Loading...
HomeMy WebLinkAbout998 SpencerIn Re: Mary Spencer STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: File Docket: 94- 038 -C2 Date Decided: 2/15/96 Date Mailed: 3/1/96 Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt Rev. Joseph G. Quinn Boyd E. Wolff The Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the State Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 ,gt sec. Written notice of the specific allegation was served at the commencement of the investigation. A Findings Report was issued and served upon completion of the investigation which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was waived. A consent agreement was submitted by the parties to the Commission for consideration which was subsequently approved. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document thirty days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within thirty days of issuance 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). 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). Spencer, 94- 038 -C2 Page 2 I. ALLEGATION: That Mary Spencer, a public official in her capacity as President of Baden Borough Council, Beaver County, violated Section 3(a) of Act 9 of 1989 when she used the authority of office for the private pecuniary benefit of a member of her immediate family by participating in discussions, actions, and /or decisions of borough council, as well as the borough civil service commission regarding the altering of Borough Civil Service regulations and membership which resulted in the hiring of her son as a full -time borough police officer. II. FINDINGS: 1. Mary Spencer has served as a member of Baden Borough Council since approximately 1984. a. Mary Spencer served as Council president in 1994. 2 Mary Spencer is the mother of Alton Jack Spencer. a. Alton Jack Spencer was employed by the borough as a part - time police officer from November, 1977, until May 18, 1994. b. Alton Jack Spencer, was hired by the borough as a full - time police officer on May 18, 1994. 3. When operating at a full complement, the Baden Police Force includes a full -time Chief of Police, three full -time officers and part - timers as needed. a. Full -time police hirings are approved by a majority vote of Borough Council. b. Part -time hirings are handled by the Chief. 4. In January, 1993, the Baden Police Department was short two full -time officers. a. Part -time help was being used to cover the shifts. b. This part -time help included Alton Jack Spencer. 5. At the January 18, 1993, meeting of Council, Police Chief Frank Tavern, appeared before Council requesting the expeditious hiring of up to two full -time police officers for the •borough. a. The topic of police hirings was further discussed at Council's January 20, 1993, February 15, 1993, and February 17, 1993, meetings. Spencer, 94- 038 -C2 Page 3 6. Baden Borough has a Civil Service Commission (CSC) which is empowered to administer Civil Service exams utilized as the basis for full -time police hirings. a. Baden's Civil Service Commission is comprised of three Council appointed members. b. Members are appointed to serve six year terms. c. One member's term is supposed to expire every other December 31st. 7. Duties of the Civil Service Commission include the following: a. Administer Civil Service examinations to borough police applicants. b. Maintain a Civil Service eligibility list for borough police hirings. c. Handle grievance proceedings for police personnel. d. The rules and regulations for the Baden's Civil Service Commission are approved by Council. 8. At the February 17, 1993, meeting of Council a motion was unanimously approved authorizing testing for a Civil Service Eligibility List. a. The written test was to be conducted by the Department of Community Affairs. b. Mary Spencer was present at this meeting. 9. Council utilized the Pennsylvania Department of Community Affairs (DCA) to administer the written portion of the exam with the Borough Civil Service Commission handling oral interviews. a. DCA provides this service to municipalities. b. DCA offers a standardized written examination for municipal police candidates. 10. Civil Service Commission Regulations enacted on December 5, 1990, contain provisions for testing and employment qualifications: a. Testing: "The Commission shall designate the general nature, quality and scope of examinations and shall determine their mode; i.e., whether written, oral, performance or any combination thereof...an examination Spencer, 94- 038 -C2 Page 4 may be divided into a number of subject papers or tests, each of which shall be marked on the scale of one hundred (100) and properly weighed. The sum of the weighed scores for all subject papers and tests shall not exceed one hundred (100 %) percent and shall constitute the final grade of the applicant unless he would be a veteran within the meaning of Section 3 of an Act of Assembly approved on the 27th of June, 1939, (P.L. 1198), in which case five (5 %) percent and ten (10 %) percent for armed conflict be added to his earned score provided that such score is equal or superior to the passing mark set for the said competitive examination. b. Employment Oualifications: 1) Each applicant must exhibit legal proof of citizenship before his application may be received 2) The minimum and maximum age qualifications for applicants shall be eighteen (18) years of age to thirty -five (35) years of age respectively. 3) An application shall be null and void one (1) year after (the) date upon which it was filed and all application forms of the Commission shall bear a notation to that effect. c. The maximum age requirement was subsequently removed. (See Finding No. 47, et seq.) 11. The Civil Service Commission adopted a ratio for scoring applicants based on fifty percent (50 %) written and fifty percent (50 %) oral interview plus any applicable veteran points. a. The 50/50 scoring ratio was not specifically identified in the Civil Service Regulations enacted December 5, 1990. b. The ratio was the one customarily used by the Commission. c. The Commission had the responsibility to set scoring ratios. 