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HomeMy WebLinkAbout803 SuwinskiSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In re: William Suwinski, Jr. : File Docket: 88 -025 -C Date Decided: July 12, 1991_ : Date Mailed: July 16, 1991 Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt 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 filed and a hearing 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 ,actin 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 S2.38. The files in this case will remain confidential in accordance with Section 8(a) of Act 170 of 1978 during the fifteen day period and no one, unless the right to challenge this Order is waived, may violate confidentiality does not preclude discussing thi scase 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). ADJUDICATION I. ALLEGATION: That you, a member of the Northern Cambria Park & Recreation Board, violated Section 3(a) of the State Ethics Act (Act 170 of 1978), when you were hired as Sports Instructor. 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. S403(a). II. FINDINGS: 1. William Suwinski served as a representative of Susquehanna Township on the Northern Cambria Park & Recreation Board from 1981 until April 20, 1988. a. Suwinski served two years as Board President. b. Suwinski served as Board Secretary from 1985 to April 20, 1988. 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. 3. The Agreement of Cooperation contained provisions for membership, personnel and financial operations. a. Section 4 - Membership of the Board: 2 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 it's 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 c. Section 7 - Financial Operations: 1) Section 7(d): Each governing body will annually appropriate and set up in it's budget a sum of money which, in it's 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. Section 6(b): All personnel shall be employed and dismissed by the Northern Cambria Recreation & Park Board. 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 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 it's 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 fired by the board. A majority vote is required for such action. 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: 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. 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. 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 approved: 1) Cheerleading: Michele Reiger, Melanie Kizak and Diane Thomas 2) Indoor Baseball: Chub (Francis) Nagle and Don Slick 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 & Recreation Board meeting of November 7, 1984, William Suwinski 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. Motion seconded by Francis Nagle. Motion carried by unanimous vote. 10. William Suwinski served as a paid instructor for NCPRB Swim and Basketball programs at various times between 1983 and 1988. 11. There was no recorded board action taken between May 13, 1981 and April 20, 1988 regarding the hiring of William Suwinski as a Program Instructor. 12. William Suwinski received payments from NCPRB for serving as an Instructor for the Swim and Basketball programs: a. 1983: $48.00 - Swim Program Instructor 1986: $188.00 - 47 Hours as Swim Program Instructor 1987: $144.00 - Instructor 5th & 6th Grade Basketball Instructor b. A total of $380.00 was to Suwinski for serving as a Program Instructor between 1983 and 1988. 13. The initial hiring of William Suwinski 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 William Suwinski and requested that Suwinski serve as a Program Instructor for the Park & Recreation Board. 14. Park & Recreation Board records do not confirm or deny any participation by William Suwinski in his initial hiring. 15. William Suwinski provided a statement to an investigator for the State Ethics Commission. a. He served as Board Secretary between 1985 and 1988. b. He kept the minutes the same way they were done prior to his taking office. c. He had no knowledge of what he should have included in the minutes. d. He abstained from voting on all matters relative to the hiring of himself. e. Program Director, Paul Artley, approached him after Artley unsuccessful attempted to find someone to run the Swimming Program. f. Meeting quorums would have been virtually impossible because most Park & Recreation Board members did not participate. g. There was no school board participation between 1981 and 1986. h. The Park & Recreation Board was run primarily by Mr. Suwinski, Mr. Nagle, Mr. Artley, Mr. Daisley, and Mr. Kirsch. i. The Park & Recreation Board probably would have folded without their efforts. j• Advertisements for the hiring of instructors appeared in the community events section of the Barnesboro Star. k. The Park & Recreation Board members were unaware of any operational problems until Francis Holtz pointed them out. 1. Since the Park & Recreation Board's reorganization in 1988, advertisements appear in the help wanted or legal section of the Barnesboro Star. m. The Northern Cambria Park & Recreation Board never had the benefit of legal council. n. He wanted to help the kids; most of the work he did was on a volunteer basis. o. He only received $380.00 as an instructor. P• He still runs the Swimming Program after leaving the board. III. DISCUSSION: q. He did not believe that he was doing anything wrong by serving as a board member and an instructor simultaneously. William Suwinski, Jr., hereinafter Suwinski, as a Susquehanna Township Representative 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. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet v. State Ethics 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 Suwinski violated Section 3(a) of the Ethics Act, quoted above, regarding his being hired as a sports instructor. Factually, Suwinski served as a representative of Susquehanna Township on the Northern Cambria Park and Recreation Board between 1981 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 on November 7, 1984, Suwinski voted in favor of a motion to increase the pay for instructors to $4.00 per hour. Suwinski served in the capacities of either an unpaid or paid instructor for the Board in baseball and swim programs between 1983 and 1988. As noted, there was no recorded Board action as to the hiring of Suwinski between 1981 and 1988. The record reflects that Suwinski was initially hired as an instructor for the Board because there were no other willing applicants who could be found. In applying the provisions of Section 3(a) of the Ethics Act quoted above, we find a violation of the Ethics Act when Suwinski voted to give the instructors, which included himself, a raise to $4.00 per hour. Clearly, the voting by Suwinski 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. See Nagle, Order 798. Considering the totality of the facts and circumstances in this case, this Commission will take no further action. IV. CONCLUSIONS OF LAW: 1. William Suwinski, Jr., as a member of the Northern Cambria Recreation and Park Board, was a public official as that term is defined under the Ethics Act. 2. Suwinski 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. In re: William Suwinski, Jr. : File Docket: 88 -025 -C : Date Decided: July 12, 1991 : Date Mailed: July 16, 1991 ORDER No. 803 1. William Suwinski, Jr. as a 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. Based upon the totality of the facts and circumstances, this Commission will take no further action. BY THE COMMISSION, ROBERT W. BROWN, CHAIR