HomeMy WebLinkAbout792 BandaIn res Martha Banda
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
: File Docket: 88-093-C
: Date Decided: April A, 1991
: Date Mailed: Apuu,15„119.1_____
Before: Helena G. Hughes, Chair
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
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 not 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 S2.38.
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).
ADJUDICATION
I. Allegation: That you, Councilwoman for the City of Johnstown,
Cambria County, violated the following provisions of the State Ethics
Act (Act 170 of 1978), when you voted at the August 10, 1988 meeting
of the City Council to hire your husband, Nicholas Banda, as a private
attorney to represent City Council in an appeal of a Common Pleas
Court decision; and to file an injunction against the City Finance
Director and City Controller to stop payments from deficit accounts;
and when you voted at the October 12, 1988 meeting to hire Nicholas
Banda to respond to the Bureau of Sewage Audit conducted by the
Auditor General.
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).
II. Findings:
1. Martha Banda served as a member of City Council in
Johnstown, Pennsylvania from November 1987 until January
1990.
a. She chose not to run for election and vacated her seat
on council.
2. Nicholas Banda is an attorney licensed to practice in the
Commonwealth of Pennsylvania with offices in the U.S.
National Bank Building, Johnstown, Pennsylvania.
3. Nicholas Banda is the husband of Martha Banda.
4. Nicholas Banda performed legal services for the City of
Johnstown in 1987 and 1988.
a. Nicholas Banda began performing legal services for
Johnstown City Council when the members were named as
defendants in a law suit filed by the Johnstown City
Solicitor on behalf of the Mayor of the City of
Johnstown, to Case No. 1987 -33, in the Cambria County
Court of Common Pleas.
b. Banda represented Johnstown City Council and its
individual members in Case No. 1987 -33, from its
inception on January 7, 1987, to its conclusion on
November 22, 1988.
Ms. Martha Banda
Page 2
c. In conjunction with Case No. 1987 -33, on behalf of
Johnstown City Council, Nicholas Banda filed an action
for Declaratory Judgement to Case No. 1988 -1809,
seeking an injunction and adjudication of contempt
against the City Finance Director and City Controller
to stop payments from deficit accounts.
d. Dung the period of time Nicholas Banda was
representing Johnstown City Council in Case No. 1987 -33
and Case No. 1988 -1809, he assisted Johnstown City
Council in responding to the Auditor General's draft
report of the audit of the Johnstown Bureau of Sewage.
5. Minutes of the August 10, 1988 Johnstown City Council
meeting indicate the following regarding City Council's
request of Nicholas Banda to perform certain legal
services:
a. "Judge Long's Decision on Contempt Charges Filed
Against Finance Director and City Controller (Refer to
Pages 2 and 3 of the January 27, 1988 Minutes.)
"Mrs. Banda noted that on July 27, 1988 Judge Long
handed down a decision relative to the contempt
petition filed against Finance Director, Calvin D.
McCracken, and City Controller, Edward P. Wojnaroski,
Sr., relative to a lawsuit filed by the City Council
because monies of a loan to fund unfunded debt, which
had previously been authorized by the Court, to be used
for severance pay of policemen and firemen, was used
for other purposes. Mrs. Banda, reading from a •
prepared statement said: 'The Judge was led to believe
by the Lawyer representing City Council, that Council
agreed to a petition to amend Judge McWilliams' order
to include $75,000 paid to Mr. Andrews from the
$500,000 loan to fund the unfunded debt.' (Refer to
Ordinance No. 4435.)
"Mrs. Banda pointed out that she, nor did any member of
Council that she was aware of, never agreed to a
petition to amend Judge McWilliams' order as noted
above. She added: 'I have consulted a private
attorney who has advised me to submit an affidavit to
reflect my position and to ask Judge Long to reconsider
his order of July 27, 1988 within the thirty days to
appeal the Judge's order. I strongly urge that Council
do this as a body. If we don't do it, we will have to
live with Judge Long's decision forever. There are
many ramifications from that.'
Ms. Martha Banda
Page 3
"Mrs. Banda moved that 'City Council engage the
services of private legal counsel to request Judge
Long to reconsider his order of July 27, 1988 and file
an appeal within the 30 day time limitation.' The
motion was seconded by Mr. Wissinger and approved by
the following vote: Yeas: Mrs. Banda, Mrs. Dorian,
Messrs. Malloy, Wissinger and Williams (5). Nays:
Messrs. Stevens and Truscello (2). Absent: Messrs.
