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HomeMy WebLinkAbout1078 KlutzaritzIn Re: John Klutzaritz STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 File Docket: X -ref: Date Decided: Date Mailed: 97- 008 -C2 Order No. 1078 4/30/98 5/11/98 Before: Daneen E. Reese, Chair Austin M. Lee, Vice Chair Allan M. Kluger Boyd E. Wolff Julius Uehlein Louis W. Fryman 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 esc ., by the above - named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegations. 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. Klutzaritz, 97- 008 -C2 Page 2 ALLEGATION: That John Klutzaritz, a public official /employee, in his capacity as a Supervisor for Lehigh Township, Northampton County, violated Sections 3(a) and 3(j) of the State Ethics Act (Act 9 of 1989) when he used the authority of his office for the private pecuniary benefit of himself by participating in discussions and /or actions of the board of supervisors including casting the deciding vote for his appointment as township roadmaster, a paid township position. 11. FINDINGS: 1. John B. Klutzaritz has served as a Lehigh Township, Northampton County, supervisor from September of 1980 to the present. a. Klutzaritz held the position of Chairman of the Board of Supervisors from 1982 to 1993 and again in 1996 and 1997. 2. Klutzaritz served as a Lehigh Township roadmaster from 1980 to 1997. a. Klutzaritz was appointed, annually, to the roadmaster position at the Board of Supervisors reorganizational meetings. , 3. In January of 1994 the Lehigh Township Board of Supervisors was increased from a three member board to a five member board. 4. In January of 1997, the Lehigh Township Board of Supervisors included John B. Klutzaritz, Rita M. Gower, Roy H. Silfies, Terry Weaver and Lawrence Stokes. , 5. During. the 1997 Lehigh Township Board of Supervisors Reorganizational Meeting held on January 6, 1997, a motion was made and seconded to appoint John Klutzaritz as township roadmaster. a. Supervisors Klutzaritz, Gower, Silfies, Weaver and Stokes were present along with Township Solicitor Donald B. Corriere. b. The motion was approved by a 3 -2 vote. 6. At the meeting of the Lehigh Township Supervisors on January 6, 1997, Defendant, John Klutzaritz upon receiving two votes to affirm and two votes to deny his motion to be appointed as Township Roadmaster, Defendant declared his conflict or potential conflict of interest with regard to voting on said subject, but given that tie had occurred, Defendant then voted to affirm his appointment as Township Roadmaster, to break said tie. 7. On January 7, 1997, Corriere, with Klutzaritz's permission, sought a ruling on the matter from the State Ethics Commission. a. The Legal Division of the State Ethics Commission advised Corriere on January 8, 1997, that it could not issue an opinion /advice on . the matter as the vote had already taken place and advices can only be issued on prospective issues. b. Corriere was referred to the Mlakar Advice (91- 523 -5) issued by the Legal Division which stated that on a five member Board, where one member has a conflict of interest, a 2 -2 deadlock does Klutzaritz, 97- 008 -C2 Page 3 not form a basis under Section 3(j) for that member to vote to break a tie. 8. On February 11, 1997, Klutzaritz withdrew his permission for Solicitor Corriere to obtain an opinion from the State Ethics Commission. 9. Prior to the Township Reorganization Meeting, John Klutzaritz met with the Law Offices of Steckel and Stopp on the afternoon of January 6, 1997. 10. Attorneys from the Steckel and Stopp firm, after analysis of the issue, informed Klutzaritz that he could vote for his appointment to the position of roadmaster should the vote of the other supervisors result in a 2 -2 tie, if he first declared his conflict /potential conflict. 11. Klutzaritz stopped working as roadmaster on February 26, 1997, after being made aware of Corriere's letter to the township. 12. Klutzaritz was compensated at the rate of $15.80 /hour for work performed as township roadmaster from 01/07/97 until 02/26/97. a. Klutzaritz was also paid time and one -half for overtime hours. b. These were the rates set by the township board of auditors. 13. Klutzaritz was paid the following amount for his work as roadmaster, after the January 6, 1997, vote. Pay Period Hours Worked Gross Amount Paid Net Pay - $1,216.60 01/16/97 32 $ 505.60 (partial pay from 01/07/97 to 01/11/97) $ 841.51 01/30/97 106 $1,753.80 $1,222.98 02/13/97 90.5 $1,512.85 $1,051.90 02/27/97 74 $1.185.00 $ 819.14 TOTAL $4,957.25 $3,935.53 14. Klutzaritz signed Lehigh Township Management Summaries for payrolls dated 01/16/97, 01/30/97, 02/13/97 and 02/27/97. 15. Klutzaritz participated in actions to approve payment of the bills at township supervisors' meetings which included payroll payments. III. DISCUSSION: At all times relevant to this matter, the Respondent, John Klutzaritz, 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, mod. The allegations are that John Klutzaritz, a public official /employee, in his capacity as a Supervisor for Lehigh Township, Northampton County, violated Sections 3(a) and 3(j) of the State Ethics Act (Act 9 of 1989) when he voted and did not abstain as to his own appointment to the compensated township position of Roadmaster. Klutz.ritz, 97- 008 -C2 Page 4 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. 65 P.S. §402. 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 his immediate family or a business with which he or a member of his immediate family is associated. