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HomeMy WebLinkAbout1089 MinichIn Re: Sara Minich 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 Monsignor Joseph G. Quinn Boyd E. Wolff Julius Uehlein Louis W. Fryman 97- 042 -C2 Order No. 1089 7/23/98 8/7/98 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 g#., 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 waive. 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. Minich, 97- 042 -C2 Page 2 I. ALLEGATION: That Sara Minich, a Clarion County Commissioner, violated Section 3(a) of the Ethics Law when she used the authority of her office for the private pecuniary benefit of a member of her immediate family by participating in discussions and actions of the Board of Commissioners resulting in a contract for services being entered into by the county with an association with which Minich's husband is associated resulting in county funds being paid to her husband, and when she participated in actions resulting in payments from the county of such funds. H. FINDINGS: 1. Sara (Sally) Minich is a Commissioner for Clarion County, a sixth class county. a. Minich was elected in November, 1995. b. Minich was sworn in on January 6, 1996. c. Minich served as Chairwoman of the Clarion County Commissioners in 1996. 2. Minich currently serves on the Board of Commissioners with David Wagner and Keith Martin. 3. One of the main issues discussed by candidates (including Minich) in the 1995 commissioner election was the Clarion County Budget. 4. Minich and the other commissioners studied possible budget reductions for many county departments. a. The Clarion County Sheriff's Department was a department studied for a budget reduction. b. From 1986 through 1996, the Clarion County Sheriff's Department went over budget 8 out of 10 years. 5. The Clarion County Sheriff's 1996 Budget was $254,086.00. 6. The commissioners conducted a survey of Sheriff's Department budgets in the other thirteen 6th Class Pennsylvania Counties. a. The survey was conducted to compare the counties by population, size, budget, and per capita amount spent on each County Sheriffs Department for the year 1996. 7. The survey concluded that three other 6th Class Counties with populations similar to /Clarion County spent less per capita than Clarion. 8. Based on this survey, the County Commissioners cut the 1997 Sheriff's Budget to $179,800.00. 9. For several years, the Clarion County Commissioners studied alternatives for some of the Sheriff's Department's current responsibilities to be served. a. One of the alternatives considered was the service of Clarion County Delinquent Tax Notices by the Sheriff's Department. Minich, 97- 042 -C2 Page 3 10. In the spring of 1996, the Commissioners contacted the Clarion County Constables Association to inquire if they were interested in giving a price to the county for their serving of the 1996 Delinquent Tax Notices. a. This was agreed upon by all three commissioners, including Sara Minich. b. Sara Minich's husband was not a member of the association at this time. 11. W. Lawrence Brown the President of the Clarion County Constables Association gave a proposal to the County Commissioners for services. a. The price for service was $17.50 per notice posted. b. The fee for related court testimony was $ 10.00 per hour. 12. The commissioners agreed to keep the tax notice service with the Sheriff's Department for 1996. a. The Sheriff's Department agreed to provide expense reports to the county commissioners for the service. 13. The Sheriff's Department served the 1996 Delinquent Tax Notices. 14. The Sheriff's Department failed to provide expense reports to the County Commissioners for the 1996 Delinquent Tax Notices. 15. Because of the Sheriffs Department's failure to provide expenses, for the serving of the 1996 tax notices, the commissioners looked for alternative means to serve the 1997 tax notices. 16. In the spring of 1997, the commissioners contacted W. Lawrence Brown and inquired again if the Constables Association was interested in serving the 1997 Delinquent Tax Notices. a. Brown proposed the same fee schedule as in 1996. 17. The commissioners agreed to use the constables for the service of the 1997 Delinquent Tax Notices. a. Sara Minich participated in this decision. 18. On June 9, 1997, an agreement was entered into between the County and the Clarion County Constables Association (Association) for the posting and service of notices required by the Real Estate Tax Sales Law. a. The Association agreed to provide the following services for the 1997 Tax Claim Bureau Sale. Post all sale properties in accordance with the statute. Deliver to the Tax Claim Bureau notarized affidavits of sale. Testify on behalf of the Tax Claim Bureau before the Court of Common Pleas on challenges to the service. Minich. 97- 042 -C2 Page 4 b. The county agreed to pay the Association the sum of $ 17.50 per property posted and $ 10.00 per hour with a minimum of one (1) hour for testimony. c. Payments for postings shall be made to the Association on or before 08/15/97. 19. The June 9, 1997, agreement was signed by County Commissioners Sara E. (Sally) Minich, David Wagner and Keith Martin. a. W. Lawrence Brown signed on behalf of the Association. 20. This agreement was signed prior to action being taken by the Board of County Commissioners to approve the contract. 21. During the June 23, 1997, County Commissioners' meeting a motion was passed approving the agreement between the county and the Clarion County Constables Association for the service of delinquent tax notices. a. Sara Minich was absent from this meeting. 