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HomeMy WebLinkAbout1063 SmithIn Re: Gordon Smith STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Boyd E. Wolff Julius Uehlein 96- 065 -C2 Order No. 1063 10/2/97 10/14/97 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 et seq., by the above named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was not filed and a hearing was deemed waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the State Ethics Commission will be made available as a public document thirty days after the mailing date noted above. However, 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. mith, 96- 065 -C2 Page 2 I. ALLEGATION: That Gordon Smith, a public official in his capacity as a Councilman for Crafton Borough, Allegheny County, violated the following provision of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself and /or a business with which he is associated when he sold and /or arranged for the sale of a medical kit and /or related supplies to the borough; and when he participated in the borough's discussions, decisions and /or actions in relation thereto. 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). 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. 11. FINDINGS: 1. The Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Gordon Smith violated provisions of the State Ethics Act (Act 9 of 1989). 2. Upon review of the complaint the Executive Director, the Investigative Division initiated a preliminary inquiry on September 3, 1996. The preliminary inquiry was completed within sixty days. 4. On October 31, 1996, a letter was forwarded to Gordon Smith, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investigative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, no. P 487 031 688. Smith, 96- 065 -C2 Page 3 b. The domestic return receipt bore the signature of Gordon Smith, with a delivery date of November 4, 1996. 5. On January 30, 1997, the Executive Director of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 6. The Commission issued an order on February 20, 1997, granting the ninety day extension. 7. Periodic notice letters were forwarded to Gordon Smith in accordance with the provisions of the Ethics Law advising him of the general status of the investigation. 8. The Investigative Complaint was mailed to the Respondent on July 23, 1997. 9. Gordon A. Smith served as a Crafton Borough Council member from January, 1992 through December, 1995. a. Smith previously served on Council from January, 1983, to December, 1987. 10. A Statement of Financial Interests filed by Gordon Smith for calendar year 1995, indicates Safety Professionals, Inc. as a source of income. a. A Statement of Financial Interests filed by Smith for calendar year 1994, indicates Safety Professionals and Allegheny Markets Inc., as sources of income. 11. Safety Professionals, Inc., does business as ABC Fire Extinguisher Company and /or ABC Medical Service & Supply Company. a. Deborah Fannie and Tony Groomes are co- owners of Safety Professionals, Inc., 4641 Evergreen & Peoples Rd., Pittsburgh, Pennsylvania. b. The company provides repair service and sales for first aid and fire related equipment. c. Sales personnel are hired and retained to perform sales and service calls. 12. On October 10, 1994, Gordon Smith began his employment with Safety Professionals, Inc., in charge of first aid and safety sales. a. Gordon Smith submitted an application to Safety Professional, Inc., dated September 20, 1994. b. Gordon Smith was interviewed and offered a job between September 20 and September 23, 1994. 13. Gordon Smith was formerly employed by Shop N Save supermarkets. a. Gordon Smith's last day of employment was on 10/01/94. Smith, 96- 065 -C2 Page 4 b. This was evidenced by a Shop N Save time sheet. 14. Crafton Borough has a Street Department which employs six road workers under the supervision of Road Foreman Walter Kaminski. 15. Walter Kaminski's duties as Road Foreman included overseeing the six employees, and handling the general maintenance of the buildings, streets and equipment. a. Kaminski was employed as the Road Foreman for eighteen years, retiring after 1994. 16. Crafton Borough policy has authorized Kaminski to make all purchases for the borough garage. a. Although not a written procedure, purchases under $100.00 did not require a council person's prior approval. b. Purchases over $ 100.00 would require a Committee Chair Persons prior approval. c. When Kaminski wanted to make a purchase over $100.00, he would get prior approval from the Road Committee Chairperson. d. The Road Committee Chairperson authorized purchases. e. Kaminski, with authorization, obtained purchase orders from the borough secretary. f. Kaminski was responsible for choosing the vendors. 