12. On April 13, 1993, the Pennsylvania Department of Community Affairs, Bureau of Local Government Services, provided a written Police Examination for Baden Borough, Castle Shannon Borough, Coraopolis Borough, and McDonald Borough. a. The test was given at the Moon Township Middle School, Allegheny County. Spencer, 94- 038 -C2 Page 5 b. The test was administered, supervised and compiled by DCA. c. DCA provided tabulated results to each municipality. d. A minimum score of 70.00 was required to pass. e. Chief Frank Tavern attended the test as a Representative of Baden Borough. 13. The results from DCA's written exam were provided to the borough based on a candidate's ID number. a. Alton Jack Spencer scored a 96.25 on the written exams tying with one other applicant for the highest score. b. Jack Spencer's score was the highest of all applicants seeking employment with Baden Borough. 14. At the Baden Borough Council meeting held May 17, 1993, Council directed the Civil Service Commission to schedule oral interviews with police candidates. a. Oral interviews were offered to any borough police candidate who scored 70.00 or better on the written police examination administered by DCA. b. Mary Spencer was present at that meeting. 15. Baden's Civil Service Commission conducted oral interviews on the evenings of May 26, 1993; June 2, 1993; June 9, 1993; and June 23, 1993. a. Members of the Civil Service Commission included Andrew Gall, Patrick Sisley, and Ronald Kamzelski. b. Members Gall and Sisley were present for all four interview sessions. c. Member Kamzelski attended the June 23, 1993, session. d. Two commission members constitute a quorum per Civil Service regulations. 16. Alton Jack Spencer interviewed before Commission members Gall and Sisley on the evening of May 26, 1993. 17. Oral interview scores were combined with the written scores to come up with a total score. Applicable veteran's points were then added to the total. Spencer, 94- 038 -C2 Page 6 18. Baden Borough Council was provided with a Civil Service Eligibility List dated June 23, 1993, from the Civil Service Commission. a. A copy of the list was also posted at the borough building on or about June 23, 1993. b. The Eligibility List included thirty -three candidates. 19. Alton Jack Spencer scored a 70.00 on the oral portion of the exam and had a total score of 176.25. a. Spencer received 10 points for veterans preference. b. Alton Jack Spencer's combined score placed him ninth overall. 20. Council's unwritten policy for employment consideration was to select one applicant from the top three scoring candidates, if one officer was to be hired or two from the top six candidates, if two officers were to be hired. a. Based on his combined score, Spencer was not in the top three to six candidates depending upon the number of officers to be hired. 21. Alton Jack Spencer and at least one other applicant exceeded the maximum age requirement to be considered for employment, however, age was not a factor in preparing the original eligibility list. a. Both of these applicants had been working as part -time police officers for Baden Borough. 22. Jack Spencer verbally complained to Police Chief Frank Tavern and to various council members, including Mary Spencer and Michael Stuban. a. Spencer was upset with the grading of the oral interview. b. Both Frank Tavern and Mary Spencer told him to submit a written complaint to council. 23. By way of letter dated July 2, 1993, to Councilman Michael Stuban who served as Chairman of the Public Safety Committee, Jack Spencer complained about the way he felt he was treated by the Civil Service Commission. a. Spencer claimed the oral exam score that ranked him 20th out of 33 applicants, was not justified, and was a blatant attempt to keep him out of the top six applicants. Spencer, 94- 038 -C2 Page 7 b. c . Spencer questioned whether one of the members of the Civil Service Commission (CSC) was objective in his scoring. He questioned members of the CSC whether they ask the same questions of all the applicants. d. Spencer requested that the dispute be investigated and that the CSC provide a valid reason for grading his oral interview as low as they did. 24. Of the thirty -three individuals who received oral interviews, Alton Jack Spencer was the only one to complain about his score. a. Spencer's oral interview score was 20 points lower than the next lowest score. 25. Based on Alton Jack Spencer's complaint to the Police Chief and Council members, Baden Borough Council took action at the July 19, 1993, meeting to unanimously approve the Solicitor and Public Safety Committee to investigate the Civil Service testing. a. Mary Spencer was present at this meeting and is not recorded as abstaining from the vote. 26. At Council's August 16, 1993, meeting, Council member Stuban reported that the Public Safety Committee did not have the time to meet with the CSC. a. Solicitor Sainovich stated he is doing research regarding the CSC exams and the way in how they should be given. Mr. Sainovich stated since this may involve litigation, council may want to discuss this in Executive Session. b. Mary Spencer was present at this meeting. 27. At the August 18, 1993, Council meeting a motion was made to call in the top six police candidates. a. The motion was withdrawn following a solicitor report that a complaint was made against the test and that he had a meeting scheduled with the CSC on August 25, 1993. b. Mary Spencer was present at this meeting. 28. On August 25, 1993, Baden Solicitor Myron Sainovich met with Civil Service Commission members Gall, Kamzelski, Sisley, and Mayor Marsilio to discuss the complaint lodged by Alton Jack Spencer. Spencer, 94- 038 -C2 Page 8 a. The purpose of this meeting was to discuss the methodology used by the Commission during the interview process. 