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HomeMy WebLinkAbout1073 CarosellaIn Re: James Carosella 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 Allan M. Kluger Boyd E. Wolff Julius Uehlein 96- 037 -C2 1073 1/14/98 1/26/98 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 gt 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 filed and a hearing was 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, 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. Carosella, 96- 037 -C2 Page 2 I. ALLEGATION: That James Carosella, a public official /public employee in his capacity as a Secretary- Treasurer for Penn Borough, Westmoreland County, violated the following provisions of the State Ethics Act (Act 9 of 1989) when he used the authority of his position for a private pecuniary benefit for himself by using his position to secure pay increases and by using his position to obtain pay to which he was not otherwise entitled. 65 P.S. §403(a). Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. II. FINDINGS: 1. James Carosella is the Secretary/Treasurer of Penn Borough, Westmoreland County, Pennsylvania. a. Carosella has held the position of Secretary/Treasurer since January 14, 1985. b. Carosella served as a Penn Borough Council member from January, 1984, through October 4, 1994. c. Carosella served dual positions of councilman and secretary/treasurer from January 14, 1985, through October 4, 1994. 2. At the October 4, 1994, Penn Borough Council meeting Carosella resigned from council after questions were raised about his serving in the dual positions of council member and secretary/treasurer. The minutes reflect the following: a. Following a 10 minute executive session, President. Darragh reconvened the meeting and announced that the council accepted the resignation of James Carosella from council. He shall retain the Secretary/Treasurers position until the end of 1995. This action is to comply with the Borough Code. b. Carosella was reappointed Secretary/treasurer in 1996. 3. Carosella was supposedly authorized to serve in the dual positions as per an Ordinance. 4. As secretary/treasurer, Carosella'a duties included, in part: a. Recording of the minutes of the Penn Borough Council meetings. b. Maintaining the borough bank accounts. c. Preparation of checks in payments of bills and salaries. Carosella, 96- 037 -C2 Page 3 d. Signing all checks issued for payment by the borough. 5. Those individuals with signature authority on borough checks include: the secretary; council president, and vice president. a. Two signatures are required on borough checks. b. In 1993, 1994, and 1995, all borough checks were signed by Carosella and Council President Jeffrey Darragh. 6. Penn Borough operated on an annual budget of approximately $105,000.00 per year, between 1991 and 1994. 7. Carosella's salary, as Secretary Treasurer, was set by council at a monthly rate. a. Prior to 1993, Carosella's salary was set at 5100.00 /month. b. Carosella's position as secretary/treasurer was part-time. c. Carosella's compensation did not include benefits or vacation. 8. Minutes of the Penn borough Council meetings confirm the following actions in regards to the setting of salary and salary increases for the position of secretary/treasurer. a. December 8. 1992: "Secretary/Treasurer salary to be increased." Present: Jeffrey Darragh; Stephen Carosella; Becky Dreistadt, James Fregar; James Carosella; Mayor Becky Fregar; Solicitor William Wiker. Absent: John Shaffer; Betty Minerva (1) No vote was taken at this meeting to increase the salary. (2) No discussion is recorded as to the proposed amount of increase. (3) Discussion and vote to approve the budget for the following year occurred after discussion of the salary increase for secretary/treasurer. (4) The budget remained the same as the previous year. (5) Carosella was serving as secretary/treasurer and council member at the time of the meeting. b. April 6. 1993: "A motion was made by Scott Shailer to give raise of $ .50 /hr to Jeff Darragh retro the first of year and also to raise Secretary's to $200 /mth Carosella, 96- 037 -C2 Page 4 retroactive to Jan. 1993. Seconded by Becky Dreistadt passed unanimously." Present: Jeffrey Darragh; Stephen Carosella; Becky Dreistadt; Ray Schaller; Joan Downing; James Carosella; Mayor Becky Fregar; Solicitor William Wiker. Absent: Betty Minerva (1) No abstentions are recorded. (2) James Carosella was serving in the dual capacity as secretary/treasurer and council member at the time of the meeting and participated in the vote. 9. The minutes of the Penn Borough Council meetings were handwritten by Carosella prior to January, 1995. a. This included the minutes of meetings discussed above. 10. Minutes of the January 5, February 2, and March 2, 1993, Penn Borough Council meetings do not include any reference to the salary of the secretary/treasurer. a. The budget for the fiscal year 1993 had been passed at the December, 1992, meeting. b. The budget did not include any reference to salary increases for the secretary/treasurer. 11. Carosella prepared all checks which were issued to him for the position of secretary/treasurer. 