HomeMy WebLinkAbout766 SalvoIn re: Michael Salvo
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
File Docket: 89 -011 -C
: Date Decided: October 4, 1990
: Date Mailed: October 29, 199n
Before: Robert W. Brown, Vice Chair
G. Sieber Pancoast
Dennis C. Harrington
James M. Howley
Daneen E. Reese
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).
Findings:
ADJUDICATION
I. Allegation: That you, Michael Salvo, violated the following
provisions of the Ethics Act, (Act 170 of 1978), when you cast the
deciding vote to retain the firm with which you are associated,
Michael Pasonick, Jr. Incorporated as Borough Engineers:
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. 5403(a).
1. You have served as a West Wyoming Borough Councilman since
January, 1986.
2. You have been employed by Pasonick Engineering on a part -
time basis since March 17, 1988.
a. You have been employed as an inspector on paving and
sewer jobs at a rate of $8.00/hr.
b. You work mainly during the spring, summer and fall
months.
3. Certified minutes of the West Wyoming Borough Council
meetings confirm the following regarding the appointment of
Pasonick Engineering as Borough Engineer:
a. January 9, 1989:
Motion by Thomas, seconded by Napkora to name Michael
Pasonick as Borough Engineer. Roll Call: Leoni - yes;
Napkora - yes; Schalles - no; Thomas - yes; Salvo -
abstained. 3 - yeas 1 - no 1 - abstain, motion passed.
Schalles questioned the solicitor on the legality of 3
votes carrying a motion. The solicitor replied that a
majority of members voting is enough to pass a motion
as long as a quorum is present.
b. February 13, 1989:
Motion by Schalles, seconded by Rarasinski to rescind
Pasonick Engineers as Borough Engineer and reinstate
Reilly Associates as same. Roll Call: Leoni - no;
Napkora - no; Rarasinski - yes; Schalles - yes; Thomas
- no; Mastruzzo - yes; Salvo requested an opinion from
the solicitor since he is employed part time by
Mr. Michael Salvo
Page 3
Pasonick. Solicitor Medico stated Salvo had a right
to vote on the matter. Salvo - no. 3 yeas, 4 naes,
Motion defeated.
4. Transcript of the West Wyoming Borough Council meeting of
February 13, 1989 disclosed the following exchange between
you and Solicitor Philip Medico.
a. Mr. Salvo; I'd like an opinion from the Solicitor
being that I work for Mr. Pasonick part time if I can
vote on this matter?
Mr. Medico; Do you have any -- do you own any shares
in Pasonick --
Mr. Salvo; No, I don't own any shares, all I am is an
employee, part time employee. I'm retired and work for
him maybe --
Mr. Medico; Does your job depend upon you voting yes
or no on this?
Mr. Salvo; No.
Mr. Medico; And you have no financial interest in --
Mr. Salvo; None whatsoever.
Mr. Medico; You have a right to vote on it.
5. Arlene Pasonick of Pasonick Engineering, is
Secretary /Treasurer for Pasonick Engineering. The company
is owned entirely by her husband Michael Pasonick.
a. You are employed as a part -time inspector by Pasonick.
You work during the spring, summer and fall months when
the weather permits.
b. You did not benefit in any way from Pasonick
Engineering being appointed borough engineer, you did
not work on any West Wyoming Borough Business. The
company probably did not handle any borough matters
because of the short time they had the contract.
c. Her husband withdrew from the appointment after the
controversy began because they did not want any
problems with other engineering firms.
6. You first took office as a West Wyoming Borough Councilman
Mr. Michael Salvo
Page 4
in January 1986, and started your second term in January
1990.
a. You began part -time work for Pasonick Engineering on
March 17, 1988 as an inspector on paving and sewer
jobs. You presented payroll records which indicate
that you earn $8.00 /hr.
b. You do not own stock in the company and neither you or
anyone in your family has a financial interest in the
firm.
c. You were not totally satisfied with Reilly Engineering
as borough engineers as a result of your contacts with
that firm while you were borough manager. This opinion
was shared by other councilmen.
d. A number of council members approached you knowing
that you were employed part -time by Pasonick, and
asked what you thought of the company. You told them
that you believed Pasonick was a responsible firm.
e. You believed that other council members wanted to get
rid of Reilly.
f. When the motion was made at the January 9, 1989
Council meeting everyone knew you worked part -time for
Pasonick. You abstained from voting and the motion
passed 3 to 1.
