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HomeMy WebLinkAbout1101 HoynowskiIn Re: Walter Hoynowski, Sr. 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 Julius Uehlein Louis W. Fryman John J. Bolger Frank M. Brown Susan Mosites Bicket 98- 017 -C2 Order No. 1 101 12/15/98 12/29/98 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 sgg., 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 waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and 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 Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Act is guilty of a misdemeanor subject to a fine of not more than $ 1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Hovnowski. Sr., 98- 017 -C2 Page 2 I. ALLEGATION: That Walter Hoynowski, a public official in his capacity as a Councilman for Throop Borough, Lackawanna County, violated Section 3(a) of the Ethics Law when he used the authority of his office for the private pecuniary benefit of his son and/or a business with which his son is associated by participating in discussions and actions of Council resulting in the passage of a motion rescinding a decision requiring his son's employer, Keystone Sanitary Landfill, to pay fees for waste coming into Throop Borough. iI. FINDINGS: 1. Walter Hoynowski, Sr., has served as a Throop Borough Councilman since January 2, 1996. a. Throop Borough Council includes seven (7) members and a mayor. 2. Waiter Hoynowski, Jr., is the son of Councilman Walter Hoynowski, Sr. a. The Hoynowski's share a common residence located at 223 George Street, Throop, PA 18512. Keystone Sanitary Landfill is a business operating in parts of Throop Borough and Dunmore Borough. a. The landfill is the primary source of funding for Throop Borough. 4. On or about July 17, 1989, a three (3) way agreement was entered into between Throop Borough, the Throop Property Owners Group and Keystone Sanitary Landfill. a. Section 3.3 of the agreement provided in part for the landfill to pay Throop Borough a supplemental sum of $1.00 per ton for materials dumped at the iandfill b. Section 3.4 of the agreement provides in part for the landfill to pay the borough the sum of $1.00 per ton for new materials dumped ' at the landfill after July 17, 1989. c The $1.00 per ton supplemental fee cited in Finding 10(a) _[sic] was split with Dunmore Borough. 1. Throop Borough receives a $0.58 per ton supplemental fee. Currently Throop Borough receives approximately $1.58 per ton of new garbage hauled into the landfill 5. When the Department of Environmental Protection issued a permit to move garbage from one section of the landfill to another, some old portions of the landfill did not have protective liners in them. a. The landfill's intent is to install protective liners and eventually move garbage back into these areas. 6. As a result of pressure from the Throop Borough property owners group, council explored the possibility of assessing the landfill a fee for transferring garbage from the Dunmore portion of the landfill into the Throop portion. Hovnowski. Sr., 98- 017 -C2 Page 3 a. This fee would have been on garbage that was already in the landfill and previously was located in unlined portions of it, within the geographic boundary of Throop Borough. Throop Borough Council discussed and took official action on a landfill transfer fee at their July 28, 1997, September 29, 1997, October 27, 1997, and January 26, 1998, meetings. a. Hoynowski, Sr., was present for and participated in the aforementioned discussions. b. The transfer fee being considered only related to garbage which was already in the landfill. c. No actions related to changing fees that were already in place for new garbage brought into the landfill. 8. During the Throop Borough Council July 28, 1997, meeting, council discussed and took action to impose a dumping fee for waste brought into the Borough. a. A motion was made by Paulic, seconded by Hoynowski to send a letter to Keystone Sanitary Landfill, Inc., to treat the transfer of any waste from properties outside the Borough of Throop boundaries to within the Borough of Throop and have fees paid to the Borough of Throop for removal and depositing of said wastes. The motion carried unanimously. 9. At council's September 29, 1997, meeting action was taken attempting to rescind the previous motion of July 28, 1997. a. This motion failed by a 4-3 margin with Hoynowski voting with the majority. b. At the time Hoynowski voted against rescinding the motion he was unaware that it dealt only with garbage which was already in the landfill. 10. At Council's meeting of October 27, 1997, the topic of rescinding the dumping fees again was brought before council for consideration. a. Hoynowski made the motion, to rescind the dumping fee action. b. The motion passed by a 4-3 margin with Hoynowski voting to rescind it. 11 Prior to the vote of October 27, 1997, Solicitor Sean McDonough provided the following opinion regarding a potential conflict of interest on Hoynowski's part: "Walter (Hoynowski) has no direct financial benefit from Keystone Landfill. That's not to say that there couldn't be some precedent out there to the contrary. But, if he's not deriving any direct financial benefit from the action to be taken. I don't see it as a conflict. I don't believe it's a conflict." Hovnowski. Sr., 98- 017 -C2 Page 4 12. Walter Hoynowski, Sr., participated in the vote of October 27, 1997, based on the solicitor's advice he received. a. Hoynowski, Sr., voted to rescind the motion because the garbage in question already was in the landfill. 13. The idea of imposing a transfer fee was revisited at council's January 26, 1998, meeting. a. After discussion, council again voted 4 -3 against imposing the transfer fee. b. Hoynowski, Sr., participated in this vote and was one (1) of the four (4) council members who voted against imposing the fee. 14. Walter Hoynowski, Jr., has been employed at the landfill since July 27, 1988. Hoynowski, Jr., is employed on an hourly basis in the landfill's security department working two (2) nights per week. b. Hoynowski, Jr.'s employment at the landfill predates Hoynowski, Sr.'s tenure as councilman. 15. Hoynowski, Jr., did not receive any pay increases as a result of Hoynowski, Sr.'s, actions on council. 16. Hoynowski, Sr.'s, votes only related to assessing a fee for transferring garbage which was already in the landfill. 17. James Hoynowski, Sr. believed that he could vote and participate in the issue based upon the advice of the Borough Solicitor. 