17. Crafton Borough maintains a separate building for the road department. 18. Crafton Borough Road Building also referred to as the borough barn ", is located on Chartiers Avenue. a. The road building is two miles from the Crafton Borough Building. b. The road building is in a remote section of the borough. 19. Between September 20, 1994, and October 6, 1994, Gordon Smith in his capacity as Councilperson discussed with Street Foreman Walter Kaminski, the need for a first aid kit in the Borough Barn. a. The discussion took place at the Borough Barn. 20. On October 6, 1994 Calvin Jones a sales representative for Safety Professionals, Inc., delivered first aid supplies to the Crafton Borough Barn. a. Calvin Jones was the sales and service representative for fire extinguishers and medical supplies. Smith 96- 065 -C2 Page 5 b. Crafton road crew worker Joseph Pittinaro was present for the delivery and signed the invoice. c. The delivery of supplies was made based on information Jones received from Gordon Smith. 21 First aid supplies delivered on October 6, 1994, to the Crafton Borough Barn included the following: 1 First Aid Kit $ 135.45 3 First Aid Kit $1 16.85 1 Bio Hazard Clean Up Kit $ 25.00 TOTAL $277.30 22. Safety Professionals billed the Borough by Invoice #093852, which listed the Order and Service Date as October 6, 1994. a. The Sales Representative box contained the initials GS. 1. GS are the initials for Gordon Smith. b. The Service Technician box contained the initials CJ. 1. CJ are the initials for Calvin Jones. 23. Jones' handwriting appears in several areas on the original invoice. a. The prices, initials in the Sales Representative box (GS), and the item number for the bio- hazard kit (BBP -10P) was not Jones' handwriting. 24. On December 27, 1994 Calvin Jones delivered additional first aid supplies to the Crafton Borough Barn. a. Crafton road crew worker Richard Devlin was present for the delivery and signed the invoice. 25. First aid supplies delivered on December 27, 1994 to the Crafton Borough Barn included the following: 1 Papenol $6.45 1 Pain Free $7.00 1 Antibiotic Ointment $5.85 1 Hydrogen Peroxide $1.50 1 Neutral Eyes $5.75 1 Tweezers $1.50 1 Cotton Tip Applicators $2.00 26. Safety Professionals billed the Borough by Invoice #094153, which listed the Order and Service date as December 27, 1994. a. The Sales Representative box contained the initials GS for Gordon Smith. b. The Service Technician box contained no initials. Smith, 96- 065 -C2 Page 6 27. After the October 6, 1994, invoice ( #093852), from Safety Professions, Inc., was received Crafton Borough Secretary Kozlowski contacted the street department to verify the purchase. a. After verification Kozlowski placed the invoice on the bill list to be approved for payment by council. 28. The Crafton Borough bill paying procedures are as follows. a. The Crafton Borough bill lists are voted on in their entirety. b. Bill lists are distributed to council members prior to the meeting. c. All original invoices are brought to Crafton Borough meetings. d. Council member abstentions are recorded on the Bill List /Signature Page in the minutes. (1) A council member's signature on the Signature Page indicates approval of the bill list. 29. The borough's payment to ABC Medical Service & Supply /Safety Professionals for the 10/6/94, invoice ( #093952), was ratified at council's October 25, 1994, meeting. a. Smith was in attendance at the October 25, 1994 meeting. b. The motion carried by Unanimous Roll Call vote. c. Attached to the October 25, 1994, minutes was a bill list which included a Signature Page which signifies approval to pay bills. (1) Smith's signature appears on the Signature Page. (2) Council Members Rutledge and Stelzner abstained from the Duquesne Light Co., bill due to employment. 30. In 1994, Dennis Stelzner was Street Committee Chairman. a. In 1994, Gordon Smith did not serve on the Street Committee. b. Stelzner did not approve the purchase of the first aid kit (October, 1994) in his capacity as street committee chairman. (1) This was contradictory to borough policy. 31. Crafton Borough issued a check (no. 01069), dated 10/25/94, in the amount of $277.30 drawn on the General Fund to ABC Medical Service & Supply. a. Smith did not have signature authority. 32. Following receipt of invoice ( #094153) dated 12/27/94 Crafton Borough Secretary Kozlowski verified the purchase with the street department. Smith, 96- 065 -C2 Page 7 a. Kozlowski then placed the invoice on the bill list to be approved for payment. 