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HomeMy WebLinkAbout1045 Soltis-SparanoIn Re: Sharon Soltis - Sparano STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff File Docket: 94- 054 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 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 egg., 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 public hearing was held at the request of the Respondent. The record is complete. 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. Soltis - Soarano 94- 054 -C2 Page 2 I. ALLEGATION: That Sharon Soltis - Sparano a public official in her capacity as a Councilperson for Throop Borough, Lackawanna County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when she used the authority of her office for the private pecuniary benefit of a business with which she or a member of her immediate family is associated by participating in council discussions and /or decisions relating to payments and reimbursements by the Borough of various expenses including but not limited to legal fees to the Throop Property Owners Association, an association where her father serves as President. Section 3(a) of Act 9 of 1989 provides: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 P.S. §403(a). II. FINDINGS: 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 of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. A. Pleadings 1. On November 17, 1994, a letter was forwarded to Sharon Soltis - Sparano, by the Executive Director of the State Ethics Commission informing her that a complaint against her was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, No. P 016 239 237. b. The domestic return receipt bore the signature of L. Sparano, with an unknown delivery date. Soltis - Soarano, 94- 054 -C2 Page 3 2. Sharon Soltis - Sparano served as a council member for Throop Borough, Lackawanna County from January, 1990, through December, 1993. a. The Respondent served as Council President (Minority President) from August, 1990 until November, 1990. In other words, she, although President in name, did not have the support of the majority of Council. She did not serve as President in 1991. She was Council Vice President from January, 1992 until December, 1993. b. Sparano has listed her residence as 411 George Street, Throop, Pennsylvania, and Maple Lane, La Plume, Pennsylvania. The Respondent's residence from January, 1990 until September, 1990 was 41 1 George Street, Throop, Pennsylvania. When she married in October, 1990, her residence was 202 Coppernick Street, Throop, Pennsylvania. In September of 1993, she moved back to 41 1 George Street, Throop, Pennsylvania. 3. In 1987, Keystone Landfill, Incorporated, was proposing to expand a landfill. In 1987, Keystone Landfill, located solely in the Borough of Dunmore, Pennsylvania, was trying to get Throop Borough to change the zoning (re -zone land) to allow for Keystone Landfill to try to expand its landfill operation (located in Dunmore, Pennsylvania) into Throop. 4. Keystone Landfill, Incorporated, is a corporation registered in Pennsylvania for the purpose of operating a municipal waste landfill under the terms and provisions of the Pennsylvania Solid Waste Management Act and related applicable statutes, state and federal. 5. The Throop Property Owners Association (TPOA) was formed in 1944 by a group of borough residents seeking to foster good government. a. The TPOA has not always been an active association. 6. The TPOA became more active in 1987, at the time a landfill expansion was being proposed by Keystone Landfill, Incorporated. a. The TPOA approved by -laws in 1989 which stated, in part: Membership shall consist of three categories: charter, regular, and honorary. Membership is open to all individuals who desire honesty from elected officials and who are willing to work through the Association to protect the rights of the citizens of Throop. Fees shall be established as $5.00 per year for an individual or family membership. Provided for a President, Vice - President, Secretary, Treasurer and Board of Directors. The President shall preside at all meetings of the Association. He /she shall see that the Constitution, By- laws and order in general are enforced. The President shall Soltis - Soarano, 94- 054 -C2 Page 4 call all special meetings and appoint all committee members subject to approval of the membership. He /she shall sign all orders and checks ordered by the Association. The President shall also serve as chairman of the Board of Directors. The President shall also sit on the Environmental Trust Fund committee. The Board of Directors shall consist of five (5) members of the Association who are in good standing. No more than two (2) officers can serve on the Board at any time. they shall supervise and protect all interests of the Association. They shall keep a vigilant watch as to the execution of the constitution and By -laws of the Association. The senior member of the Board of Directors, other than the President or Vice President, or a member proposed by the President, shall sit on the Environmental Trust Fund Committee. Any member who seeks elected public office must resign any office they may hold in the Association as well as membership in the Association during the term of elected public office. Reinstatement with all previous privileges will be automatic at the conclusion of the term, excepting for any office or seat on the Board of Directors which is vacated. 7. Fred Soltis was elected President of the TPOA in 1987 and continues to serve in that capacity. a. At the July 17, 1989, meeting of the TPOA, Soltis was appointed trustee for the trust fund. b. Fred Soltis resides at 411 George Street, Throop, Pennsylvania. c. This is one of the addresses used by Sharon Soltis - Sparano. 8. Fred Soltis is the father of Sharon Soltis - Sparano. 9. In April, 1987, the TPOA filed a complaint with the Pennsylvania Environmental Hearing Board in opposition to a permit application for Keystone Landfill, Incorporated's landfill expansion. 10. Throop Borough Council approved Keystone's landfill expansion in August, 1987. 11. Council approved the landfill expansion by a 3 to 2 vote to amend the zoning map from CN to 1 -2 of 174 acres to allow construction of a landfill by Keystone Landfill, Incorporated. a. Sharon Soltis - Sparano was not a member of council when this vote occurred. 12. In January, 1988, a change in the composition of borough council occurred as a result of the November, 1987, General Election. Soltis - Soarano, 94- 054 -C2 Page 5 a. The new council joined in the TPOA's opposition of Keystone's expansion of the landfill. 13. In 1989, the borough, TPOA and Keystone Landfill, Incorporated, entered into a three way agreement to end the complaint filed in 1987 by the TPOA. 14. On July 17, 1989, TPOA and the Borough of Throop entered into an agreement with Keystone Landfill. The Agreement provides, in part: a. In Article 2, Section 2.1, KEYSTONE agreed to maintain and operate the landfill in a manner that will protect the public's safety, health and welfare, and comply with all rules, regulations and provisions of the Solid Waste Act. b. Article 2, 2.6, provided that all leachate produced will be collected immediately, pretreated, and sent to the Scranton Sewage Plant; if not the landfill will not operate without an approved and acceptable alternative means of disposal of leachate. None of the leachate shall be disposed of through the Borough of Throop, nor through sewer pipes located in Throop. c, In Article 3.1, KEYSTONE agreed to pay to the BOROUGH and the ASSOCIATION a supplemental fee for each ton of Solid Waste received at its landfill or facility. d. Section 3.3 provided that the parties agreed that a supplemental fee of One Dollar (1.00) per ton of weight of Solid Waste shall be paid to the BOROUGH and the ASSOCIATION for all solid waste received and deposited at the Keystone Landfill facility. e. Section 3.4 stated that it is specifically understood by all parties hereto that the one dollar (1.00) per ton fee provided for by this Agreement shall be in addition to any monies that the Borough of Throop is entitled to pursuant to Pennsylvania Act 101 (Host Municipality Fee). f. Section 3.6 provided for an advance payment of fifty thousand dollars $50,000.00 to be made by Keystone at the time of the signing of the agreement. In Section 4.1, KEYSTONE shall make payment to the BOROUGH of all fees which may accrue under Article 3 on the same basis as payments under §1301(b) of Act 101. For this purpose the BOROUGH shall be acting as the agent of the ASSOCIATION. h. In Article 10.2, the BOROUGH and the ASSOCIATION intend and agree by the terms of this Agreement to immediately, upon the execution of this Agreement, withdraw with prejudice their appeals with the Environmental Hearing Board, docketed at 87 -185 -W (April, 1987 C.O.A.); 88 -028 -W (December, 1987 Suspension Orders) and 88 -1 14 -W (February, 1988 C.O.A.), consolidated with 87- 185 -W; and 88 -320 -W (July, 1988 permit issuance). g. Soltis - Soarano, 94- 054 -C2 Page 6 Section 10.3 provides that the BOROUGH intends and agrees by the terms of this Agreement to immediately upon execution of this Agreement, discontinue and withdraw with prejudice its Lackawanna County Equity Action docketed at 88 -EQ -66 (Zoning Matter) including any claim regarding that use of the area (shown on the map attached as Exhibit "B ") as described in the permits issued to Keystone in July of 1988 conflicts in any way with the BOROUGH'S zoning. Article 13.1 of the agreement provides that the payment of the fees contemplated to the BOROUGH, are made by KEYSTONE and received by the BOROUGH for the sole and exclusive benefit of the BOROUGH OF THROOP and the Association as described herein and not for any benefit, use, interest or payment to any other municipality , person, individual or other entity, including without limitation, any local, county, state or federal government, or subdivision thereof. 15. The agreement was signed by Louis DeNaples, President, Keystone Landfill, Fred Soltis, President TPOA, and Mark Mazak, President of Borough Council. 16. On May 5, 1990, Keystone Landfill submitted a proposal to the borough and the TPOA concerning construction of a sewer line through the Borough of Throop for disposal of leachate from the landfill. 17. TPOA rejected Keystone's proposal. 18. Keystone Landfill agreed to pay the Borough $750,000 for the privilege of running the line through the Borough. 