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HomeMy WebLinkAbout798 NagleIn re: Francis Nagle STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 88 -026 -C : Date Decided: 5/23/91 Date Mailed: 6/10/91 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair Dennis C. Harrington James M. Howley Daneen E. Reese Austin M. Lee The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. 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, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, 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 §2.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. 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, 65 P.S. 409(e). Mr. Francis Nagle Page 2 1. ALLEGATION: ADJUDICATION That you, a councilman for Spangler Borough and a member of the Northern Cambria Recreation and Park Board, Cambria County, violated the following provisions of the Public Official's and Employee's Ethics Law (Act 170 of 1978), when you were hired as a sports instructor and when you participated in the hiring of your son: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. §403(a). 2I. FINDINGS: 1. Francis Nagle served as a representative of Spangler Borough Council on the Northern Cambria Park & Recreation Board from its inception in 1973 until he resigned on April 3, 1988. a. While on the Park & Recreation Board, Nagle served as Chairman and Vice Chairman. 2. The Northern Cambria Park & Recreation Board was created by an Agreement of Cooperation, dated July 1, 1973, between the following Cambria County Municipalities: Barnesboro Borough, Spangler Borough, Barr Township, Susquehanna Township and the Northern Cambria School District. a. The purpose of the Park & Recreation Board is to provide adequately supervised community recreation services and facilities in the areas of the participating municipalities through the joint efforts of the five governing bodies rather than by the separate efforts of each body. b. A Recreation Program is to be established by the Central Organization and shall comply with all laws of the Commonwealth of Pennsylvania applicable to municipalities and school districts. Mr. Francis Nagle Page 3 3. The Agreement of Cooperation contained provisions for membership, personnel and financial operations. a. Section 4 - Membership of the Board: 1) The Board shall consist of fifteen members. 2) Three members shall be appointed by each of the following municipalities: Barnesboro Borough, Spangler Borough, Barr Township, Susquehanna Township and the Northern Cambria School District. 3) Section 4(c): Members of the board shall serve without pay or remuneration. 4) Section 4(f): The Park & Recreation Board shall establish its own terms of organization and bylaws subject to this agreement and all applicable laws. b. Section 6 - Personnel: 1) Section 6(a): The administration and personnel shall be determined by the Northern Cambria Park & Recreation Board. 2) Section 6(b): All personnel shall be employed and dismissed by the Northern Cambria Recreation & Park Board. c. Section 7 - Financial Operations: 1) Section 7(d): Each governing body will annually appropriate and set up in its budget a sum of money which, in its opinion, shall be proportionate to paying it's share of the costs and expenses for operating and maintaining the recreational programs and it's facilities. 2 Section 7(f): The school district agrees to budget a sum equal to the budget appropriations of the other four municipalities. 4. The Agreement of Cooperation was revised, effective Mr. Francis Nagle Page 4 April 13, 1988, to include the following: a. Section 4(a): Membership of the Board: 1) The Park & Recreation Board shall consist of ten members. 2) Each municipality shall have one vote on all matters brought before the Park & Recreation Board. 