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HomeMy WebLinkAbout795 RowandIn Re: Edgar Rowand STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 : File Docket: 90- 028 -C2 Date Decided: May 23, 1991 : Date Mailed: May 28, 1991 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair Dennis C. Harrington James M. Howley Daneen E. Reese Austin M. Lee The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 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 deemed waived. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order. This adjudication is final and will be made available as a public document fifteen days after issuance. However, reconsideration may be requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §2.38. The files in this case will remain confidential in accordance with Section 8(h) of Act 9 of 1989, 65 P.S. 408(h) 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). I. ALLEGATION: ADJUDICATION That you, President of the York Haven Borough Council, violated the following section of the Public Officials and Employees Ethics Law (Act 9 of 1989), when you appointed yourself and received compensation as Chairman of the Borough Street Committee; and when you appointed your wife as borough treasurer: II. FINDINGS: Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. 1. Edgar Rowand has served as a York Haven Borough Councilman since January 1988. a. Rowand has served as President of Borough Council since January 1990. b. Rowand also has served as the Borough Street Commissioner since 1988. 2. Minutes of the York Haven Borough meeting disclosed the following regarding Rowand's appointments of council members to various committees. a. February 6, 1990: President Rowand appointed the following committees: FINANCE Keith Rhode, Sr., Chairman Edmond Miller Edgar Rowand Henrietta Heistand STREETS Edgar Rowand, Chairman Lafair Harget, Jr. Keith Rhode, II BUILDING Lafair Harget, Jr., Chairman Sandra Harget Keith Rhode, II b. 1'89 Edgar Rowand ORDINANCE Keith Rhode, Sr., Chairman Edmond Miller Sandra Harget Henrietta Heistand Edgar Rowand FIRE & POLIO Harvey R. Heistand PLAYGROUND Henrietta Heistand, Chairman Keith Rhode, II Edgar Rowand b. Prior to 1990, Rowand was appointed to the position as Chairman of the Street Committee by Christian Lutz, the former President of the Borough Council. 3. Minutes of the November 1, 1988 meeting of York Haven Borough Council reflected salary increases for members of council, mayor, secretary and treasurer as well as an increase in the hourly rate for labor and the chairman of the various committees. The minutes disclose as follows: a. Discussed proposed increases for the council members as follows: $25.00 for council members; $30.00 for President of Council; $700.00 for Treasurer; $1,000.00 for Secretary; $450.00 for Mayor; $4.50 for Laborer and $5.00 for the Chairman. A motion to approve the above increases was made by Mrs. heistand, seconded by Mr. Rowand. Motion carried. 4. York Haven Borough Treasurer's Reports disclosed the following amounts paid to Edward Rowand for duties in relation to his position as Borough Street Commissioner. a. 1988 Check Date Payee Amount 790 12/06/88 Edgar Rowand $ 193.60 Total $ 193.60 Duties Streets - 40 Hrs. ($5.00 /Hour) Check Date 798 01/04/89 801 08/08/89 816 07/04/89 820 08/01/89 825 09/05/89 c. 1990 Check Date 851 05/01/90 853 06/05/90 857 07/03/90 866 08/07/90 868 09/04/90 873 10/02/90 879 11/05/90 Payee, Edgar Edgar Rowand Edgar Rowand Edgar Rowand Edgar Rowand Total $ 660.29 Payee Rowand $ 169.57 72.67 155.04 145.35 117.66 Edgar Rowand Edgar Rowand Edgar Rowand Edgar Rowand Edgar Rowand Edgar Rowand Edgar Rowand Total Amount Duties Amount $ 838.56 $ 96.90 155.04 181.01 156.78 132.56 43.60 72.67 Duties Streets - 35 Hrs. ($5.00 /Hour) Streets 15 Hrs. ($5.00 /Hour) Streets - 32 Hrs. ($5.00 /Hour) Streets - 30 Hrs. ($5.00 /Hour) Streets - 28 Hrs. ($5.00 /Hour) Borough Work Borough Work 58 Hours 53 Hours Building - 8 Hrs. Streets - 40 Hrs. Building - 2 Hrs. Streets - 7 Hrs. Streets - 2 Hrs. Playground - 4 Hrs. Building - 9 Hrs. d. The amount paid to Edward Rowand for the period 1988 through 1990 for streets and related work totalled $1,692.40. 5. Treasurer Reports confirm that Council Member, Lafair Harget, Jr., was also compensated for work performed on borough streets, playground and the borough building. a. Harget also served as a member of the Streets Committee. b. Harget was paid as follows: 5/90 - $ 96.90 6/90 - 266.47 7/90 - 230.13 $593.50 c. Harget was called out to work by Edward Rowand, Chairman of the Streets Committee. 6. Prior to 1988, Borough Councilman, Gabe Kohler, performed work on borough streets, borough buildings and borough playground. a. The policy of compensating borough council members for working on borough streets, the borough building and playground dates back to at least 1983. b. It was difficult to get people to work for the borough, as the borough budget did not permit the hiring of outside contractors. 7. Prior to 1990, Rowand claimed that he was not compensated in his position as the Chairman of the Streets Committee. 8. Victoria Rowand is the wife of Edward Rowand. 9. Minutes of the York Haven Borough meeting of January 2, 1990 disclosed that Victoria Rowand was appointed the borough treasurer. Edward Rowand participated in that appointment. Minutes confirmed the following: Citizens Present: Helen Lower Victoria Rowand Kathryn Repman Kathryn Repman and Victoria Rowand were interested in the position of treasurer. After a discussion about the status of the candidates, the candidates left the meeting, discussed the situation, and Mrs. Repman withdrew as a candidate. A motion was made by Mr. Harget, seconded by Mr. Rowand, tc appoint Mrs. Rowand as treasurer. There were 5 ayes and 1 nay, and the motion carried. a. The salary of $700.00 per year was approved for this position. b. Kathryn Repman withdrew, because she didn't want any problems if she were chosen over Mrs. Rowand. 