19. [A] suit filed by [Attorney Benjamin] Lipman, [in United States District Court docketed as] Case No. 91 -0213, sought a temporary and permanent injunction prohibiting the Borough from. taking any action which would facilitate and /or permit the disposal of leachate from Keystone Landfill through Throop Borough or through sewer lines located in the Borough. a. The suit further sought compensatory and punitive damages, interest, costs and reasonable counsel fees and other such legal and equitable relief. b. The suit also sought an injunction against the Borough compelling the Borough to abide by the trust agreement and award compensatory and punitive damages, as well as reasonable counsel fees in favor of the TPOA. 20. Lipman assured [certain plaintiffs who were named individually in the suit] that he was authorized by Fred Soltis to say that the litigation would not involve any significant costs to them. 21. Lipman had entered into a fee agreement with TPOA and would seek his compensation from them. 22. Lipman advised that the losing party in a lawsuit could be held liable for the other sides' costs. Soltis- Snarano, 94- 054 -C2 Page 7 23. In a memorandum dated February 26, 1991, Federal Court Judge Edward M. Kosik directed that the attorneys submit briefs addressing issues as to whether TPOA had standing to bring such an action; whether there was a liberty of projecting interest to which there was an alternative state remedy; and whether the agreements underlying the action was a product of a settlement of litigation in State Court necessitating enforcement of the settlement more appropriately in the hands of the State Court. a. Kosik warned that he cautioned counsel about these matters before and they have elected to pursue the requested remedies in this case and in the event the beliefs about the issues prove correct he would seriously consider imposing Rule 11 Sanctions for pursuing litigation which was not well grounded in fact and was not warranted by existing law. 24. James Michaels was elected to Throop Borough [Council) in November, 1991. 25. On March 29, 1991, Judge Kosik issued a ruling stating the Plaintiffs did not meet the requirements to warrant injunctive relief. a. Judge Kosik stated the Plaintiffs were free to pursue these claims in state court where jurisdiction appropriately exists. 26. The TPOA appealed Judge Kosik's decision to the United States Court of Appeals for the Third District. a. The Court of Appeals affirmed Judge Kosik's decision and assessed costs against the appellants (TPOA). 27. The Plaintiffs (TPOA) did not further pursue the matter in state court or federal court. 28. On December 23, 1991, Keystone Landfill notified the Borough of Throop that they would not be installing the sewer line through the Borough and that the agreement of November 27, 1990, was nullified. 29. In November of 1991, Diane Nelson and James Michaels were elected to the Throop Borough Council. 30. At the January 6, 1992, meeting of Throop Borough, Nelson and Michaels took office. a. Michaels was appointed council president. b. Christopher P. Cullen was appointed Throop Borough Solicitor. 31. On April 3, 1992, Cullen issued an opinion to Borough Council concerning the transfer of funds held in the Throop Environmental Trust Fund Escrow Account to the Throop Property Owners Environmental fund which contained the following opinions: a. The funds contained in the Escrow are not the revenues of the Borough; Soltis - Soarano, 94- 054 -C2 Page 8 b. The Borough does not possess a legal right to continue these funds in Escrow; c. A legal basis for the creation of the Escrow and the withholding of said funds from the Trust Fund did not exist at the time the Escrow was created by the Borough; d. The funds presently held in the Escrow properly belong to the Trust Fund as provided for in Article 11 of the Trust Fund Agreement; e. The Borough, by and through the President of Borough Council, may immediately move to authorize the transfer of said funds from the Escrow to the Trust Fund; f. The control, administration, purpose and use of the Trust Fund rests solely with the President of the Association and the Trustees of the Trust Fund as provided for in Article II of the Trust Fund Agreement and Article 12 of the Agreement. g. The Association may seek to recover damages and costs, if any, caused by the negligence, or malfeasance or misfeasance which may have been committed on the part of past or present Borough officials; h. The Borough and Association acting together may designate a "Collector" other than the original collector as designated in the Agreement and Trust Fund Agreement and may notify Keystone of the new joint designation. The trustees of the Trust Fund may accept and review bills and invoices submitted for payment, and may authorize the same for payment and cause checks to be issued for this purpose. Section 203 of the Trust Fund Agreement authorizes the President of the Association to determine what other worthwhile things, i.e., those things which enhance and maintain a clean, sound, safe environment for the Borough of Throop, in the Borough may be appropriate to investigate and expend monies from the Trust Fund on; places the power and responsibility for making such a determination upon the President of the Association, and authorizes the President of the Association to direct the Trustees in writing to make such an expenditure from the monies contained in the Trust Fund; k. The Borough acts only in the capacity as the Agent for the Association /Trust Fund in the receipt of quarterly Supplemental Fee payments from Keystone and as such, the Borough may not act contrary to the Association /Trust Fund's interest, nor may the Borough act in contravention of the terms and provisions of the Agreement and the Trust Fund Agreement; and When members of Borough Council, appointed to serve as Trustees for the Trust Fund, act in the capacity as a Trustee, such Council members act in the capacity of private citizens and their actions are in support of the operation and administration of private funds held in a Trust Fund, as Soltis - Soarano, 94- 054 -C2 Page 9 created pursuant to the terms and provisions of the Agreement and Trust Fund Agreements. 32. Throop Borough transferred funds from Environmental Trust Escrow Account No. 04- 0166 -9 to the TPOA as follows: a. $377,674.50 on April 9, 1992. b. $ 75,886.92 on April 27, 1992. 33. In June, 1992, Solicitor Christopher Cullen agreed to represent the TPOA Environmental Fund. 34. In a letter dated December 17, 1992, the TPOA requested Throop Borough Council take action so that it may recover funds which had been lost due to the failure of prior council's timely turnover to TPOA of Environmental Trust Fund monies and also to initiate any surcharge action that may be able to be taken. a. TPOA also had concerns over the expenditure of funds for the 1991 lawsuit. 35. On January 25, 1993, Council approved a motion to authorize Solicitor Cullen to prepare an opinion in response to the TPOA letter of December 17, 1992. a. The motion passed unanimously (7 -0) with Sparano and Nelson voting in favor. 36. In a memo dated March 29, 1993, Solicitor Cullen prepared an opinion in response to Borough Council's January 25, 1993, motions: a. Cullen opined that Borough officials, both elected and appointed failed to honor the terms of the Environmental Trust Fund Agreement and deliberately sought to deprive the Association of monies due to it pursuant to the applicable provisions Landfill Agreement and Environmental Trust Fund Agreement. b. Cullen further opined that as to surcharges, Borough officials, elected or appointed, whose actions, or failure to act, have either exceeded or failed to meet legal authorizations or legal requirements are subject to a financial penalty if the action or failure to act resulted in a financial penalty to the Borough of those whom the Borough was contractually obligated. c. Cullen recommended that Borough Council direct and authorize its solicitor to pursue the matter complained of by the Association in its December 17, 1992, letter and the matter referred to above. 1 This Finding is derived as an admission from the pleadings. However, it would appear that the deposit of $75,886.92 may have emanated from the Borough's General Fund (see, ID -8, page 45; Finding 67a(2)(a)). Soltis - Soarano, 94- 054 -C2 Page 10 37. On April 26, 1993, Throop Borough Council approved a motion directing the solicitor to review and, if appropriate, initiate surcharge actions against any former council members responsible for withholding payments due to the TPOA pursuant to the terms of the July 17, 1989, agreement. a. Any surcharge action was to include losses sustained by the Association, costs incurred by the Association and damages occurring to the Association. b. The motion was approved by a 4 to 0 vote with 1 abstention upon a motion by Soltis and a second by Kerecman. 38. At about the same time that the TPOA was seeking a surcharge of former council members, the TPOA also sought to have the Borough of Throop reimburse the Association legal fees in the amount of $27,361.16 incurred as the result of the 1991 federal court case (91- 0213). a. The TPOA case was dismissed by the federal court. 39. On May 24, 1993, Throop Borough Council took action to reimburse the TPOA for costs incurred in the litigation involving the proposed leachate line by Keystone. a. Council voted to reimburse costs totaling $27,361.16. 40. The motion to approve the payment was made upon motion by Michaels, second by Nelson and was approved by a 4 to 3 vote. a. Sharon Soltis voted with the majority casting one of the deciding votes. 41. Also approved at May 24, 1993, Throop Borough Council meeting was a motion to sever the ties between the Borough and the TPOA on the Environmental Trust Fund. a. The motion carried by a 4 to 3 vote upon a motion by Michaels second by Nelson. b. Sparano voted with the majority. c. This action terminated the July 17, 1989, agreement between the Borough and the TPOA. 42. Cullen was paid $15,000 by the TPOA on June 8, 1993. 43. Records in the possession of Fred Soltis, President of the TPOA, assert the following costs associated with payment approved by Council: a. Retainer Attorney Lipman: $ 2,000.00 Attorney Lipman Invoice: $17,857.29 Estate of Attorney Brubaker: $ 7,504.04 TOTAL $27,361.33 Soltis- Soarano, 94- 054 -C2 Page 11 b. Attorney Lipman represented the TPOA in the federal lawsuit filed to 91- 0213 regarding the TPOA's opposition to a proposed leachate line. c. Attorney Brubaker represented the TPOA in the original 1987 lawsuit filed against Keystone. d. Lipman and Brubaker had been paid by checks drawn on Throop Property Owners Environmental fund on May 6, 1992. 44. Throop Borough check number 7962 dated June 19, 1993, drawn from the General Fund in the amount of $27,361.16 was made payable to the Throop Property Owners Association. a. The check was deposited in the TPOA Environmental Fund Account at the National Bank of Olyphant, Account No. 04- 0058 -0 on June 24, 1993. 45. On May 18, 1993, Soltis - Sparano ran in the Democratic Primary Election for a place on the Democratic ballot in the November election for a position on Throop Borough Council. a. There were four [Council] positions to be filled on the Democratic ballot. b. Soltis - Sparano came in fifth, losing by one vote. 46. On June 7, 1993, Attorney Christopher Cullen, representing 30 citizens, filed suit in the Court of Common Pleas of Lackawanna County seeking to overturn the results of the May 18, 1993, primary election in Throop Borough. a. The TPOA hired Cullen. 47. A hearing was held before Judge S. John Cottone from June 14, 1993, through June 17, 1993. a. The court ruled that there were illegal acts of the Election Board in Throop which affected the election results of the candidates finishing fourth and fifth. b. Sparano finished fifth. c. The court ordered a special election for the fourth position in a run -off between Sparano and the fourth place finisher. 48. On April 8, 1992, Sharon Soltis - Sparano seconded a motion to disburse funds from the Throop Environmental Trust Fund Escrow Account to the TPOA. 49. Sharon Soltis - Sparano participated in council actions and cast one of the deciding votes on May 24, 1993, to award $27,361.16 to the TPOA for costs related to TPOA lawsuit against the Borough and Keystone Landfill, Inc. Soltis - Soarano, 94- 054 -C2 Page 12 50. Soltis - Sparano cast none [sic? of ,,the deciding votes on May 24, 1993 to sever ties between the TPOA and Throop Borough. 