3) Members shall be appointed to serve on the Board as follows: a) Barnesboro Borough Council: One council member; one appointed representative. b) Spangler Borough Council: One council member; one appointed representative. c) Barr Township Supervisors: One supervisor; one appointed representative. d) Susquehanna Township Supervisors: One Township Supervisor; one appointed representative. e) Northern Cambria School Board: One school board member; one appointed representative. b. Section 7 - Financial Operations: 1) Section 7(d): Each governing body will annually appropriate and set up in its budget a sum of $1,000.00. c. Article 6, Section 2 - Meetings: 1) A quorum shall consist of 1/2 of the . membership of the board. d. Article 7 Section 1 - Staff: 1) All personnel shall be hired and Mr. Francis Nagle Page 5 5. The Northern County Park & Recreation Board hired instructors for activities sponsored by the board. a. The instructors were part -time, and the employment lasted the duration of the individual programs. 6. There was no recorded official action at any of the recreation board meetings on advertising for instructors for the period between April 8, 1981 and May 14, 1987. 7. The Northern Cambria County Park & Recreation Board (NCPRB) took action regarding the advertising for hiring of instructors for various recreation programs in 1981, 1987 and 1988. a. April 8, 1981: fired by the board. A majority vote is required for such action. Mr. Nagle made a motion to advertise for summer positions, Mr. Mino seconded and all approved. Present: S. Chernisky, A. Laurito, Jr. Mino, F. Nagle, C. Strittmatter and W. Suwinski b. Mav 14, 1987: A lengthy discussion ensued about the advertising for all paid positions. "This should be done prior to the start of each program, so that all positions can be filled at our regular meetings." Instructors are needed for boys and girls basket- ball, grades 7 through 12, which begins June 10. Also needed are instructors for 6th grade /6 -year- old baseball programs which begin in June. A motion was made by B. Daisley, seconded by P. Kline, to advertise in the Barnesboro Star for instructional positions for the boys and girls basketball programs as well as the 6- year -old baseball program. A roll call vote: Yes, Strittmatter, Nagle, Kirsch, P. Kline, B. Kline, Holtz, Onufro, Harvey, Daisley, Suwinski. No, none. Motion approved 11 -0. Mr. Francis Nagle Page 6 c. October 14, 1987: A motion was made by D. Harvey, seconded by D. Korsch, to advertise for position of Program Director of 1988. Applications are due by November 11, 1987. The motion carried by a 7 -0 vote. Present: Alan Kirsch, Connie Strittmatter, Francis Holtz, Denise Harvey, Bill Suwinski, Dave Kirsch and Francis Nagle d. December 9, 1987: A motion was made by F. Nagle, seconded by B. Suwinski, and approved by all to advertise in the Barnesboro Star for the elementary basketball and baseball course positions with applications due February 9. Present: Francis Nagle, Dave Kirsch, Alan Kirsch and Bill Suwinski e. February 10, 1988: A motion was made by Francis Nagle, seconded by Connie Strittmatter, to pay a bill to the Barnesboro Star for a classified ad seeking instructors for grades 3 through 6 basketball. The motion was approved by all. There were no applications submitted for any of the positions, and the school district has indicated that it will run the program. Present: F. Nagle, B. Daisley, R. Nelson, D. Kirsch, B. Suwinski, P. Kline, B. Kline, C. Strittmatter, B. Work and D. Harvey 8. The Northern Cambria Park & Recreation Board took action at board meetings regarding the hiring of instructors for various recreation programs: a. May 13, 1981: The Board has received two applicants for the summer positions. Mr. Nagle made a motion to hire Patty Conner as the summer Basketball Instructor and Cheryl Peles as Tennis Instructor. Mr. Francis Nagle Page 7 Mr. Chernisky seconded, all approved. Present: A. Kirsch, D. Kirsch, A. Laurito, F. Nagle, W. Suwinski, S. Chernisky and D. Westrick b. May 14, 1987: A special meeting was scheduled for May 27, 1987 for the hiring of instructors. c. June 10, 1987: The special meeting scheduled to be held on May 27, 1987, for the hiring of summer personnel, was cancelled, because there was only one applicant for each position. A motion was made by M. Mehal, seconded by C. Strittmatter, and approved by all to hire the following individuals for the summer programs: Dan Susko, $6.00 per hour /4216,00; Carrie Kizak, $4.00 per hour /$144.00; Greg Welteroth, $6.00 per hour /$216.00; Jeff Artley, $4.00 per hour /$144.00; and Greg Nagle, $4.00 per hour /$72.00. Present: Dave Kirsch, Rita Nelson, Francis Holtz, Bob Kline, Denise Harvey, Connie