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HomeMy WebLinkAbout1113 BorcikIn Re: Drew Borcik 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 97- 047 -C2 Order No. 1113 2/26/99 3/10/99 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 ,egg., 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. Effective December 15, 1998, Act 9 of 1989 was replaced by the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 .t., which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under that Act. 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 the Ethics Act. 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. Borcik, 97- 047 -C2 Page 2 I. ALLEGATION: That Drew Borcik, a public official /public employee in his capacity as a councilman for Homestead Borough, Allegheny County, 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 taking and /or participating in discussions, actions and /or decisions regarding a police arbitration contract resulting in his mother being placed on the borough health care plan with premiums for said plan being paid for with borough funds; and when he voted to reimburse insurance premiums to his mother with borough funds. II. FINDINGS: 1. Drew Borcik has served as a Homestead Borough Council Member from January, 1992, through the present. a. Borcik served as President of Homestead Borough Council from January, 1994, through July, 1996. 2. Beginning in September, 1995, the Borough of Homestead, "Borough ", and the police department entered into negotiations and arbitration for a new contract. a. The Borough was represented by George S. Goebel, Esquire. b. Goebel was to negotiate as directed by borough council. 3. The police department was represented by the Teamsters Union Local 205. a. Steven Greenberg, Esquire, served as the Certified Bargaining Representative for the police department during negotiations. 4. Negotiations for the Final Award began on September 8, 1995. a. Greenberg requested arbitration from Homestead on September 8, 1995. 5. Interest Arbitration Negotiations occurred between September, 1995, and May, 1996. 6. On March 12, 1996, Goebel submitted the Borough's proposal for the final award to Greenberg. 7. Article XV, Section 7 of the Borough's March 12, 1996, proposal entitled "Insurance and Pension" as submitted by Goebel provided as follows: "In addition to a continuation of the same pension and retirement benefits for full -time police officers of the Borough of Homestead who were members of the Pennsylvania Municipal Retirement System and /or the Homestead Borough Police Pension Plan, as of December 31, 1995, the surviving spouse of such full -time police officer who retired from the borough who is not otherwise receiving health insurance benefits, and who is 65 years of age or older, shall be entitled to receive payment for the Blue Cross 65 Special Insurance Premium, in an amount not to exceed $ 100.00 per month, and provides further that such surviving spouse has no other comparable insurance coverage available through Borcik, 97- 047 -C2 Page 3 employment, or as a dependent on another person's insurance coverage. 8. Greenberg agreed to include the language set forth in Section 7, Article XV of the Borough's March 12, 1996, proposal in the Final Award. 9. On May 29, 1996, Attorney Goebel provided a rough draft of the borough's proposal of the Final Award to Attorney Greenberg and Neutral Chairman McDaniel. 10. Correspondence from Goebel attached to said draft contained the following: "In accordance with our meeting and discussion of May 24, 1996, in this above referenced matter, enclosed herewith find a draft of the proposed award to be entered between the Borough of Homestead and Teamsters Local Union No. 205 for the police period commencing January 1, 1996, through December 31, 1998. I believe the draft reflects the changes that we discussed last Friday and I would like each of you to contact me to indicate whether or not the draft award comports with your understanding of the agreements which we reached in this matter. As you will notice, to make the changes simpler to recognize, I have redlined all of the changes that were made from my previous draft submission to you several weeks ago." 11. Article XV, Section 7, entitled "Insurance and Pension" of Goebel's May 29, 1996, draft of a final award contained the following: "In addition to a continuation of the same pension and retirement benefits for full -time police officers of the Borough of Homestead who were members of the Pennsylvania Municipal Retirement System and /or the Homestead Borough Police Pension Plan, as of December 31, 1995, or prior to December 31, 1995, the surviving spouse of such full -time police officer who retired from the borough who is not otherwise receiving health insurance benefits, and who is 65 years of age or older, shall be entitled to receive payment for the Blue Cross 65 Special Insurance Premium, in an amount not to exceed $ 100.00 per month, and provided further that such surviving spouse has no other comparable insurance coverage available through employment, or as a dependent on another person's insurance coverage." 12. Article XV, Section 7 of the draft issued by Attorney Goebel on March 12, 1996, was altered by Attorney Goebel as of May 29, 1996, to include the phrase "or prior to December 31, 1995." a. This phrase would enable Drew Borcik's mother to qualify for medical benefits. 