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HomeMy WebLinkAbout1121 SmytheIn Re: Robert F. Smythe 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- 011 -C2 Order No. 1121 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 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 not filed and a hearing was deemed 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 Effective December 15, '1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998.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. Smythe, 98- 011 -C2 Page 2 I. ALLEGATION: That Robert F. Smythe, a public official /public employee, in his capacity as Chief of Police for Darby Borough, Delaware County, violated Section 3(a) of the Ethics Act (Act 9 of 1989) when he used the authority of his office for a private pecuniary benefit by using a borough -owned cellular telephone for his personal use and by billing these calls to the borough account. II. FINDINGS: 1. Robert F. Smythe has served as Police Chief for the Darby Borough, Delaware County, for approximately the past fourteen years. a. Smythe has been continuously employed by the Darby Police Department for the last twenty -eight (28) years. 2. Robert Smythe does not have an employment contract with Darby Borough. 3. Robert Smythe's compensation as police chief for Darby Borough includes the following: a. A salary of $62,000 per year. 4. Part of Smythe's employment terms are covered in the Borough's labor agreement with the police department. 5. Robert Smythe has utilized a cellular telephone provided by Darby Borough since at least 1988. a. The telephone service was provided by the Borough for Chief Smythe's use on official Borough business. b. Smythe had use of the cellular telephone only as a result of his public office. 6. The cellular telephone provided to Smythe is not part of any labor agreement with the Borough. 7. Darby Borough contracted with Comcast Metrophone for cellular telephone use from July 19, 1991, to August 1996. 8. Chief Smythe has been assigned cellular telephone number (215) 530- 8068 while the service was provided by Comcast Metrophone. 9. In August of 1996 the Borough changed to Bell Atlantic Nynex and Smythe was assigned telephone number (610) 246 -6438. a. The account number is 200438120 - 00001. 10. Prior to July 19, 1991, Darby Borough contracted with Bell Atlantic Mobile Systems for cellular telephone service. a. Smythe was .assigned a cellular telephone with the number (215) 880 -2775. Smythe, 98- 011 -C2 Page 3 11. In December, 1991, Smythe's use of the cellular telephone for personal matters and private business was questioned by members of Darby Borough Council. 12. In December 1991 a letter from Council members Paula Brown, John Thompson and William Stewart was addressed to Darby Borough Manager which contained the following: a. We are bringing this matter to your attention so that you are aware of our efforts to resolve quietly, a situation that would surely cause humiliation and public disgrace to this town. We propose that you correct the following: 1. Discontinue all mobile and return them immediately. 2. All personal and non- emergency calls are to be reimbursed fully to the Boro[ugh] on a payment plan if need be by the user. We would like to have your answer by 7:00 p.m. December 3, 1991. 13. On December 19, 1991, Borough Manager Phil Gallagher directed a memo to Council Members Brown, Thompson and Stewart which advised that the mobile telephone in question was to be taken out of the Borough's name and billing was to be directly to the Chief of Police. a. The memo further advised that a check was to be forthcoming for reimbursement of telephone charge. b. The reimbursement was to be made by Chief Smythe. 14. On December 23, 1991, Gallagher sent a letter to Paula Brown advising her to see the chief regarding bills she requested. a. The chief was reviewing the bills for payment to be made to the Borough. 15. Smythe asserts that he reimbursed Darby Borough in the amount of $1,004.99 for personal use of the Borough cellular telephones during 1992 to January, 1993. a. Bank records from Sharon Savings Bank confirm payments totaling $ 1,004.99 by Smythe to Darby Borough during the years 1992 and 1993. 16. The Borough of Darby has continued to be billed for the cellular phone service for Chief Smythe from 1992 to the present. 17. Since 1992 Smythe has continued to use the Borough cellular telephone to make and receive calls of a personal and private business nature or calls which are not related to Darby police activities. 18. Smythe has regularly called various individuals for matters not related to official Borough business. Smythe, 98- 011 -C2 Page 4 19. Smythe placed numerous calls to the individuals /entities between September 1992 and June 1998, which were not related to official business of Darby Borough. a. The total for the calls made not related to official business related to Darby Borough between September 1992 and June 1998 is $8,080.26. 20. In July 1998, approximately five (5) months after being notified of the current allegations by the Investigative Division of the State Ethics Commission Smythe appeared before Council during an executive session. a. Smythe informed that his use of cellular phones for personal use was being reviewed by the State Ethics Commission; b. Smythe advised the board that he would make reimbursement to the Borough for personal calls. 