51. Soltis - Sparano's actions all occurred at a time when her father, Fred Soltis, served as President of the TPOA. 52. The TPOA deposited [funds from the Borough in the amount of $27,361.161 in Account No. 04- 0058 -0. 53. TPOA hired Christopher Cullen to challenge the election results. B. Testimony 54. Kenneth Mazak (Mazak) is a Throop Borough Councilman. a. Mazak served a four year term starting in 1988, lost in the following election, and was subsequently reelected and returned to Council in January, 1994. b. When Mazak was first elected, the previous Council had already acted to allow Keystone Landfill, Inc. (also referred to herein as "Keystone," "Keystone Landfill," and "the Landfill ") to expand into Throop Borough. c. The newly constituted Borough Council voted to join the TPOA in its litigation against Keystone Landfill. d. The litigation that was pending in 1989 was resolved by two Agreements that are in evidence as ID -6 and ID -7. e. ID -6 is a three -party Agreement among Throop Borough, the TPOA, and Keystone Landfill. (1) The Agreement provided for a "supplemental fee" to be paid by Keystone to the Borough and the TPOA, in the amount of $1.00 for each ton of solid waste (ID -6, page 6). (2) Section 2.6 of the Agreement provided that no leachate line would go through the Borough of Throop (ID -6, page 5). f. ID -7 is a two -party Agreement between the Borough of Throop and the TPOA which provided for dividing the supplemental fee paid by Keystone. (1) An interest bearing trust fund was to receive 50 cents out of each $1 of the supplemental fee from Keystone, until the fund had received $500,000. (2) After the fund had received $500,000, the full dollar per ton supplemental fee was to go to the Borough. 2 The word [sic] in Finding 50 above designates a typographical error in the pleadings. The intended word was "one" (see Findings 41 and 87c). Soltis- Soarano, 94- 054 -C2 Page 13 It is Mazak's opinion that the Environmental Trust Fund was Borough money and belonged to the people of Throop. h. At the time the 1989 Agreements were signed, a $50,000 check was tendered by Keystone. (1) Out of that $50,000 payment, money was to be used to pay outstanding legal bills that the TPOA had incurred in fighting the landfill. 9. J• (2) A dispute arose when the Borough demanded verification for the bills that were being paid from the fund. On January 28, 1991 Throop Borough Council voted unanimously to authorize depositing the Environmental Trust Fund share of the supplemental fee from Keystone into an interest bearing escrow account, "until such time the monies are turned over to the Environmental Trust Fund." (ID -19E, page 2; see, Finding 80a). On or about November 27, 1990, Borough Council entered into a subsequent Agreement that allowed Keystone to run a line for treated leachate through the Borough of Throop (ID -12; see, Finding 70). k. The TPOA and some individually named plaintiffs sued the Borough of Throop in Federal Court with regard to the proposed dedicated sewer line for Keystone. The TPOA did not succeed in its federal suit, but the leachate line was never put in. (1) In December of 1991, Council received a letter from Keystone which stated that Keystone did not want to run the leachate line through Throop anymore and wanted out of the leachate line agreement (see, ID -19G, page 1; Leg, Finding 82). 55. Attorney Joseph Price (Price) is the current Solicitor for Throop Borough. a. If called to testify, Price would testify to the following. (1) Out of all the ongoing litigation that has arisen in matters involving Throop Borough Council, Throop Property Owners Association, and the Trust Fund from and after the point at which Council took control of the funds, there has been no final legal determination of any wrongdoing or any illegalities committed by Throop Borough Council, Ms. Sparano, or the Throop Property Owners Association. (a) There are approximately a half -dozen separate pieces of such litigation between the TPOA and the Borough of Throop. (2) In his role as Solicitor and as an attorney in Throop, Price had the opportunity to observe the TPOA as working as an active organization before Borough Council. Soltis- SoaranQ, 94- 054 -C2 Page 14 (a) Fred Soltis comes and speaks out on behalf of the TPOA. (b) Every time Price has had dealings with the TPOA, he has had to go through Fred Soltis. 56. Rose Ann McGowan, Esquire (McGowan) was previously a Solicitor for Throop Borough Council. a. McGowan represented the Borough in negotiations that led to the 1989 Agreements with Keystone and the TPOA. b. McGowan, together with Attorney Brubaker for the TPOA and Attorney Conavoy for the Keystone Landfill, drafted the 1989 Agreements reflected in ID -6 and ID -7. c. If called to testify, McGowan would testify to the following: (1) The settlement called for Keystone to pay a one dollar per ton fee which was split between the Borough and the Association. (2) The Association could have received one -half of the $1 fee the entire time the landfill was operating. (a) The choice was made to cap the amount received at $ 500,000.00. (3) It was McGowan's interpretation that the Agreement between the Borough and the Association was drawn up to permit the Borough to appoint trustees and the Association to appoint two trustees that would oversee the disbursement of the funds of the Association. (4) It is McGowan's interpretation under the Agreement that the President of the Association had the right to determine how the funds were to be spent while the trustees had the responsibility of approving or disapproving the use of the money. (5) It was McGowan's interpretation that the Agreement would mean the Borough had the right to continue to appoint trustees after the fund had reached the $500,000 cap. (6) It was McGowan's interpretation that the TPOA Members wanted Borough Council to continue to have a say in how the money was spent and be part of their campaign to protect the environment. (7) McGowan's interpretation was that the purpose of giving the Association President the say in how money was to be spent was to keep the environmental goals from being changed by some future Borough Council that may not be sympathetic to their objectives. Soltis - Soarano, 94- 054 -C2 Page 15 (8) Rose Ann McGowan told the Throop Property Owners Association and Sharon Soltis and others that a $500,000 trust fund was a war chest for the Throop Property Owners Association. 57. Elaine Morrell (Morrell) was the Secretary for the Borough of Throop from November, 1991 to May of 1993 and from January, 1994 until the present. a. If called to testify, Morrell's testimony would be that in her position as Secretary for Throop Borough Council, she had the opportunity to observe Fred Soltis acting on behalf of and conducting business on behalf of the TPOA on matters pending before Borough Council. 58. Jim McGrath (McGrath) is an Investigator for the State Ethics Commission. a. If called to testify, McGrath would testify to a series of charts which are demonstrative evidence identified as ID -20 and ID -21. (1) ID -20 is a one -page chart based on the evidence that is in this record, and it is cross - referenced by exhibits. (2) ID -21 is three pages, and is a time line with the relevant incidents and dates, also cross - referenced by dates. b. The Respondent stipulated to the admission of ID -20 and ID -21, but the Respondent did not stipulate to either the wording or the conclusions of these demonstrative exhibits. (1) The parties stipulated that if any conflict would arise between the chart itself and the documents in evidence, the documents would prevail. c. The parties stipulated that along with the charts, there would be a report of interview that Investigator McGrath conducted with Sharon Sparano, and that if McGrath were called to the stand, he would be reading the statement into the record. (1) ID -22 was referenced with regard to this particular Stipulation, and it is in evidence. 59. Andrew Kerecman (Kerecman) was a Throop Borough Council Member from on or about August 5, 1992 to January 1, 1994. a. Kerecman was elected President of Council on May 24, 1993. b. Kerecman and some other former Borough Council Members, including Diane Bruno - Nelson and James Michaels, have been Members of the TPOA. c. Kerecman has known Fred Soltis for at least 15 years and considers him to be a close friend. d. In December of 1992, Borough Council received the letter from the TPOA which is in evidence as ID -15 (see Finding 73). Soltis- Soarano, 94- 054 -C2 Page 16 e. At its regular Council Meeting on May 24, 1993, Throop Borough Council passed two motions related to the TPOA. (1) The first motion was to reimburse the TPOA the cost incurred in the legal battle against the leachate line in the amount of $27,361.16 (ID -19M, pages 6 -7). (2) The second motion was to sever the ties between Throop Borough Council and the TPOA on the Environmental Trust Fund. (3) Both motions passed by a 4 -3 vote, with Respondent, Kerecman, Michaels, and Nelson voting in favor of the motion. (4) In each case, had the Respondent abstained, there would have been a 3 -3 tie vote. (5) Tie votes of Throop Borough Council are broken by the Mayor. f. The document in evidence as ID -9 (see Finding 68) relinquished the Borough's responsibilities as agent to the TPOA. 60. The TPOA is a non - profit corporation organized for that purpose in March of 1949 (See Tr. of November 15, 1996, at 3 -4). 61. Fred Soltis (Soltis) is the TPOA President. a. The Respondent is Soltis' daughter. b. It was Soltis' understanding of ID -6 that no leachate would be acceptable through the sewer lines of the Borough of Throop, and that the supplemental fee would be divided by the TPOA and the Borough with the Borough acting as the agent for the TPOA. c. It was Soltis' view that in ID -7, the TPOA voluntarily agreed to a $500,000 cap, thereby giving up millions of dollars to the Borough of Throop. d. Soltis was one of the TPOA's trustees for the trust fund. e. After the July 17, 1989 three -way Agreement (ID -6) had been reached, the Borough of Throop entered into an agreement authorizing Keystone Landfill to run a pipeline for leachate through the Borough. of Throop. f. The TPOA filed an action in Federal Court to stop the leachate line from coming through the Borough of Throop. The Middle District Court determined that the case did not belong in Federal Court, and the Third Circuit Court of Appeals affirmed that decision. 