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HomeMy WebLinkAbout289 WillardMr. William H. Willard 601 Greenwood Avenue Pottsville, PA 17901 RE: No. 83 -16 -C Dear Mr. Willard: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION May 24, 1984 Order No. 289 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions and findings on which those conclusions are based are as follows: I. Allegations: That you used or allowed the use of a county telephone credit card to make numerous personal calls and that this is a violation of Section 3(a) of that office for personal financial gain. A. Findings: 1. You served as a Schuylkill County Commissioner from 1975 until December 31, 1983, and are subject to the Ethics Act. 2. You were issued a County credit card (No. 717 - 173 -4415) for County business purposes. 3. This card was used for personal phone calls by you, and your son. a. The card was used to make calls from Pottsville, Pennsylvania, to numbers in Florida and Illinois and to make calls from numbers in Florida to Illinois and to Pottsville, Pennsylvania. b. There were 984 personal calls costing $3,762.28 charged to your County credit card by you and your son between January 1, 1979 and May 31, 1982. c. You admit this use and declined to review the individual phone calls when our investigator offered to do that with you. You also accepted the amount of 13,762.28" he quoted to you as accurate. Mr. William H. Willard May 24, 1984 Page 2 4. As a Commissioner, you voted to approve the payment of Bell Telephone bills presented to the County which included these personal calls. a. Bills approved by the Commission are forwarded to the County Comptroller who reviews them to insure that the Commission has given the proper approval and then sends them to the Treasurer. b. The County Treasurer draws checks for payment upon the approval of the Comptroller. c. Neither official audits the bills for legality or propriety. d. There were no apparent controls on the use of Count,; credit cards by County officials. 5. As of March 19, 1984, you had not reimbursed the County for these personal phone calls. a. We issued an Order on March 19, 1984, finding that you had violated the Ethics Act and ordering you to pay back $11,286 which represents three times your financial gain. saying: b. On March 28, 1984, you requested reconsideration of that Order (1) You had made full restitution to the County. You enclosed a receipt for payment of $3,762.28. (2) You had never denied your obligation to pay the County but lacked the funds. (3) You disagreed with finding 4(a) and stated that neither you or the other Commissioners voted on the payment of the telephone bills. (4) That, although you had not contested our finding that 984 personal calls were made through the use of your official credit card, you do believe that some of those calls were on official business. 6. We have verified that the County did receive and has deposited to their account your check in the amount of $3762.28. 7. On May 16, 1984, we met and considered this request for reconsideration, granted same, and decided to issue this Order. Mr. William H. Willard May 24, 1984 Page 3 B. Discussion: 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). You admit that you and your son used your County credit card for personal phone calls and agree that there were 984 calls costing $3,762.28 between January 1, 1979 and May 31, 1982. While there is a questions about whether you actually approved the phone bills, we believe you were accountable for insuring that County funds were spent only for official business. You have violated Section 3(a) of the Ethics Act because you used your County office for personal gain. This violation of Section 3(a) carries possible penalties outlined in Section 9(a) and 9(c) of the Ethics Act. Section 9(a) and 9(c) states: Section 9. Penalties. (a) Any person who violates the provisions of Section 3(a) and (b) is guilty of a felony and shall be fined not more than $10,000 or imprisoned for not more than five years, or be both fined and imprisoned. 65 P.S. 409(a). (c) Any person who obtains financial gain from violating any provision of this in addition to any other penalty provided by law, shall pay into the State Treasurey a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). The question remaining, having found that you violated Section 3(a) of the Ethics Act, is the sanction or remedy to be imposed or recommended. In responding to this question, we are guided by the ruling of the Commonwealth Court in Hoak v. State Ethics Commission, , pa. Cmwlth. , 466 A.2d 283 (1983). In that case we were faced with deciding whether public officials who had voted to secure insurance coverage for themselves, and collected the cash value of the policies without receiving the required approval of the Township auditors, should retain the policy proceeds or be penalized for their actions. We concluded that the officials could not retain the proceeds of these. Mr. William H. Willard Page 4 May 24, 1984 policies, but that referral to the law enforcement officials with a recommendation for prosecution would be dependent upon whether the officials remitted the amount of gain (with interest) they had secured in violation of Section 3(a) of the Ethics Act. In that case, we declined to apply the trebling portions of Section 9(c) of the Ethics Act to the gain secured because we found that the officials in the Hoak case had acted in accordance with the advice of their solicitor and publications they believed to be official with respect to their conduct. In the present case, we find no attempts to discern the correct course of conduct or the reliance upon legal or other advice as a foundation for your actions. To the contrary, it is clear and should have been apparent to you that the County - provided credit card was to be utilized for your convenience in conducting County business. It is incredible to believe that you did not know or could not be expected to know use of this card for personal phone calls was prohibited. You stated that you never denied your obligation to repay the County but did not have the money and our findings show that the personal phone calls stopped after May 31, 1982. Recognizing all these facts and having granted reconsideration, we must now review the question of the appropriateness of the penalty originally imposed and to be imposed herein. We must look upon your payment to the County as your attempt to voluntarily make restitution to the County. However, we cannot conclude that this payment eliminates our authority to act in this case or the necessity to review the imposition of the penalties provided in Section 9(a) and (c) of the Ethics Act as were deemed proper in the Order originally issued in this matter. In this case there are no circumstances except this payment to the County, to mitigate the violation as discussed above. Thus, this payment should serve only to reduce the amount of the monetary penalty imposed and not to eliminate this penalty entirely. In this process we should also recognize your payment, albeit late, as your recognition of responsibility in this matter. However, the State Ethics Commission cannot allow your actions to obviate our responsibility to review this matter, determine the existence of a violation, and apply our discretion in fashioning the remedy and penalty we find appropriate. Under these circumstances, we will revise our ruling to the extent that we will require payment of the amount of $3762.28 to the State Treasurer in addition to the like amount which you have paid to the County. There should be no attempt to recoup the payment already made to recompense the County. You must, however, comply with our ruling as set forth below, that payment must also be made in a like sum to the State Treasurer, resulting in a payment of a penalty of a total of two times the financial gain you obtained from violating Section 3(a) of the Ethics Act. Mr. William H. Willard May 24, 1984 Page 5 C. Conclusion: You have violated Section 3(a) of the Ethics Act by using the County credit card as outlined above. This violation carries possible penalties outlined in Section 9(a) and (c) of the Ethics Act. We will recognize your payment to the County of $3762.28. However, we will forward this matter to the appropriate law enforcement officers, pursuant to Section 7(11) of the Ethics Act, 65 P.S. 407(11) and Section 407(9)(iii), 65 P.S. 407(9)(iii) with a recommendation for prosecution unless, within 30 days of this Order, you remit, in addition to the payment to the County the sum of $3762.28 payable to the State Treasurer in accordance with this ruling and Section 9(c) of the Ethics Act. Our files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and will be made available as a public document in accordance v.ith 51 Pa. Code 2.38(a). Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). EMS /rdp - 'By th Co rb B nner Chairman