A month later the matter came up again. You asked to
solicitor about legality of you voting.
h. The solicitor, Philip Medico, questioned how you were
employed by Pasonick and whether your job depended on
Pasonick's appointment. After you advised that it did
not, Medico advised that it was legal for you to vote.
g.
i. You voted no on the motion to rescind Pasonick
Engineers as Borough Engineers and reinstate Reilly
Associates as same, and was the fourth vote on a 4 to 3
vote.
You never did any work for Pasonick in relation to the
borough.
k. Pasonick withdrew from the appointment as borough
engineer in early 1989 as they did not want to be
involved in the controversy.
Mr. Michael Salvo
Page 5
III. Discussion: Michael Salvo, hereinafter Salvo, as a West Wyoming
Borough Councilmen is a public official as that term is defined under
the Ethics Act. 65 P.S. 5402; 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:
"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.
The issue before us relates to the allegation that Salvo violated
the Ethics Act when he cast the deciding vote to retain the firm of
Michael Pasonick, Jr. as borough engineer when he was associated with
that firm. Salvo has served as a councilman since January of 1986 and
has been a part -time employee of Pasonick Engineering since March 17,
1988, usually as an inspector on paving and sewer jots. The certified
minutes of the West Wyoming Borough Council meeting of January 9,
1989, reflect that Salvo abstained from voting on a motion to appoint
Mr. Michael Salvo
Page 6
the firm of Michael Pasonick, Jr. Incorporated as the borough
engineer. In a February 13, 1989 council meeting Salvo, after
consulting and receiving approval from the solicitor, voted against a
motion to terminate Pasonick Engineering as borough engineer.
The term "business with which he is associated" is defined under
Act 170 of 1978:
Section 2. Definitions.
"Business with which he is associated." Any
business in which the person or a member of the
person's immediate family is a director, officer,
owner, employee or holder of stock. 65 P.S. §402.
Since Salvo was a part -time employee of Michael Pasonick, Jr.
Incorporated, it is clear that is a business with which he is
associated. Although Salvo neither made or seconded a motion to
retain Michael Pasonick as borough engineer and did not vote on said
motion, at the January 9, 1989 meeting, Salvo did vote against the
motion to terminate Pasonick Engineering which was a use of office.
Pepper, Opinion 87 -008. We do note that Salvo received advice from
the solicitor that he would not have a conflict in voting. In
addition, the motion at the February 13, 1989 would have failed even
without his negative vote. Accordingly, we find a technical violation
of Section 3(a) of the Ethics Act and will take no further action.
IV. Conclusions of Law:
1. Michael Salvo as a West Wyoming Borough Councilman is a public
official subject to the provisions of the Ethics Act.
2. A technical violation of Section 3(a) of the Ethics Act occurred
when Michael Salvo voted against a motion to terminate a business with
which he was associated, Michael Pasonick, Jr. Incorporated, as
borough engineer. -
In re: Michael Salvo File Docket: 89 -011 -C
: Date Decided: October 4, 1990
Date Mailed: October 29. 1990
ORDER No. 766
1. A technical violation of Gection 3(a) of the Ethics Act
occurred when Michae]. Salvo as a West Wyoming Borough
Councilmen voted against a motion to terminate a business
with which he was associated, Michae]. Pasonick. Jr.
Incorporated, as borough engineer.
2. No further action will be taken in taken in this case based
upon the totality of the facts and circumstances.
BY THE COMMISSION,
/j /
ROBERT W. BROWN, VICE CHAIR
Commissioner James M. Howley did not participate in the consideration
of this matter.