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HomeMy WebLinkAbout787 EckIn re: Gordon Eck STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 90 -006 -C : Date Decided: February 14, 1991 : Date Mailed: February 28. 1991 Before: Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington Daneen E. Reese Roy W. Wilt 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 was 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 52.38. 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). II. Findings: 1. ADJUDICATION I. Allegation: That Gordon Eck, a Councilman Lancaster County, has violated the Ethics Act, he made personal long distance telephone calls telephones without reimbursing the borough for calls. The nature of the alleged violation(s) Section 3. Restricted Activities. for Columbia Borough, Act 170 of 1978, when from borough the costs of these is as follows: (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. 5403(a). Gordon Eck served as a Councilman for Columbia Borough from January 1986 until resigning in August 1990. 2. Eck served as Chairman of Columbia Borough Water Waste Committee from 1986 until his resignation. a. As Chairman, Eck had access to the borough's sewer and water offices. 3. The borough maintains telephones in the borough office, police department and the borough water waste office and water waste plant. a. Borough office telephone numbers are (717) 684 -2468 and (717) 684 -2120. b. Borough Sewer office telephone numbers are (717) 684- 2467 and (717) 684 -2070. 4. For the period from December 1987 through May 1989, the telephones in the borough office and sewer office were used to make long distance telephone calls to the Greensboro, North Carolina area. a. The calls were detected by Gary Myers, Borough Manager, during a routine review of telephone bills. b. The calls were placed to the following numbers: (919) 854 -6824, (919) 854 -6828, (919) 854 -6822, (919) 854- 6821 and (919) 854 -9813. 5. Telephone toll records of Columbia Borough confirm that from December 1987 through May 1989 that 89 telephone Mr. Gordon Eck Page 2 calls, totalling 1,401 minutes, were made from borough telephones (717) 684 -2468 and (717) 684 -2120. 6. Telephone toll records for Columbia Borough Water Waste Treatment plant and office confirm that 172 telephone calls, totalling 2,535 minutes, were made from telephone numbers (717) 684 -2467 and (717) 684 -2070. 7. Telephone calls were placed to the following numbers in North Carolina from the borough and sewer offices: a. Borough Offices Number # Of # Of Total Called Calls Minutes Cost (919) 854 -6828 31 441 $ 68.15 (919) 854 -6822 2 20 5.10 (919) 854 -6821 3 32 8.15 (919) 854 -6534 26 463 62.12 (919) 854 -6100 2 19 2.99 (919) 675 -9813 25 426 69.90 TOTALS 89 1,401 $216.41 b. Sewer Offices Number # Of # Of Total Called Calls Minutes Cost (919) 854 -6828 45 579 $ 82.16 (919) 854 -6822 5 69 16.44 (919) 854 -6821 23 221 55.49 (919) 854 -6534 34 560. 81.43 (919) 854 -6820 2 14 3.60 (919) 854 -6827 1 2 .33 (919) 674 -9813 60 1,077 195.29 (919) 674 -5842 1 9 1.49 Mr. Gordon Eck Page 3 Number # Of # Of Total Called Calls Minutes Cost (919) 292 -9161 1 4 .62 TOTALS 172 2,535 $436.85 c. The total cost of these calls is $653.26. 8. Gary Myers serves as the Columbia Borough Manager. a. He initially discovered that telephone calls were being made to the Greensboro, North Carolina area during a review of the borough's telephone records. This occurred during the Spring of 1989. b. He observed a frequency of calls to the (919) area code. c. Calls were being made from both the Sewage Office and the Borough Office. d. Since the calls were being made from both offices, Myers contacted Councilman Gordon Eck who was then the Chairman of the Sewage Waste Water Committee. e. Eck admitted to Myers that he made the telephone calls to an acquaintance of his in North Carolina. f. This situation was then discussed with numbers of Council who decided to demand payment from Eck. 9. Duane Peters has served as a member of Columbia Borough Council from January 1988 to the present. a. Sometime during the Spring of 1989, Borough Manager, Gary Myers, advised Council of numerous telephone calls made to Greensboro, North Carolina. b. When Council became aware that it was Gordon Eck who was making the calls, a demand for restitution was made. c. Approximately $600.00 restitution was made by Eck. 10. Columbia Borough records confirm that Gordon Eck did make restitution for making personal long- distance telephone calls on borough telephones. Restitution was made as follows: Mr. Gordon Eck Page 4 a. 5/8/89 - $ 75.00 b. 7/19/89 - 75.00 c. 2/2/90 - 100.00 d. 3/16/90 - 200.00 e. 4/16/90 - 150.00 f. 7/30/90 - 132.47 TOTAL $732.47 11. Gordon Eck admitted to the State Ethics Commission investigators to making long distance telephone calls to North Carolina from borough telephones. a. The calls took place from 1987 through 1989 and were made from the borough office and sewage waste office. b. The calls were personal in nature and unrelated to