10. Minutes of the October 2, 1990 meeting of York Haven Borough Council confirm that council approved salary increases effective to January 1, 1990 for members of council, mayor, secretary and treasurer. The minutes disclose as follows: a. Motion by Miller, seconded by Harget, to increase the annual salaries as follows: III. DISCUSSION: Mayor - $650.00 President of Council - $600.00 Council Members - $480.00 Secretary - $1,500.00 Treasurer - $1,500.00 11. The Treasurer's Report for December 4, 1990 meeting of council disclosed that Victoria Rowand was paid $1,500.00 for the year as Treasurer. Edgar Rowand, hereinafter Rowand, as a York Haven Borough Councilman, is a public official as that term is defined under Act 9 of 1989. 65 P.S. 402. As such, his conduct is subject to the provisions of the Ethics Law and the restrictions therein are applicable to him. In the instant matter, the allegation before us is whether Rowand violated Section 3(a) of Act 9 of 1989 regarding his appointment and receipt of compensation as Chairman of the Borough Street Committee and secondly regarding the appointment of his wife as borough treasurer. Under Section 3(a) of Act 9 of 1989 quoted above, a public official shall not engage in conduct that constitutes a conflict of interest. The following terms are defined under Act 9 of 1989: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. Factually, Rowand has served as a York Haven Borough Councilman and Borough Street Commissioner since 1988. The minutes of York Haven Borough reflect that on February 6, 1990, Rowand appointed himself to the Streets, Building, Ordinance and Playground Committees. On November 1, 1988, Rowand seconded a successful motion as to various salary increases for individual members including the city council, the president, the mayor, secretary and treasurer, laborer and chairman. In addition, Rowand received the following compensation for his position as Borough Street Commissioner: in 1988, $193.60; in 1989, $660.29; in 1990, $838.56, which totaled $1,692.40 for the 3 year period. The record does reflect, however, that the borough had a policy dating back to 1983 for paying council members for working for the borough since it was difficult to get people to do such work. Regarding the hiring of Rowand's wife as borough treasurer, the minutes reflect that at the January 2, 1990 meeting, Rowand seconded a successful motion to appoint his wife as treasurer with a yearly salary of $700.00. On October 2, 1990, council approved salary increases, which for the treasurer amounted to $1,500.00 for the year. The Treasurer's Report for December 4, 1990 reflects that Victoria Rowand was indeed paid $1,500.00 for that year as treasurer. In applying the provisions of Section 3(a) of Act 9 of 1989, to the above facts, we preliminarily note that Rowand made appointments, voted or seconded motions which is clearly a use of the authority of office. Secondly, his wife Victoria is within the definition of immediate family as quoted above. The issue before us becomes whether the use of authority of office on the part of Rowand resulted in a private pecuniary benefit to himself or his wife. As to the matter of Rowand's spouse, Victoria, although the Ethics Law would not per se prohibit her serving as treasurer of the borough, Section 3(a) of the Ethics Law does prohibit Rowand from participating or voting in favor of her appointment. In this regard, we note that there is no provision in the Borough Code which authorizes a borough official to participate or vote for the appointment of a member of his immediate family. Accordingly, we find that Rowand violated Section 3(a) of Act 9 of 1989 when he participated and seconded a successful motion to appoint his wife as treasurer. Turning to Rowand's appointment to the Streets Committee, the appointment of himself by himself resulted in compensation that he received in the amount of $1,692.40, for the three years 1988 through 1990. Clearly such compensation was a private pecuniary benefit. We note that Section 1104 of the Borough Code provides as follows: "Unless there is incompatibility, in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. Where there is no incompatibility, in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. No person holding the office of justice of the peace may at the same time hold the office of borough treasurer. The offices of secretary and treasurer may be held by the same person when so authorized by ordinance. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. All appointments to be made by the council or the corporate authorities shall be made by a majority of the members of council attending the meeting at which the appointment is made, unless a different vote is required by statute. 