Strittmatter, Bill Suwinski and F. Nagle No abstentions were listed. d. September 2, 1987: Francis Nagle was the only applicant for the Flag Football Instructor position. A motion was made by B. Daisley, and seconded by C. Strittmatter, to hire Francis Nagle for the position at $4.00 per hour for 32 hours. The motion was approved by a 3 -0 vote with abstentions from F. Nagle and B. Kline. Present: Francis Nagle, Bob Kline, Bill Daisley, Bill Suwinski and Connie Strittmatter e. January 10, 1990: The following applications were received and Mr. Francis Nagle Page 8 approved: 1) Cheerleading: Michele Reiger, Melanie Kizak and Diane Thomas 2) Indoor Baseball: Chub (Francis) Nagle and Don Blick 3) Saturday Basketball for 5th & 6th Graders: Elmer Weaver 4) Program Director: Paul Artley 5) Swimming Program: No one has applied for the position of Swimming Supervisor. Present:Bill Daisley, Dave Kirsch, Ben Work, Mae LaMark, Rita Nelson, Barbara Korch and Bob Williams 9. At the Northern Cambria Park and Recreation Board meeting of November 7, 1984, Francis Nagle, seconded and voted in favor of a pay raise for instructors. a. Motion by Miss Westnick to increase the minimum instructor's rate of hourly pay to $4.00 per hour. The motion was seconded by Mr. Nagle. The motion carried by unanimous vote. 10. Francis Nagle served as a paid instructor for the NCPRB baseball, basketball and football programs from 1979 to 1990. 11. There was no recorded board action taken between May 13, 1981 and May 14, 1987 regarding the hiring of Francis Nagle. 12. Francis received payments from the NCPRB for serving as an instructor for the various recreation programs: a. 1979: $ 90.00 - Instructor, 6 Year Old Baseball 90.00 - Instructor, Flag Football $180.00 1980: $108.00 - Instructor, 6 Year Old Baseball 78.00 - Instructor, Flag Football Mr. Francis Nagle Page 9 $186.00 1981: $108.00 - Instructor, 6 Year Old Baseball July 1985 to June 30, 1986: $160.00 - Instructor, Baseball Clinic July 1, 1986 to December 31, 19a7: $120.00 - Flag Football Instructor 144.00 - Instructor, 3rd & 4th Grade Basketball 60.00 - Baseball Instructor 128.00 - Flag Football Instructor $452.00 1988: $128.00 - Flag Football Instructor 1989: $ 65.00 - Indoor Baseball Instructor 192.00 - Flag Football Instructor $257.00 b. A total of $1,471 was paid to Francis Nagle for serving as a Program Instructor for the NCPRB. c. Nagle received $1,086.00 as Program Instructor while also serving as a member of the board. 13.. Gregory Nagle is the son of Francis Nagle. a. Gregory Nagle was born on March 12, 1967. 14. Gregory Nagle was compensated by the NCPRB for serving as an,, instructor for various recreation programs: a. January 1, 1981 to December 31, 198.: $96.00 - Flag Football January 1. 1982 to June 30 1983: Mr. Francis Nagle Page 10 $ 96.00 - 5 & 6 Year Old Baseball 96.00 - Flag Football $192.00 July 1. 1983 to June 30, 1984: $ 60.00 - 5 & 6 Year Old Baseball 72.00 - Instructor, Flag Football $132.00 July 1, 1984 to June 30, 1985: $ 60.00 - 6 Year Old Baseball 90.00 - Flag Football $150.00 July 1, 1985 to June 30, 1986: $120.00 - 5 & 6 Year Old Baseball 128.00 - Flag Football 72.00 - Elementary Basketball $320.00 July 1, 1986 to December 31, 1987: $120.00 - 5 & 6 Year Old Baseball 144.00 - Instructor, 3rd & 4th Grade Basketball 72.00 - Instructor, 5 & 6 Year Old Baseball $336.00 b. Between January 1981 and December 31, 1987, Gregory Nagle was paid a total of $1,226 for serving as a Program Instructor for the Northern Cambria Park and Recreation Board. 15. The initial hiring of Francis Nagle as an instructor for the Northern Cambria Park & Recreation Board was done at the request of Program Director, Paul Artley. This was done after no other willing applicants were found. a. Paul Artley approached Francis Nagle and requested that Nagle serve as a Program Instructor for the Park & Recreation Board. Mr. Francis Nagle Page 11 b. Park & Recreation Board records do not confirm or deny any participation by Francis Nagle in his initial hiring. 16. Greg Nagle was hired as a Program Instructor for the Northern Cambria Park & Recreation Board at the request of Program Director Paul Artley. This was done after no other willing applicants were found. a. Paul Artley approached Greg Nagle and requested that he serve as a Program Instructor for the Park & Recreation Board. b. Park & Recreation Board records do not indicate that Francis Nagle participated in the initial hiring of Greg Nagle. 