29. Solicitor Sainovich provided council with a narrative and opinion dated September 15, 1993, with respect to the Police Civil Service Examination. Sainovich opined that any applicant challenging the written portion to the examination would meet with . little or no success. The outstanding issue or question is whether a valid reason can be given for grading Mr. Spencer's oral examination in the manner in which it was graded. No record was kept by members of the CSC of the reasons for the scores on the oral examination. The Department of Community Affairs suggested a format to rate questions and answers. Sainovich suggested that the CSC readminister the oral portion of the exam to avoid any appearance of impropriety and possible litigation. The format provided by Department of Community Affairs was suggested to be used as a guide. 30. At Council's October 18, 1993, meeting a discussion occurred regarding Solicitor Sainovich's Opinion dated September 15, 1993, regarding the Police Civil Service examinations: Councilman Stuban feels the test should be re- administered since the CSC by -laws have no set percentage as a guideline for use in scoring the written and oral exams. Councilman Besong stated he feels somebody is trying to make an opening for someone. Councilman Gagliardi requests the reaction of the CSC in writing to Sainovich's letter. Mary Spencer was not present at this meeting. 31. The CSC requested that council follow one of two recommendations: a. Accept the test as is, or, Spencer, 94- 038 -C2 Page 9 b. Authorize the CSC to retain counsel to obtain a legal opinion. 32. Council did not accept the test as is or authorize outside counsel for the Civil Service Commission. a. Solicitor Sainovich felt that he could handle the matter and the borough need not incur additional legal expenses by hiring independent counsel for the Civil Service Commission. 33. Borough Solicitor Sainovich provided a Follow -up Opinion dated November 11, 1993, reaffirming his position that the borough should re- administer their oral portion of the Civil Service exam, and use a suggested format provided by the Department of Community Affairs as a guide. 34. At a November 15, 1993, work session of council, action was taken regarding the solicitor's recommendation to re- administer the oral interview portion of the police exam: Motion by Mr. Stuban, second by Mrs Sambol - to reject a Civil Service Commission testing on recommendation of the solicitor. Roll call vote: Mr. Besong, no � Mr. Gagliardi, no Mrs. Sambol, yes Mrs. Spencer abstained. Mr. Dunstan, yes Mr. Havranek, yes Mr. Stuban, yes Vote carries by a 4 yes, 2 no, 1 abstention. Mr. Stuban stated the by -laws of the Civil Service Commission does not state a percentage to be used when testing; presently the CSC uses 50/50; DCA suggest this should be stated in the by -laws. Motion by Mr. Stuban, second by Mr. Dunstan- carried unanimously to send a letter to the Civil Service Commission asking that a percentage be set and submitted to council for approval. Mr. Stuban stated when the percentage is approved, the oral interviews can be started." Present: Besong, Dunstan, Gagliardi, Havranek, Sambol, Stuban, Spencer. 35. Borough Solicitor Myron Sainovich, orally advised Mary Spencer that she could participate in council actions pertaining to the entire class of applicants for the position of borough Spencer, 94- 038 -C2 Page 10 police officer, but that she should abstain from anything pertaining only to her son Jack Spencer. a. Sainovich did not provide Mary Spencer with a written opinion on the subject. b. The exact date of Sainovich's oral opinion is not known, but the opinion was given and discussed at an Executive Session relating to personnel matters before a quorum of council where minutes are not kept. 36. At the Council's November 17, 1993, meeting, the contents of Sainovich's November 11, 1993, opinion were discussed. a. Mary Spencer was present at this meeting. 37. By way of correspondence dated November 16, 1993, Borough Secretary Susan Blum advised Civil Service Chairman Andrew J. Gall, of Council's November 15, 1993, Work Session, action which directed the Commission to re- administer the oral portion of the exam. Additionally, the Commission was to set the percentage to be used when scoring the exams and submit it for Council review. 38. Council and the Civil Service Commission disagreed over re- administering the oral portion of the Civil Service exam. a. Civil Service Commission Members Gall, Sisley and Kamzelski, believed that a valid oral exam had been administered. b. CSC members believed council wanted to administer the oral exam to benefit Alton Jack Spencer. 39. During December, 1993, Councilman Stuban researched the term expiration dates for the Civil Service Commission members. a. Stuban determined that Andrew Gall's term would expire at the end of December, 1993, as well as the terms of two Library Board Members. 40. At Council's December 13, 1993, meeting, Councilman Stuban reported on CSC and Library Board members term expiration dates. 41. On January 3, 1994, Baden Borough Council enacted Resolution 94 -01, to correct "errors made regarding the terms of the members of the Civil Service Commission." The resolution provided, in part, as follows: Spencer, 94- 038 -C2 Page 11 Made and resolved this 3rd day of January, 1994, by the Town Council of the Borough of Baden, County of Beaver, Commonwealth of Pennsylvania. Whereas, in checking the terms of office for the members of the Civil Service Commission, the Secretary has found that an error was made in the past years; and Whereas, when the Commission was organized, three members were appointed for different terms, to wit; 1952 -1953, 1952 -1955, and 1952 -1957, but the term of each was supposed to have been for a six (6) year period; and Whereas, the error has been perpetrated; and whereas, the error should be corrected; Now, therefore, be it enacted and Resolved. That the term of Andrew J. Gall shall be amended so that it expires December 31, 1993, the term of Patrick Sisley shall be amended so that it expires December 31, 1995, and the term of Ronald Kamzelski shall be amended so that it expires December 31, 1997. The resolution was passed unanimously with Mary Spencer voting. 