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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