22. Terry Pope, the Solicitor for Clarion County, was involved in a pre - contract meeting to review the language of the contract. a. Pope knew that Ted Minich was a constable at the time of this agreement. b. Pope was not asked by Sara Minich, if participating in these negotiations, voting on the contract, or signing a check to the association would be a conflict of interest. 23. Ted Minich was employed by Altel for twenty -one (21) years until furloughed on March 31, 1997. . 24. After being furloughed, Ted Minich became interested in being appointed a constable for Hawthorne Borough. a. Ted Minich discussed the position with incumbent constable, James Smith. 25. James Smith resigned his position as constable on March 18, 1997. 26. On April 25, 1997, Clarion County Court of Common Pleas Judge Charles Alexander issued an order appointing Ted Minich constable for Hawthorne Borough, replacing James Smith. a. Smith recommended Minich to Judge Alexander. 27. In November of 1997, Minich was elected to a full term as Constable of Hawthorne Borough. 28. On June 11, 1997, Ted Minich submitted his application to the Clarion County Constables Association. a. Minich paid $ 10.00 in dues. Minich, 97- 042 -C2 Page 5 b. Minich became a member of the Clarion County Constables Association on June 11, 1997. 29 In 1997, the Clarion County Constables Association served 491 Judicial Tax Notices. a. Theodore Minich served 71 of these notices. b. The notices Minich served were assigned to him because addresses of the posted property fell within his constable's jurisdiction. 30. On August 13, 1997, Judith Corbett, Department Head of the Clarion County Tax Claim Bureau, sent a requisition to the County Commissioners. a. The requisition was for $8,592.50, for payment to the Clarion County Constables Association. b. The requisition was approved and signed by Sara Minich, Keith Martin and Dave Wagner. 31. The commissioners approved the transfer of $9,000.00 from the Clarion County Assessment Ratio charge account to an account in the Clarion County Treasurers Office, by a unanimous vote. a. Sara Minich participated in this action. 32. On August 14, 1997, check #36939 was issued from the Treasurers Office to the Clarion County Constables Association. a. The check was for $8,592.50. 33. On August 19, 1997, Theodore Minich was issued check #106 for $1,242.50, from the account of the Clarion County Constables Association. a. This payment was for his service of 71 Judicial Tax Notices. 34. Check #106 was deposited on August 27, 1997, into account #030232439, in the name of Sara E. and Theodore W. Minich at New Bethlehem Bank. a. The check was endorsed by Theodore Minich. 35. Paula Anthony, Deputy Constable, assisted Theodore Minich in the service of the 71 Judicial Tax Notices. 36. Anthony was paid $385.00 by Minich on August 22, 1997. a. Anthony was written check #2610 from account #030232439, in the name of Sara E. and Theodore W. Minich. b. Anthony cashed check #2610 on August 22, 1997. Minich, 97- 042 -C2 Page 6 65 P.S. §402. 37. Theodore Minich received a total profit of $857.50 for serving his 1997 Judicial Tax Notices. III. DISCUSSION: At all times relevant to this matter, the Respondent, Sara Minich, hereinafter Minich, 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 allegation is that Minich violated Section 3(a) of the Ethics Law when she as a Clarion County Commissioner approved a contract to fix the compensation for the Clarion County Constables Association to serve delinquent tax notices at a time when her spouse was a member of said association and would receive part of such compensation. Pursuant to Section 3(a) of the Ethics Law, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. 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). 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. Minich has served as a Commissioner for Clarion County since January 1996. One of the main issues facing the County Board of Commissioners was the Clarion County budget. A study was made of possible budget reductions for many county departments, including the Sheriff's Department which had a history of operating over budget. Minich, 97- 042 -C2 Page 7 The Commissioners conducted a survey of the Sheriff's Departments' budgets in the other 13 Pennsylvania counties of the sixth class and found that such other counties with comparable populations spent Tess per capita than Clarion. The County Commissioners cut the 1997 Sheriff's Department budget and then sought another entity to serve Clarion County delinquent tax notices, which at that time were served by the Sheriff's Department. The Commissioners contacted the Clarion County Constables Association (Association) to inquire about its fees for serving the County's 1996 delinquent tax notices. At that time Minich's husband, Ted, was not an Association member. The Association made a proposal to the County Commissioners to serve notices for $17.50 per notice and $10 per hour for court- related testimony. The County Commissioners decided to keep the tax notice service with the Sheriff's Department for 1996. The Sheriff's Department agreed to provide expense reports to the County Commissioners for such service of the 1996 delinquent tax notices but failed to do so. The County Commissioners sought an alternative to serve the 1997 delinquent tax notices. The County Commissioners once again contacted the Association which proposed the same