13. Language set forth in Section 7, Article XV of the May 29, 1996, draft prepared by Attorney Goebel was included in the Final Award issued on June 28, 1996. 14. On June 28,1996, an Act III Commonwealth of Pennsylvania Arbitration Award on Collective Bargaining Agreement Provisions was issued (Herein referred to as "The Final Award "). Borcik, 97- 047 -C2 Page 4 a. The Final Award was effective as of January 1, 1996, through December 31, 1998. 15. Ralph Borcik was the father of Drew Borcik. a. Ralph Borcik served as a Homestead Police Officer from 09/16/46 until retiring on 10/02/80. b. Ralph Borcik has been deceased since 05/13/94. 16. Christine Borcik is the mother of Drew Borcik. a. She was employed by Carneige Institute until December 31, 1996. 17. Christine Borcik has been enrolled in a medical insurance plan through Homestead Borough from January 1996 through the present. a. Christine Borcik was enrolled in the Blue Cross 65 Special Medical Insurance Plan. 18. Prior to January, 1997, Christine Borcik submitted monthly payments to the borough for the payment of premiums associated with the Blue Cross 65 Special Plan. a. Christine Borcik submitted payments related to medical coverage for herself. 19. On January 5, 1997, Christine Borcik addressed the following correspondence to Homestead Borough Council: "I am writing you to request reimbursement of funds that I have spent for health insurance premiums. I have paid them and now find out that they are covered by the Borough of Homestead, as per Article XV, Section 7, of the Collective Bargaining Agreement Provisions of the Homestead Borough Police Department. 20. On February 12, 1997, the Borough of Homestead issued a check payable to Christine Borcik in the amount of $1,265.00. a. Said check was issued as reimbursement for medical insurance payments made by her in 1996 and the first quarter of 1997. b. Drew Borcik participated in the vote to pay reimburse Christine Borcik. 21. From February 12, 1997, through December, 1997, Homestead Borough consistently paid for premiums associated with Christine Borcik's health care. 22. The Borough of Homestead paid a total of $2,231.32 in medical insurance premiums on behalf of Christine Borcik. a. Calculation is as follows: January - December, 1996 (81.72 x 12) _ $ 980.64 January - December, 1997 (94.82 x 12) _ $1,137.84 Borcik, 97- 047 -C2 Page 5 January, 1998 _ $ 112.84 $2,231.32 23. Drew Borcik consistently voted in favor of paying all bills presented before council from January, 1994, through June, 1997. a. Included in the above mentioned bills are the health care premiums paid by the borough on behalf of Christine Borcik. b. Votes to approve bills presented before council from January, 1994, through June, 1997, were consistently unanimously approved by council. 24. Drew Borcik participated in approving bill lists, which included insurance premiums for his mother on the following dates: March 13, 1997 April 10, 1997 May 8, 1997 June 12, 1997 July 10, 1997 August 14, 1997 September 11, 1997 October 9, 1997 November 13, 1997 December 11, 1997. 25. Borcik voted to pay insurance premiums totaling $2,231.32 for the period January 1996, through January, 1998. III. DISCUSSION: At all times relevant to this matter, the Respondent, Drew Borcik, hereinafter Borcik, has been a public official 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, gt . /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, ei seq. The issue is whether Borcik, as a Councilman for Homestead Borough, Allegheny County, violated Section 1103(a) of the Ethics Act when he participated in actions regarding a police arbitration contract resulting in his mother being placed on the borough -paid health care plan; and when he voted to reimburse insurance premiums to his mother with borough funds. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). 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. 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 Borcik, 97- 047 -C2 Page 6 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. 65 Pa.C.S. §1102. 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. Having noted the issues and applicable law, we shall now summarize the relevant facts. Borcik has served on the Homestead Borough ( "Borough ") Council since January 1992. In September, 1995 the Borough began negotiations and arbitration with the police department for a new contract. George S. Goebel, Esquire represented the Borough in negotiations for that contract and Steven Greenberg, Esquire served as the representative of the police department. During the above process, Goebel on behalf of the Borough submitted a proposal to Greenberg, which contained language in Article XV, Section 7 concerning health insurance benefits to surviving spouses of full -time police officers as of December 31, 1995. However, the final draft of Article XV, Section 7 in May, 1996 contained an amendment which allowed benefits not only for surviving spouses as of December 31, 1995, but also to those who were surviving spouses prior to that time. The facts do not establish who directed the insertion of the amendment. The amendment of Article XV, Section 7 enabled Borcik's mother to qualify for medical benefits. In January, 1996 Borcik's mother became enrolled in the medical insurance plan through the Borough. Through 1996, Borcik's mother submitted monthly payments to the Borough for the payment of premiums associated with a Blue Cross 65 Special Plan for health insurance. In