42. Jack Spencer felt Andrew Gall deliberately scored him low on his oral interview to keep him out of the top six scorers on the June 23, 1993, Civil Service Eligibility List. 43. Minutes of Council's January 3, 1994, meeting, include the action regarding an appointment to the Civil Service Commission: Mr. Stuban nominated Ron Havranek. Mr. Mutschler nominated Andrew Gall. Roll call vote: Mr. Dunstan - Mr. Havranek Mr. Mutschler - Mr. Gall Mrs. Sambol - Mr. Havranek Mr. Stuban - Mr. Havranek Mr. Wolz - Mr. Havranek Mrs. Spencer - Mr. Havranek Mr. Havranek appointed by a 5 -1 vote to a six year term to the Civil Service Commission, expiring December 31, 1999." 44. Patrick Sisley resigned from the Commission by way of letter dated January 6, 1994. Spence , 94- 038 -C2 Page 12 45. At the January 17, 1994, workshop meeting of council, Michael Stuban was appointed to replace Patrick Sisley on the CSC. a. The motion was approved unanimously. b. Mary Spencer was present at that meeting. 46. On February 14, 1994, council met and Councilman Stuban reported as follows: a. The Civil Service Commission has reorganized and the new members have been sworn in. b. A meeting is scheduled for February 23 to determine how the oral interviews will be conducted, if an outside chief will come in and score them. c. It is the recommendation of the Civil Service Commission to change their by -laws. d. A percent was never set, as to what percent would be for the written test and what percent would be for the oral test. e. The recommendation is 75% be based on the written and 25% be based on the oral. f. The Civil Service Commission will be presenting it to council to approve or reject. If council intends to hire an officer, council should seriously discuss it and by Wednesday decide what to do. h. Mary Spencer was present at this meeting. 47. The revamped Civil Service Commission consisting of Michael Stuban, Ronald Havranek, and Ronald Kamzelski, requested the following changes be made to the Commission's rules and regulations: a. Scoring be set at 75% written, 25% oral instead of the 50% written, 50% oral previously used. b. Maintaining the minimum age for police hiring of eighteen (18) and eliminating the maximum age of thirty -five (35). Previous age parameters were 18 to 35. 48. Baden Borough Council met on February 16, 1994, and minutes reflect Council took the following actions on the Civil Service Commission's recommendations. g- Spencer, 94- 038 -C2 Page 13 Motion by Mr. Dunstan, second by Mr. Wolz -to approve the amending of the by -laws for the Civil Service Commission setting the scoring of tests at 75% of the score for written test and 25% of score for oral interviews. Roll call vote: Mr. Besong, no Mr. Mutschler, yes Mr. Wolz, yes Mr. Dunstan, yes Mr. Stuban abstained Mrs. Spencer, yes. Motion carries 4 -yes; 1 -no; 1- abstention. Motion by Mr. Stuban, second by Mr. Dunstan- carried unanimously -to authorize the solicitor to attend Civil Service Commission meetings in regards to oral testing so everything can be set up and done legally and proper. Mr. Besong asked Mr. Sainovich if the testing is open to council to sit and listen. Mr. Sainovich stated normally it is not done in order to not create any kind of political pressure; that is why a Civil Service Commission is created, to eliminate politics in hiring. Mr. Besong asked if there was a law that council could not attend. Mr. Sainovich stated he does not think there is a law, but will check if he can sit in the audience while the testing is being done; this may be up to the Civil Service Commission, closed testing could probably be done by them." Present: Besong, Dunstan, Mutschler, Stuban, Wolz, Spencer. Absent: Sambol 49. By way of correspondence dated February 18, 1994, to Civil Service Chairman Ronald Havranek, Council President Mary Spencer, informed that "at the regular session of Council, Wednesday, February 16, 1994, (a) Motion was passed to approve amending the By -Laws of the Civil Service Commission to set the scoring of tests at 75% of score for written tests and 25% of score for oral interviews." a. This letter was signed by Spencer in her capacity as Council President. 50. On March 16, 1994, council took the following action on the CSC recommendation regarding maximum age: Motion by Mrs. Sambol, second by Mr. Wolz - carried unanimously - to approve amending the by -laws for the Civil Service Commission eliminating the maximum age of 35." Spencer, 94- 038 -C2 Page 14 "Mr. Stuban reported the Civil Service Commission has met and is getting all the procedures together and will be conducting oral examinations very shortly. Motion by Mr. Stuban, second by Mr. Wolz to extend the Civil Service list for one year. Question on the motion: Mr. Besong asked if the oral exam would be given on April 16. Mr. Stuban stated it might be on April 16th depending on the schedules, all three commission members want to be there for the examinations. Mr. Besong asked if there was any problem with him attending that meeting. Mr. Sainovich stated DCA has suggested that the only person that may be permitted to the meeting would be someone who is selected as an independent, perhaps a police officer who would also test; any outside interference might spoil the results of the test, DCA thinks it better. Roll call vote: Mr. Besong, no Mr. Mutschler, yes Mr. Stuban, yes Mrs. Spencer, yes. Mr. Dunstan, yes Mrs. Sambol, yes Mr. Wolz, yes Motion carried by a 6 yes; 1 no vote." Present: Besong, Dunstan, Mutschler, Sambol, Stuban, Wolz, Spencer. 