21. On September 22, 1998, Smythe gave the Darby Borough Manager a cashier's check number 60958 from Sharon Bank, payable to the Borough of Darby in the amount of $4,707.06. a. The payment represented Smythe's calculations of the amount he believed the Borough should be reimbursed for his use of the cellular telephone for personal reasons. b. The calculations by Smythe did not include all the calls referred to in previous stipulated findings. 22. The check was deposited into the Borough general fund on September 22, 1998. 23. On September 30, 1998, Borough Manager Nicholas DiGregorio advised Smythe that the amount of $4,707.06 had been received by the Borough for his personal cell phone use. 24. On October 1, 1998, Chief Smythe received Darby Borough Check No. 254 in the amount of $4,707.00 from Darby Borough General Fund. a. Smythe asserts the payment was for clothing allowances, cleaning and overtime pay during the period 1992 through 1997. b. The check contains the signature of Borough Manager Nicholas DeGregorio and the stamp signature of Council President Alfred Robinson. c. The payment was not presented for Council approval at any public meeting. 25. On or about January 12, 1999, Smythe obtained cashier's check number 61475 from Sharon Savings Bank in the amount of $3,372.80, which was forwarded to Darby Borough as further reimbursement for personal cellular telephone usage by Smythe. Smythe, 98- 011 -C2 Page 5 26. The State Ethics Commission Investigative Division received a letter from Nicholas DiGregorio, Darby Borough Manager, indicating that Chief Smythe had tendered a check to Darby Borough for the outstanding restitution in the amount of $3,372.80. a. Records from Sharon Savings Bank confirm the $3,372.80 payment to Darby Borough and the deposit of those funds into a Borough account on January 19, 1999. 27. Robert Smythe received a private pecuniary benefit of $8,080.26 when he used his position as Darby Police Chief to make and receive personal telephone calls on a cellular telephone provided by and paid for by Darby Borough. III. DISCUSSION: At all times relevant to this matter, the Respondent, Robert F. Smythe, hereinafter Smythe, has been a public employee 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, et . /Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101, et The issue is whether Smythe, in his capacity as Chief of Police for Darby Borough, Delaware County, violated Section 1103(a) of the Ethics Act as to the allegation that he utilized a Borough - owned cellular telephone for his personal use and billed those calls to the Borough account. 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 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. Smythe, 98- 011 -C2 Page 6 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. Smythe has been employed by the Darby Police Department for 28 years and as the Police Chief for the last 14 years. Smythe does not have an employment contract with Darby Borough but receives a salary as Police Chief plus the use of a cellular telephone provided by the Borough for official use only. Smythe, however, used the Borough - provided cellular telephone for personal matters and private business. In December, 1991 Smythe's cellular phone usage for non - official purposes was questioned by Darby Borough Councilmembers, who wrote a letter to the Borough Manager proposing the discontinuation of the cellular telephone and its return, together with a reimbursement for all such calls made, noting that the situation could cause humiliation and public disgrace to the Borough. By letter of December 19, 1991, the Borough Manager responded to the Councilmembers advising that the cellular phone was to be taken out of the Borough's name and billed directly to the Police Chief, who was to reimburse the Borough for past telephone charges. Smythe asserts that he made reimbursement of $1,004.99 to the Borough in 1991 or 1992 for such calls that were made on the Borough - provided cellular phone. Bank records reflect payments of $1,004.99 from Smythe to the Borough in 1992 and 1993. The Borough continued to be billed for the cellular phone service for Smythe from 1992 to the present. Further, since 1992, Smythe continuously and regularity used the Borough - provided cellular phone to make calls of a personal or private business nature unrelated to police activities. Between September, 1992 and June, 1998, Smythe made cellular calls unrelated to official Borough business which totaled $8,080.26. In July, 1998, approximately five months after Smythe was notified of the current investigation, he appeared before Borough Council in executive session. Smythe advised Council that he was under investigation by this Commission as to his use of the cellular phone for personal purposes and that he would make reimbursement to the Borough for personal cellular phone calls. On September 22, 1998, Smythe gave the Borough Manager a cashiers check in the amount of $4,707.06, payable to Darby Borough. Approximately one week later on October 1, 1998, Smythe obtained a Borough check in the amount of $4,707 — a mere six cents Tess than the payment Smythe had just