January, 1997, Borcik's mother wrote to the Borough requesting reimbursement of funds that she paid for health insurance premiums for the 1996 year and the beginning of 1997. Borcik's mother's claim was based upon Article XV, Section 7 of the agreement which required the Borough to make such payments. The Borough on February 12, 1997 issued a check to Borcik's mother in the amount of $1,265 as reimbursement for medical insurance payments. Borcik voted to reimburse his mother's insurance premiums. The Borough then paid health care premiums for Borcik's mother's up to January, 1998. The Borough paid a total of $2,231.32 on behalf of Borcik's mother for the years 1996 and 1997 and January of 1998. Borcik consistently voted in favor of paying all bills presented before Council, which included bills for health insurance premiums paid by the Borough on behalf of his mother. Such bill approvals were unanimously approved by Council. Borcik, 97- 047 -C2 Page 7 Having summarized the above relevant facts, we must now determine whether the actions of Borcik violated Section 1 103(a) of the Ethics Act. In applying Section 1 103(a) of the Ethics Act to the first part of the allegation, we do not find the requisite use of the authority of office that is necessary to establish a violation. Although the record reflects that Article XV, Section 7 of the agreement between the Borough and the police union was modified to extend health insurance for surviving spouses prior to December 31, 1995, the facts before us do not establish any participation or involvement on the part of Borcik regarding the amendment which benefitted his mother. Accordingly, we find no violation by Borcik as to the police arbitration contract which resulted in his mother being place on the Borough health care plan in that there was no use of authority of office on the part of Borcik, and hence, an insufficiency of evidence. See, O'Donnell, Order 1044. As to the payments by the Borough of the insurance premiums on behalf of Borcik's mother, we find uses of authority of office. Borcik participated in the vote which reimbursed his mother $1,265 as to medical insurance premiums which she had paid. In addition, Borcik participated in the unanimous votes of Council to approve bill lists which included health care premiums paid by the Borough for his mother. Such actions on the part of Borcik were uses of authority of office. See, Juliante, Order 809. Such uses of authority of office resulted in a private pecuniary benefit consisting of the insurance premiums that were paid for Borcik's mother. Lastly, that private pecuniary benefit inured to Borcik's mother, who is a member of his immediate family as that term is defined under Section 1102 of the Ethics Act, 65 Pa.C.S. §1102. Accordingly, Borcik violated Section 1103(a) of the Ethics Act when he voted to approve bill lists which included payments for insurance premiums on behalf of his mother. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein it is proposed to resolve the case by finding no violation of Section 1103(a) of the Ethics Act as to the allegation that Borcik participated in decisions regarding a police contract arbitration award which resulted in his mother receiving borough -paid health insurance benefits, due to insufficient evidence; a violation of Section 1103(a) of the Ethics Act when Borcik voted to approve bill lists which included payments by the Borough for health insurance premiums on behalf of his mother; and time payments of $2,231.32 by Borcik through this Commission to Homestead Borough. Accordingly, Borcik is directed to make payments in the total amount of $2,231.32 through this Commission to Homestead Borough, with said payments to be made over a period of one -year in equal installments of $185 for eleven months and a final payment of $196.32, to commence within 30 days of the date of mailing 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. IV. CONCLUSIONS OF LAW: 1. Borcik, as a Borough Councilman in Homestead Borough, Allegheny County, is a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Borcik did not violate Section 1103(a) of the Ethics Act as to decisions regarding a police contract arbitration award which resulted in his mother receiving borough -paid health insurance benefits, due to an insufficiency of evidence. Borcik, 97- 047 -C2 Page 8 3. Borcik violated Section 1103(a) of the Ethics Act when he voted to approve payments by the Borough for health insurance premiums on behalf of his mother. In Re: Drew Borcik File Docket: 97- 047 -C2 Date Decided: 2/26/99 Date Mailed: 3/10/99 ORDER NO. 1113 1. Borcik, as a Borough Councilman in Homestead Borough, Allegheny County, did not violate Section 1103(a) of the Ethics Act as to decisions regarding a police contract arbitration award which resulted in his mother receiving borough -paid health insurance benefits, due to an insufficiency of evidence. 2. Borcik violated Section 1103(a) of the Ethics Act when he voted to approve. payments by the Borough for health insurance premiums on behalf of his mother. 3. Borcik is directed to make payment to Homestead Borough through this Commission in the total amount of $2,231.32. Said payments are to be made over a period of one -year in equal installments of $185 for eleven months and a final payment of $196.32, commencing within 30 days of the date of the mailing 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, 4 ua4u & � DANEEN E. REESE, CHAIR