51. By way of correspondence dated March 23, 1994, to Civil Service Chairman Ronald Havranek, Council President Mary Spencer, advised that "at the regular session of Council, Wednesday, March 16, 1994, (a) motion was passed to approve amending the By -Laws of the Civil Service Commission to eliminate the maximum age requirement." a. This letter was signed by Spencer in her capacity as Council President. 52. Eliminating the maximum age requirements conformed Baden Borough's hiring policy to federal law regarding age discrimination. a. This change benefitted that class of applicants over the age of 35, of which Alton Jack Spencer was a member. b. Spencer exceeded the maximum age under the old CSC requirements. 53. At Council's April 18, 1994, and April 20, 1994, meetings, the number of full -time police officers to be hired was discussed as follows: Spencer, 94- 038 -C2 Page 15 a. April 18, 1994: "Mr. Stuban stated Baden Civil Service Commission will conduct oral examinations on April 26, and April 27; asked council how many officers are council considering on hiring." Present: Stuban, Mutschler, Sambol, Dunstan, Wolz, Spencer. Absent: Besong. b. April 20, 1994: "Motion by Mr. Wolz, second by Mrs. Sambol - carried unanimously - to advise the Baden Civil Service Commission that the borough council would like to hire two full -time officers and request list for same." Mr. Stuban advised (the) Baden Civil Service Commission will be conducting oral examinations on April 26 and 27, when the exams are completed the top six applicants will be submitted to council for their interviews. Present: Besong, Dunstan, Mutschler, Sambol, Stuban, Wolz, Spencer. 54. New oral exams were scheduled and held on April 26 and 27, 1994, for any candidate previously interviewed who was still interested in a full -time borough police position. a. Every previously interviewed candidate was invited back for the new oral interview. 55. Scoring for this set of exams was based on the new Civil Service regulations enacted February 16, 1994, and March 16, 1994. a. The written exams administered by DCA on April 13, 1993, were used with their value increased to 75% of a candidates total score. b. The initial oral interviews were disregarded. c. New oral interviews were conducted reducing their value to 25% of the overall score. 56. New oral interviews were conducted with twenty -two (22) police candidates. Scores were tabulated and submitted to Council for.,consideration. 57. The top ten scores forwarded to Council for consideration, after the second oral exam was conducted, were: Spencer, 94- 038 -C2 Page 16 Total Written Oral Other Applicant Score Exam Exam 1. Jack Spencer 103.43 72.18 21.25 10 2. Michael Strachan 94.49 62.82 21.67 10 3. Christopher Thompson 93.72 65.16 20.56 10 4. Richard Creese 89.63 59.07 20.56 10 5. Jeffrey Grimm 89.31 67.50 21.81 - 6. Robert Litterini 88.27 67.02 21.25 7. Brian Greco 87.74 57.18 20.56 10 8. Barry Fowler 87.44 67.02 20.42 - 9. Brian Buydase 86.55 65.16 21.39 10. Steven Roberts 86.35 64.68 21.67 - 58. By way of correspondence dated May 18, 1994, to Daniel Wolz, Public Safety Chairman, Police Chief Tavern advised that background checks on the two new police applicants were completed and attached. a. Tavern recommended hiring Alton Jack Spencer and Richard Creese. 59. Baden Borough Council Meeting Minutes reflect the following action occurring on the hiring of Alton Jack Spencer to the position of full -time police officer: a. "Motion by Mr. Wolz, second by Mrs. Sambol - to hire as full -time officer to the Baden Borough Police Department upon recommendation of Police Chief Tavern and himself, Alton Jack Spencer, 322 Camilla Street, Baden, PA. Mr. Sainovich stated so that council understood with regard to the law and the rules and regulations of the Civil Service Commission; received from Bill Gamble, DCA in Pittsburgh, the newest additions concerning the Brickhouse Case and in identifying who is eligible for preferences; the municipality must hire from the top six if in the top three there is a veteran, the veteran will get preference. Question on motion. Mr. Besong stated the past Civil Service Board rules and regulations stated the age requirement was 18 -35, the new Civil Service Board has changed this after the test were taken; this is illegal and he will vote no, due to potential law suit. Mr. Sainovich stated it is the opinion of Bill Gamble, DCA, that the municipality may lawfully increase the minimum age to 21 or even 25 against the immaturity of the younger applicants, but the requirement of the age of 35 should be removed because that would possibly be discriminatory in hiring; you can have a minimum age Spencer, 94- 038 -C2 Page 17 because of maturity levels, but you should not have that cap on to eliminate older individuals. Mr. Sainovich stated the only thing that was kept from the old test was the written scores. Roll call vote: Mr. Besong, no Mr. Dunstan, yes Mr. Mutschler, yes Mrs. Sambol, yes Mr. Stuban, abstained Mr. Wolz, yes Mrs. Spencer abstained Motion carries by a 4 yes; 1, no; 2 abstention vote. Mr. Besong asked if physicals and physiologicals will be required. Motion by Mr. Wolz, second by Mr. Mutschler - carried unanimously - to hire upon recommendation of the Chief and himself, Richard James Creese, 232 Soap Run Road, Fombell, PA 16123. Mr. Besong and Mr. Stuban abstained." Present: Besong, Dunstan, Mutschler, Sambol, Stuban, Wolz, Spencer. 60. Council took action to approve salary increases for Jack Spencer during his probationary period on June 15, 1994, and July 20, 1994. a. Mary Spencer abstained from both votes. 