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HomeMy WebLinkAbout367-R KotikMr. Nick Kotik 755 Mary Street McKees Rocks, PA 15136 Re: 84 -41 -C Dear Mr. K o t i k : STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 RECONSIDERATION ORDER OF THE COMMISSION July 2 1985 Order No. 367--8 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 follow: I. Allegation: That you, as a Councilman in McKees Rocks Borough, violated Section 3(a) of the Ethics Act, 65 P.S. 403(a), which prohibits the use of public office or confidential information gained through that office and /or Section 3(b), 65 P.S. 403(b), which prohibits a public official from offering or accepting anything of value with the understanding that his official action will be influenced by voting to appoint a Tax Collector while you were employed in the Tax Collector's office. A. Findings: 1. You serve as an elected Councilman in McKees Rocks Borough and, as such, are subject to the provisions of the Ethics Act. a. You were elected to the position of Councilman during the 1981 General Election and have continued to serve in that capacity to the present. 2. James Hall served as an elected Tax Collector for McKees Rocks Borough in 1983. a. Hall became ill in mid -1983 and you volunteered your time to assist Hall in the performance of his duties. You were not compensated for working in the Tax Collector's office at that time, and you were receiving unemployment compensation from another job. tir. Nick Kotik July 2 1985 Page 2 b. Hall became hospitalized in August, 1983, and subsequently appointed you as an agent of the Tax Collector's office solely to receive and receipt taxes. Such an appointment is permitted by the Local Tax Collection Law. c. Hall, by letter dated September 21, 1983 to Borough Council, resigned his position due to personal health problems. 3. McKees kocks Borough Secretary, Scott Kunka, served as Interim Tax Collector from September 30, 1983 until October 11, 1983. a. You did not work in the Tax Collector's office during that period. 4. Minutes of the McKees Rocks Borough Council meetings confirm the following: a. August 1, 1983 - You were collecting taxes. Motion was withdrawn to elect the Borough Secretary to collect the taxes because Hall's position was not vacated. Hall was ill. b. September 30, 1983 - Hall's letter of resignation was read and accepted with a unanimous vote. c. October 11, 1983 - Motion to appoint Brownley or Gordon as Tax Collector was made. Motion to table the appointment of a Tax Collector was defeated by a 5 to 4 vote with you voting with the majority. Brownley was made Tax Collector. d. November 29, 1983 - Motion to increase delinquent property tax rate to 10% a year. Vote of s to 3 with one abstention and you voting with the majority. 5. Robert Brownley, Tax Collector, admits that he was approached by members of Borough Council about his interest in the position of Tax Collector prior to the vote on October 11, 1983. a. Brownley was not certain if you were a member of the group of councilmen who approached him. 6. As a matter of procedure, the McKees Rocks Borough Council conducts an executive session the day prior to regularly scheduled Council meetings. Items on the regular meeting agenda are to be discussed at these meetings. a. The appointment of a Tax Collector was not on the agenda of the regularly scheduled meeting of October 11, 1983 (Finding No. 4c). Mr. flick Kotik July 2 1985 Page 3 b. You admit that name was brought up as an appointee to the Tax Collector's position at an executive session of Council on October 10, 1983. You were present at that session as well as four other councilmen who were friendly with Brownley. c. Opposing councilmen were not invited to the executive session of October 10, 1983. 7. Robert Brownley, Tax Collector, admits that after his appointment as Tax Collector, he asked you to continue to serve as a clerk in the Tax Collector's office. a. Brownley claims he asked you because of your familiarity with the Tax Collector's duties and his desire to remain employed at a full -time job. 8. Brownley confirms that you began work as a compensated tax clerk during the latter part of October, 1983. Brownley's record disclosed payments made to you as follows: a. October - November, 1983 - Check #2 - $335 on November 7, 1983. b. December, 1983 - Check #101 - $200 on December 3, 1983. - Check #103 - $27 on December 19, 1983. - Check #104 - $500 on December 27, 1983. c. January, 1984 - Check #106 - $75 on January 6, 1984. - Check #107 - $3u0 on January 23, 1984. d. February, 1984 - Check #111 - $90 on February 6, 1984. - Check #115 - $300 on February 21, 1984. - Check #116 - $11 on February 22, 1984. e. March, 1984 - Check #117 - $300 on March 2, 1984. - Check #118 - $100 on March 19, 1984. 9. Your Statement of Financial Interests for calendar year 1983 reports "Robert F. Brownley, Tax Collector" as a source of income, $500 or more. 10. Followiny receipt of notification of the State Ethics Commission's investiyation, you continued to work in the Tax Collector's office but ttr. Nick Kotik July 2 1985 Page 4 have not received payment since April 1, 1984, pending the outcome of the investigation. Brownley's records confirm the following amounts would be owed to you: a. April, 1984 - $350. b. May, 1984 - $350. c. June, 1984 - $300. 11. Brownley confirms that compensation to you is made on the basis of the amount of tax monies collected. a. The tax collector's compensation is commission based upon a percentage of tax monies collected. b. Brownley determined that you should receive 60% of that commission because you are a full -time employee of the office. 12. Your employment as tax clerk is dependent solely on Robert Brownley in his capacity as Tax Collector. 