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HomeMy WebLinkAbout974 WarsoIn Re: Mick Warso 4 :l STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: File Docket: 94- 030 -C2 Date Decided: 05/04/95 Date Mailed: 05/16/95 Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt 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 et sec. Written notice of the specific allegation(s) 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 not filed and a hearing was deemed waived. The record is complete. 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 fifteen days after issuance. However, reconsidera- tion 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 fifteen 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. 5408(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. 5409(e). Confidentiality does not preclude discussing this case with an attorney at law. Warso, 94- 030 -C2 Page 2 I. ALLEGATION: That Mick Warso, a public official /public employee, in his capacity as a councilman for Lawrenceville Borough, Tioga County, violated provisions of the State Ethics Act (Act 9 of 1989) when he participated in actions of borough council and cast the deciding votes pertaining to his employer, the Lawrenceville Borough Authority. II. FINDINGS: Section 3 (a) ee shall conflict . Restricted Activities No public official or public :employ - engage in conduct that constitutes a of interest. 65 P.S. 5403(a). Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employ- ee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. 1. On April 11, 1994, the Investigative Division of the State Ethics Commission received a signed, sworn complaint alleging that Mick Warso violated provisions of the State Ethics Act (Act 9 of 1989) . 2. Upon review of the complaint by the Director of Investigations a recommendation was made to the Executive Director to commence a preliminary inquiry. 3. At the direction of the Executive Director, the Investigative Division initiated a preliminary inquiry on May 10, 1994. Warso, 94- 030 -C2 Page 3 4. The preliminary inquiry was completed within sixty days. 5. On July 7, 1994, a letter was forwarded to Mick Warso, by the Executive Director of the State Ethics Commission informing him that a complaint against him was received by the Investi- gative Division and that a full investigation was being commenced. a. Said letter was forwarded by certified mail, No. P 016 239 391. b. The domestic return receipt bore the signature of Mick Warso, with a delivery date of July 8, 1994. 6. The full investigation was commenced at the direction of the Executive Director of the State Ethics Commission. 7. On November 2, 1994, the Executive Director of the State Ethics Commission filed an application for a ninety day extension of time to complete the Investigation. 8. The Commission issued an order on December 15, 1994, granting the ninety day extension. 9. The Investigative Complaint was mailed to the Respondent on March 29, 1995. 10. Mick Warso served as a Councilman for Lawrenceville Borough, Tioga County, from 1979 to July, 1994. a. Warso is a member of the Borough's Fire Department. b. He is also a member of the Borough's Ambulance Crew. c. Warso resigned his position in July, 1994. 11. The Lawrenceville Borough Authority provides water and sewage services for borough residents. a. The Authority has a seven member board to conduct its business. b. The Authority has been in existence since 1974. c. Members of the Authority are appointed by Borough Council. d. A Plant Operator, Assistant Plant Operator and a Secre- tary are employed by the Authority. 12. Mick Warso has been employed by the Authority as Plant Warso, 94- 030 -C2 Page 4 Operator from 1978 to the present. 13. He earns a straight salary of about $24,000.00 per year. 14. The Borough Authority has experienced financial difficulties for many years. a. As a result the Borough and the Authority shared office expenses. b. A secretary was shared by both the Authority and the Borough. c. The Authority offices were housed in the Borough Build- ing. d. The secretary worked half days for the Borough and the remaining half days for the Authority. e. This arrangement was in place since 1989. 15. In March, 1994, three members of Borough Council who comprised the Finance Committee, believed that the Borough Authority was not paying its share of expenses at the Borough Office and suggested the following changes. a. That the Borough Secretary and the Authority Secretary not be the same person. b. That separate offices by established for the Borough and the Authority. c. That the Borough hire a secretary through a temporary agency for 12 hours a week, effective immediately. d. That the Authority be moved out of the Borough Office within two weeks. e. And that the Authority be allowed to hold meetings in the Borough Building when a larger room is needed for its meeting. 