fee schedule as in 1996. The County Commissioners with Minich participating agreed to use the Association for service of the 1997 delinquent tax notices. On June 9, 1997 an agreement was entered into between the County Commissioners and the Association whereby the Association would serve the 1997 delinquent tax notices in return for the County paying the Association $17.50 per notice posted together with a $10 per hour fee for court testimony. Minich along with the other two County Commissioners signed the contract. Minich did not request the Clarion County solicitor's advice as to the propriety of her participating in matters involving the contract. Subsequently, on June 23, 1997 the County Commissioners, with Minich absent, passed a motion approving that agreement between the County and the Association. After Ted Minich was furloughed from his position of employment, he became interested in being appointed as a constable for Hawthorne Borough in Clarion County. Ted Minich discussed the position with the incumbent constable who subsequently resigned and made a recommendation to the Clarion County Court of Common Pleas judge to appoint Ted Minich as his replacement. Ted Minich was appointed by the Court as Constable on April 25, 1997 and was elected to a full term as constable for Hawthorne Borough in November 1997. In June 1997, Ted Minich submitted his application to the Association at which time he became a member. Ted Minich was a constable at the time the Association entered into the agreement with the County. In 1997 the Association served 491 delinquent tax notices. Ted Minich served 71 of the notices, which were assigned to him because the addresses of the posted properties fell within his constable's jurisdiction. In August 1997 the Clarion County Tax Claim Bureau sent a requisition to the County Commissioners for the payment of $8,592.50 to the Association, which was approved and signed by Minich and the other two County Commissioners. In due course a county check was issued to the Association, which in turn issued checks to the constables, including a check in the amount of $1,242.50 to Ted Minich in payment for serving the 71 judicial tax notices. The check Ted Minich received was deposited into a joint account in the name of Minich and himself. In serving the 71 tax notices, Ted Minich was assisted by Paula Anthony, a Deputy Constable, who was paid $385 by Ted Minich for such services. Ted Minich received a total profit of $857.50 for serving the 1997 delinquent tax notices. Minicih, 97- 042 -C2 Page 8 In applying the above provisions of Section 3(a) of the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In this case, it is clear that there was use of authority of office on the part of Minich as a County Commissioner regarding the contract with the Association to serve the delinquent tax notices. In addition, Minich signed the agreement along with the other County Commissioners at a time when her spouse was a constable. Such actions constitute uses of authority of office. Juliante, Order 809. The use of authority of office resulted in a private pecuniary benefit, which was the constable fees that Ted Minich received. Ted Minich, as Minich's spouse, is a member of her immediate family as that term is defined under Section 2 of the Ethics Law, 65 P.S. §402. However,, Minich's actions did not constitute a violation of Section 3(a) of Act 9 of 1989, which provides two exclusions to the definition of conflict. The first exclusion relates to matters which are de minimis. That exclusion is clearly not applicable given the amount of fees received for the constable services. However, the second exclusion is applicable.. It provides that actions affecting the public or a class /subclass consisting of a group occupation or profession, which is affected to the same degree, do not constitute a conflict. This exclusion is applicable in this case because the contract between the Clarion County Commissioners and the Association affected not only Ted Minich but all the other constables to the same degree. The fee schedule was the same for all constables. Accordingly, no violation of Section 3(a) of Act 9 of 1989 occurred because Minich's action affected to the same degree a class /subclass consisting of the group of constables in Clarion County who received the same fees for the service of the delinquent tax notices. Van Rensler, Opinion 90- 017. 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. Sara Minich, as a Commissioner in Clarion County, is a public official subject to the provisions of Act 9 of 1989. 2. Minich did not violate Section 3(a) of the Ethics Law when she participated in actions of the Clarion County Commissioners to contract with and fix the compensation of the Clarion County Constables Association to serve delinquent tax notices at a time when her spouse was an Association member in that such action affected to the same degree a class /subclass of constables. In Re: Sara Minich File Docket: 97- 042 -C2 Date Decided: 7/23/98 Date Mailed: 8/7/98 ORDER NO. 1089 1. Sara Minich, as a Commissioner in Clarion County, did not violate Section 3(a) of the Ethics Law when she participated in actions of the Clarion County Commissioners to contract with and fix the compensation of the Clarion County Constables Association to serve delinquent tax notices at a time when her spouse was an Association member in that such action affected to the same degree a class /subclass of constables. BY THE COMMISSION, 6tYaxtl,)(J6 auLJ DANEEN E. REESE, CHAIR