13. Upon accepting the position of tax clerk, you requested McKees Rocks Solicitor, Samuel Pasquarelli, to request an Advice from the State Ethics Commission. a. That request was made by letter dated November 15, 1983. b. Advice of Counsel No. 84 -519 was issued on February 2, 1984. (1) The Advice stated that you must abstain from participation as a Borough Councilman in all matters pertaining to the tax collector, the tax collector's office or its budget, tax collections, in general, insofar as they may relate to compensation of the tax collector and employees in the tax office or funds available for same. 14. On November 29, 1983, you seconded and voted in favor of a motion to increase delinquent property tax rates to 10% per year. That motion passed by a 5 to 3 vote with one abstention and you voted with the majority (related to finding 4d). a. By voting to increase delinquent property tax rates, the commissions of the tax collector and your compensation would be increased. (Findings 11 a, b) Mr. Nick Kotik July 2. 1985 Page 5 b. The Sto -Rox School District, for which the McKees Rocks Tax Collector collects taxes, has kept its delinquent property tax rate at 5'%. 15. Un March 12, 1985, the Commission issued Order No. 367. 16. On March 18, 1985, you requested reconsideration of the Order for the following reasons: a. Finding 14 said you had seconded and voted in favor of a motion to increase the delinquent property tax rate to 10% a year and the motion was passed by a vote of 5 to 4 while Finding 4(d) said the vote on this same issue and date was 5 to 3. b. The Commission had made a material error in law by concluding that you had violated Section 3(a) of the Act when you participated and voted on the decision to increase the delinquent property tax. You maintain that because your presence was not needed for a quorum and the motion would have passed without your vote, there could be no violation of Section 3(a). c. You also submitted a check in the amount of $5.33 payable to the Borough of McKees Rocks and documentation of the calculations used to arrive at this amount of money. 17. As of October 31, 1984, you terminated your employment in the Tax Collector's office. B. Discussion: Section 3(a) of the Ethics Act states: 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. On February 2, 1984, the State Ethics Commission issued an Advice of Counsel to Mr. Samuel J. Pasquarelli, who had requested this decision on behalf of you and Mr. Brown. This Advice stated that there was no per se" conflict of interest in your being appointed by Mr. Brownley to work in a tax office. However, the following restrictions were also cited: 1. You may not use your office or confidential information gained through that office to realize financial gain. Mr. Nick Kotik July 2 1985 Paye 6 2. You must "abstain from participation as a Borough Councilman in all matters pertaining to the school project, the Tax Collector's office or its budyet or tax collections in general, insofar as they may relate to compensation of a tax collector and employees in the tax office or funds available for same." The November 15, 1983 request from Mr. Pasquarelli did not tell us that you had already voted with the majority in the five -to -four vote for the appointment of Mr. Brownley rather than Mr. Gordon. In addition, on November 29, 1983, you voted to increase delinquent property tax rates which increased the commissions of the tax collector and your salary. (See Finding 14). While you had not received our Advice at the time of your votes of November 15 and 29, 1983, your solicitor had already informed you that you should abstain from voting on such matters. While we are concerned that we did not know at the time of your request that you had already voted in favor of Mr. Brownley, this matter is not sufficient to consider changing or withdrawing that Advice of Counsel. However, your vote to raise the delinquent property taxes after you had voted for Mr. Brownley, after he had appointed you to the job in the Tax Collector's office was a vote which raised your salary and a violation of Section 3(a) of the Ethics Act. Any salary you received from the taxes collected against the tax base existing before your vote of November 29, 1983 to increase delinquent property tax rates does not violate the Ethics Act. However, any salary you received from the additional taxes collected because of the increase in delinquent property taxes was received contrary to Section 3(a) of the Ethics Act and you are not entitiled to retain this money. While we have no way of determining the amount of that payment, you must remove yourself from this financial gain. The State Ethics Commission accepts your calculations of the financial gain and has forwarded the check to the Borough of McKees Rock. This meets the Ethics Act requirement that you remove yourself from financial gain. We have also corrected Findings 14 and 4(d) precisely as it was recorded in the minutes. However, we do not agree with your contention that no violation of Section 3(a) could occur because your presence was not required for a quorum and your vote was not required to pass the motion. In a number of decisions, the Commission has ruled that public officials must refrain from voting and participating in a decision in which he or she has a private interest. Leete, 82 -005; Fields, 82 -006 and Conoway, 332. C. Conclusion: By voting to increase the delinquent property taxes which directly attected the salary you were being paid as a clerk in the Tax Collector's office, you violated Section 3(a) of the Ethics Act. You have remitted a check for $5.33 payable to the Borough of McKees Rocks and Mr. Nick Kotik July 2, 1985 Page 7 documentation that this is the total financial gain you realized from the increase in delinquent property taxes. We will take no further action. This Order will be made public three days after the date of issue. 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 three days after service (defined as mailing). See 51 Pa. Code 2.38. EtIS /na By th Commissio Dr. Leori L. Hale Vice - Chairman