16. At the Borough Council Meeting of April 4, 1994, the following motion was made to pass the changes as set forth in Finding No. 15. a. Councilman Brockway brought up his feelings that the Lawrenceville Borough Authority was not paying their share of utility expenses with regard to the Borough office. Motion made by Jim Brockway and seconded by Bob Kenyon that the Lawrenceville Borough Authority secretary Warso, 94- 030 -C2 Page 5 and the Lawrenceville Borough secretary not be the same person; the Lawrenceville Borough office and the Lawrenceville Borough Authority office be separate offices; that Lawrenceville Borough hire a secretary through Temp Force for 12 hours per week effective immediately; the Lawrenceville borough Authority be moved out of the Borough office within two weeks; and the Lawrenceville Borough Authority be allowed to hold meetings in the Borough building if they need a larger room for their meeting. Motion was defeated by a roll call vote with Bob Kenyon, Jim Brockway and Gordon Chilsolm voting yea to the motion and Mick Warso, Larry Barnes, and Millie Bliss voting nay to the motion and Mayor Terry Schroeder casting a tie breaker vote of nay to the motion. 1.7. Some Borough Council members, including Mick Warso, were not aware that such a motion would be made at this meeting. 18. Councilman Warso voted "no" to this motion. a. His vote resulted in a 3 -3 tie. b. The Borough Mayor then cast a tie - breaker vote of "no" and the motion was defeated. 19. During his previous 15 years on Borough Council, Warso had abstained from voting when Authority matters were involved. 20. Warso voted "no" because he had difficulty in accepting this motion without in depth discussion. a. He believed that the three councilmembers, who composed the Council Finance Committee, wanted to terminate the secretary and force their views on other councilmembers. b. Warso believed that hiring a new secretary through a temporary agency for only 12 hours per week presented hiring problems. c. Warso stated that he would have sought an opinion from the State Ethics Commission if he had known in advance that such a motion was going to be made on April 4, 1994. 21. In October, 1994, the Authority established its own office in the sewer plant building. a. A secretary is employed by the Authority at this office. b. All expenses for this arrangement are borne by the Warso, 94- 030 -C2 Page 6 Authority. 22. The actions taken by Lawrenceville Borough Council on April 4, 1994, did not effect the employment status of Warso with the Authority. III. DISCUSSION: As a councilman for Lawrenceville Borough, Tioga County, Mick Warso, hereinafter Warso, was a public official as that term is defined under Act 9 of 1989. 65 P.S. §402. As such, his conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. 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 initi- ated 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 viola- tion 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 in the allegations. The question before us is whether Warso, as a councilman for Lawrenceville Borough, violated Section 3(a) of Act 9 of 1989 when he cast the deciding vote in a matter resulting in the private pecuniary benefit of his employer, the Lawrenceville Borough Authority. Factually, Warso served as a councilman for Lawrenceville Borough, Tioga County, from 1979 until 1994, when he resigned. From 1978 to the present, Warso has been employed by the Lawrence- ville Borough Authority as plant operator. The authority provides water and sewage services for borough residents and has experienced financial difficulties for many years. Due to its financial Warso, 94- 030 -C2 Page 7 difficulties, the authority shared office expenses with the borough. They shared a secretary, who worked half days for the authority and half days for the borough, and the authority's offices were housed in the borough building. This arrangement was in place since 1989. In March 1994, three members of borough council comprising the finance committee believed that the authority was not paying its share of expenses and suggested changes, which were subsequently expressed in a motion by Councilmember Brockway, seconded by Councilmember Kenyon at the April 4, 1994, borough council meeting. Brockway expressed his feeling that the authority was not paying its share of utility expenses and moved that the borough secretary and the