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HomeMy WebLinkAbout388 BlumlingMr. William Blumling 80 Silver Lane McKees Rocks, PA 15136 Re: 84 -25 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION July 26, 1985 Order No. 388 Dear Mr. Blumling: 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. Allegation: That you, a Commissioner of Robinson Township, violated Section 3(a) of the State Ethics Act which prohibits a public official's use of office or confidential information gained through that office to obtain financial gain other than compensation allowed by law when you were appointed to and served as township zoning and building officer from June, 1983 to October, 1983, despite the prohibitions in Section 614 of the Municipal Planning Code which states that a zoning officer may not hold any elective office in the municipality. A. Finding: 1. You served as a Commissioner in Robinson Township in 1983 and as such are subject to the provisions of the State Ethics Act. 2. You also served as township zoning officer from June 1, 1983 to November 14, 1983. 3. Minutes of township meetings record the following: a. June 6, 1983 the chairman appointed you on a temporary basis because the previous zoning officer had taken another position. b. The minutes do not record a vote. The chairman stated that the appointment was made with the approval of the other commissioners. Mr. William- Bl uml i ng July 26, 1985 :Page 2 4. This is a paid position, and between June 1, and November 14, 1983, you received $4,231.50 from the township for your services as a zoning officer. 5. You were also employed by Mosites Construction Firm. No permits were issued to this firm while you served as zoning officer. 6. Township minutes for the meeting of October 10, 1983 record that the chairman asked the solicitor for advice relating to your appointment as a zoning officer. a. This advice of the solicitor was made after a citizen asked whether your appointment conflicted which Section 614 of the Municipal Code. b. The township solicitor gave an oral opinion saying he saw nothing wrong with this appointment. 7. Minutes of the township meeting of October 14, 1983 show that you stated you would rather not continue to serve and offered the name of Raymond Schlaegle to be "Building Inspector ". a. Mr. Schlaegle was appointed by vote of 3 -0; you did not vote. b. The title "Building Inspector" is generally synonymous with zoning officer in this discussion and motion. B. Discussion: The Ethics Act provides, in part, that: 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). The Municipal Code provides for the appointment of a zoning officer, who may not hold any elective office in the municipality; 53 P.S. §10614. As either a commissioner of a first class township, or the township zoning officer, you are subject to the provisions of the Ethics Act. There is no doubt that from June 13, to November 14, 1983, you served as a commissioner and a zoning officer. Holding these positions simultaneously is prohibited by Mr. William Blumling July 26, 1985 . Page 3 the Municipal Code. It is also clear that the compensation you received for the zoning officer's position is not allowed by law. One who serves as a zoning officer may not hold any elective office in the municipality. If he so serves, he receives his compensation in violation of the Code. 53 P.S. §10614. While the township records do not show what actions the body of commissioners or you, as an individual commissioner, took in your appointment, it is apparent that you accepted the position and were compensated for your services. The State Ethics Commission has held that acquiescence in or acceptance of compensation, by a public official, to which he is not entitled, violates the provisions of the State Ethics Act. Huff, 84 -015; Domalakes, 85 -010. In light of these rulings, your acceptance of such compensation to which you were not entitled would be a violation of the State Ethics Act. We note that your appointment to this position occurred during a meeting which was closed to the public. While your appointment was later announced at a public meeting, the position was never advertised and no other candidates were considered for the position. At all times relevant hereto you were a member of the township board of commissioners, the appointing authority. It was indicated that you accepted the position in order to assist the township on an emergency basis, after the retirement of the former zoning officer. There was, however, no effort made to secure a permanent zoning officer while you served in the emergency situation until the issue was raised by a citizen. While you indicate that you relied upon the solicitor's opinion in this matter, this is not a written opinion. This solicitor is now your legal counsel for the matter under investigation. You finally terminated your position shortly after certain concerns were raised by a citizen regarding your appointment. The Ethics Act provides that: 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 act, in addition to any other penalty provided by law, shall pay into the State Treasury a sum of money equal to three times the financial gain resulting from such violation. 65 P.S. 409(c). Mr. William- Bl uml i ng July 26, 1985 - Page 4 JJC /sfb Additionally, the Commission may make a recommendation for prosecution by the appropriate prosecuting authority unless the person who is in violation of the Act returns any financial gain obtained in violation of the Act. See McCutcheon /Hoak v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 283, (1982). We believe that this result should be reached in the instant matter. In considering the penalties to assess, the Commission has obligation to review all factors which might be pertinent to the case. In your case, the solicitor did state - although not in writing - that you were eligible to be compensated for work as zoning officer and you acted on this advice. However, the Courts have ruled that acting in good faith on the advice of the solicitor is not sufficient cause to absolve one from penalties of the law see Hoak / McCutcheon v. State Ethics Commission, 77 Cmwlth. Ct. 529 (1982), Cotlar v. Warminster Township, 8 Cmwlth. Ct. 163 (1973). C. Conclusion: In light of the foregoing, you must divest yourself of all gain obtained in violation of the State Ethics Act. Our calculations indicate that this would be an amount of exactly $4,231.50. We will not, because of mitigating factors, impose the sanction set forth in Section 409(c) or take any other action in this matter. Upon receipt by the State Ethics Commission of a check made payable to Robinson Township, we will close our files in this matter. Unless, however, we are in receipt of this check made payable to Robinson Township within thirty days of the service of this order, we will refer this matter to the appropriate law enforcement officials. 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 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this F, may violate this confidentiality by releasing, discussing or circulating this Order. 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). By th C erb t :. Conner Cha rman Mr. Samuel P. Kamin Law Office of Goldberg & Kamin 1408 Law and Finance Building Pittsburgh, Pennsylvania 15219 Dear Mr. Kamin: EMS /rdp STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 September 10, 1985 I acknowledge receipt of Mildred Blumling's Check No. 522 in the amount of $4,231.50 payable to Robinson Township. This check meets the requirements of Order No. 388 of the State Ethics Commission. In the letter which transmitted this check, you also withdrew your petition for reconsideration of the above order. We are forwarding the check and a copy of our order to Robinson Township. Our files will be closed and Order No. 388 will be a public record as of the date of this letter. A copy of this letter will also be made a part of that public record. Sincerely yours, Edward M. Seladones Executive Director 4 •1