Gentile and Stasko (2).
"Prior to the vote, Mr. Williams noted that he had
expressed his displeasure to Assistant Solicitor Rizzo
after the decision was handed down. 'At that time, he
said he would get back to the Judge,' Mr. Williams
stated.
"Engaging the Services of Attorney Nicholas Banda
"In response to Mr. Williams' call for a motion to
have Attorney Nicholas Banda file the appeal, Mr.
Malloy so moved. The motion was seconded by Mrs.
Banda.
When Mrs. Dorian asked if Mrs. Banda's motion was a
conflict of interest in view of the fact that she is
the wife of Nicholas Banda, Mr. Green pointed out that
Mrs. Banda had not made the motion, but suggested that
she (Mrs. Banda) refrain from voting on the motion."
Mrs. Banda countered: "I think it is my right to vote
as to whom I want to represent myself."
When Mr. Green replied, "if you don't care what it
looks like, go ahead," Mrs. Banda replied, "I don't
care. I think he is a good lawyer."
Mr. Stevens moved to amend Mr. Malloy's motion to
include the request by Council that Attorney Banda
check with Assistant Solicitor, Samuel F. Rizzo, prior
to filing of any papers, to inquiry if Mr. Rizzo has
gotten back to the Judge as Mr. Williams had stated.
The motion was seconded by Mr. Wissinger and approved
by the following vote: Yeas: Mrs. Banda, Mrs. Dorian,
Messrs. Malloy, Stevens, Wissinger and Williams (6).
Nays: Mr. Truscello (1). Absent: Messrs. Gentile and
Stasko (2).
b. No legal services were performed by Nicholas Banda
regarding City Council's action at the August 10, 1988
council meeting.
Ma. Martha Banda
Page 4
6. By way of a billing statement dated October 25, 1988 from
Nicholas Banda to John H. Williams, President of the
Johnstown City Council, Mr. Banda requests payment for
services rendered as follows in relation to the matters for
which he was retained pertaining to Docket No. 1988 -1809 in
Cambria County Courts. These billings pertain, in part, to
Council actions of July 22, 1988.
09/23/88
Meeting with Attorney's Green and Rizzo and members of
Redevelopment Authority, Department of Community
Development, Department of Public Works, and AFSCME.
2.00 Hours $120.00
09/26/88
Hearing; Judge Long, Ebensburg, PA
2.50 Hours 150.00
10/20/88
Meeting with City Clerk, City Controller and City Treasurer
2.00 Hours 120.00
10/21/88
Legal Research and Preparation of Petition for Rule and
Adjudication of Contempt against Calvin D. McCracken;
Petition to Transfer the Complaint filed against City
Council in the Office of District Justice Farra to the
Court of Common Pleas and Consolidate that action, for
Hearing, with the Petition for Civil Contempt; Petition for
Change of Venue.
4.00 Hours 240.00
10/24/88
Meeting with President Williams and Judge Long; Filing
Contempt Petition.
1.50 Hours 90.00
Ms. Martha Banda
Page 5
10/25/88
Letter to District Justice Farra and Request for
Continuance of action filed against City Council in
District Court 47 -1 -01.
.25 Hours 15.00
10/25/88
Letter to Bernard Martin, Council 83 Representative AFSCME,
AFL -CIO, regarding grievance of Michael D'Angelo.
.50 Hours 30.00
10/25/88
Preparation and Service of Subpoena; City Controller and
City Treasurer.
1.00 Hour 60.00
10/30/88 - 10/31/88
Preparation for; Appearance at Hearing on Petition for
Civil Contempt, Ebensburg, PA.
8.00 Hours 480.00
TOTAL AMOUNT DUE THIS STATEMENT - $1,305.00
7. By way of a billing statement dated November 3, 1988 from
Nicholas Banda to John H. Williams, President of the
Johnstown City Council, Mr. Banda requests for payment for
services rendered as follows in relation to the matter for
which he was retained relating to the Action for Declaratory
Judgement filed against the city finance director and city
controller to Docket No. 1988 -1809.
10/31/88
Meeting with Johnstown City Council at Council Chambers to
explain results of Hearing with Judge Long.
Ms. Martha Banda
Page 6
1.00 Hour $60.00
11/03/88
Preparation of stipulations to settle contempt proceedings
and related matter.