53 P.S. § 46104. The above provision of the Borough Code does allow council members to serve on any board, commission, bureau or other agency created by or for the borough or any other borough office but, specifically, prohibits receiving compensation therefore. In the instant matter, Rowand received the compensation pursuant to his appointment to the Streets Committee (Fact Finding 4). Parenthetically, it is noted that Act 18 of 1990 amended Section 1104 of the Borough Code by adding the following sentence to Section 1104: "No elected borough official of a borough with a population of 3,000 or more may serve as an employee of that borough." The above amendment further reflects the legislative intent that a councilman or mayor is limited in receiving compensation to the compensation that they are entitled to for holding their office as well as to additional compensation only as an employee of the borough where the population is less than 3,000. Separate and apart from the above quoted provision of the Borough Code, the Ethics Law in Section 3(a) does restrict the use of authority of office for obtaining a private pecuniary benefit for a public official, member of his immediate family, or business with which the public official or member of his immediate family is associated. Therefore, we find that Rowand did violate Section 3(a) of Act 9 of 1989 by receiving the private pecuniary benefit amounting to $1,692.40 as part of his service on the Street Committee. In Deitrich, Opinion 89 -022, we held that a borough council member would not be precluded under Section 3(a) of Act 9 of 1989 from providing street or water works services since such were not borough offices. In this case, Fact Finding 4 reflects that the compensation paid to Rowand was in the capacity of Borough Street Commissioner which is a borough office. Accordingly, Deitrich has no application to the instant matter. Although not controlling as being decided under Act 170 of 1978, we do follow the analysis contained in Shuaarts, Order 623, wherein we determined that a borough council member violated Section 3(a) of the Ethics Act when he performed certain maintenance services for compensation for the borough. In the cited order, we determined that the remuneration received was not authorized by the Borough Code and hence was a financial gain other then compensation provided for by law under Section 3(a) of Act 170 of 1978. In the instant matter, the private pecuniary benefit received by Rowand as a result of the use of authority of this office contravened Section 3(a) of the Ethics Law. Section 7 (13) of the Ethics Law provided in part: ". . . any order resulting from a finding that a public official or public employee has obtained a financial gain in violation of this act may require the restitution plus interest of that gain to the appropriate governmental body . . ." 65 P.S. S 407 Based upon the above statutory authority, it is appropriate, and we so order Rowand to make restitution in the amount of $1,692.40 to York Haven Borough Council within 30 days of the date of this order. Failure to comply with the above will result in the referral of this matter to the appropriate law enforcement authority. Regarding the appointment of Rowand's spouse, Victoria, we will take no further action as to that violation given the totality of the facts and circumstances in this case. However, Rowand is reminded that in the future, he, as a public official, must observe the provisions of the Ethics Law and, therefore, abstain from participating or voting concerning matters of private pecuniary benefit as to himself, a member of his immediate family or business with which associated. In such cases where a conflict arises, Rowand must make a public statement as to the nature of his conflict and also file a written memorandum to that effect with the secretary recording the minutes as per the requirements of Section 3(j) of the Ethics Law. 65 P.S. § 403(j). IV. CONCLUSIONS OF LAW: 1. Edgar Rowand, as President and member of York Haven Borough Council, is a public official as that term is defined under Act 9 of 1989. 2. Rowand violated Section 3(a) of the Ethics Act when he used the authority of office by appointing himself to the Streets Committee and seconding a successful motion to appoint his wife as treasurer which resulted in a private pecuniary benefit consisting of compensation for himself and his wife who is a member of his immediate family, as that term is defined under the Ethics Law. 3. Rowand received a private pecuniary benefit as a result of the use of authority of office for himself in the amount of $1,692.40. In Re: Edgar Rowand : File Docket: 90- 028 -C2 : Date Decided: May 23, 1991 : Date Mailed: Mav 28, 1991 ORDER No. 795 1. Edgar Rowand, President and member of the York Haven Borough Council, violated Section 3(a) of the Ethics Act when he used the authority of office by appointing himself to the Streets Committee and seconding a successful motion to appoint his wife as treasurer which resulted in a private pecuniary benefit consisting of compensation for himself and his wife who is a member of his immediate family, as that term is defined under the Ethics Law. 2. Rowand is directed within 30 days of the issuance of this order to forward a check to this Commission, payable to the order of York Haven Borough, in the amount of $1,692.40 as restitution for the private pecuniary benefit received as a result of the use of authority of office to appoint himself to the Streets Committee. 3. Failure to comply with the provisions of Paragraph 2 will result in the referral of this matter to the appropriate law enforcement authority. 4. Rowand is directed to abstain from participating or voting in the future as to any matters involving the use of authority of office to obtain a private pecuniary benefit for himself or member of his immediate family or business with which he or a member of his immediate family is associated, and when such matters arise, to disclose the nature of the conflict of public record as well as file a written memorandum to that effect with the secretary recording the minutes as per the requirements of Section 3(j) of the Ethics Law, 65 P.S. §403(j). BY TH COMMISSION, ELENA G. HUGHES, HAIR