61. Mary Spencer participated in the following Board action which effectuated the hiring of her son as a full -time Borough Police Officer. a. July 19, 1993: Participated in unanimous Board action authorizing the Solicitor and Public Safety Committee to investigate the Civil Service test at the request of her son, (see Finding #25). b. Spencer was present during discussions occurring on the Civil Service exam occurring 07/19/93; 08/16/93; 08/18/93; 09/15/93; 11/15/93; 11/17/93. c. November 15, 1993: Participated in Council action directing the Civil Service Commission to submit scoring percentages for Council approval, (see Finding #34). d. January 3, 1994: Participated in Council action enacting resolution 94 -01, changing the term expiration dates for Civil Service Commission members and appointing Ronald Havranek to the Commission position previously held by Andrew Gall, (see Finding #41). Spencer, 94- 038 -C2 Page 18 e. January 17, 1994: Participated in Council actions to appoint Michael Stuban to fill a Commission vacancy caused by the resignation of Patrick Sisley, who resigned because of the alleged politics involved with Andrew Gall being replaced on the Commission, (see Findings # 44,45). f. February 16, 1994: Participated in favor of Council action which passed 4 -1 -1, amending the Civil Service Commission By -Laws test scoring ratios to 75% written, 25% oral, (see Finding #48). March 16, 1994: Participated in unanimous Council action taken to eliminate the maximum hiring age limit of thirty -five (35), (see Finding #50). h. Signed correspondence to the Civil Service Commission proclaiming the changes in her capacity as Council President. g- i. April 20, 1994: Participated in unanimous Council action advising the Civil Service Commission that Council will hire two full -time officers. This increased Alton Jack Spencer's chances for consideration, (see Finding #53). 62. Changes made to the Civil Service Commission and their regulations were done midway through the hiring process. a. The borough kept the written scores because they were administered by DCA, and were thus not subject to challenge. b. The old written scores were also increased in value relative to the new oral exam scores. New written exams were not given because the validity of those results were not challenged, by any applicant. 63. By re- administering the oral exam by new Commission members, and increasing the value of the written portion of the exam, Alton Jack Spencer was ranked first after the oral exam was re- administered. c . a. Alton Jack Spencer benefitted by having the value of his written test increased to 75% of his total score. b. Alton Jack Spencer benefitted by having the maximum hiring age, which disqualified him, removed. c. Alton Jack Spencer benefitted by having a new oral interview in front of two different Commission members. 64. Alton Spencer was hired at an annual salary of $25,937.60. Spencer, 94- 038 -C2 Page 19 65. Mary Spencer did seek the advice of the Borough Solicitor as to in which votes she should participate. a. Spencer did not vote to hire her son as a full -time borough police officer. b. Spencer did take part and a variety of actions which she believed were proper based upon the borough solicitor's advice. Her actions did alter the hiring procedures, which resulted in the elevation of her son to the top ranking on the eligible for hire list. Alton Jack Spencer was subsequently hired as a recommended candidate by the Baden Borough Chief of Police. III. DISCUSSION: As a member and President of Baden Borough Council, Beaver County, Mary Spencer, hereinafter Spencer, is a public official as that term is defined under Act 9 of 1989. 65 P.S. §402. As such, her conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to her. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: This amendatory act shall not apply to violations committed prior to the effective date of this act, and causes of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto. Since the occurrences in this case transpired after the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 9 to determine whether the Ethics Act was violated. Under Section 3(a) of Act 9 of 1989 quoted above, a public official /employee shall not engage in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989 as follows: a Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of ,Spencer, 94- 038 -C2 Page 20 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 or his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. The issue before us is whether Spencer violated Section 3(a) of Act 9 of 1989 when she allegedly used the authority of office to obtain a private pecuniary benefit for a member of her immediate family by participating in Council actions as to the Borough Civil Service Commission which resulted in the hiring of her son as a full -time Borough police officer. The record reflects that Spencer has been a member of Baden Borough Council since 1984. Spencer is the mother Alton Jack Spencer who was employed as a part -time Borough police officer from November, 1977 until May 18, 1994 when he was hired as a full -time police officer. When the Borough Police Chief appeared before Council and requested the hiring of two additional full -time police officers at a January 18, 1993 meeting, Council unanimously approved the authorized testing of candidates for a civil service eligibility list. The Borough has a Civil Service Commission (CSC) which administers examinations for full -time police hirings. The CSC is comprised of three Council members who have staggered six year terms. The CSC administers civil service exams to the Borough police applicants, maintains a civil service eligibility list for police hirings and handles grievance proceedings for police personnel. Council utilized the Pennsylvania Department of Community Affairs (DCA) to administer the written portion of the exam and CSC to conduct the oral exams. The CSC Regulations, which are approved by Council, contain provisions for testing and employment qualifications. Testing was by both written and oral exams with a basic Veteran's preference of 5% which doubled to 