.50 Hours 30.10
TOTAL $90.00
NOTE: The statement of November 3, 1988 also contained
billings relating to another matter.
8. Records of the City of Johnstown indicate that payment was
made to Nicholas Banda for the billing outlined in Finding
No. 6 above as follows:
ACCOUNT: General Fund, United States National Bank
CHECK NO: 984567 - 002370
DATE: 1/20/89
AMOUNT: $1,920.00
NOTE: This amount included $1,305.00 noted in Finding 6
above as well as $615.00 for another matter. (See
Findings 11 -12)
Payee: Nicholas Banda, Attorney
9. Records of the City of Johnstown indicate that payment was
made to Nicholas Banda for the billing outlined in Finding
No. 7 Supra as follows:
ACCOUNT: General Fund, United Sates National Bank
CHECK NO: 984567- 002274
DATE: 12/22/88
AMOUNT: $1,224.50
NOTE: This amount also included payment for
items related to other matters. Said
payment included $507.50 (See Findings 13 -14) and
Ms. Martha Banda
Page 7
1.25 Hours $ 75.00
10. Minutes of the October 12, 1988 Johnstown City Council
meeting indicate the following regarding City Council's use
of Nicholas Banda to perform certain legal services:
"Announcement of Executive Session Re Bureau of Sewage
Audit (Refer to Page 7 of the July 8, 1987 Minutes.)
"Mr. Williams announced that on October 6, 1988,
Johnstown City Council held an Executive Session
pertaining to the Bureau of Sewage Audit conducted by
the Auditor General's Office, as requested by Council
at the July 8, 1987 meeting.
"Mr. Williams explained that the Executive Session was
held because Council had been directed to respond by
October 18, 1988 to a 'Draft' of the Audit and noted
specifically that the document was not for
distribution, and said the document was to be returned
with Council's response.
"At the call of the Chair, Mr. Malloy motioned that
Attorney Nicholas Banda assist City Council in the
preparation of Council's response. The motion was
seconded by Mr. Gentile and approved by the following
vote: Yeas: Mrs. Banda, Mrs. Dorian, Messrs. Gentile,
Malloy, Stasko, Stevens, Truscello, Wissinger and
Williams (9). Nays: None (0)."
11. By way of a billing statement dated October 25, 1988 to
John H. Williams, President of Johnstown City Council,
payment is requested for legal services rendered by Mr.
Banda. The billings noted on the October 25, 1988 invoice
are related to Auditor General audit report of the Sewage
Bureau which was the subject of the October 6, 1988
Executive Session of City Council and the October 12, 1988
meeting of City Council:
10/06/88
Meeting with President Williams; re: receipt of draft
report and request to respond.
10/06/88
$627.00 (See Findings 16-17) for the other
matters.
Ms. Martha Banda
Page 8
Received and reviewed copy of Auditor General's draft
report.
1.50 Hours 90.00
10/07/88
Telephone conversation with Michael P. Brennan, Director of
Bureau of Audits, Office of the Auditor General.
.25 Hours 15.00
10/07/88
Meeting with City Clerk; Received and Reviewed Special
Audit of Bureau of Sewage and various Sewage- related
ordinances and minutes of Council meetings.
1.25 Hours 15.00
1
Legal Research and Preparation of City Council's Response to
Auditor General's Draft Report of Bureau of Sewage Audit.
6.00 Hours . . . . . . . . . . . . . . . . . . 360.00
TOTAL AMOUNT DUE THIS STATEMENT - $615.00
12. Payment was made for the above - referenced services by way of
check dated 1/20/89 which also included payment for other
services as set forth in Finding No. 8 Supra.
a. The $615.00 referenced in Finding No. 8 Supra was
payment in relation to the above -noted services.
13. Minutes of the July 22, 1988 meeting of the Johnstown City
Council indicated the following in relation to Nicholas
Banda being instructed by City Council to perform certain
legal services. Banda had been retained by City Council
since January 7, 1987 regarding this matter:
19 Wa and Salary Or dinances (Refer to the
following Minutes: Page 1 - June 8, 1988; Page 1 -
June 13, 1988 and Pages 1 & 2 - June 24, 1988.)
Ms. Martha Banda
Page 9
Mr. Williams advised Council that Cambria County
Judge, Gerald Long had, on this date, issued an
injunction against Johnstown City Council "banning the
Council from taking any action on the 1988 Wage and
Salary Ordinances, vetoed by Mayor Pfuhl, until 11:59
P.M. on New Year's Eve."