9. (1) The Third Circuit Court of Appeals decided that appellants would bear the costs, which were in the amount of $150. Soltis- Soarano, 94- 054 -C2 Page 17 h. The proposed leachate line was not extended through the Borough of Throop. i. The TPOA incurred legal bills for fighting the leachate line. (1) Soltis identified two particular checks in evidence at ID -8, page 47, as paying legal fees incurred in the TPOA's fight in Federal Court against the leachate line. (a) The checks were drawn from the Throop Property Owner's Environmental Fund, account number 04- 0058 -0 at the National Bank of Olyphant. (b) Check #1009 dated May 6, 1992 in the amount of $7,504.04 was issued to the Estate of Randall Brubaker (ID -8, page 47) (see, Finding 67b). (c) Check #1010 dated May 6, 1992 in the amount of $ 17,857.29 was issued to Attorney Benjamin Lipman (10-8, page 47) (see, Finding 67c). On or about December of 1992, the letter in evidence as ID -15 was sent by the TPOA to Throop Borough. k. The Borough reimbursed the TPOA for the legal bills the TPOA had incurred in fighting the leachate line, which payment was deposited into the Environmental Fund (ID -11; ID -8, pages 62 -63). (1) Soltis stated that reimbursement for these legal expenses was made to the Environmental Fund because the TPOA had originally paid for these expenses from the Environmental Fund. I. The TPOA now has control of the $500,000 trust fund. (1) The Amendment in evidence as ID -9 gave the TPOA total control over the trust fund. (2) Soltis signed the Amendment as President of the TPOA. (3) The Respondent signed the attestation for the President of Borough Council. m. Soltis stated that he has never received any compensation from the TPOA, but that he has received reimbursements from it. (1) One itemized listing for which Soltis was reimbursed by the TPOA includes phone bills, hosting different events such as meetings in his home with Council Members, mail, fax, and time spent on a lawsuit (R - page 1). (2) Soltis stated that he also loaned the TPOA money to keep the lawsuit going. Soltis- Soarano, 94- 054 -C2 Page 18 62. Dorothy Toth (Toth) is a Member of the Board of the TPOA and a designated trustee for the Environmental Trust Fund. a. The TPOA is a not -for- profit corporation. 63. Diane Bruno - Nelson (Bruno - Nelson) is a Member of the TPOA and a former Member of Throop Borough Council. a. Bruno - Nelson served as a Throop Borough Council Member from 1992 to 1995. b. It was the view of Bruno - Nelson that the landfill supplemental fee of $ 1 per ton was split, with 500 to the Borough and 500 belonging to the TPOA and the Trust Fund of the TPOA. (1) It was Bruno - Nelson's view that the money was given to the Borough as agent. c. At the end of 1992, the Borough Council received the letter which is in evidence as ID -15, by which the TPOA requested reimbursement of legal fees. d. Bruno - Nelson voted in 1993 as part of the 4 -3 majority of Borough Council to give the TPOA total control over the Environmental Fund. e. Bruno- Nelson testified that Christopher Cullen provided his opinion in executive session that no one had a conflict or ethical problem as to the motions of May, 1993 involving the TPOA, since in his view, there was no personal gain. (1) Bruno - Nelson was not aware of Cullen providing advice as to conflict of interest at any public meeting. (2) Bruno - Nelson did not recall whether there was any written opinion of Christopher Cullen regarding the Ethics Act. f. Bruno - Nelson was the subject of a complaint related to this matter. (1) Bruno - Nelson's husband and mother are Members of the TPOA, but they have never served in any office or board position with the TPOA. 9. (1) Borough Council had discussions on the matter and took a vote in which the Respondent participated. (1) ID -9 is the Amendment to the 1989 Agreement, by which the TPOA received total control of the Environmental Fund. Bruno - Nelson stated that she believed that the benefits regarding the transfer of funds over to the TPOA benefitted the community at large. 64. Sharon Soltis - Sparano (the Respondent) served as a Throop Borough Council Member from January, 1990 through December 31, 1993. Soltis - Soarano, 94- 054 -C2 Page 19 a. The Respondent has never been a member of the TPOA. b. The Respondent's father, Fred Soltis, is the President of the TPOA. c. Respondent stated that she discussed with both Attorney McGowan and Attorney Cullen the conflict of interest issue regarding her father being the President of the TPOA. (1) Respondent does not have any written legal opinion stating that her voting on matters involving the TPOA would not be a violation of law. d. When Respondent took office, the July 17, 1989 Agreements had already been signed. e. During Respondent's term of office, Throop Borough Council entered into an agreement for the installation of a leachate line from Keystone Landfill through the Borough of Throop. (1) Based upon the advice rendered by Solicitor O'Neill, Respondent was of the opinion that the extension of the leachate line would be a clear breach of Section 2.6 of the 1989 Agreement. f. The TPOA filed an action in Federal Court to stop the leachate line from being put through the Borough of Throop. (1) The Federal action was dismissed on jurisdictional grounds, which dismissal was upheld on appeal. With regard to the supplemental fee, Respondent testified that the first $50,000 check from Keystone was received in 1989, before she took office. g. h. Respondent testified that the first quarterly check from Keystone Landfill resulting from the 1989 Agreement came in around October of 1990. (1) Borough Council put the quarterly payment into the Borough General Fund. (2) By letter dated November 1, 1990 (R -2), the Borough Treasurer and the Borough Controller advised the Environmental Fund Trustees that before any payments from the supplemental fee would be turned over to the Environmental Fund, they required certain information. (See, Finding 91). (3) Respondent stated that from October, 1990 until February, 1991, she repeatedly objected that the TPOA could have a claim against the Borough and that not only was the Borough in violation of the agency relationship, but the Borough was also denying the TPOA interest on the money that was being held up in the Borough account. (4) Thereafter, Council put the money in an interest bearing account. Soltis - Soarano, 94- 054 -C2 Page 20 (a) Respondent voted for the motion to put the money into an interest bearing account until such time as it would be turned over to the trust fund. i. In April of 1992, Respondent voted with the unanimous Borough Council to release the funds that were held in the escrow account and place them into the Environmental Fund. j• In December, 1992, the TPOA submitted to the Borough Council ID -15 which included a formal request for reimbursement of the TPOA's legal costs incurred in challenging the leachate line. k. At the January 25, 1993 meeting, Respondent made a motion that authorized the Solicitor to prepare an opinion in response to ID -15 (ID- 19K, page 2). At the April 26, 1993 meeting, Respondent made a motion directing the Solicitor to review and if appropriate initiate a surcharge action against any former Council Member responsible in part for withholding supplemental fees from the Environmental Trust Fund, with such surcharge action to include but not be limited to losses sustained by the TPOA, costs incurred by the TPOA, and damages accruing to the TPOA. m. At the May 24, 1993 meeting, Respondent participated in the following votes involving the TPOA. (1) Respondent voted with the majority in the 4 -3 vote to reimburse the TPOA for the legal expenses incurred in the Federal lawsuit related to the leachate line. (a) Respondent stated that the Throop Borough Council Members voted in a particular order and that she was always the second person to vote. (b) Respondent testified that at the time she cast the vote she did so relying upon advice given to her by the Borough Solicitor and with no concerns about anyone receiving financial gain. (2) Respondent also voted with the majority in the 4 -3 vote that gave the TPOA control over the Environmental Trust Fund. (a) It was the Respondent's view that the Environmental Trust Fund was a private fund that always belonged to the TPOA, and that the Borough and the Borough Council were not to have any involvement as far as the running of the trust fund. (b) It was the Respondent's view that the Borough was acting as an agent as the fund worked up to $500,000, and that the Borough did not fulfill its agent responsibility per the 1989 Agreement. Soltis - Soarano, 94- 054 -C2 Page 21 (c) Respondent stated that she voted to give the TPOA total control over the funds based upon information received from the Borough Treasurer that the $500,000 cap had been reached. n. The reimbursement of the TPOA legal fees was paid with Borough funds. (1) Respondent stated that the money was supposed to be put into the Environmental Trust Fund. (a) The Environmental Trust Fund is controlled by the TPOA. o. ID -9 is an Amendment to the 1989 Agreement, which Amendment stemmed from the May 24, 1993 vote to give control of the Environmental Trust Fund to the TPOA. (1) Respondent signed the document to attest the signature of Council President. p. The question of who should be controlling the trust fund continues to be the subject of pending litigation. (1) At the present time, Throop Borough feels that it should have control or at least partial control over the Throop Property Owner's Association Environmental Fund. C. Documents 65. ID -6 is an Agreement dated July 17, 1989, between the Borough of Throop, the TPOA, and Keystone Landfill, Inc. a. The pertinent provisions of the Agreement are set forth at Finding 14. 66. ID -7 is an Agreement dated July 17, 1989, between the Borough of Throop and the TPOA. a. The Agreement provides, inter alia, as follows: ARTICLE II. DIVISION AND USE OF FUNDS FROM THE SUPPLEMENTAL FED §201 "Division" The funds received from supplemental fee paid by Keystone shall be divided equally between the Borough and an interest bearing trust fund to be controlled jointly by the ASSOCIATION and the Borough until the trust fund has received $500,000.00 in payments from Keystone. The trust fund shall be held by a bank or other secured trust agent. § 202 "Advance Payment" The trust fund described above will be set up initially with the receipt of the advance payment of fifty thousand dollars $50,000.00 by Keystone due at the time of signing the Keystone agreement; Saltis- Soarano, 94- 054 -C2 Page 22 §203 "Purpose and use" The trust fund shall be for the purpose of payment of the costs of, among other things, the duly authorized representatives and for engineering fees to review operational and other data, for attorney and other fees and costs associated with past, present, or future monitoring or environmental protection activities or enforcement actions regarding Keystone Landfill; the trust fund is separate from the closure trust fund which Act 101 requires to be established. The trust fund may also be used for the enhancement and maintenance of a clean, sound, safe environment to be initiated by written directions from the President of the Association, or one whom the President designates in writing. §204 "Enforcement of Keystone Agreement" Either the Borough or the ASSOCIATION may initiate an action to enforce the Keystone agreement, or any environmental laws related to Keystone. Landfill. §205 "Trust Cap" After the trust fund has reached $500,000.00 in total payments received from Keystone, then 100% of the payments shall be used fully at the discretion of the Borough. ARTICLE III. PAYMENT OF BILLS AND COSTS §301 "Outstanding Bills" The trust fund will pay any bills associated with investigation, monitoring or litigation regarding Keystone Landfill which are outstanding at the time of this agreement, whether incurred by the Association or its members. §302 "Prior Expenses" The trust fund will reimburse the Association