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities (j) Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest, as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest, and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. Klutzaritz, 97- 008 -C2 Page 5 Section 3(j) requires a public official who has a conflict to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. Having noted the issues and applicable law, we shall now summarize the relevant facts. Klutzaritz has served as a Supervisor in Lehigh Township, Northampton County, since 1980 and as a Roadmaster from 1980 until February 1997. Lehigh Township had a three - member Board of Supervisors until January 1994, when the Board was increased to five members. In January 1997, at the reorganizational meeting, a motion was made and seconded to appoint Klutzaritz as the Township Roadmaster. As to Klutzaritz's appointment, there were two votes in favor and two votes against the motion. Klutzaritz declared his conflict of interest and voted for his own appointment in order to break the tie vote. The motion then carried by a 3 -2 vote. On the next day, the Township Solicitor with Klutzaritz's permission sought a ruling from this Commission regarding the propriety of his vote. Our Legal Division declined to issue an advisory because the matter involved past action. The Solicitor was apprised of Mlakar, Advice 91 -523 -S which concluded that where there was a conflict on a five - member board, with only one member having a conflict of interest, the 2 -2 deadlock does not provide a basis for the public official to vote to break the tie. Thereafter, Klutzaritz met with private attorneys who informed Klutzaritz that in a 2 -2 tie vote situation, Klutzaritz could vote if he first declared his conflict. On February 11, 1997 Klutzaritz withdrew his permission for the Solicitor to obtain an advisory from this Commission. Subsequently, on February 26, 1997 Klutzaritz stopped working as a Roadmaster. However, while working as a Roadmaster, Klutzaritz signed management summaries for certain payrolls and also participated in actions to approve the payment of bills and payroll which included his position as Roadmaster. Having summarized the above relevant facts, we must now determine whether the actions of John Klutzaritz violated Sections 3(a) and 3(j) of Act 9 of 1989. In applying the provisions of Section 3(a) of Act 9 of 1989 to the instant matter, it is clear that there were uses of authority of office on the part of Klutzaritz. Klutzaritz voted to break the tie vote on his appointment to the position of compensated Township Roadmaster. Such action is clearly a use of authority.of office. See, 65 P.S. §402; Juliante, Order 809. That use of authority of office resulted in a private pecuniary benefit consisting of the compensation that Klutzaritz received as a Township Roadmaster. Lastly, the private pecuniary benefit inured to Klutzaritz himself. Accordingly, Klutzaritz violated Section 3(a) of Act 9 of 1989 when he used the authority of office to obtain a private pecuniary benefit for himself in voting for his own appointment as Roadmaster. Lewis, Order 876. We find technical violations of Section 3(a) of Act 9 of 1989 regarding Klutzaritz's use of authority of office, consisting of signing some management summaries for payroll and participating in actions of the Board to approve bills and payroll including his own compensation as Roadmaster. Such uses of authority of office resulted in private pecuniary benefit to Klutzaritz as to the compensation that he received as a Township Roadmaster. As to Section 3(j) of Act 9 of 1989, Klutzaritz was in error to conclude that Section 3(j) of the Ethics Law accorded him the right to vote under the circumstances Klutzaritz, 97- 008 -C2 Page 6 in this case. In Mlakar, Advice 91- 523 -S, supra, the Legal Division correctly ruled that in a five - member board, Section 3(j) would only have application if three of the members of that board had conflicts under the Ethics Law. Conflicts by one or even two members of a five - member board would be insufficient to implicate Section 3(j) of the Ethics Law. Further, Section 3(j), when applicable, allows for voting only but not for other participation, as for example, discussing the issue that is the subject of the vote. Since Klutzaritz was the one and only Board Member who had a conflict, Klutzaritz could not and should not have voted to break the 2 -2 tie vote. In so doing, Klutzaritz violated Section 3(j) of Act 9 of 1989 by failing to abstain and voting on his own appointment. 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. We will take no further action in this case - which is closed. IV. CONCLUSIONS OF LAW: 1. John Klutzaritz, as a Supervisor in Lehigh Township, Northampton County, is a public official subject to the provisions of Act 9 of 1989. 2. Klutzaritz violated Sections 3(a) and 3(j) of the Ethics Law when he voted and did not" abstain as to his own appointment to the compensated position of township roadmaster. 3. Klutzaritz technically violated Section 3(a) of the Ethics Law when he voted to approve bills and payroll which included his compensation as township roadmaster. In Re: John Klutzaritz File Docket: 97- 008 -C2 Date Decided: 4/30/98 Date Mailed: 5/11/98 ORDER NO. 1078 1. John Klutzaritz, as a Supervisor in Lehigh Township, Northampton County, violated Sections 3(a) and 3(j) of the Ethics Law when he voted and did not abstain as to his own appointment to the compensated position of township roadmaster. 2. Klutzaritz technically violated Section 3(a) of the Ethics Law when he voted to approve bills and payroll which included his compensation as township roadmaster. BY THE COMMISSION, A tisA06 leut DANEEN E. REESE, CHAIR