He noted that Council has thirty days to appeal the
injunction and that after consultation with Attorney
Nicholas Banda, it was his (Banda's) opinion that
"Council should appeal."
Mr. Malloy moved that Council file an appeal to Judge
Long's injunction. The motion was seconded by
Mr. Gentile and approved by the following vote: Yeas:
Mrs. Banda, Mrs. Dorian, Messrs. Gentile, Malloy,
Stasko, Stevens, Truscello, Wissinger, and Williams
(9). Nays: None (0).
14. By way of a billing statement dated October 25, 1988 to
John H. Williams, President of Johnstown City Council,
payment is requested for legal services rendered as a
result of the July 22, 1988 action of Council requesting Mr.
Banda to file an appeal (Finding 13 Supra) as follows:
08/18/88
Preparation of Notice of Appeal of Judge Long's Order of
July 22, 1988; Certificate of Service; Motion to Transcribe
the Record of Hearing.
.50 Hours $ 30.00
08/19/88
Filing of Notice of Appeal; Certificate of Service; Motion
to Transcribe.
.50 Hours 30.00
Advanced Payment of Following Fees: 190.50
To Prothonotary of Cambria County
To Prothonotary of Commonwealth
Court
To Tammy T. DeYulis, Court
Reporter
$ 40.50
50.00
100.00
Ms. Martha Banda
Page 10
08/25/88
Received and reviewed Order of Judge Long dated August 23,
1988, to file a Statement of Matters Complained of on
Appeal.
.25 Hours 15 00
09/07/88
Prepared and Filed Statement of Matters Complained of on
Appeal.
1.50 Hours 90.00
01211118
Advanced payment of balance of Court Reporter's fee for
transcript of Hearing of July 12, 1988.
4.00 Hours
11/03/88
TOTAL AMOUNT DUE THIS STATEMENT - $507.50
15. Payment of the above- referenced invoice was tendered by the
City of Johnstown by way of check dated 12/22/88.
a. This payment was made along with payment for other*
services rendered as outlined in Finding No. 9 Supra.
16. By way of a billing statement dated Noveisiber 3, 1988 to
John H. Williams, President of Johnstown City Council,
additional payment is requested by Mr. Banda in relation to
the matter set forth in Finding 13 Supra as follows:
11/02/88
Hearing, Cambria
Salary Ordinance
152,00
County Courthouse; Settlement of Wage &
controversy and Contempt proceedings.
240.00
Ms. Martha Banda
Page 11
Preparation of Stipulations to settle wage and salary
ordinance dispute.
.50 Hours 30 00
11/03/88
Preparation of Application to withdraw appeal to the
Commonwealth Court.
.50 Hours 30 00
11/03/88
Payment to Tammy T. DeYulis, Official Court Reporter for
copy of transcript of hearing dated July 15, 1988.
327.00
TOTAL $627.00
17. Payment of the above - referenced invoice was tendered by the
City of Johnstown by way of check dated 12/22/88.
a. This payment was made along with payment for other
services rendered as outlined in Finding 9 Supra.
18. Minutes of the July 22, 1988 meeting of the Johnstown City
Council indicate that Johnstown City Council voted to
instruct Attorney Nicholas Banda to file an injunction
against the city finance director and the city controller
stopping any payments out of accounts that are in deficit
balances:
"Injunction AcTainst Finance Director and City
Controller
"Mr. Williams asked Solicitor Green if he would be
willing to file an injunction, within the next 72
hours, against Finance Director, Calvin D. McCracken,
and City Controller, Edward P. Wojnaroski, Sr.,
'banning any payments out of accounts that are in
deficit balances.'
"Solicitor Green replied: 'I believe that I have a
conflict at this point as far as attempting to move in
that direction for the Council. I would say no for
that reason alone.'
Ms. Martha Banda
Page 12
"In response to the chair's request, Mr. Malloy moved
that Attorney Nicholas Banda file an injunction against
the City Finance Director and the City Controller
stopping any payments out of accounts that are already
in deficit balances. The motion was seconded by
Mr. Gentile.
"Mr. Williams pointed out that two salary accounts are
over expended and that both offices have continued
payment of the various salaries.
"Mr. Williams pointed out that the Finance Director had
submitted a resolution for transfers totalling $50,752
and noted that none of the transfers will provide funds
for the eleven or twelve employees under the AFSCME
labor contract. He also pointed out that there are
transfers from the Street Light Account and recounted
that last year when Council took money out of that
account the administration said Council was
jeopardizing the street lights. 'Now they are
initiating such transfers,' he added.
