HomeMy WebLinkAbout392 McCaigueMr. Richard T. McCaigue
P.O. Box 31
Coudersport, PA 16915
Re: 84 -52 -C
Dear Mr. McCaigue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
August 5, 1985
Order No. 392
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, Treasurer of Potter County, violated Section 3(a)
of the Ethics Act, 65 P.S. 403(a), which prohibits a public official from
using his public office or confidential information gained through that office
to obtain financial gain other than the compensation provided by law for
himself or a member of his immediate family and or Section 3(c), 65 P.S.
403(c), which requires an open and public process when a public official or
member of his immediate family contracts with his governmental body in an
amount of $500 or more.
A. Findings:
1. You currently serve as elected Treasurer of Potter County, a county of the
Eighth Class. You have served in that capacity since January, 1968.
2. You appointed your wife, Mary McCaigue, to the position of Deputy
Treasurer following your election in 1968 and each subsequent re- election.
She continues in the position of Deputy Treasurer.
a. Power to appoint a Deputy Treasurer is cited in the County Code,
Article VIII, Treasurer, Section 806, 16 P.S. §806.
Section 806. Deputy Treasurer - The county treasurer is hereby
authorized to appoint a deputy county treasurer who shall perform such duties
as shall be prescribed by the county treasurer.
3. You have annually served on the Potter County Salary Board and admittedly
have voted on salary increases for your wife.
Mr. Richard T. McCaigue
Page 2
August 5, 1985
a. You deny that your wife has received any special consideration not
accorded to other county employees, but you admit that her salary may be
higher by virtue of her appointed position of Deputy Treasurer.
4. County Salary Boards were created by the County Code, Article XVI, (b),
Section 1622 to 1625 16 P.S. §1622 et seq., which states:
Section_1622. Salary Boards Created - There is hereby in
each county a salary board, which shall consist of the
three individual members of the board of county
commissioners and the county controller in counties where
there is a controller, or the county treasurer in counties
where there is no controller. The chairman of the board
of county commissioners shall be chairman of the salary
board. The board shall meet and organize on the first
Monday of January of each year.
Section 1623. Number and Compensation of Officers,
Deputies, Assistants, Clerks and Employes. - The board,
subject to limitations imposed by law, shall fix the
compensation of all appointed county officers, and the
number and compensation of all deputies, assistants, clerks
and other persons whose compensation is paid out of the
county treasurer (except employees of county officers who
are paid by fees and not by salary), and of all court
criers, tipstaves and other court employees, and of all
officers, clerks, stenographers and employees appointed
by the judges of any court and who are paid from the
county treasury. Thereupon the number and compensation of
all such officers, deputies, assistants, clerks and
persons, whether fixed by statute or by any other method,
are hereby repealed. In the event that any salary board
shall fail to fix the number or compensation of any such
officers, deputies, assistants, clerks or other employees
as required by this section, the number and compensation
shall continue, as fixed by or pursuant to law, on the
effective date of this act, with like effect as though
the same had been so fixed by the board, but the salary
board shall have power to fix any such number or
compensation at a later time and with like effect.
Section 1624. Revisions of Salary Schedules. - At each
annual meeting, the board shall revise the salary schedule
so far as it shall deem such action necessary. From time
to time between annual meetings, whenever required by any
judge, county officer or executive head of any separate
board, commission or division, the number or compensation
Mr. Richard T. McCaigue August 5, 1985
Page 3
of those deputies, assistants, clerks and employees is
sought to be fixed, the board shall meet and consider and
shall fix and determine the same. All salaries fixed
under the provisions of this act shall be paid out of the
county treasury in the manner provided by law.
Section 1625. Procedure and Action of Board
(a) Except as herein otherwise provided, whenever the
board shall consider the number or salaries of the
deputies or other employees of any county officer or
agency, such officer or the executive head of such agency
shall sit as a member of the board, as long as any matter
affecting his office or agency is under consideration and
no longer.
5. Minutes of the Potter County Salary Board Meeting held on January 12,
1984 confirm the following:
a. Participating were County Commissioners Thomas 0. Bowman, Carl
Roberts and Susan Kefover and Treasurer Richard McCaigue.
b. County employees - Motion by Roberts, second Kefover that the
following salaries be adopted: ...Mary McCaigue - $11,950 /lump sum of
$450. ...Roll call vote: Roberts, Kefover, McCaigue, and Bowman - yes.