33. The borough's payment to ABC Medical Service & Supply for the 12/27/94, invoice ( #094153), was ratified at council's January 10, 1995, meeting. a. A motion was unanimously approved by council to authorize the secretary to pay the listing of bills. b. Smith was in attendance at the January 10, 1995 meeting. c. Attached to the January 10, 1995 minutes was a bill list which included a Signature Page. (1) Smith's signature appears on the Signature Page signifying his approval to pay bills. (2) Council members Rutledge and Stelzner abstained from the Duquesne Light Co. bill due to employment. 34 Crafton Borough check no. 0061 in the amount of $30.05 was issued on 01/14/95 to the order of ABC Medical Service & Supply. a. Gordon Smith did not have signature authority. 35. Gordon Smith's employment with ABC /Safety Professionals included a weekly salary plus commissions. 36. By way of a letter dated 11/19/94, to Deborah Fannie, Smith references a conversation with her prior to his employment concerning compensation which included in part: a. Weekly salary of $288.00 per week to be paid on the 15th and 30th of - each month. b. Commissions would be paid on the 30th of each month following the previous month of sales. c. His commission pay for October, 1994, in the amount of $620.24 was past due. 37. By letter dated 12/01/94, to Smith, Fannie acknowledged receipt of Smith's letter and agreed to pay Smith for "October's percentage in full ". Fannie made the following reference to commission from the sale to Crafton Borough: "Also, as you'll notice, I've included the 10% from Crafton. It was your sale & it's appreciated. There is also a finder's fee for extinguisher service." 38. Safety Professionals, Inc. tracked it's sales personnel's daily work with Activity Reports. Smith, 96- 065 -C2 Page 8 a. Activity Reports list company names and addresses visited, contact phone number, amount of sale, call back date, type of call and results. b. The first Activity Report submitted by Gordon Smith was dated October 10, 1994. 39. Smith's Activity Reports from 10/10/94 to 10/31/94, confirm sales of $6058.10. a. The 10/06/94 Crafton sale for $277.30, plus a $5.00 finders fee, for the fire extinguisher, were not included in the total listed on Smith's Activity Reports. (1) This sale was made prior to Smith commencing employment with Safety Professionals on 10/10/94. b. A 10% commission was paid for total sales, which amounted to $605.81. c. Commission from the Crafton sale and the finders fee were added which totaled $32.73. d. Smith received total commissions for October, 1994, in the amount of $638.54. 40. Records of ABC Medical Service and Supply confirm that Smith was paid a commission starting on his first day of employment, and included the sale to Crafton Borough prior to his start date. a. Fannie approved the commission for Smith because he arranged for the sale of the first aid kits. (See Finding No. 37). 41. Check #0003806, dated 11/30/94 in the amount of $1,229.36, was paid to the order of Gordon Smith from ABC Fire Extinguisher Co. a. The deduction statement attached to the pay check had the notation, "10/94 Commission: 638.56 ". b. The $.02 difference was an accounting error. c. The endorsement section of the check contained the signature of Gordon Smith. 42. Smith's Activity Reports from 12/5/94 to 12/30/94, confirm sales of $8571.30, which included the $30.05 sale to Crafton Borough. a. A 10% commission was paid for total sales including the Crafton sale for a total of $857.13. b. The commission from the sale to Crafton Borough totaled $3.00. Smith, 96- 065 -C2 Page 9 43. Gordon Smith identified Crafton Borough on his Activity Report dated 12/27/94, the date of the second sale to Crafton Borough. The entry includes the following: "Crafton Boro 100 Stotz Ave 921-0752 30.05 3/95 SS (Service Stop) Stocked Kit with Odd items" 44. Check #0003891, dated 12/30/94 in the amount of $1,226.66, was paid to the order of Gordon Smith from ABC Fire Extinguisher Co. a. The deduction statement attached to the pay check had the notation, "12/19 to 12/30/94, $576.80." 45. Check #0003951, dated 1/30/95 in the amount of $1,123.75, was paid to the order of Gordon Smith from ABC Fire Extinguisher Co. The check was in the amount of $1123.75. a. The deduction statement attached to the pay check had the notation, "12/94 Commission: $857.13. 46 In 1995, Council Member Thomas Byers, was Chairman of the Street Committee. a. Late in 1995, Thomas Byers discovered the first aid kit in the Borough Barn. b. Byers was unable to determine who authorized the purchase. 47. Byers contacted ABC Medical Service & Supply Company and requested copies of invoices to Crafton Borough. 48. Gordon Smith hand delivered copies of the invoices to Councilman Dennis Stelzner who in turn provided the invoices to Byers. 49. Thomas Byers compared the invoices he received from Smith to invoices on file in Crafton Borough files and found that the invoices he received from Smith had been altered. 