authority secretary not be the same person, that the borough hire a secretary through a temporary agency for twelve hours a week, effective immediately, that the authority be moved out of the borough office within two weeks, and that the authority be allowed to hold meetings in the borough building if it needs a larger room. Some borough councilmembers, including Warso, were not aware that such a motion would be made at that meeting. Warso voted "no" to this motion resulting in a 3 -3 tie that the mayor broke by voting no, which defeated the motion. During his previous fifteen years on the borough council, Warso had abstained from voting when authority matters were involved. Warso voted "no" because he had difficulty in accepting this motion without in -depth discussion. He believed the councilmembers who comprised the finance committee wanted to terminate the secretary and force their views on other councilmembers. He also believed hiring a secretary through a temporary agency for only twelve hours a week presented hiring problems. Warso also stated he would have sought an opinion from the Ethics Commission if he had known in advance that such a motion was going to be made on April 4, 1994. In October 1994, the authority established its own office in the sewer plant building. The authority employs a secretary at this office and bears all expenses for this arrangement. Warso used the authority of his office when he cast his vote as councilmember on the matter concerning the borough authority. Although his participation in the vote did not result in a private pecuniary benefit to himself, it did result in a private pecuniary benefit to the authority. "But for" Warso's negative vote, the authority would have been evicted within two weeks. A violation of Section 3(a), however, also requires that the entity receiving the benefit be "a business with which [the public official] is associated." Act 9 of 1989 defines "business" as follows: Any corporation, partnership, sole pro- prietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal Warso, 94- 030 -C2 Page 8 entity organized for profit. 65 P.S. §402. This Commission has never decided the issue of whether a municipal authority is a "business" under Act 9 of 1989. Pennsylvania case law interpreting the nature of municipal authorities under the Municipality Authorities Act is unclear. Some cases suggest that such municipal authorities are agencies of the state. Commonwealth v. Erie Metropolitan Transit Authority, 282 A.2d 882 (1971); Williamstown Borough Authority v. Cooper, 591 A.2d 711 (1991), alloc. granted 527 A.2d 548, dismissed 535 A.2d 1052. In other contexts, municipal authorities have been construed as local authorities. Clearfield Area Housing Corp. v. Hughes, 318 A.2d 754 (1974). However, when referring to its actual operation, a municipal authority has been considered a private business corporation performing a private /proprietary function as opposed to a governmental one. In re Acquisition of Water System, 93 A.2d 437 (1953); Philadelphia Facilities v. Baxter, 431 A.2d 1123 (1981). In light of the foregoing lack of clarity, this Commission finds that, assuming it is incorporated under the Municipality Authorities Act, the Lawrenceville Borough Authority is not a "business" as defined in Act 9 of 1989. Accordingly, Warso did not violate Section 3(a) of Act 9 of 1989 when he cast the deciding vote resulting in the private pecuniary benefit of his employer, the Lawrenceville Borough Authority. IV. CONCLUSIONS OF LAW: 1. Mick Warso, as a councilmember of the Lawrenceville Borough, was a public official subject to the provisions of the Ethics Law. 2. Mick Warso used the authority of his office when he cast the deciding vote resulting in a private pecuniary benefit to his employer, the Lawrenceville Borough Authority. 3. Assuming the Lawrenceville Borough Authority is incorporated under the Municipality Authorities Act, it is not a "business" under Act 9 of 1989. 4. Mick Warso did not violate Section 3(a) of Act 9 of 1989 when he cast the deciding vote resulting in a private pecuniary benefit to his employer, the Lawrenceville Borough Authority, because the authority is not a "business" as defined in Act 9 of 1989. In Re: Mick Warso File Docket: 94- 030 -C2 Date Decided: 05/04/95 Date Mailed: 05/16/95 ORDER NO. 9 1. Mick Warso did not violate Section 3 (a) of the Ethics Law, Act 9 of 1989, when he cast the deciding vote resulting in a private pecuniary benefit to his employer, the Lawrenceville Borough Authority, because the authority is not a "business" as defined in the Ethics Law. BY THE COMMISSION, cYaituAtiE DANEEN E. REESE, CHAIR