"Mr. Wissinger said there was a big difference in the
administration over expending and not coming to Council
prior to a deficit balance in a particular account.
"Solicitor Green reminded Council that the budget
process is a matter of the best educated guess by
those in the administration as well as the Council as
to what the City can anticipate in the coming year and
that past experience is that 'we have over estimated
the needed in one particular account and under
estimated the amounts needed in other accounts.'
"Mr. Williams reminded Council that under this form of
government, the Council appropriates an amount for each
line item of the budget. He pointed out that this is
the first year that Council has seen general fund
accounts 123% in the red.
"Council approved Mr. Malloy's motion by the following
vote: Yeas: Mrs. Banda, Mrs. Dorian, Messrs. Gentile,
Malloy, Stasko, Wissinger and Williams (7). Nays:
Messrs. Stevens and Truscello (2)."
19. By way of a billing statement dated September 14, 1988 from
Nicholas Banda to John H. Williams, President of the
Johnstown City Council, Mr. Banda requests payment for
services rendered. The billings were related to an action
Ms. Martha Banda
Page 13
of City Council on July 22, 1988 when council voted to
instruct their Attorney, Nicholas Banda, to file an
injunction against the city finance director and the city
controller stopping any payments out of accounts that were
in deficit balances.
07/29/88
Legal Research and Preparation of Action for Declaratory
Judgement.
4.0 Hours @ $60 /Hour $240.00
08/01/88
Legal Research and Preparation of Complaint for Injunctive
Relief.
4.0 Hours @ $60 /Hour 240.00
08/02/88
Preparation of Rule to Show Cause; filing of Action for
Declaratory Judgement and Injunctive Relief; arrange for
Hearing date and service of Complaint by sheriff.
3.0 Hours @ $60 /Hour 180.00
08/03/88
Meeting with President Williams and members of City
Council.
5.0 Hours @ $60 /Hour 300.00
08/04/88
Hearing; Judge's Chambers Cambria County Courthouse re:
Petition for Injunctive Relief.
4.0 Hours @ $60 /Hour 240.00
08/08/88
Ms. Martha Banda
Page 14
Received and reviewed copy
from President Williams to
.25 Hours @ $60 /Hour
08L08/8,8
.25 Hours @ $60 /Hour
08/08/8?
Telephone Conversation with President Williams.
.25 Hours @ $60 /Hour
08/10/88
Meeting with President Williams.
.50 Hours @ $60 /Hour
08/10/88
4.0 Hours @ $60 /Hour
08/11/88
Meeting with President Williams.
.50 Hours @ $60 /Hour
of letter dated August 5, 1988
Calvin D. McCracken.
15.00
Received and reviewed copy of letter dated August 5, 1988
from President Williams to Mayor Herbert Pfuhl.
.25 Hours @ $60 /Hour 15.00
08/08/8$
Received and reviewed copy of letter dated August 5, 1988
from President Williams to Michael Muslin, City Treasurer.
15 00
15 00
30 00
Received and reviewed monthly financial report of revenues
and expenditures as of July 31, 1988.
240.00
30 00
Ms. Martha Banda
Page 15
08/15/88
Received and reviewed defendant's Answer to Action for
Declaratory Judgement.
.50 Hours @ $60 /Hour
08/15/88
Telephone Conversation with President Williams.
.25 Hours @ $60 /Hour
08/16/88
Received
prepared
8.0 Hours
08/17/88
Meeting with President Williams.
.50 Hours @ $60 /Hour
08/17/88
Meeting with Judge Long.
.25 Hours @ $60 /Hour
08/17/88
Received and reviewed copy
from President Williams to
.25 Hours @ $60 /Hour
08/18/88
Telephone Conversation with City Solicitor.
30 00
. . . 15.00
and reviewed "Priority List" and budget estimates
by Finance Director.
@ $60 /Hour 480.00
30 00
15 00
of letter dated August 16, 1988
Calvin D. McCracken.
15 0 0
Ms, Martha Banda
Page 16
.25 Hours @ $60 /Hour 15 00
08/18/88
Telephone Conversation with Assistant City Solicitor.
.25 Hours @ $60 /Hour 15 00
08/18/88
Meeting with President Williams..