50. The October 6, 1994, invoice ( #093852), had been altered to reflect the initials CJ in the Sales Representative Box, instead of GS (See Finding 22). a. Smith subsequently admitted to being responsible for altering the initials. 51. During the December 12, 1995, Crafton Borough Council meeting, Councilman Byers questioned the first aid kit purchase. a. Byers advised council that Street Foreman Kaminski had no recollection of authorizing the first aid kit purchase. b. Byers questioned Gordon Smith's involvement to approve the purchase since he was an employee of Safety Professional Inc. Smith, 96- 065 -C2 Page 10 c. Smith denied that he was an employee of Safety Professionals, on October 6, 1994, when the borough purchased the first aid kit but was employed by them on December 27, 1994. d. Smith denied receiving any compensation as a result of the sale. 52. Following the report by Council Member Thomas Byers at the December 12, 1995, meeting regarding Smith's participation in the sale of the first aid kit to the borough, an investigative committee was formed to review the situation. a. Mayor Edward Stewart, Councilman Teelo Rutledge and Solicitor Edward Witt were appointed to the committee. 53. A special meeting of council was scheduled for February 6, 1996, to review the findings of the committee with Smith. a. Smith did not attend the meeting. b. The meeting was not held. 54 On February 20, 1996, Rutledge authored a memo outlining the committee's findings regarding Smith. a. The memo was made part of the record of the April 23, 1996, meeting of council. 55. The findings of the committee read at the 04/23/96 council meeting included the following: a. Smith, by his own admission on December 12, 1995, signed and approved the list of bills which included a payment to his employer -- ABC Medical Supply. This is a direct violation of the basic rule of Council. Mr. Smith is no longer a member of his body and therefore it is difficult to impose any disciplinary action for this error in judgment. As a council, our hope is that we all learn from this experience and prevent its recurrence. We have taken steps toward that goal by adopting stringent guidelines for any purchase exceeding $100. b. Investigations and findings concerning alleged violations of the Ethics Act are within the sole province and jurisdiction of the Pennsylvania Ethics Commission. The Borough Council does not have the authority to investigate or adjudicate alleged violations of the Act. This conclusion, however, does not preclude individuals from persuasion, however, does not preclude individuals from pursuing this matter before the Ethics Commission. 56. Solicitor Witt issued a statement regarding the question of the purchase by Councilman Gordon Smith on 02/16/96. a. Witt's opinion was that Smith violated a long standing Council rule that department purchases, unless routine, are to be made only with the knowledge of the Committee Chairman. Smith, 96- 065 -C2 Page 11 b. Witt stated, "It would appear abundantly clear that at the time of his votes, Mr. Smith was an employee of ABC Medical Services & Supply or a parent business and that he knew, or should have known, that the subject invoices were on the list of bills for which he had voted." 57. Gordon Smith was made aware of the State Ethics Act as it relates to conflicts of interest concerning purchases made from a Member of Council's employer and the Borough in a letter from the Solicitor to all members of Crafton Borough Council, dated 04/29/92. a. The solicitor specifically advised that "To be kept in mind by all members of council is that there is an obligation to abstain whenever there is a consideration of a purchase or a contract between a member of council's employer and the borough. 58. Smith did not disclose his employment status to the members of council in October, 1994, at the time purchases from his employer were approved for payment. 59. Gordon Smith used the authority of his office for the private pecuniary benefit of himself and Safety Professionals, Inc., a business with which he is associated. a. Smith, in his capacity as councilman, arranged for the sale of a first aid kit, from his employer in the amount of $307.35, to the borough through discussions with the borough road foreman. (See Finding Nos. 19, 20, 21, 24 & 25). b. Smith participated in approving payments to his employer on October 25, 1994. (See Finding No. 29) and January 10, 1995. (See Finding No. 33). c. Smith received commissions and a finders fee as a result of sales to the borough in an amount of $35.73. (See Finding No. 39(c) and 42(b)); d. A business with which Smith was associated received a private pecuniary benefit as a result of the