111. DISCUSSION: At all times relevant to this matter, the Respondent, Walter Hoynowski, Sr., hereinafter Hoynowski, Sr., has been a public subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), Act 9 of 1989, . Pamphlet Law 26, 65 P.S. §401, . /Act 93 of 1998, Chapter 11. The issue is whether Hoynowski violated Section 1103(a) of the Ethics Act when he participated in Council actions to rescind a decision requiring his son's employer, Keystone Sanitary Landfill, to pay fees for waste coming into Throop Borough. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. Section 1103(a) of the Ethics Act provides: Section 1103. Restricted activities. (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of interest. Hovnowski, Sr., 98- 017 -C2 Page 5 Section 1103(a), Act 93 of 1998, Chapter 11. The term "conflict of interest" is defined under the Ethics Act as follows: Section 1102. 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. The term 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 1102, Act 93 of 1998, Chapter 11. Having noted the issues and applicable law, we shall now summarize the relevant facts. Hoynowski has served as a Throop Borough Councilman since January 2, 1996. Hoynowski's son, Walter, Jr., is employed at the Keystone Sanitary Landfill within its Security Department. The Keystone Sanitary Landfill operates in Throop and Dunmore Boroughs, and pays fees to both Boroughs for dumping at the landfill. When Keystone Sanitary Landfill decided to install protective liners at some locations of the landfill, it was necessary to move the garbage out of that section to another location of the landfill. The Throop Borough properties owners group exerted pressure on Throop Council to assess a fee for transferring garbage from the Dunmore portion, where liners would be put in place, to the Throop portion. At a July 28, 1997 meeting of Throop Borough Council, . a motion was unanimously carried to impose a fee upon the transfer of garbage from the Dunmore section into Throop Borough section. However, at a September 29, 1997 meeting, an attempt was made to rescind the motion of July 28, 1997,. which failed by a 4-3 vote with Hoynowski voting with the majority. Hoynowski voted against rescinding the prior motion because he was unaware that the fee only dealt with garbage which was already in the landfill. The attempted rescission of the July 28, 1997 action was again considered by Council at a meeting of October 27, 1997 where Hoynowski made a motion to rescind the July 28, 1997 decision. That motion passed by a 4-3 margin with Hoynowski casting the deciding vote. Prior to the vote of October 27, 1997, . Throop Borough Solicitor considered whether Hoynowski had a conflict of interest as to the issue of the fee rescission. The Solicitor opined that since Hoynowski was not deriving any direct financial benefit from the landfill, the Solicitor did not believe that a conflict existed. Hoynowski participated in the October 27, 1997 vote because he believed he could do so based upon the advice of the Borough Solicitor. Hoynowski's son Walter, Jr., did not receive any pay increases as a result of Hoynowski's actions of Council as to the landfill. Hovnowski. Sr„ 98- 017 -C2 Page 6 Having summarized the above relevant facts, we must now determine whether the actions of Hoynowski, Sr. violated Section 1103(a) of Act 93 of 1998, Chapter 11. Section 1103(a) of the Ethics Act prohibits a public official /public employee 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 applying Section 1103(a) of the Ethics Act to the instant matter, there was a use of authority of office on the part of Hoynowski. Juliante, Order No. 809. At the October 27, 1997 meeting of Council, Hoynowski cast the deciding vote to rescind the motion which had imposed a fee on the transfer of garbage from the Dunmore portion of the landfill to the Throop portion. The use of authority of office on the part of Hoynowski resulted in a private pecuniary benefit consisting of the elimination of the fee which the landfill was no longer required to pay as a result of the rescission. That private pecuniary benefit inured to the Keystone Sanitary Landfill. Since Hoynowski's son, Walter, Jr., who is a member of his immediate family, is employed by the Keystone Sanitary Landfill, the landfill is a business with which his son is associated as that term in defined under the Ethics Act. Hence, an unintentional technical violation of Section 1103(a) occurred when Hoynowski participated in Council actions to rescind a decision requiring a business with which his son is associated to pay a fee for the transfer of garbage into Throop Borough. We believe an unintentional technical violation is appropriate in light of the fact that Hoynowski did seek the advice of the Solicitor regarding his participation, and Hoynowski's son, Walter, Jr., did not receive any financial benefit as a result of Hoynowski's actions. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding an unintentional technical violation of Section 1103(a) together with a payment of $500 by Hoynowski through this Commission to the Commonwealth of Pennsylvania within 30 days of the date of issuance of this order. Accordingly, Hoynowski is directed to make the payment of $500 as per the terms noted above. 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. As to the Stipulation of Findings and Consent Agreement filed by the parties, 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. Hoynowski, Sr:, as a Councilman for Throop Borough, a public official subject to the provisions of Act 9 of Chapter 11 2. Hoynowski unintentionally technically violated Section 1 when he participated in actions of Council to rescind son's employer, Keystone Sanitary Landfill, to pay a garbage into Throop Borough. Lackawanna County, is 1989/Act 93 of 1998, 103(a) of the Ethics Act a decision requiring his fee for the transfer of In Re: Walter Hoynowski, Sr. File Docket: Date Decided: Date Mailed: ORDER NO. 1101 1. Hoynowski, Sr., as a Councilman for Throop Borough, Lackawanna County, unintentionally technically violated Section 1103(a) of the Ethics Act when he participated in actions of Council to rescind a decision requiring his son's employer, Keystone Sanitary Landfill, to pay a fee for the transfer of garbage into Throop Borough. 2. As per the consent agreement of the parties, Hoynowski is directed to make payment through this Commission to the Commonwealth of Pennsylvania in the total amount of $500, within 30 days of the issuance of this order. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non- compliance will result in the institution of an order enforcement action. BY THE COMMISSION, 98- 017 -C2 12/15/98 12/29/98 DANEEN E. REESE, CHAIR