.50 Hours @ $60 /Hour
08/23/88
Received and reviewed supplemental "priority list" from
Finance Director.
2.5 Hours @ $60 /Hour 150.00
08/24/88
Meeting with President Williams.
.50 Hours @ $60 /Hour
08/31/88
30 00
30 00
Preparation for meeting with City Council, Controller,
Finance Director and Departments Heads.
3.0 Hours @ $60 /Hour 180.00
08/31/88
Meeting with City Council, et al.
1.50 Hours @ $60 /Hour 90.00
09/02/88
Meeting with President Williams.
Ms. Martha Banda
Page 17
.50 Hours @ $60 /Hour
09/02/88
Meeting with Judge Long, Attorney Green and Attorney Rizzo.
.75 Hours @ $60 /Hour 45 00
09/06/88
Meeting with President Williams, Calvin D.
Attorney Green and Attorney Rizzo.
2.50 Hours @ $60 /Hour
09/07/88
Meeting with Judge Long.
1.0 Hours @ $60 /Hour
30 00
McCracken,
150.00
60 00
09/09/88
Received and reviewed Order of Judge Long dated September 7,
1988.
.25 Hours @ $60 /Hour . . . . . . . . . . . 15.00
09/11/88
Received and reviewed copy of letter dated September 9,
1988 from President Williams to Mayor Herbert Pfuhl.
.25 Hours @ $60 /Hour 15 00
09/14/88
Preparation and Meeting with City Council et. al.
1.5 Hours @ $60 /Hour 90 00
09/19/88
Ms. Martha Banda
Page 18
Legal Research and Review; Preparation for Hearing of
September 9, 1988; and appearance at Hearing.
8.0 Hours @ $60 /Hour 430.00
TOTAL BILLED HOURS: 59
TOTAL AMOUNT BILLED: $3,540.00
ADVANCED PAYMENTS
08/02/88
Filing Fees to Prothonotary of Cambria County.
08/22/88
Costs of Service to Sheriff of Cambria County.
40.50
44.50
TOTAL AMOUNT DUE THIS STATEMENT - $3,625.00
20. Records of the City of Johnstown indicate that payment was
made to Nicholas Banda for the billing outlined in Finding
No. 19 above as follows:
ACCOUNT: General Fund, United States National Bank
CHECK NO: 98456 - 002013
DATE: 10/07/88
PAYEE: Nicholas Banda
21. Mr. Banda was retained as outside Counsel in the foregoing
situations.
22. Johnstown City Council also employed a city solicitor and an
assistant solicitor for the City Law Department.
a. At various times between January 7, 1987 to November
22, 1988, the city solicitor and assistant city
solicitor declared themselves to be in conflict if they
represented city council in certain matters before the
Ms. Martha Banda
Page 19
Court of Common Pleas, thereby forcing council to seek
legal counsel outside the city's Law Department.
23. Mr. Banda had been retained on prior occasions by the
Johnstown City Council as outside Counsel prior to
Ms. Banda's service as a council person.
a. Mr. Banda represented Johnstown City Council
continuously from January 7, 1987 to November 22,
1988.
III. Discussion: Martha Banda, hereinafter Banda, as a member of
City Council in Johnstown was a public official as that term is
defined under the Ethics Act and regulations of this Commission. 65
P.S. 5402; 51 Pa. Code S1.1. As such, her conduct is subject to the
provisions of the Ethics Act and the restrictions therein are
applicable to her.
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
Ms. Martha Banda
Page 20
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 determined whether Banda violated
Section 3(a) of the Ethics Act quoted above regarding her voting as a
member of Johnstown City Council to utilize the services of her
husband, Attorney Nicholas Banda, to represent City Council in various
legal matters.
Although Banda served as a member of City Council from November
1987 until January 1990, her husband had already been retained in
January, 1987 to represent Johnstown City Council in a certain case
which was prior in time to when Banda was appointed to City Council.
The lawsuit in question was filed by the Johnstown City Solicitor on
behalf of the Mayor against the members of City Council,. As to that
lawsuit Attorney Banda then filed for declaratory judgement action
seeking an injunction and adjudication of contempt against the city
finance director and city controller to stop payments from deficit
accounts . Separate and apart from the above, Attorney Banda also
represented Johnstown City Council in responding to a report from the
Auditor General's Office regarding the Johnstown Bureau of Sewage.
