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HomeMy WebLinkAbout1014 PekarskiSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: James Pekarski File Docket: 94- 045 -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 el lea., 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. Pekarski, 94- 045 -C2 Page 2 I. ALLEGATION: That James Pekarski, 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. James Pekarski served as a member of the Board of the Lower Bucks County Joint Municipal Authority (LBCJMA) from March, 1994, to the present. 2. James Pekarski was appointed to the LBCJMA by Bristol Township. 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 - Iessee, 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. Pekarski, 94- 045 -C2 Page 3 7. Article III, Sections 1 through 7 of the LBCJMA Bylaws outline the officer g. 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. 8. Salaries for Board Members of the Authority are determined by the governing bodies of the municipalities of Tullytown Borough and Bristol Township. Pekarski, 94- 045 -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. Pekarski 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. 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 Piro 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: Pekarskij, 94- 045 -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, la 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. Pekarski, 94- 045 -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, Pekarski has received $100 per month for service on the Finance Committee /position. 18. Pekarski has been compensated for service as a committee chairman as follows: Amount Paid 1994: $ 600 1995: $ 900 $1500 19. Pekarski 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. Pekarski 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. Pekarski 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. Pekarski 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, James Pekarski, hereinafter Pekarski, has been a public official subject to the provisions of the Public Official and Pekarski., 94- 045 -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 Pekarski 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 Pekarski served as a Member of the Board of Lower Bucks County Joint Municipal Authority (Authority) from March 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. Pekarski was appointed by Bristol Township. The By -laws of the Authority make provisions for: the qualifications and appoihtments 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 Pekarski 94- 045 -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 Pekarski was appointed, he received compensation in the amount of $100 per month for service on the Finance Committee which totalled $600 in 1994 and $900 in 1995. Having summarized the above relevant facts, we must now determine whether the actions of Pekarski 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, Pekarski, 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. Pekarski's receipt of compensation as for his service on the Finance 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. Whiie 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 Pekarski 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. Pekarski, 94- 045 -C2 Page 9 IV. CONCLUSIONS OF LAW: 1. James Pekarski, 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 Pekarski 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: James Pekarski ORDER NO. 1014 File Docket: 94- 045 -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 James Pekarski, 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 Pekarski through the State Ethics Commission to the Lower Bucks County Joint Municipal Authority in a timely manner. BY THE COMMISSION, 4 w),,u6 eum DANEEN E. REESE, CHAIR