12. Carosella issued payroll checks to himself reflecting the increase from $100 per month to $200 per month as follows: Check No. Date Amount 1993: 8054 01/05/93 $ 88.40 8067 02/01/93 $ 88.40 8086 02/27/93 $ 88.40 8099 04/01/93 $ 88.40 8113 04/27/93 $322.60 8115 04/27/93 $174.80 8151 06/01/93 8174.80 8176 07/01/93 8174.80 8199 07/30/93 $174.80 8215 09/01/93 $174.80 8236 09/30/93 $174.80 8256 11/01/93 8174.80 8269 12/01/93 8174.80 1994: 8286 01/03/94 $174.80 8305 02/06/94 8174.80 Carosella, 96- 037 -C2 Page 5 8318 03/07/94 $174.80 8326 04/01/94 $174.80 8353 05/01/94 $174.80 8378 06/02/94 $174.80 8408 07/01/94 $174.80 8440 08/01/94 $174.80 8469 09/01/94 $174.80 8483 10/01/94 $174.80 8502 11/01/94 $174.80 8525 12/02/94 $174.80 1995: 8544 01/04/95 $174.80 8563 02/03/95 $174.80 8582 03/01/95 $174.80 8598 04/03/95 $174.80 8617 05/01/95 $174.80 8655 06/02/95 $174.80 8678 07/01/95 $174.80 8699 08/01/95 $174.80 8722 09/01/95 $174.80 8753 10/02/95 $174.80 8774 11/07/95 $174.80 8794 12/01/95 $174.80 a. These checks were usually issued at the beginning of the month. b. The amount of $174.80 represented Carosella's net monthly salary of $200.00 less withholding taxes. c. Check No. 8113 reflects the increase retroactive for the months of January, February, March and April, 1993. 13. Carosella issued two additional checks to himself in June and July, 1994. a. Check number 8385 was issued on June 8, 1994, and check number 8431, issued on July 13, 1994. 14. Penn Borough check number 8385, in the amount of $174.80, payable to James Carosella, is dated June 8, 1994. a. The check stub reflects the words "miscellaneous supplies" written in. (1) The stub is dated June 7, 1994. (2) There were no receipts to justify an expenditure in that amount. b. The check is signed by Darragh and Carosella. 15. Carosella admits that he wrote the check to himself. 16. Penn Borough check no. 8431, in the amount of $174.80, payable to James Carosella, is dated July 13, 1994. Carosella, 96- 037 -C2 Page 6 a. The memo portion of the check is blank. b. The check stub reflects "office keys and supplies." c. The check was signed by Carosella and Darragh. 17. No corresponding borough receipts or invoices could be located to account for the purchases of keys and /or supplies during this time period. a. Carosella has thus far not repaid the borough for the amounts of the two checks. 18. Carosella received a financial gain from the salary increase when he participated in actions of council, or did not officially abstain as of record from the council vote of April 6, 1993, resulting in his salary increase. 19. Carosella received a financial gain as a result of issuing two checks in June and July, 1994, (check nos. 8385 and 8431), totaling $349.60, without any accompanying documentation or receipts to justify the expenses for which the checks were issued. (See Finding Nos. 13, 14, 15 and 16). III. DISCUSSION: At all times relevant to this matter, the Respondent, James Carosella, hereinafter (Carosella), has been a public official /public employee 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, gfi seg. The allegation is that Carosella, as Secretary/Treasurer for Penn Borough, Westmoreland County, violated Section 3(a) of the Ethics Law when he used the authority of his position for a private pecuniary benefit by securing a pay increase for himself and by using his position to obtain Borough funds to which he was not entitled. Pursuant to Section 3(a) of the Ethics Law quoted above, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: 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 Carosella, 96- 037 -C2 Page 7 65 P.S. §402. his immediate family or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the material facts. Carosella served as a Penn Borough Council Member from January, 1994 until October 4, 1994 when he resigned. In addition, Carosella served as Borough Secretary/Treasurer from January 14, 1985 through October 4, 1994 and from 1996 following his reappointment. As Secretary/Treasurer, Carosella has duties and responsibilities of recording the Council meeting minutes, maintaining the Borough bank accounts, preparing checks in payment of bills and salaries, and signing all checks issued for payment by the Borough. Borough checks require two signatures with the Council President, Vice President, and the Secretary/Treasurer having signature authority. At a December 8, 1992 meeting of Borough Council, the minutes reflect that Council considered a salary increase for the Secretary/Treasurer but took no vote. At the April 6, 1993 Council meeting, a motion was made to give salary increases to two individuals, Jeff Darragh and Carosella, retroactive to the first of the year. It was proposed that Carosella's salary be increased from $ 100 to $200 per month. A second was made to the motion but the minutes do not record a vote, merely the Councilmembers present, which included Carosella, one Councilmember absent, and no abstentions. The payments Carosella received as Secretary/Treasurer for the years 1993 through 1995 are delineated in Fact Finding 12. In June, 1984, Carosella issued a Borough check to himself in the amount of $174.80 with the stub reflecting a notation of