17. Francis Nagle provided a statement to an investigator for the State Ethics Commission: a. He received the amount of money indicated by financial records of the Northern Cambria Park & Recreation Board for his services as a Program Instructor. b. His son, Greg Nagle, also received the payments recorded by the Northern Cambria Park & Recreation Board for Greg Nagle's services as a Program Instructor. c. He was hired at the request of Paul Artley only after nobody else was willing to take the instructor's position. d. He did not serve as an instructor for the money; the salaries were minimal at best. e. He only wanted to help the youth of the Northern Cambria Area. f. He continued to run the Flag Football Program after leaving the Northern Cambria Park & Recreation Board over this matter. This was done once again at Paul Artley's request. g. He never voted for the hiring of himself. h. He unintentionally voted on the hiring of Greg Nagle on June 10, 1987 at $4.00 per hour for Mr. Francis Nagle Page 12 III. DISCUSSION: $72.00. i. Nobody was interested in running these programs at a rate of $4.00 an hour. • j - The Park & Recreation Board had no legal advice, because the board could not afford to hire a solicitor. k. The Park & Recreation Board received virtually no cooperation from the Northern Cambria School District. Francis Nagle, hereinafter Nagle, as a Spangler Borough Councilmember and member of the Northern Cambria Recreation and Park Board was a public official as that term is defined under the Ethics Act. 65 P.S. 402; 51 Pa. Code 1.1. As such, he is subject to the provisions of the Ethics Act and the restrictions therein are applicable to him. Initially, it is noted that Section 5 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 prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. Under Section 3(a), quoted above, this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon v. State Ethics Commission, 77 Pa. Mr. Francis Nagle Page 13 Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethicp Commission, 109 Pa. Commw. Ct. 432 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In the instant matter we must determine whether Nagle violated Section 3(a) of the Ethics Act, quoted above, regarding his being hired as a sports instructor and regarding his participation in the hiring of his son. Factually, Nagle served as a representative of Spangler Borough on the Northern Cambria Park and Recreation Board between 1973 and 1988. The Northern Cambria Park and Recreation Board was created pursuant to an Agreement of Cooperation between two boroughs, two townships and the school district for the purpose of providing supervised community recreation services and facilities in the area. The Board hired instructors for activities sponsored by the Board who worked part -time for the duration of the individual programs. The Board advertised for the hiring of instructors for various recreation programs in 1981, 1987 and 1988. It should be noted that there was no recorded official action as to recreation board meetings on advertising for instructors for the period between April, 1981 and May, 1987. The following minutes reflect the activity of the Northern Cambria Park and Recreation Board: on May 13, 1981, the Board received two applications for summer positions; on May 14, 1987, a special meeting was scheduled for May 27, 1987 for the hiring of instructors; on June 10, 1987, the special meeting was cancelled since there was only one applicant for each position and a motion was made to hire several individuals which included Gregory Nagle who is the son of Francis Nagle; on September 2, 1987, Nagle was the only applicant for the Flag Football Instruction position whereupon a motion was made by B. Daisley, seconded by Strittmatter, to hire Francis Nagle at $4.00 per hour for 32 hours, said motion being passed with Nagle abstaining; on January 10, 1990, various appplications were received including one for indoor baseball by Francis Nagle and Don Blick followed by the approval of the