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HomeMy WebLinkAbout1077 DavisIn Re: A. Merle Davis STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: File Docket: X -ref: Date Decided: Date Mailed: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger - Boyd E. Wolff Julius Uehlein Louis W. Fryman 97- 028 -C2 Order No. 1077 4/30/98 5/11/98 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 et sue., 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. Davis, 97- 028 -C2 Page 2 I. ALLEGATION: That A. Merle Davis, a public official in his capacity as a member of the Riverside School Board of Directors, 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 a member of his immediate family by participating in discussions, actions, and decisions of the Riverside School Board resulting in his son being hired for a position with the school district; and when he participated in the vote to compensate his son. 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: 1. A. Merle Davis has served as a Member of the Riverside School District Board of Directors, Lackawanna County since 1977. a. David has held the positions of President, Vice President, Secretary and Treasurer during his service as a board member. b. Davis served as the Treasurer of the board until January 13, 1998. 2. The Riverside School Board is a nine member school board. a. Five votes are needed to approve or disapprove any motions. 3. The Riverside School District holds an annual play each spring. 4. Under the Collective Bargaining Agreement for the Riverside School District and Riverside Education Association, three teachers are authorized to serve as advisors for the elementary and secondary school spring play. a. The advisor positions are considered extracurricular activity and there is a set rate of compensation for each school term. b. For the 1996 -1997 term, the rate of compensation was $835.64. 5. At the Riverside School Board Meeting for June 10, 1996, teachers Michael Hapstak and Joseph Knecht had resigned as spring play advisors. a. Hapstak and Knecht had been serving as advisors for approximately 15 years. 6. The school board members agreed to post the advisor positions in an attempt to find replacements. 7. During the Riverside School Board Meeting for February 10, 1997, two positions were posted at the school district for spring play advisor at a rate of pay of $835.64 per person. a. One advisor position was for drama /music and the other position was for stage /scenery. Davis, 97- 028 -C2 Page 3 8. No one applied for the stage /scenery advisor position. 9. Riverside Secondary School Principal J. Dennis Kryzanowski asked Robert Davis to serve as an advisor for the stage and scenery. a. Kryzanowski asked Robert Davis to serve as the advisor for the stage and scenery advisor position because of his expertise with woodworking. 10. Robert Davis is the son of A. Merle Davis and has been a part-time teacher for the Riverside School District since 1989. 11. During the Riverside School Board meeting of March 10, 1997, motions were made to appoint two individuals as advisors for the spring play. a. A. Merle Davis was not present for the meeting. b. Riverside School teacher Mariam Thomas was appointed as a Secondary Spring Play Advisor at a compensation of $835.64. c. A motion to appoint Robert Davis as a Secondary Spring Play Advisor was not approved by a 4 to 3 vote. 12. The position of Spring Play Advisor was re- posted in the school district secondary school as a result of the vote not to appoint Robert Davis. 13. Spring play organizer Carol Hapstak had threatened to cancel the play unless another advisor was hired to handle scenery. 14. No new teachers applied for the position when the job was re- posted. 15. A special meeting of the Riverside School Board was called for on March 20, 1997. a. Each board member was officially notified of when the meeting was to be held. b. The purpose of the meeting was to review the Local Economic Revitalization Tax Assistance Law and the appointment of an advisor to the spring play. c. Four board members were absent from the meeting. d. A. Merle Davis was present at the meeting. 16. Attorney Frank Blasi served as the solicitor for the special meeting of March 20, 1997. a. Blasi is the law partner of Riverside School District Solicitor Mark Walsh. 17. Blasi gave A. Merle Davis two options on whether he could vote for his son's appointment as a spring play advisor. a. Blasi advised Davis that he could take the conservative approach, and abstain from voting. Davis, 97- 028 -C2 Page 4 b. The other option Blasi gave Davis was that since the advisor position could be considered a non - professional position, Davis could take a liberal approach, and vote for his son. 18. Section 508, (24 P.S. § 5 -508) of the Public School Code requires the "affirmative vote of all the members of the board of school directors" in order to take action regarding the hiring of teachers and other appointees and the fixing of compensation therefore. a. At least five votes were required in order to hire a Secondary Spring Play Advisor. 19. Robert Davis was appointed as a Secondary Spring Play Advisor at a compensation of $835.64 during the Special Meeting of March 20, 1997. a. The vote was 5 to 0 with A. Merle Davis voting in favor of the motion. 20. Riverside School District records confirmed that check number 7179181 was issued to Robert M. Davis in the net amount of $468.37, on May 16, 1997, for his position as a spring play advisor. a. The gross amount of the check was $835.64. 