The Johnstown City Council minutes for August 10, 1988 reflect
concern about the local court's decision as to the contempt action
filed against the Finance Director and City Controller in light of
purported statements to the judge by the Solicitor regarding an
alleged acquiescence on the part of City Council to an amendment to
the Order as to the disbursement of certain funds. After Banda stated
that she was not aware of nor did she agree to any Petition to Amend
the Order, she advocated to City Council that a request for
reconsideration of the Order be filed in conjunction with an appeal.
Thereafter, a. motion was made to direct Attorney Nicholas Banda to
file the appeal which motion was seconded by Banda. When queried by
another member of City Council as to the propriety of voting, Banda
replied that such was her right to vote. Thereafter the Solicitor
stated to Banda that if she did not care what it looked like, that she
could go ahead and vote (for her husband) to which Banda replied that
she did not care and that he (Attorney Banda) is a good lawyer. Banda
did vote in favor of the motion but she was not the deciding vote;
however, Attorney Banda did not perform any legal services relative to
that authorization from City Council.
As to the declaratory judgement action filed by Attorney Banda on
behalf of City Council, he submitted a bill for services in the amount
of $1,305.00 which was supplemented by a subsequent billing for $90.00
which supplemental billing also included billings relative to another
matter. The records of the City of Johnstown reflect a payment to
Ms. Martha Banda
Page 21
Attorney Banda of $1,920.00 on January 20, 1989 and a payment of
$1,224.50 on December 22, 1988.
In the October 12, 1988, minutes of Johnstown City Council, a
motion was made to utilize Attorney Banda to assist City Council in
response to an audit of the Office of Auditor General regarding the
sewage audit. Banda voted in favor of the motion to utilize the
services of Attorney Banda which motion was carried unanimously.
Attorney Banda billed City Council in the amount of $615.00 for his
services which was paid by check dated January 20, 1989.
Attorney Banda had also been retained by City Council since
January of 1987 regarding a controversary concerning the 1988 Wage and
Salary Ordinances. After the Cambria County Court of Common Pleas
issued an Order barring City Council from taking action on the
Ordinances, Attorney Banda advised City Council to appeal the matter.
A motion was carried to authorize Attorney Banda to appeal the
injunction and Banda voted in favor of that motion which carried
unanimously. Attorney Banda billed City Council $507.50 for his
services which was paid by check dated December 22, 1988, for those
services as well as $627.00 in additional legal and other expenses.
The Johnstown City Council minutes for July 22, 1988, reflect an
action to authorize Attorney Banda to file an injunction against the
City Finance Director and City Controller to stop payments out of
accounts that had deficit balances. Such action was in fact
authorized by a motion which passed on a seven to two vote with Banda
voting with the majority. Subsequently Attorney Banda billed City
Council in the amount of $3,625.00 for legal and other expenses which
was paid on October 7, 1988.
In applying the provisions of Section 3(a) of the Ethics Act
quoted above to the facts of this case, we find that Banda did violate
Section 3(a) of the Ethics act regarding voting in favor of all of
these motions, except the motion on August 10, 1988 for which her
husband performed no legal services. Clearly the voting for these
motions constituted a use of office on her part. Further, the use of
office resulted in a financial gain to a member of her immediate
family, since the motions authorized the utilization of the legal
services of Attorney Banda who, as Banda's spouse, is a member of her
immediate family as that term is defined under the Ethics Act. In
addition, the financial gain is other than compensation provided for
by law since there is no provision which would authorize a member of
City Council to vote to hire or retain a member of her immediate
family for legal services. However, given the totality of the facts
and circumstances in this case, we will take no further action.
Ms. Martha Banda
Page 22
IV. Conclusions of Laws
1. Martha Banda as a member of Johnstown City Council was a public
official subject to the provisions of the Ethics Law.
2. Banda violated Section 3(a) of the Ethics Act when she voted in
favor of motions to authorize her spouse to perform legal services
for Johnstown City Council for which he was compensated.
In re: Martha Banda
: File Docket: 88 -093 -C
: Date Decided: April 5. 1991
: Date Mailed: April 15, 1991
ORDER No. 792
1. Martha Banda as a member of Johnstown City Council violated
Section 3(a) of the Ethics Act when she voted in favor of
motions to authorize her spouse to perform legal services
for the Johnstown City Council for which he was compensated.
2. Based upon the totality of the facts and circumstances, the
Commission will take no further action in this case.
BY THE COMMISSION,
: ' Ae W■J
HELENA G. HUGHE , CHAIR