for all legal fees, expert fees, and associated costs, associated with its appeals and maintenance of those appeals related to Keystone Landfill from April 20, 1987, to the time of this agreement. ARTICLE IV. ARBITRATION §401 In the event of any disagreement between the Borough and the ASSOCIATION on anything related to, among other things, the use of funds in the trust fund, the selection of the Duly Authorized Representatives, its duties, etc., or other aspects of the implementation of this agreement, the parties agree to submit same to binding arbitration under the auspices of the American Arbitration Association. The method of arbitration shall be a selection of the best of the two alternatives, not compromise between alternatives. Soltis - Soarano, 94- 054 -C2 Page 23 67. ID -8, pages 1 -88, consists of various bank records related to the Throop Property Owner's Environmental Fund, account number 04- 0058 -0 at the National Bank of Olyphant. a. In April of 1992, two deposits were made to the Environmental Fund, account number 04- 0058 -0. (1) The first deposit, made April 9, 1992, was in the amount of $377,674.50 (ID -8, page 44) and emanated from the Throop Environmental Escrow Account (account number 04- 0166 -9) (ID- 8, page 46). (2) The second deposit, made April 28, 1992, was in the amount of $75,886.92 (ID -8, page 44). (a) It would appear from the check and deposit ticket, that this deposit may have emanated from the Borough's General Fund (ID -8, page 45). b. Check #1009 dated May 6, 1992 in the amount of $7,504.04 was issued from the Environmental Fund, account number 04- 0058 -0, to the estate of Randall Brubaker (ID -8, page 47). c. Check #1010 dated May 6, 1992 in the amount of $17,857.29 was issued from the Environmental Fund, account number 04- 0058 -0, to Attorney Benjamin Lipman (ID -8, page 47). d. In July of 1992, a deposit in the amount of $7,333.46 was made to the Environmental Fund, account number 04- 0058 -0, from the Borough's General Fund (ID -8, pages 50 -51). e. In June of 1993, a deposit in the amount of $27,361.16 was made to the Environmental Fund, account number 04- 0058 -0, from the Borough's General Fund (ID -8, pages 62 -63). 68. ID -9, pages 1 -3, consists of an amendment to the July 17, 1989 two -way Agreement between the Borough of Throop and the TPOA which is in evidence as ID -7. a. The amendment states that the $500,000 Trust Cap was reached. b. The amendment further provides, inter Dia, the following: NOW THEREFORE BE IT HEREBY AGREED TO BY THE BOROUGH AND ASSOCIATION THAT: 1) The Agreement is to be terminated effective as of the date(s) of execution of this Amendment to the Agreement; 2) The Borough is released from and no longer bound by the terms of the Agreement and is solely entitled to Soltis - Soarano, 94- 054 -C2 Page 24 receive and use fully 100% of the aforementioned Supplemental Fee; 3) The Association is released from and no longer bound by the terms of the Agreement and is solely entitled to use as it sees fit the monies it received as part of the payment due and owing under the Settlement it entered into with Keystone Sanitary Landfill, Inc. and the Borough in satisfaction of the Association's withdrawal of the actions it had filed on its behalf before the Court of Common Pleas in Lackawanna County and the Pennsylvania Environmental Hearing Board. 4) The Borough and the Association hereby agree that this Amendment to Terminate the Agreement is binding upon any successors to either party. Approved and accepted this 24 day of May, 1993. b. This document bears the signature of Andrew Kerecman as President of Throop Borough Council, as attested by the Respondent, and the signature of Fred Soltis as President of the TPOA, as attested by Mary Ann Solinsky. 69. ID -1 1 consists of a copy of check #7962 drawn from the account of the Throop Borough Treasurer, General Fund at the National Bank of Olyphant, payable to "Throop Prop Owners Assoc. c/o Joseph Toth," dated June 19, 1993 in the amount of $27,361.16. (1) The endorsement on the check directed the deposit of the check to the Throop Property Owners Association Environmental Fund. 70. ID -12 is an agreement dated November 27, 1990, between the Borough of Throop and Keystone Sanitary Landfill, Incorporated. a. The Agreement provides, inter, for the installation of a new sanitary sewer line through the Borough of Throop for the transmission of treated wastewater from the Keystone site and from the Keystone Industrial Park to the Lackawanna River Basin Sewer Authority Plant. 71. ID -13, pages 1 -28 consists of documents filed in the federal lawsuit and subsequent appeal related to the TPOA's challenge to the proposed leachate line for Keystone Landfill. a. The United States District Court for the Middle District of Pennsylvania dismissed the action for failure to state an actionable claim under 42 U.S.C. § §1983 and 1985, but noted that Plaintiffs were free to pursue the claims in state court "where jurisdiction appropriately exists." (ID -13, pages 10-11). Soltis - Soarano, 94- 054 -C2 Page 25 b. The United States Court of Appeals for the Third Circuit affirmed the judgment of the District Court and taxed costs against the appellants. (ID -13, page 25). 72. ID -14 consists of a motion approved by Throop Borough Council on April 8, 1992, authorizing Council President to sign and authorize checks and order for payments of money and withdrawal of funds held in the Throop Environmental Trust Fund Account, Account No. 04- 0166 -9, at the National Bank of Olyphant, with such funds only to be disbursed pursuant to the terms of the July 17, 1989 Agreements. (ID -6 and ID -7). 73. ID -15 is a letter dated December 17, 1992 from Fred Soltis, President of the TPOA, to Throop Borough Council. a. The letter states: Dear Council Members: The Throop Property Owners Association hereby formally requests that council take action regarding recovery of funds which should be returned to the TPOA. The funds were expended by the TPOA during its fight against an outrageous and illegal breach of contract by previous council members. The breach regards council's decision to violate paragraph 2.6 of the Environmental Agreement between the TPOA, Borough of Throop, and Keystone Landfill, signed July 17th, 1989. The TPOA also requests recovery of funds lost through the borough's violation of Secs. 201 and 203 of the Environmental Trust Fund Agreement. Borough officials have exercised improper dominion over the Trust Fund. Because of that improper dominion, the TPOA has lost interest on money which should have been deposited into that Trust Fund. Sincerely, Fred Soltis President, TPOA 74. ID -16, page 1 -2 consists of the March 29, 1993 memorandum of Solicitor Christopher Cullen referenced in Finding 36. 75. ID -17, pages 1 -8 consists of the April 3, 1992 memorandum of Solicitor Christopher Cullen referenced in Finding 31. 76. ID -19A, page 1, consists of the minutes of the July 17, 1989 Throop Borough Council Special Meeting regarding the contracts between Keystone Landfill, Inc., the Borough of Throop, and the TPOA. Soltis - Soarano, 94- 054 -C2 Page 26 a. Respondent was not a Member of Council at the time of this meeting (see, Findings 2; 64; 64d). 77. ID -19B, pages 1 -2, consist of the minutes of the August 27, 1990 Regular Council Meeting of Throop Borough Council. a. A motion was approved by a 5 -2 vote to accept, in principle, the proposal of Keystone Landfill to run a sewer line in Throop. b. Respondent participated in the discussion and voted against the motion. 78. ID -19C, pages 1 -3, consist of the minutes of the September 24, 1990 Regular Council Meeting of Throop Borough Council. a. Respondent inquired as to whether the Lackawanna River Basin Sewer Authority would definitely accept the responsibility for the proposed dedicated line of Keystone Landfill. b. Respondent participated in the discussions and voted in favor of a motion to table a decision on the proposed sewer line of Keystone Landfill until a later date. (1) The motion to table did not carry. c. A motion was made and seconded to accept a new proposal dated September 19, '1990 from Keystone Landfill to construct a dedicated sewer line. (1) The minutes reflect that Respondent commented on the motion, stating that she was disappointed but not surprised; that individual lawsuits should be instituted against Council Members voting for the proposal and that she would pursue lawsuits herself if at all possible. (2) The motion was approved by a 4 -3 vote, with Respondent voting against the motion. 79. ID -19D, pages 1 -2, are the minutes of the November 26, 1990 Regular Council Meeting of the Throop Borough Council. a. A motion was made to approve the Agreement (in evidence as ID -12, see Finding 70) between Throop Borough, the Lackawanna River Basin Sewer Authority, and Keystone Landfill, Inc. for the construction and maintenance of a dedicated sewer line. b. The motion carried by a 5 -2 vote, with the Respondent voting against the motion. 80. ID -19E, pages 1 -2, consist of the minutes of the January 28, 1991 Regular Council Meeting of Throop Borough Council. a. Respondent voted with the unanimous Council in favor of a motion to authorize depositing the environmental trust fund share of the Soltis- Soarano, 94- 054 -C2 Page 27 supplemental fee from Keystone Landfill, Inc. into an interest - bearing escrow account, "until such time the monies are turned over to the Environmental Trust Fund." (ID -19E, page 2). 81. ID -19F, pages 1 -3, consist of minutes from a meeting of Throop Borough Council. a. The copy of the minutes in evidence bears a handwritten date of February 25, 1991. b. Respondent participated in the discussion and voted against a motion, approved by a 6 -1 vote, to authorize the Pennsylvania Auditor General to conduct an audit of the Throop Environmental Trust Fund. c. Respondent initiated discussion regarding the Agreement signed by the Borough, Keystone Landfill, Inc., and the Lackawanna River Basin Sewer Authority, which Respondent stated was not presented to Council prior to the vote. d. Respondent made a motion and voted with the unanimous Council to ask the State Attorney General's Office to check the legality of the preparation of the contract between Throop Borough and Keystone Landfill, Inc. e. Respondent proffered commentary on the Borough's responsibilities as to the dedicated line pursuant to an Agreement between Throop Borough and the Lackawanna River Basin Sewer Authority. 82. ID -19G, page 1, consists of minutes from a meeting of the Throop Borough Council. a. The copy of the minutes in evidence bears a handwritten date of December 30, 1991. b. The minutes reflect that a letter was received notifying the Borough that Keystone would not be installing the dedicated sewer line and was nullifying the November 27, 1990 agreement. 83. ID -19J, pages 1 -6, consist of minutes from the April 8, 1992 Special Meeting of Throop Borough Council. a. Extensive discussions occurred as to the history of the TPOA's fight against Keystone Landfill and Solicitor Cullen's opinion that the escrowed funds from the supplemental fee received from Keystone Landfill had been improperly diverted from the TPOA and should be turned over to it. b. Respondent seconded a motion to approve a resolution authorizing the President of Borough Council to disburse the escrowed funds in accordance with the terms of the July 17, 1989 Agreement between the Borough of Throop and the TPOA. Soltis- SoaranQ, 94- 054 -C2 Page 28 (1) Respondent proffered extensive commentary on the background of the Agreements, the environmental trust fund account, and certain individuals. (2) The minutes reflect that the motion carried by a unanimous vote. 84. ID -19J, pages 9 -16, consist of Solicitor Cullen's opinion, dated April 3, 1992, referenced at Finding 31. 