applications at which time Nagle is not listed as present and on November 7, 1984, Nagle seconded and voted in favor of a motion to increase the pay for instructors to $4.00 per hour. Nagle served in the capacity of various paid instructors for the Board in baseball, basketball and football programs from 1979 through 1989. As noted, there was no recorded Board action as to the hiring of Nagle between 1981 and 1987. It is further noted Mr. Francis Nagle Page 14 that Gregory Nagle, who was the minor dependent son of Francis Nagle until March 12, 1985, and hence a member of his immediate family as that term is defined in the Ethics Act, also received compensation from the Board as a paid instructor in various recreational programs from 1981 through 1987. The record reflects that Nagle was initially hired as an instructor for the Board because there were no other willing applicants who could be found. Regarding Nagle's son Greg, he was hired as program instructor at the request of the Program Director of the Board, Paul Artley. Likewise, the hiring was done after there were no other willing applicants for the positions. In applying the provisions of Section 3(a) of the Ethics Act quoted above, we find a violation of the Ethics Act when Nagle voted to give the instructors, which included himself, a raise to $4.00 per hour. Clearly, the voting by Nagle was a use of office which resulted in a financial gain to himself. Finally, the financial gain is other than compensation provided for by law because there is no provision in law which authorizes, in this instance, the use of office to obtain such a financial gain. We do not find a violation when Nagle voted in favor of a motion on June 10, 1987 to approve the hiring of the various individuals for the summer programs which included his son Greg because his son, at that time, was of majority and hence was not a member of his immediate family as that term is defined under the Ethics Act. "Immediate family" is defined as follows under the Ethics Act: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 5402. In addition, the term "minor dependent child" is defined in the regulations as follows: Section 1.1. Definitions. Minor dependent child - -- A person under 18 years of age who lived in the household of the person -- - filer - -- required to file a financial interest statement during the reporting period and whom the filer claimed as a dependent on the filer's Federal income tax return for the equivalent reporting period. 51 Pa. Code 51.1. Considering the totallity of the facts and circumstances in Mr. Francis Nagle Page 15 this case, the Commission will take no further action as to the violation of Section 3(a) regarding raising the hourly rate for instructors. IV. CONCLUSIONS OF LAW: 1. Francis Nagle as a Spangler Borough Councilmember and member of the Northern Cambria Recreation and Park Board was a public official as that term is defined under the Ethics Act. 2. Nagle violated Section 3(a) of the Ethics Act when he voted to award the Board instructors, including himself, a raise to $4.00 per hour which was a financial gain other than compensation provided by law. 3. Nagle did not violate Section 3(a) of the Ethics Act when he voted on June 10, 1987, to hire a list of individuals for summer program, including his son who had attained majority, and who at that time was not a member of Nagle's immediate family. Mr. Francis Nagle Page 16 In re: Francis Nagle : File Docket: 88 -026 -C : Date Decided: 5/23/91 : Date Mailed: 6/10/91 ORDER No. 798 1. Francis Nagle as a councilman for Spangler Borough and member of the Northern Cambria Recreation and Park Board violated Section 3(a) of the Ethics Act when he voted to award the Board instructors, including himself, a raise to $4.00 per hour which was a financial gain other than compensation provided by law. 2. Nagle did not violate Section 3(a) of the Ethics Act when he voted on June 10, 1987, to hire a list of individuals for summer program, including his son who had attained majority, and who at that time was not a member of Nagle's immediate family. 3. Based upon the totallity and facts of the circumstances in this case, this Commission will take no further action. BY THE/ COMMISSION, c4/ HELENA G. HUGHES, CHAIR