10% if the applicant was involved in armed conflict. Employment qualifications mandated proof of citizenship and an age limitation between 18 and 35 years of age. Although the CSC Regulations Spencer, 94- 038 -C2 Page 21 contained no scoring ratio between the verbal and written exams, a 50/50 scoring ratio was customarily used. On April 13, 1993, written police examinations were administered, supervised and compiled by DCA which provided the results to the Borough. Alton Jack Spencer scored a 96.25 on the written exam which was the highest score of all applicants seeking employment with Baden Borough. Thereafter, on May 17, 1993, Council directed CSC to schedule oral exams for only those police candidates who scored 70 or better on the written examination. CSC, the membership of which included Andrew Gall, Patrick Sisley, and Ronald Kamzelski, conducted several sessions of oral exams with the police candidates. After the oral exams were completed by CSC, an eligibility list dated June 23, 1993 was provided to Council which included the names of 33 police candidates. As to Alton Jack Spencer, he scored 70 on the oral exam and thereby received a total score of 176.25 which included a 10 point Veteran's preference. Council had an unwritten policy of only considering the top three scoring candidates if one applicant was to be hired and the top 6 candidates if 2 applicants were to be hired. Since Alton Jack Spencer's score placed him 9th overall, he was not within one of the top 6 candidates. In addition, Alton Jack Spencer, with at least one other applicant, exceeded the maximum age requirement of 35 years. After Alton Jack Spencer complained to the Police Chief and various Council members, including Mary Spencer and Michael Stuben, about the grading of his oral exam, Alton Jack Spencer was advised to submit a written complaint to Council. In a letter dated July 2, 1993 to Councilmember Stuben, Alton Jack Spencer complained about CSC asserting that his rank of 20 out of 33 applicants in the oral exam was an attempt to keep him out of the group of the top 6 applicants. Alton Jack Spencer further stated that one CSC member was not objective in scoring and that all applicants may not have been asked the same questions by CSC members. Alton Jack Spencer requested an investigation and a statement of reasons for his low grade in the oral exam which was 20 points lower than the next lowest score. As a result of Alton Jack Spencer's complaint, Council took action on July 19, 1993 to have the Solicitor and Public Safety Committee investigate CSC testing. Spencer attended this meeting as to which there is no record of her abstaining on such vote. In that the Public Safety Committee did not have time to meet with CSC, Solicitor Sainovitch researched the CSC exams and the manner in which the exams were given. Since the Solicitor suggested that the case might involve litigation, Council discussed the matter in executive session with Spencer being present. Spencer, 94- 038 -C2 Page 22 Although Council had originally intended to interview the top 6 police candidates, the motion to authorize such action was withdrawn following the filing of the complaint by Alton Jack Spencer. The Solicitor met with CSC members, Gall, Kamzelski, and Sisley, as well as the Mayor, regarding Alton Jack Spencer's complaint and then provided a written opinion to Council. Although the Solicitor believed that any applicant challenging the examination would have little success, he focused on the issue of whether there was a valid reason for Alton Jack Spencer's oral exam grade. Unfortunately, CSC kept no record as to the scoring of the oral exams. Since DCA suggested a format as to asking questions and rating answers, the Solicitor suggested that CSC readminister the oral exams to avoid any appearance of impropriety or possible litigation. At the October 18, 1993 Council meeting, a discussion ensued about the CSC police examinations: Councilmember Stuben stated that the test should be readministered; Councilmember Besong suggested that someone was trying to make an opening for someone else; and Counci.lmejnber. Gagliardi requested a response from CSC in writing as to the Solicitor's comments. Spencer was not present at that meeting. Although CSC requested Council to either accept the oral exam results or authorize CSC to retain counsel for a legal opinion, Council did neither but rather accepted the Solicitor's recommendation to readminister the oral exams. That motion carried in a 4 -2 -1 vote with Spencer abstaining. At that meeting, Councilmember Stuben stated that the CSC "by- laws" should contain a specific percentage as to the weight for the written and oral tests and proposed that CSC submit such a ratio to Council for approval. At some point, the Solicitor orally advised Spencer that she could participate in Council actions pertaining to the entire class of applications for Borough police officer but that she should abstain as to anything pertaining to her son. Since the Solicitor did not provide Spencer with a written opinion on the subject, the exact date of when the advice was given is unknown. CSC was notified by Council by letter of November 15, 1993 that the oral exams should be readministered and that a proposed ratio for the written and oral exams should be submitted to Council for its review. A dispute arose between Council and CSC as to readministering the oral exams. The three CSC members believed that valid oral exams had been administered and that readministered oral exams were desired by Council for the benefit of Alton Jack Spencer. After Councilmember Stuben researched the expiration dates for CSC members, Council on January 3, 1994 enacted a resolution to correct "errors made regarding the terms" of CSC members. As a Spencer, 94- 038 -C2 Page 23 result, the following terms were amended: Gall expiring on December 31, 1993, Sisley expiring on December 31, 1995 and Kamzelsky