the words "miscellaneous supplies." The check was signed by Darragh and Carosella but there were no receipts to justify the expenditure. Carosella admits that he wrote the check to himself. In July, 1994, Carosella wrote another Borough check to himself in the amount of $174.80 with the check stub reflecting a notation of "office keys and supplies." The check was signed by Carosella and Darragh. Once again, there were no Borough receipts or invoices for the purchases. As per a Stipulation of the parties, Carosella received a financial gain from the salary increase when he participated in actions of Council and did not officially abstain. In addition, Carosella received a financial gain as to the two checks payable to himself which totaled $349.60. Having summarized the material facts, we must now determine whether the actions of Carosella 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 /employee for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, a question arises as to whether there was a use of authority of office by Carosella, 96- 037 -C2 Page 8 Carosella as to his salary increase as Secretary/Treasurer. In particular, the April 1993 minutes merely reflect the presence of Carosella and other Councilmembers but neither indicate any vote nor a statement that the motion carried. There must be some action taken by a public official /public employee in order to have a use of authority of office. See, Stephens v. SEC, 571 A.2d 1 120 (1990); Marchitello & Maguire v. SEC, 657 A.2d 1346 (1995). However, since the parties have entered into a Consent Agreement for a violation of Section 3(a), we accept the Consent as an agreement that there was a use of authority of office. As to the element of a private pecuniary benefit, Carosella's salary as Secretary/Treasurer for the Borough doubled from $100 to $200 per month. Lastly, the private pecuniary benefit enured to Carosella himself. Hence, a violation of Section 3(a) of Act 9 of 1989 occurred when Carosella used the authority of office as to a vote to double his salary as Secretary/Treasurer to the Borough. We also find a violation of Section 3(a) of Act 9 of 1989 regarding two checks in June and July of 1994 which Carosella wrote out to himself as a reimbursement for "miscellaneous supplies" and "office keys and supplies." There are no receipts or invoices to substantiate the expenditure of Borough funds. Hence, Carosella received a private pecuniary benefit. In addition, we do find a use of authority of office in that Carosella himself prepared and cosigned the checks. Accordingly, Carosella violated Section 3(a) of Act 9 of 1989 when he issued and cosigned two checks payable to himself totaling $349.60 for Borough supplies for which there were no invoices or receipts. Turning to the matter of restitution, Section 7(13) of Act 9 of 1989, 65 P.S. §407(13), specifically empowers this Commission to impose restitution in those instances where a public official /employee has obtained a financial gain in violation of the Ethics Law. The parties have stipulated that the financial gain amounted to $900. That figure encompasses both the salary and supplies reimbursement issues. Accordingly, restitution of $900 by Carosella is ordered. Carosella is directed to make restitution of $900 within 30 days of the date of issuance of this Order through this Commission to Penn Borough. Compliance with the foregoing will result in the closing of this case with no further action by the. Commission. Non - compliance will result in the institution of an order enforcement action. Finally, as noted above, 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. James Carosella (Carosella), as a Councilmember and Secretary/Treasurer for Penn Borough, Westmoreland County, is a public official /public employee subject to the provisions of Act 9 of 1989. 2. Carosella violated Section 3(a) of the Ethics Law when he as a Councilmember used the authority of office to increase his salary as Secretary/Treasurer for the Borough. Carosella, 96- 037 -C2 Page 9 3. Carosella violated Section 3(a) of the Ethics Law when he wrote two Penn Borough checks to himself for the reimbursement of office supplies for which there was no accompanying documentation or receipts. In Re: James Carosella ORDER NO. 1073 File Docket: ` 96- 037 -C2 Date Decided: 1/14/98 Date Mailed: 1/26/98 1. James Carosella (Carosella), as a Councilmember and Secretary/Treasurer for Penn Borough, Westmoreland County, violated Section 3(a) of the Ethics Law when he used the authority of office to increase his salary as Secretary/Treasurer for the Borough. 2. Carosella violated Section 3(a) of the Ethics Law when he as a Councilmember wrote two Penn Borough checks to himself for the reimbursement of office supplies for which there was no accompanying documentation or receipts. 3. Pursuant to the Consent Agreement of the parties, Carosella is directed to make payment in the amount of $900 to Penn Borough in settlement of this matter. Said payment is to be forwarded to the State Ethics Commission within thirty (30) days of the mailing date of this Order. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION; aY0Au1AU DANEEN E. REESE, CHAIR