Loading...
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.