85. ID -19K, pages 1 -3, consist of the minutes of the January 25, 1993 Regular Council Meeting of the Throop Borough Council. a. Respondent made a motion and voted with the unanimous Council to authorize the Solicitor to prepare an opinion in response to a December 17,1992 letter in which the TPOA asked Council to take action to recover any funds which may have been lost due to failure of Council to timely turn over to the TPOA Environmental Trust Fund monies and any surcharge action that might be taken. (1) In subsequent commentary, Respondent clarified on the motion that a surcharge action would be as to the individual officers responsible for causing that problem. 86. ID -19L, pages 1 -2, consist of the minutes of the April 26, 1993 Regular Council Meeting of Throop Borough Council. a. Respondent made a motion to direct the Solicitor to review and, if appropriate, initiate a surcharge action against any former Council Member responsible in part for withholding fees paid by Keystone Landfill, Inc. that were due the TPOA per the July 17, 1989 Agreements involving the Borough, the TPOA, and Keystone. (1) The motion specified that the surcharge action would include but not be limited to losses sustained by the TPOA, costs incurred by the TPOA, and damages accruing to the TPOA. (2) The motion carried by a 4 -0 vote with one abstention, with Respondent voting in favor of the motion. 87. ID -19M, pages 1 -8, consist of the minutes from the May 24, 1993 Regular Council Meeting of Throop Borough Council. a. Seven Council Members, including the Respondent, were present. b. A motion was passed by a 4 -3 vote to reimburse the TPOA the cost incurred in the legal battle against the leachate line, in the amount of $27,361.16. (1) The minutes reflect that questions were raised as to the reason for the motion, and the response was, "This money was wasted when this town through its prior Council took the Property Owners Environmental Trust Fund, tied it up in court, to an agreement that Soltis - Soarano, 94- 054 -C2 Page 29 said it was black; it was white. These people are due this money." (ID -19M, pages 6 -7). (2) The three Council Members who voted against the motion were Tomchak, Lahotski, and Bingham. (a) Respondent voted in favor of this motion. c. A motion was passed by a 4 -3 vote to sever the ties between the Throop Borough Council and the TPOA on the Environmental Trust Fund. (1) The motion references the execution of an agreement to terminate the agreement. (2) The three Council Members who voted against the motion were Tomchak, Lahotski, and Bingham. (a) Respondent voted in favor of this motion. 88. ID -19N, pages 1-11, consist of the minutes of the August 15, 1994 Special Council Meeting of Throop Borough Council on the topic of the Environmental Trust Fund. a. At the time of this meeting, Respondent was no longer a Member of Throop Borough Council (see, Finding 2). b. The minutes report commentary as to litigation initiated by Throop Borough Council to re- establish joint control of the Throop Environmental Trust Fund, following the relinquishment of such control by the Council at its May, 1993 meeting (see, Finding 87). 89. ID -23 is a five page letter dated August 16, 1990, from Attorney Randall J. Brubaker to Fred Soltis regarding an interpretation of the July 17, 1989 Agreement between the Borough of Throop and the TPOA. 90. R -1 is a two -page letter dated September 17, 1990 from Harry P. O'Neill to Mary Anne Paulic, Administrator, Throop Borough. a. The letter states O'Neill's opinion that the July 17, 1989 contract between Throop Borough, the TPOA, and Keystone Landfill, Inc. — and primarily Section 2.6 of that Agreement — would prevent Keystone from effecting a hook -up with the existing sewer lines in Throop. b. The letter indicates that copies were given to all members of Borough Council and the Mayor among others. 91. R -2 is a letter dated November 1, 1990 from Mary Anne Paulic, Throop Borough Treasurer, and Adam Nosak, Throop Borough Controller, to the Trustees of the Throop Environmental Fund. a. The letter states, in part: Soltis - Soarano, 94- 054 -C2 Page 30 Before any payments are turned over to the Environmental Fund, we would like proof of the interest bearing account being used, to whom is the check made payable, and also we would like a receipt for checks turned over. Also, because of the numerous inquiries being made to me, and to avoid any rumors, would you please make available the expenditures from the fund thus far and future expenditures as they are made on some sort of timely basis, until the trust fund has received $500,000.00 in payments. 92. R -3 consists of minutes from the December 27, 1989 meeting of Throop Borough Council. a. The minutes include the following comments: Mayor Stecco also asked about the 50,000.00 check from the Keystone Landfill and if the Boro has to account for the expenditures from said check. President Mazak answered: the check has nothing to do with the Boro. It was not given to the Boro but rather to the taxpayers organization. b. The commentary in subparagraph b above is immediately followed by commentary by Ken Mazak on an unrelated issue. 93. R -4, pages 1 -4, consists of a listing of bills and expenses including legal fees paid by the TPOA, which bears a handwritten date of August 3, 1989. a. The listing of expenses is itemized under the names of various individuals including Dorothy Toth, Paul Kubasko, Fred Soltis, Eugene Sholtes, Eddie Wojciechowski, Bette Goreschak, Joan Kubasko, and Arlene Skutnik. (1) Each of these five individuals lists as an item for reimbursement time that was spent devoted to the lawsuit. (2) Two of these individuals list as an item for reimbursement time taken off from work pertaining to the lawsuit. b. Legal fees for Attorney Randall Brubaker are listed separately. 94. SEC -1 is a certified copy of Bruno - Nelson, Order No. 1016 of the State Ethics Commission, issued September 6, 1996. a. The Order reflects that there was no hearing and that the decision was based upon a Consent Agreement and Stipulation of Findings submitted by the parties (Order No. 1016 at 16). III. DISCUSSION: In her capacity as a Throop Borough Council Member, the Respondent, Sharon Soltis - Sparano, hereinafter Sparano, has been a public official subject to the provisions Soltis- Soarano, 94- 054 -C2 Page 31 of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, gt seq. The issue before us is whether Sparano as a Councilperson for Throop Borough, Lackawanna County, violated Section 3(a) of the Ethics Law (Act 9 of 1989) as to the allegation that she used the authority of her office for the private pecuniary benefit of a business with which she or a member of her immediate family is associated by participating in council discussions and /or decisions relating to payments and reimbursements by the Borough of various expenses including but not limited to legal fees to the Throop Property Owners Association, an association where her father serves as President. Pursuant to Section 3(a) of the Ethics Law quoted in Section I 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 set forth in Section I above. We initially address the legal arguments which Respondent has raised. Respondent has moved for dismissal of this case based upon the contention that the TPOA as a non - profit corporation is .nom./ a business as defined in the Ethics Law: Section 2. Definitions "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. 65 P.S. §402. Respondent argues that per the Statutory Construction Act, the phrase, "organized for profit" which appears at the end of the definition applies to all of the enumerated entities that precede it, including "corporations." We disagree. The word "or" is disjunctive, and furthermore, the repeated use of the word "any" precludes any interpretation that the final phrase "legal entity organized for profit" modifies the initial word "corporation:" "Anv corporation, ... anv legal entity organized for profit." The clear and unambiguous statutory language is that any corporation, including a non - profit corporation, is a "business." For prior, related Opinions of this Commission, see, Confidential Opinion, No. 89 -007; McConahy, Opinion No. 96 -006. Based upon the clear and unambiguous language of the definition, we need not analyze all of the additional factors involving statutory construction, yet, as is pointed out by the Investigative Division in its Closing Statement, those factors which include the legislative intent in promulgating the Ethics Law, the mischief to be remedied, the object to be attained, the consequences of a given interpretation, and the legislative and administrative interpretations of such statute, also support our holding. Having concluded that a non - profit corporation is within the definition of "business," we further hold that the TPOA specifically is within the definition of "business," and that it is a business with which a member of Respondent's immediate Soltis- Soar 94- 054 -C2 Page 32 family — her father, Fred Soltis — is associated through his position as an officer of the corporation. Respondent's next contention is that the conflict of interest provisions do not apply in this case because the TPOA's goals are to seek honesty and integrity in government -- not private gain. We reject the argument. The TPOA's goals are irrelevant in establishing whether it in fact received a private pecuniary benefit. Respondent next contends that the TPOA was seeking to benefit the community at large as a class or subclass. To the extent Respondent is attempting to argue that the class /subclass exception to the definition of conflict of interest applies to this case, it is to no avail. The class /subclass exception applies only where the action "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 of his immediate family or a business with which he or a member of his immediate family is associated." 