any official business. c. He never made restitution for these calls until at least one and one -half years had elapsed, and the borough manager discovered the frequency of the calls being made to North Carolina. d. Borough Manager, Gary Myers, and Councilman, Duane Peters, confronted him about making the calls. They told him to cease making the calls and to make restitution for the calls made. e. He agreed to make restitution and did so by making payments to the borough. f. He voluntarily resigned from Council because of his vulnerability due to this situation could lead to the matter continually being brought up in the future. III. Discussion: Gordon Eck, hereinafter Eck, as a Councilman for Columbia Borough was a public official as that term is defined under the Ethics Act and the Regulations of this Commission, 51 Pa. Code X1.1. As such, his conduct 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: Mr. Gordon Eck Page 5 "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 Eck violated Section 3(a) of the Ethics Act quoted above regarding an allegation that he made personal long distance telephone calls from the borough telephones without reimbursing his governmental agency for the cost of those calls. Factually, Eck served on the Columbia Borough Council from January 1986 until his resignation in August of 1990. In addition, Eck served as chairman of the Columbia Borough Water Waste Committee from 1986 until his resignation. In the latter position he had access to the borough sewer and water offices. There are telephones in the borough office, the police department and the borough water waste office and the water waste plant. During the period from December 1987 through May 1989, a series of long distance telephone calls were made on borough telephones to Greensboro, North Carolina area. After the calls were detected by Gary Myers, the borough manager, during a routine review of telephone bills, it was determined that in the above Mr. Gordon Eck Page 6 time period 89 telephone calls were made from the borough telephones. In addition, one hundred seventy -two telephone calls were made from the Columbia Borough Water Waste Treatment Plant and Office to North Carolina. The combined costs for these personal telephone calls amounted to $653.23. Since Myers in his review noticed that the telephone calls were being made from both the borough office and sewage office, he contacted Eck who was then Chairman of the Sewer Waste Water Authority. After Eck admitted to Myers that he made the personal telephone calls, Myers discussed the matter with Borough Council which decided to demand payment from Eck. After the Borough Council demanded restitution from Eck, Eck made six payments from 1989 through 1990 totalling $732.42. Finally, Eck has admitted making the personal telephone calls between 1987 and 1989 for which he has made restitution and has voluntarily resigned because of the situation. In applying the provisions of Section 3(a) of the Ethics Act quoted above to the instant matter, we find a violation of Section 3(a) of the Ethics Act. In this case there has been a use of office on the part of Eck by using the borough telephones for personal use and having the borough pay for such personal calls. Clearly, the cost of the personal calls amounting to $653.26 is a financial gain since Eck did not have to pay for the cost of those phone calls out of his own pocket expenses. Lastly, the financial gain is other than compensation provided for by law since there is no provision in the Borough Code which allows borough officials /employees to make long distance personal calls at the expense of the borough. Our decision in this matter is constant with prior precedent. See Dorrance, Order 456, wherein we held that a publicly employed attorney violated Section 3(a) of the Ethics Act when he used the facilities of his governmental body for private personal services. See also Cohen, 610 -R. Given the fact that Eck has made total restitution of the financial gain to the borough and given the fact that Eck has resigned as borough councilman, we will take no further action in this case considering the totality of the facts and circumstances. IV. Conclusions of Law: 1. Gordon Eck as a Columbia Borough Councilmember was a public official subject to the provisions of the Ethics Act. 2. Gordon Eck violated Section 3(a) of the Ethics Act when he used borough telephones to make personal long distance calls which were charged to the borough. In re: Gordon Eck : File Docket: 90 -006 -C : Date Decided: February 14, 1991 : Date Mailed: February 28, 1991 ORDER No. 787 1. Gordon Eck as a Columbia Borough Councilmember violated Section 3(a) of the Ethics Act when he used borough telephones to make personal long distance calls which were charged to the borough. 2. Since Gordon Eck made restitution of the financial gain and resigned from council, this Commission will take no further action based upon the totality of the facts and circumstances. BY THE COMMISSION, ROBERT W. BROWN, VICE CHAIR