Czyzyk has been compensated for service as a committee chairman as follows:
Amount Paid
1994: $ 600
1995: 5 900
$1500
19. Czyzyk has participated in decisions of the LBCJMA board of directors to
approve payments to board members.
a. This participation has included voting on bill listings which included the
payments to board members.
b. The votes to approve the payments occurred on a monthly basis since his
appointment to the board.
c. Votes to pay members of LBCJMA were generally unanimous.
20. Czyzyk believed that board members were entitled to the $100 per month as
a committee chairman, which he understood to be an officer position, as just
compensation for the amount of work they performed.
a. Czyzyk believed that there would be no problem with the payments being
made since the solicitor gave an opinion that the authority had the power
to create compensated officer positions.
b. The authority members instead unanimously voted to pay $100 per
month to the chairperson of any standing committee, which is not a
traditional officer position.
c. Czyzyk admits that he clearly erred in not better defining their roles as
more traditional officer type positions.
III. DISCUSSION:
At all times relevant to this matter, the Respondent, Edward Czyzyk, hereinafter
Czyzyk, has been a public official subject to the provisions of the Public Official and
Czyzyk, 94- 047 -C2
Page 7
Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401,
The issue before us is whether Czyzyk violated Section 3(a) of the State Ethics
Act (Act 9 of 1989) as to the allegation that 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.
Pursuant to Section 3(a) of the Ethics Law, 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:
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.
65 P.S. §402.
facts.
Having noted the issues and applicable law, we shall now summarize the salient
Czyzyk served as a Member of the Board of Lower Bucks County Joint
Municipal Authority (Authority) from January 1994 to the present. The Authority is
a joint authority created pursuant to the Municipality Authorities Act of 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. Czyzyk 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.
In June, 1994, Authority Members had discussions regarding additional
compensation for themselves. The Board Members felt that they should receive
Czyzyk, 94- 047 -C2
Page 8
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, Board Member Pirolli requested
an opinion from the Solicitor regarding the increase of compensation of $100 per
month for the Board Members. In an opinion dated July 18, 1994, Solicitor Bradway
stated that the creation of the positions was permitted under law.
As to the committees to which Czyzyk was appointed, he received
compensation in the amount of $100 per month for service on the Sewer Plant
Committee which totalled $600 in 1994 and $900 in 1995.
Having summarized the above relevant facts, we must now determine whether
the actions of Czyzyk violated Section 3(a) of Act 9 of 1989.
In applying Section 3(a) of the Ethics Law to the instant matter, we find an
unintentional technical 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. In this case, Czyzyk, as a public official, used the authority of office as
to the creation of such positions and the payment of bill lists which included the
payments to Board Members. Czyzyk's receipt of compensation as for his service on
the Sewer Plant Committee constitutes a private pecuniary benefit to himself. Since
there is no evidence of any intent to violate the Ethics Law, we find an unintentional
technical violation of Section 3(a) of Act 9 of 1989.
While the Authority has the power to create officer positions and set the
compensation rate for those positions as it did in this instance, the procedure to
incorporate these positions could have been more structured to avoid any appearance
of impropriety. The positions, the duties of the positions, the responsibilities
associated with the positions could have been more clearly defined so it was clear
these duties /responsibilities are separate and apart from Board Member activities.
Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this
Commission to impose restitution in those instances where a public official /employee
has obtained a private pecuniary benefit contrary to the Ethics Law. In this case,
restitution by Czyzyk in the amount of $750 is warranted. Restitution will be made
to the State Ethics Commission, payable to the Lower Bucks County Joint Municipal
Authority in a timely manner.
Lastly, we note that the parties have filed a consent agreement which sets forth
a proposed resolution of the allegations. Based upon the above analysis and the
totality of the facts and circumstances, we believe that the consent agreement is the
proper disposition for this case based upon our review of that agreement and the
Stipulation of Findings filed by the parties.
Czyzyk, 94- 047 -C2
Page 9
IV. CONCLUSIONS OF LAW:
1. Edward Czyzyk, as a Member of the Lower Bucks County Joint Municipal
Authority, is a public official subject to the provisions of Act 9 of 1989.
2. An unintentional technical violation of Section 3(a) of Act 9 of 1989 occurred
when Czyzyk used the authority of his office for a private pecuniary benefit by
participating in decisions which resulted in the receipt of compensation for
service on the Authority Board when such was not provided for by law.
In Re: Edward Czyzyk
ORDER NO. 1012
File Docket: 94- 047 -C2
Date Decided: 8/27/96
Date Mailed: 9/6/96
1. An unintentional technical violation of Section 3(a) of Act 9 of 1989 occurred
when Edward Czyzyk, as a Member of the Lower Bucks County Joint Municipal
Authority, used the authority of his office for a private pecuniary benefit by
participating in decisions which resulted in the receipt of compensation for
service on the Authority Board when such was not provided for by law.
2. Restitution in the amount of $750 will be paid by Czyzyk through the State
Ethics Commission to the Lower Bucks County Joint Municipal Authority in a
timely manner.
BY THE COMMISSION,
ceontisAu6 PLIAL
DANEEN E. REESE, CHAIR