65 P.S. §402 (Emphasis added). Regardless of whether the actions which are alleged to have benefitted the TPOA in this case may have also benefitted the public, any such effect upon the public would clearly not even be of the same nature, let alone "to the same degree" as the alleged financial effect upon the TPOA. The argument has no merit. Finally, Respondent has repeatedly challenged the "integrity" of the investigation in this case. Respondent contends that the Investigative Division breached the ethical standards of this Commission by meeting with her political opponents. The argument has no merit for several reasons. First, there is nothing in the record which would indicate any "breach of ethical standards" by the Investigative Division. The fact that the Investigative Division may have interviewed persons who are political opponents of the Respondent does not impugn the investigation. This Commission would expect its Investigative Division to conduct a thorough investigation of all relevant witnesses, whether or not they happen to be political opponents of the Respondent. This Commission is fully capable of considering the potential bias of a witness in adjudicating a case. This Commission's decisions are based upon the facts, which are elicited from admitted pleadings and credible evidence. Having dispelled the legal arguments which have been raised by Respondent, we shall now summarize the facts. We note that the facts are largely undisputed, and that a great deal of time and expense could have been saved through stipulations and /or the limitation of the record to matters within this Commission's jurisdiction. Instead, we have been subjected to bickering, repetitious and irrelevant testimony as to the various interpretations of certain agreements (which this Commission does not have the jurisdiction to resolve anyway), the history, goals, and inner workings of the TPOA (which are irrelevant), and the conflicting personalities behind the myriad of disputes in the Borough of Throop, which probably nothing short of divine intervention could resolve. The Respondent served as a Council Member for Throop Borough from January, 1990 through December, 1993. Respondent's father, Fred Soltis, is President of the Throop Property Owners Association (TPOA). The TPOA is a non - profit corporation. Soltis has served as TPOA President at all times relevant to this case. The Respondent has never been a Member of the TPOA. Soltis - Soarano, 94- 054 -C2 Page 33 In 1987, before Respondent became a Throop Borough Council Member, Keystone Landfill, Inc., which was then located solely in the Borough of Dunmore, Pennsylvania, was trying to get Throop Borough to change zoning to allow it to expand its landfill operation into Throop. In April, 1987, the TPOA filed a complaint with the Pennsylvania Environmental Hearing Board opposing the landfill expansion. In August, 1987, Throop Borough Council voted to approve the expansion. Subsequently, in January, 1988, a new Council took over. The new Council decided to join the TPOA's opposition to the expansion of Keystone Landfill. The litigation was resolved by a three -party agreement of July 17, 1989 that is in evidence as ID -6. Pursuant to the Agreement, Keystone agreed to pay to the Borough and the Association a so- called "supplemental fee" in the amount of $1.00 per ton for each ton of solid waste received. There was to be an advance payment of $50,000 by Keystone at the time of the signing of the Agreement. Section 4.1 provided that Keystone would make payment to the Borough of all fees accruing under Article 3 — which included the supplemental fee — and that "For this purpose the BOROUGH shall be acting as the agent of the ASSOCIATION." (ID -6, page 7). Section 2.6 of the three -party Agreement provided that no leachate was to be disposed of through the Borough of Throop, or through sewer pipes located in Throop. A second Agreement was executed on the very same day -- July 17, 1989 -- and this latter Agreement was a two -party agreement between the TPOA and the Borough of Throop. This Agreement is in evidence as ID -7. Per the Agreement, the funds received from the supplemental fee paid by Keystone were to be divided equally between the Borough and an interest bearing trust fund to be controlled jointly by the Association and the Borough until the trust fund had received $500,000 in payments from Keystone. After the trust fund reached $500,000 in total payments from Keystone, then all of the supplemental fee payments were to be used fully at the discretion of the Borough. Section 202 of the Agreement stated that the trust fund was to be set up initially with the receipt of the advance $50,000 payment from Keystone. The Agreement set forth provisions for the purpose and use of the trust fund. The trust fund was to pay any bills that were outstanding at that time that had been incurred by the TPOA or its Members associated with investigation, monitoring, or litigation regarding Keystone Landfill. The trust fund was to reimburse the Association for all legal fees, expert fees and associated costs, associated with its appeals and maintenance of those appeals related to the Keystone Landfill from April 20, 1987 to the time of the Agreement. The Agreement further states: §203 "Purpose and use" The trust fund shall be for the purpose of payment of the costs of, among other things, the duly authorized representatives and for engineering fees to review operational and other data, for attorney and other fees and costs associated with past, present, or future monitoring or environmental protection activities or enforcement actions regarding Keystone Landfill; the trust fund is separate from the closure trust fund which Act 101 requires to be established. The trust fund may also be used for the enhancement and maintenance of a clean, sound, safe environment to be initiated by written directions from the Soltis - Soarano, 94- 054 -C2 Page 34 President of the Association, or one whom the President designates in writing. (ID -7, page 3; leg, Finding 66a). It is the interpretation of former Solicitor McGowan, who negotiated this Agreement on behalf of the Borough, that the TPOA Members wanted Borough Council to continue to have a say in how the money was spent, and that the TPOA President was given a say in how the money was spent to keep the environmental goals from being changed by some future unsympathetic Borough Council. It is the Respondent's view that the Borough and the Borough Council were not to have any involvement as far as the running of the trust fund. After the July 17, 1989 Agreements had been executed and Keystone had advanced the initial $50,000 payment, Respondent took office in January, 1990. Respondent testified that she had verbal opinions from Attorney McGowan, the Solicitor at the time, and later from Solicitor Cullen, as to the conflict of interest issue regarding her father being the President of the TPOA. Respondent does not have any written legal opinion stating that her voting on matters involving the TPOA would not be a violation of law. In approximately October, 1990, the first quarterly check from Keystone Landfill resulting from the 1989 Agreement was received. The Borough put the full amount of the money into the Borough General Fund and did not put any portion into the Environmental Trust Fund. By letter dated November 1, 1990, the Throop Borough Treasurer and Controller wrote to the Trustees of the Environmental Fund and advised that certain information regarding the handling of the Environmental Fund would be required before any payments would be turned over to the Environmental Fund. Witness Kenneth Mazak who was on Borough Council at the time testified that the request for verification for the bills that were being paid from the fund was denied. Respondent testified that commencing in October, 1990, she repeatedly objected that the TPOA could have a claim against the Borough, and that not only was the Borough in violation of the agency relationship, but the Borough was also denying the TPOA interest on the money that was being held up in the Borough account. On January 28, 1991, Throop Borough Council voted unanimously to authorize depositing the Environmental Trust Fund share of the supplemental fee from Keystone Landfill, Inc. into an interest bearing escrow account, "until such time the monies are turned over to the Environmental Trust Fund." (ID -19E, page 2). Respondent voted in favor of this motion. As discussed more fully below, the moneys that had been targeted for the Environmental Trust Fund were not turned over to the Trust Fund until approximately 2 years later when the make -up of the Borough Council had changed. Another dispute which arose involved a proposed sanitary sewer line for the Landfill through the Borough of Throop. The July 17, 1989 three -way Agreement (ID- 6) had provided at Section 2.6 that no leachate was to be disposed of through the Borough of Throop or through sewer pipes located in Throop. On August 27, 1990 and September 24, 1990, Borough Council voted in favor of various motions to accept a proposal by Keystone Landfill to run a sewer line in Throop. Respondent participated in the discussions and voted against the motions. On November 26, 1990, Borough Council voted to approve the agreement in evidence as ID -12, which provided for the installation of a new sanitary sewer line through the Borough of Throop for the Soltis - Soarano, 94- 054 -C2 Page 35 transmission of treated wastewater from the Keystone site. The motion carried by a 5 -2 vote with Respondent voting against the motion. The TPOA filed an action in federal court to stop the line from coming through the Borough of Throop. The suit sought injunctive relief as well as damages, interest, costs, and counsel fees in favor of the TPOA. On March 29, 1991, Judge Kosik of the United States District Court for the Middle District issued a ruling stating that the Plaintiffs did not meet the requirements to warrant injunctive relief. The Court dismissed the case on jurisdictional grounds, noting that the Plaintiffs were free to pursue the claims in state court "where jurisdiction appropriately exists." (ID -13, pages 10 -1 1). The dismissal was affirmed on appeal to the Third Circuit Court of Appeals. The Third Circuit Court of Appeals further decided that appellants would bear the costs, which Soltis testified were in the amount of $150.00. Although the federal suit was dismissed, the proposed sewer line was never extended through the Borough of Throop. Keystone notified the Borough that it would not be installing the dedicated sewer line and that it was nullifying the November 27, 1990 agreement. In January, 1992, Diane Bruno- Nelson and James Michaels, both of whom have been members of the TPOA, took office as Council Members, and Kenneth Mazak was no longer on Council. On April 8, 1992, Respondent participated in discussions, seconded a motion, and participated in the unanimous vote to disburse the funds from the escrow account to the Environmental Trust Fund. On the following day, April 9, 1992, funds in the amount of $377,674.50 were transferred from the escrow account to the Environmental Trust Fund. Subsequently, on April 28, 1992, a second deposit was made to the Environmental Trust Fund. That deposit was in the amount of $75,886.92, and it appears that it may have emanated from the Borough's General Fund. In December, 1992, Borough Council received a letter (ID -15) from Fred Soltis, President of the TPOA, asking Borough Council to take action regarding recovering funds which had been lost due to the failure of prior Council to timely turnover Environmental Trust Fund moneys and due to the lawsuit against the leachate line. On January 25, 1993, Respondent made a motion and voted with the unanimous Council to authorize the Solicitor to prepare an opinion in response to that letter. Respondent specifically referenced a surcharge action as to individual officers responsible for causing the perceived problem. At the April 26, 1993 regular Council meeting, Respondent made a motion to direct the Solicitor to review and, if appropriate, initiate a surcharge action against any former Council Member responsible in part for withholding fees paid by Keystone that were due the TPOA per the July 17, 1989 Agreements. The motion specified that the surcharge action would include but not be limited to losses sustained by the TPOA, costs