tendered to the Borough. Smythe asserts that the check was payment for clothing allowances, cleaning, and overtime pay for the period 1992 -1997. The payment to Smythe for such purported expenses /overtime was made by a Borough check signed by the Borough Manager with a signature stamp of Council President. Further, such payment was never presented at a public meeting of Council for approval. All of the above circumstances are indicative of what may have really happened when Smythe reimbursed $4707.06 to the Borough and then received $4707 from the Borough eight days later. Smvthe, 98- 011 -C2 Page 7 On or about January 12, 1999, Smythe made a reimbursement of $3,372.80 to Darby Borough for his personal cellular telephone usage. Having summarized the above relevant facts, we must now determine whether the actions of Smythe violated Section 1103(a) of the Ethics Act. As to Section 1103(a) of the Ethics Act, there was a use of authority of office on the part of Smythe when he utilized the Borough cellular telephone for personal /private business use. But for the fact that Smythe was the Borough Chief of Police, he would not have been in a position to receive a Borough- provided cellular telephone for Borough business. The use of authority of office on the part of Smythe resulted in a pecuniary benefit to him. The pecuniary benefit consisted of the cellular phone usage for personal /private business calls that he made. Such was a pecuniary benefit because Smythe did not have any personal out -of- pocket expenses for making personal /private business cellular telephone calls. The pecuniary benefit was private because there was no authorization in law for Smythe to use the cellular phone for personal /private business use. To the contrary, the cellular phone was to be used for official Borough business only. Such private pecuniary benefit inured to Smythe himself. Smythe violated Section 1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit for himself by utilizing Borough -paid cellular telephone service for personal /private business use. Our decision in this case follows our prior precedent. We have long held that government offices, facilities, equipment, and personnel are to be used for government purposes and not for private, business or campaign /re- election activities. See, Eck, Order 787; Freind, Order 800; Rakowsky, Order 943. In addition to the finding of a violation of the Ethics Act, we must express our concern about the receipt by Smythe of $4,707 from the Borough for alleged expenses /overtime eight days after a partial reimbursement of $4,707.06 by Smythe to the Borough for cellular phone usage for personal purposes. We are obviously suspicious of what appears to have really occurred but are constrained to limit our decision to a finding of a violation, given the stipulated findings of the parties and the allegation which encompasses cellular telephone use for personal purposes but not the possible improper receipt of Borough funds. A Police Chief should serve as a model for respecting and following the law, and in this case the Ethics Act. In our view, it is evident that Smythe has failed in this regard. We remind Smythe that public office is a public trust and that he must not use government offices, facilities, equipment, or personnel for private or business activities. Turning to the matter of restitution, Section 1107(13) of the Ethics Act, 65 Pa.C.S. §1107(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 Act. In this case, since it has been determined that a financial gain has been obtained in violation of the Ethics Act, restitution would be warranted. However, the parties, the Investigative Division and Respondent's Counsel, have filed a Stipulation of Findings together with a Consent Agreement wherein the parties propose to resolve the case by a finding of a violation of Section 1103(a) with no further action. The parties also have stipulated that Smythe has reimbursed $8,080.26 to the Borough prior to the execution of the Consent Agreement. We approve the Consent Agreement as the disposition of the case under the Ethics Act based upon the Stipulated Findings of the parties. Given that the parties Smythe, 98- 011 -C2 Page 8 have stipulated that Smythe has reimbursed $8,080.26 to Darby Borough, no further action will be taken by this Commission IV. CONCLUSIONS OF LAW: 1. Robert F. Smythe, as Chief of Police for Darby Borough, Delaware County, is a public employee subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Smythe violated Section 1103(a) of the Ethics Act when he utilized a Borough cellular telephone for his personal use at Borough expense. 3. The private pecuniary benefit received by Smythe totaled $8,080.26. In Re: Robert F. Smythe ORDER NO. 1121 File Docket: 98- 011 -C2 Date Decided: 2/26/99 Date Mailed: 3/10/99 1. Robert F. Smythe, as Chief of Police for Darby Borough, Delaware County, violated Section 1103(a) of the Ethics Act when he utilized a Borough cellular telephone for his personal use at Borough expense. 2. As per the Consent Agreement of the parties wherein it is stipulated that Smythe has made restitution to Darby Borough in the amount of $8,080.26,. this Commission will take no further action in this case which is closed. BY THE COMMISSION, E DANEEN E. REESE, CHAIR