21. The payrrtent made to Robert Davis on May 16, 1997, was approved as part of the monthly payroll at the regular board meeting held on June 9, 1997. a. A. Merle Davis was present for the meeting and the payroll was approved by a 9 to 0 vote. 22. A. Merle Davis believed that he was acting on the advice of the school board solicitor and was thus proceeding in good faith. a. The solicitor's advice was proffered at a public meeting of the school board and recorded in the minutes thereof. III. DISCUSSION: At all times relevant to this matter, the Respondent, A. Merle Davis, hereinafter Davis, 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, The allegations are that Davis violated Section 3(a) of the State Ethics Act (Act 9 of 1989) by participating in actions of the Riverside School Board resulting in his son being hired for a compensated position of school play advisor with the school district. 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 Davis, 97- 028 -C2 Page 5 65 P.S. §402. 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. Davis has served as a member of the Riverside School District (District) Board of Directors (Board), Lackawanna County, since 1977. The District has a nine - member Board wherein five votes are needed to approve or disapprove motions. The District holds an annual play each spring and hires three teachers to serve as advisors for the play at a rate of compensation of $835.64. When two teachers resigned as play advisors., the Board posted the vacancies for the advisor positions in an effort to find replacements. During the Board meeting in February 1997, the two vacancies were posted for play advisors at a rate of $835.64 per person: one advisor for drama /music and the other for stage /scenery. When no one applied for the stage /scenery advisor position, the secondary school principal asked Robert Davis, who is a part -time teacher and the son of Davis, to serve as the stage /scenery advisor. The principal asked Robert Davis because of his expertise in woodworking. At the March of 1997 Board meeting, motions were made to appoint two individuals as play advisors: teacher Mariam Thomas and Robert Davis. Although Mariam Thomas was appointed, the motion to appoint Robert Davis failed by a 4 -3 vote. After the play organizer threatened to cancel the play unless another advisor was hired to handle scenery, the position for the stage /scenery advisor position was reposted. No teacher applied for the position. At a special meeting of the Board in March 1997, which was called for the purpose of reviewing the local economic revitalization tax assistance law and the appointment of the play advisor, four Board members were absent. The District Solicitor gave Davis two options regarding the propriety of Davis' voting on his son's appointment as the play advisor: abstain by following a conservative approach or vote on the theory that the appointment was for a non - professional position. The Public School Code requires an affirmative vote of five members of a school board in order to take action regarding the hiring of teachers or other employees. Robert Davis was appointed as play advisor by a 5 -0. vote with Davis voting in favor of the motion. In addition, Robert Davis was paid as a play advisor when the monthly payroll was approved by a 9 -0 vote at a Board meeting in June 1997, with Davis being present at the meeting. Lastly, Davis believed that he was acting on the advice of the District Solicitor who proffered his advice at a public meeting which was recorded in the minutes. Davis, 97- 028 -C2 Page 6 Having summarized the above relevant facts, we must now determine whether the actions of Davis violated Section 3(a) of Act 9 of 1989. In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, we find a technical violation by Davis when he voted to appoint his son to the compensated position of play advisor in the District. There was a use of authority of office on the part of Davis in that he voted as District Board Member for the appointment of his son. But for the fact that Davis was a District Board Member, he would not have been in a position to cast the fifth and necessary vote to hire his son to that position. Juliante, Order 809. The use of authority of office resulted in a private pecuniary benefit consisting of the compensation that Davis' son received for being the play advisor. Lastly, the pecuniary benefit inured to a member of Davis' family as that term is defined under the Ethics Law. 65 P.S. 402. Our finding of a technical violation in this case is consistent with our decision in Pulice, Order 1035, where we found a technical violation when Pulice as a school director voted to appoint his son -in- law to a higher - paying position in the school district, thereby creating a pecuniary benefit for his son -in -law and derivatively for his daughter. We also note that the violation occurred following Davis' reliance on the advice of the District Solicitor. 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 /public employee has obtained a financial gain in violation of the, Ethics Law. In this case, Davis, through a consent agreement has obligated himself to a payment of $100. Therefore, Davis is directed to pay $100 within 30 days of the date of mailing of this Order through this Commission to the Commonwealth of Pennsylvania. 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. 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. A. Merle Davis, as a Member of the Riverside School Board of Directors , is a public official subject to the provisions of Act 9 of 1989. 2. Davis technically 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 his son by voting to appoint his son to the compensated position of school district play advisor. In Re: A. Merle Davis File Docket: 97- 028 -C2 Date Decided: 4/30/98 Date Mailed: 5/11/98 ORDER NO. 1077 1. A. Merle Davis, as a Member of the Riverside School Board of Directors, technically 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 his son by voting to appoint his son to the compensated position of school district play advisor. 2. As per a consent agreement of the parties, Davis is directed to make payment of $ 100 within 30 days of the date of mailing of this Order through this Commission to the Commonwealth of Pennsylvania. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. BY THE COMMISSION, cOLLibxJ6 DANEEN E. REESE, CHAIR