incurred by the TPOA, and damages accruing to the TPOA. The motion carried by a 4 -0 vote with one abstention, with Respondent voting in favor of the motion. At the May 24, 1993 regular Council meeting, two key votes occurred involving the TPOA. First, a motion was passed by a 4 -3 vote to reimburse the TPOA the costs incurred in the legal battle against the leachate line, in the amount of $27,361.16. A second motion was also passed by a 4 -3 vote to sever the ties between the Throop Soltis - Soarano, 94- 054 -C2 Page 36 Borough Council and the TPOA on the Environmental Trust Fund. Respondent voted in favor of both of these motions. In June, 1993, a deposit in the amount of $27,361.16 was made to the Environmental Trust Fund, Account No. 04- 0058 -0, from the Borough's General Fund. A copy of that check is in evidence as ID -1 1. As for the vote to sever the ties between the Borough of Throop and the TPOA on the Environmental Trust Fund, the minutes reference the execution of an agreement and, in fact, ID -9 was executed by Council President and Fred Soltis as an Amendment to terminate the July 17, 1989 two -way Agreement between the Borough of Throop and the TPOA. The Amendment states, in part: The Association is released from and no longer bound by the terms of the Agreement and is solely entitled to use as it sees fit the monies it received as part of the payment due and owing under the Settlement it entered into with Keystone Sanitary Landfill, Inc. and the Borough in satisfaction of the Association's withdrawal of the actions it had filed on its behalf before the Court of Common Pleas in Lackawanna County and the Pennsylvania Environmental Hearing Board. (ID -9, page 1). The TPOA now has control of the Environmental Trust Fund. However, the issues and disputes between the TPOA and the Borough of Throop are far from over. The question of who should be controlling the trust fund continues to be the subject of pending litigation. Indeed, there are approximately a half dozen separate pieces of ongoing litigation between the TPOA and the Borough of Throop. There has been no final legal determination of any wrongdoing or any illegalities committed by Throop Borough Council, Respondent, or the TPOA. Having summarized the facts, we must now determine whether the actions of Sparano violated Section 3(a) of Act 9 of 1989. We note that the testimony regarding the opinions of Solicitors as to whether Respondent had a conflict of interest is of no consequence. At best, the impact of a Solicitor's opinion is to enable the Respondent to avoid a treble penalty, 65 P.S. §409(c), which we would not be inclined to order in this case anyway. It is the position of the Investigative Division that the Respondent violated Section 3(a) when, as a Member of Throop Borough Council, she participated in the discussions and decisions of the Borough to: A. Pay from an escrow account being held by the borough $453,561, to a trust fund for the benefit of the Throop Property Owner's Association. B. Release from all borough control the monitoring of an environmental trust fund and turn over said fund containing in excess of $450,000 to the sole control of the Throop Property Owner's Association. Soltis - Soarano, 94- 054 -C2 Page 37 C. Pay from the borough general fund to the TPOA $27,361.16 to reimburse said association for legal fees incurred in a lawsuit in which the borough had prevailed and had no obligation to pay. Closing Statement of the Investigative Division, at 36. We shall consider each of these alleged violations. With regard to the first alleged violation involving the transfer of the funds from the escrow account to the Environmental Trust Fund, we find no violation of Section 3(a) for the following reasons. No matter how one may otherwise interpret the July 17, 1989 Agreements, it is indisputable that the Environmental Trust Fund was agreed to be the proper depository for that one -half portion of the supplemental fee received from Keystone. Thus, the subsequent transfer of the escrowed funds into the Environmental Trust Fund, in and of itself, would not support a Section 3(a) violation since that is where the funds belonged anyway, based upon actions by Borough Council which took place before Respondent became a Borough Council Member. The element of a private pecuniary benefit is lacking. With regard to the second alleged violation, involving the release from all Borough control of the monitoring of the Environmental Trust Fund and the turning over of that Fund to the sole control of the TPOA, we find a violation of Section 3(a) for the following reasons. Regardless of how one may otherwise interpret the July 17, 1989 two -party Agreement (ID -7) and the subsequent Amendment to that Agreement (ID -9), at least one fact is indisputable. The two -party Agreement, on its face, sets forth the purposes and uses for which the Trust Fund could be expended, while the subsequent amendment provided for the TPOA being solely entitled to use the money "as it sees fit" (ID -9, p. 1). The unfettered use of the Environmental Trust Fund, in and of itself, constitutes a private pecuniary benefit to the TPOA, which resulted from the 4 -3 vote of Council in which Respondent cast one of the deciding votes. Turning to the third alleged violation involving the Respondent's participation in Council discussions and /or decisions relating to the reimbursement by the Borough of $27,361.16 for legal fees incurred by the TPOA in fighting the leachate line, we find a violation of Section 3(a). The elements of this violation are clearly established on the record before us. The element of the use of authority of office has been met. On January 25, 1993, Respondent made a motion and voted in favor of authorizing the Solicitor to prepare an opinion in response to the December, 1992 letter from Fred Soltis. At the May 24, 1993 meeting, Respondent voted in favor of the motion to reimburse the TPOA for those legal expenses in the amount of $27,361.16. The element of a private pecuniary benefit is also clearly established. The TPOA was not otherwise entitled to such a payment. The federal courts did not order the Borough to pay the TPOA's legal fees. To the contrary, the only costs which were assessed were against the appellants. A private pecuniary benefit to the TPOA, as a business with which Respondent's father is associated, is all that is required to complete the elements for Soltis - Soarano, 94- 054 -C2 Page 38 a Section 3(a) violation. No private pecuniary benefit to Respondent or her father need be shown. The Investigative Division asks that Respondent be ordered to make restitution in the amount of these legal fees, i.e., in the amount of $27,361.16, and that this matter be referred to an appropriate law enforcement authority for further review. Closing Statement of the Investigative Division, at 37. Section 7(13) of the Ethics Law, 65 P.S. §407(13), provides that "Any order resulting from a finding that a public official or public employee has obtained a financial gain in violation of this Act may require the restitution plus interest of that gain to the appropriate governmental body." In this case, we do not order that restitution be made by the Respondent. Although Respondent cast one of the four votes, there were three other individuals who also voted in favor of this reimbursement to the TPOA. Keeping all of the facts and circumstances in this case in perspective, we do not find the conduct of the Respondent to have been so egregious as to warrant ordering her to pay more than $27,000 in restitution to the Borough. We are curious as to why the Borough has not pursued recoupment of these legal fees from the TPOA, but our knowledge is limited to the record before us. As for a referral, this Commission has the express statutory authority to refer cases to law enforcement officials. 65 P.S. §§407(13); 408(a). This case calls for such a referral. We shall refer this matter to the appropriate law enforcement authority for review and appropriate action. IV. CONCLUSIONS OF LAW: 1. Sharon Soltis - Sparano, as a Councilperson in Throop Borough, Lackawanna County, was a public official subject to the provisions of Act 9 of 1989. 2. Soltis - Sparano did not violate Section 3(a) as to her participation in the discussions and decisions of the Borough to pay from an escrow account being held by the Borough $453,561 to a trust fund for the benefit of the Throop Property Owners Association (TPOA), a business with which her father is associated, in that the element of a private pecuniary benefit is lacking. 3. Soltis- Sparano violated Section 3(a) as to her participation in the discussions and decisions of the Borough to release from all Borough control the monitoring of an Environmental Trust Fund and to turn over said Fund containing in excess of $450,000 to the sole control of the TPOA, which terminated prior restrictions as to the use of these funds and resulted in a private pecuniary benefit to the TPOA consisting of its ability to use these funds without restriction. 4. Soltis - Sparano violated Section 3(a) of the Ethics Law as to her participation in the discussions and decisions of the Borough to pay from the Borough General Fund to the TPOA $27,361.16 to reimburse the TPOA for legal fees incurred in a challenge to a proposed leachate line, where the TPOA did not otherwise have any entitlement to such reimbursement. In Re: Sharon Soltis - Sparano ORDER NO. 1045 File Docket: 94- 054 -C2 Date Decided: 2/20/97 Date Mailed: 3/7/97 1. Sharon Soltis - Sparano, as a Counciiperson in Throop Borough, Lackawanna County, did not violate Section 3(a) as to her participation in the discussions and decisions of the Borough to pay from an escrow account being held by the Borough $453,561 to a trust fund for the benefit of the Throop Property Owners Association (TPOA), a business with which her father is associated, in that the element of a private pecuniary benefit is lacking. 2. Soltis - Sparano violated Section 3(a) as to her participation in the discussions and decisions of the Borough to release from all Borough control the monitoring of an Environmental Trust Fund and to turn over said Fund containing in excess of $450,000 to the sole control of the TPOA, which terminated prior restrictions as to the use of these funds and resulted in a private pecuniary benefit to the TPOA consisting of its ability to use these funds without restriction. 3. Soltis - Sparano violated Section 3(a) of the Ethics Law as to her participation in the discussions and decisions of the Borough to pay from the Borough General Fund to the TPOA $27,361.16 to reimburse the TPOA for legal fees incurred in a challenge to a proposed leachate line, where the TPOA did not otherwise have any entitlement to such reimbursement. 4. This matter will be referred to the appropriate law enforcement authority for review and appropriate action. BY THE COMMISSION, emu& pU- DANEEN E. REESE, CHAIR Commissioner Roy W. Wilt concurs in the Commission's finding of the two violations above and referral to the appropriate law enforcement authority, but dissents to the extent that he would also find a violation of Section 3(a) as to the Respondent's participation in the discussions and decisions of the Borough to pay from an escrow account being held by the Borough $453,561 to a trust fund for the benefit of the Throop Property Owners Association (TPOA).