use of office by Smith. III. DISCUSSION: At all times relevant to this matter, the Respondent, Gordon Smith, hereinafter Smith, has been a public official subject to the provisions of the Public Official and Employee Ethics Law ( "Ethics Law "), Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, s_e_q. The allegation is that Smith, a public official in his capacity as a Councilman for Crafton Borough, Allegheny County, violated Section 3(a) of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself or a business with which he is associated when he sold or arranged for the sale of a medical kit or related supplies to the borough; and when he participated in the borough's discussions, decisions or actions in relation thereto. Smith, 96- 065 -C2 Page 12 Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as quoted above. Having noted the issues and applicable law, we shall now summarize the salient facts. Smith served on the Crafton Borough Council from January, 1992 through December, 1995. On October 10, 1994, Smith began private employment with Safety Professionals, Inc. which does business as ABC Fire Extinguisher Company or ABC Medical Service and Supply Company and provides repair service and sales for first aid and fire related equipment. Crafton Borough authorized Road Foreman Walter Kaminski to make all purchases for the Borough garage. If Kaminski wanted to make a purchase in excess of $100, he would need prior approval from the Road Committee Chairperson. Purchases under $100 did not require such approval. Between September 20, 1994 and October 6, 1994, Smith as a Council Member discussed with Kaminski the need for a first aid kit in the "Borough Barn, ".a separate Borough building for the Road Department. Calvin Jones, a sales representative for Safety Professionals, Inc., delivered first aid supplies to the Crafton Borough barn on October 6, 1994. The invoice for the order listed the initials "GS" (Smith) as the sales representative with the initials "CJ" (Jones) as the service technician. Since Dennis Stelzner, the Street Committee Chairman, never approved the purchase of the first aid kit, the purchase was contrary to Borough policy. On December 27, 1994, Jones delivered additional first aid supplies to the Crafton Borough Barn. The invoice for that order listed the sales representative's initials as "GS" (Smith) with no initials for the service technician. Crafton Borough had an established procedure for paying invoices. All original invoices are brought to Crafton Borough meetings with bill lists distributed to Council Members prior to the meeting. The Borough votes on bills in their entirety. A Council Member's signature on the bill list page indicates approval. Abstentions are also recorded on the bill list page. As to the Borough purchase of the first aid supplies from the ABC Medical Service and Supply - Safety Professionals on October 6, 1994, Smith was in attendance at the meeting wherein that invoice was reviewed for payment. The minutes reflect that the motion to approve the bills carried by unanimous vote. Further, the minutes include Smith's signature. Subsequently, Crafton Borough issued a check in the amount of $277.30 in payment to ABC Medical Service and Supply. As to the purchase in December, 1994, the invoice was placed on the Borough bills list for approval. The ABC Medical Service and Supply invoice was ratified at a Council meeting on January 10, 1995 through unanimous action. Smith attended that meeting and the bills list includes his signature. Subsequently, a Borough check in the amount of $30.05 was issued to ABC Medical Service and Supply in payment of the invoice. As an employee of ABC /Safety Professionals, Smith received a weekly salary plus commissions. Smith received a letter dated December 1, 1994 in which his Smith, 96- 065 -C2 Page 13 employer acknowledged that his payment included a 10% commission from the Crafton sale which was appreciated. It appears that the sale to Crafton Borough in October, 1994 occurred at a time prior to the commencement of Smith's employment with Safety Professionals; however, Smith received the commission because he arranged the sale. As to the sale of additional supplies to Crafton Borough in December, 1994, the records reflect that Smith received a 10% commission on that sale. The Chairman of the Street Committee, Council Member Thomas Byers, in 1995, discovered the first aid kit in the Borough Barn and could not determine who authorized the purchase. Byers contacted ABC Medical Service and Supply Company for copies of the invoices which Smith delivered to Council Member Dennis Stelzner who in turn provided them to Byers. When Byers compared the invoices he received from Smith to the invoices on file in Crafton