expiring on December 31, 1997. That resolution unanimously passed with Spencer voting. Parenthetically, Alton Jack Spencer believed that CSC member Gall had deliberately given him a low score on the oral exam so as to exclude him from the top 6 scores. At the January 3, 1994 Council meeting, Councilmember Stuben nominated Ron Havranek to the CSC Board with Councilmember Mutschler nominating Gall. Havranek was appointed on a 5 -1 vote with Spencer voting with the majority. Thereafter, CSC member Sisley resigned by letter dated January 6, 1994. At a January 17, 1994 Council workshop, Michael Stuben was appointed to replace Sisley on CSC by a unanimous motion with Spencer being present. At a February 14, 1994 Council meeting, Councilmember Stuben advised that CSC was reorganized and that a CSC meeting would be scheduled to determine how the oral exams would be readministered for the full -time police applicants. Stuben also reported that CSC would be submitting a recommendation to Council that exam scores be based on a 75% written, 25% oral ratio. CSC subsequently requested that the test ratio be changed as noted above and that the maximum age restriction of 35 be eliminated. When Council met on February 16, 1994, a motion was made to adopt a 75/25% written /oral scoring which motion carried on a 4 -1 -1 basis with Spencer voting with the majority. Spencer, as Council President, then sent a letter to the CSC Chairman advising that the motion had passed so that CSC scoring must be weighted 75 %/25% for the written /oral exams. In a March 16, 1994 Council meeting, a motion was passed eliminating the maximum age of 35 for full -time policemen by a 6 -1 vote with Spencer voting with the majority. The elimination of a maximum age requirement conformed to the hiring policy under Federal law as to age discrimination. New oral exams were scheduled and held on April 26 and 27, 1994 for all police candidates who were previously interviewed and still interested in the two positions. Although the initial written exams administered by DCA were retained, the initial oral exams were disregarded. The new oral exams were conducted based upon a reduced weight of 25% for the overall score. The scores were tabulated and submitted to Council. The Police Chief recommended the hiring of Alton Jack Spencer and Richard Creese who placed first and fourth respectively in total scoring. At a subsequent Council meeting, a motion was made to hire Alton Jack Spencer which carried on a 4 -1 -2 vote with Spencer abstaining. As to subsequent Council actions to approve salary increases for Alton Jack Spencer during his probationary period, Spencer also abstained on such votes. The detailed listing of the participation and voting by Spencer as to actions of Council which effectuated the hiring of Spencer, 94- 038 -C2 Page 24 her son as a full time Borough police officer is set forth in Fact Finding 61. As to the readministration of the oral exams by CSC, Alton Jack Spencer was ranked first due to the following factors: the value of the written test increased from 505 to 75% of the total score; the maximum age requirement of 35 years which disqualified Spencer was removed; and the readministered oral exams were conducted with two different CSC members. As to Spencer, she did seek advice of the Borough Solicitor concerning the votes in which she could participate. Spencer did not vote to hire her son as a full -time police officer but did take part in a variety of actions which she believed were proper pursuant to the Solicitor's advice. Such actions did alter the hiring procedures for the Borough police which resulted in the elevation of her son to the top of the eligibility list and his subsequent hiring as a recommended candidate by the Borough Police Chief. In applying the provisions of Section 3(a) of Act 9 of 1989 to the above facts, we find a technical violation. We find under the particular facts of this case that the various actions of Spencer through her participation in voting was a use of authority of office. See, Juliante, Order No. 809. In addition, the use of authority of office did result in a'private pecuniary benefit consisting of the hiring of Alton Jack Spencer to the compensated position of full -time policeman for the Borough. Lastly, Alton Jack Spencer, as the son of Spencer, is a member of her immediate family as that term is defined under the Ethics Law: 65 P.S. §402. Section 2. Definitions "Immediate family." A parent, spouse, child, brother or sister. In reaching our result, we do note that Spencer consulted with the Solicitor, abstained on certain votes, and voted at other times wherein she typically was not the deciding vote. Considering the totality of facts and circumstances in this case, we believe that a Section 3(a) technical violation is appropriate. Accordingly, this case will be closed with no further action taken. Lastly, the parties have filed a 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. Spencer, 94- 038 -C2 Page 25 IV. CONCLUSIONS OF LAW: 1. Mary Spencer, as Baden Borough Councilmember, Beaver County, is a public official subject to the provisions of Act 9 of 1989. 2. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Spencer participated in Borough Council decisions regarding the Borough Civil Service Commission which resulted in the hiring of her son as a full -time Borough police officer. In Re: Mary Spencer File Docket: 94- 038 -C2 . Date Decided: 2/15/96 Date Mailed: 3/1/96 2. Based upon the totality of facts and circumstances in this case, we will take no further action. ORDER NO. 998 1. A technical violation of Section 3(a) of Act 9 of 1989 occurred when Mary Spencer, as Baden Borough Councilmember, Beaver County, participated in Borough Council decisions regarding the Borough Civil Service Commission which resulted in the hiring of her son as a full -time Borough police officer. BY THE nisAu6 ettevi_ DANEEN E. REESE, CHAIR