Borough, he noted that the October, 1994 invoice had been altered to reflect the initials "CJ" in the sales representative box instead of "GS." Smith subsequently admitted that he altered the initials. At a December 12, 1995 Crafton Borough Council meeting, Byers questioned the first aid purchase. Byers informed Council that Street Foreman Kaminski had no recollection of authorizing the purchase and questioned Smith's involvement in the purchase since he was an employee of Safety Professionals, Inc. Smith denied he was an employee of Safety Professionals on October 6, 1994 and denied receiving any compensation as a result of the sale. As a result of Council Member Byers' report, an investigative committee was formed to review the matter. A special meeting of Council was scheduled to review the findings of the Committee but no such meeting was ever held. The Committee outlined its findings in a memo which was made part of the April 23, 1996 Council meeting. The findings in part concluded that the actions of Smith directly violated the Council rule on departmental purchases when he signed and voted to approve a bills list which included a payment to his employer. It was further noted that since Smith was no longer a Member of Council, disciplinary action could not be taken but that the Pennsylvania Ethics Commission did have jurisdiction over alleged violations of. the Ethics Law and individuals could pursue the matter before the Ethics Commission. - Although the Solicitor for Crafton Borough Council in April, 1992 advised Council Members that conflicts would exist concerning purchases made from a Council Member's employer, Smith did not disclose his employment status to Council in October, 1994 at the time of the purchase from his employer. As noted above, Smith concealed his involvement in the purchase by altering his initials on an invoice from "GS" to "CJ." Lastly, Fact Finding 59 recites that Smith used the authority of office for a private pecuniary benefit of himself and business with which he was associated when he arranged the sale of the first aid kit and also participated in approving payments to his employer on October, 1994 and January, 1995. Having summarized the above relevant facts, we must now determine whether the actions of Smith violated Section 3(a) of Act 9 of 1989. In order to establish a violation, Section 3(a) requires a use of the authority of office or confidential information by a public official /public employee 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. Smith, 96- 065 -C2 Page 14 In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, Smith used the authority of office as to the sales of the supplies to the Borough. Smith had discussions with Road Foreman Kaminski for first aid supplies at the "Borough Barn." Further, Smith participated in Council actions to approve the bills in payment for these supplies on two separate occasions. Such actions were uses of authority of office. Juliante, Order No. 809. The uses of authority of office resulted in a pecuniary benefit to Smith as to the commissions he received from his private employer on the sales of the supplies to the Borough. Since Smith was an employee of that sales company, it is a business with which he is associated. 65 P.S. §402. Finally, the pecuniary benefit was private because the Borough Code does not authorize a Council Member to have an interest in such sales. Accordingly, Smith technically violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself and a business with which he is associated. Brittenburq, Order No. 977. Based upon the totality of facts and circumstances in this case, we will take no further action. Lastly, we note that the parties have filed a Stipulation of Findings and Consent Agreement which sets forth a proposed resolution of the allegations. We believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. IV. CONCLUSIONS OF LAW: 1. Gordon Smith (Smith), as a Councilman for Crafton Borough, Allegheny County, was a public official subject to the provisions of Act 9 of 1989. 2. Smith technically violated Section 3(a) of Act 9 of 1989 when he sold medical kits of a business with which he is associated to the Borough and voted to approve payment to that business. In Re: Gordon Smith ORDER NO. 1063 File Docket: 96- 065 -C2 Date Decided: 10/2/97 Date Mailed: 10/14/97 1. Gordon Smith (Smith), as a Councilman for Crafton Borough, Allegheny County, technically violated Section 3(a) of Act 9 of 1989 when he sold medical kits of a business with which he is associated to the Borough and voted to approve payment to that business. 2. Based upon the totality of facts and circumstances in this case, we will take no further action. BY THE COMMISSION, tYlAupi(J6 DANEEN E. REESE, CHAIR