Motion carried.
c. This motion also included the salary approval for 15 other county
employees.
d. Discussion: Chairman Bowman stated that from each year hereafter
each employee will receive a $200 increase per year, except where noted. Roll
call vote: Roberts, Bowman, Kefover, and McCaigue, all yes. Motion carried.
Motion Roberts, second Kefover that the salary scale for 1985, 1986 and
1987 automatically increase $200 for each employee, except where noted. Roll
call vote: Roberts, Bowman, Kefover, and McCaigue, all yes. Motion carried.
6. The Potter County Commissioners adopted a Personnel Policy by Resolution
1978 -4 dated April 3, 1978 Section IV, G. Nepotism states:
G. Nepotism
1. No person shall be considered for employment by the County while he
or any member of his immediate family, as defined below, is employed by the
County Commissioners' Office, the Judiciary, or Row Offices, or while he is
related to any elected official or appointed personnel. When four or six
county joinder programs are involved, the Commissioners will make a
determination on a case -by —case basis.
Mr. Richard T. McCaigue
Page 4
August 5, 1985
2. The immediate family is defined to include husband, wife, father,
mother, brother, sister, son, daughter, mother -or father -in -law, brother- or
sister -in -law, son- or daughter -in -law.
3. This section shall in no way jeopardize the job security of those
presently employed by the County.
7. The State Ethics Commission issued an opinion No. 82 -005 on April 20, 1982
to John B. Leete, `Solicitor for Potter County, regarding elected officials in
their capacity as salary board members, voting when the board sets salaries
for their wives, who serve as top -level county employees.
Section V. of that opinion concluded:
V. Conclusion:
The Potter County Sheriff, Register and Recorder, and the
Treasurer are public officials subject to the Ethics Act. Their
direct participation in future salary decisions that affect their
wives respectively, in the latter's employment by the County, would
present the appearance of or potential for conflict of interest. As
a member of the Salary board, therefore, each official must hence-
forth abstain from voting on decisions regarding his wife's
individual salary. The abstention prevents the development of any
conflict of interest, or any appearance thereof, and it furthers the
principles of the Ethics Act.
In addition, the concepts of Section 1 of the Ethics Act apply to the
brother - sister question presented here. Thus, a County Commissioner may not
vote following this Opinion, as a Salary Board member, to set the salary of
her brother, the Director of a County Planning Agency, in order to avoid the
appearance of a conflict of interest.
Pursuant to Section 7(9)(i), this Opinion is a complete defense in
any enforcement proceeding initiated by the Commission and evidence of good
faith conduct in any civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the advice given.
This letter is a public record and will be made available as such.
8. This opinion was requested by the county solicitor on behalf of various
county officials, including the treasurer.
a. You were the county treasurer at the time of this request and
opinion.
Mr. Richard T. McCaigue August 5, 1985
Page 5
b. The opinion issued by the State Ethics Commission and the
restrictions set forth therein specifically related to your activites as the
county treasurer and as a member of the Salary Board.
8. Discussion: As the treasurer of Potter County, you are a public official
within the purview of the State Ethics Act. 65 P.S. §402; Leete, 82 -005; As
such, your conduct and your activities must conform to the requirements
thereof. The Ethics Act provides 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).
This Commission has, on a number of occasions, determined that within the
above provision of law a public official may not vote or participate on
matters directly relating to that official's spouse such as, an appointment or
salary determination. See: Rockovich, 356 -R; Krier, 84 -002; Bruce, 247.
Abstention would be required. These determinations have been founded upon
the above provision of law, particularly when viewed in light of the paramount
intent of the Ethics Act. The Act was primarily intended to ensure that the
financial interests of public officials are not in conflict with, nor appear
to be in conflict with the public trust. 65 P.S. §401.
In the instant situation, you voted, as a member of the County Salary
Board, (on which you sit by virtue of your postion as county treasurer), on
the salary of your wife in 1984 and 1985. Your wife was then serving in the
position of deputy treasurer, a position to which you had apppointed her
following your election in 1968.
We must note that not only did you participate in the salary
determinations for your wife in the aforementioned position, you did so in a
blatant disregard of our opinion in Leete, 82 -005. As noted in the findings
of fact, that opinion was issued by the Commission on the specific activity
outlined in this order. That opinion was issued at the request of the county
solicitor and specifically dealt with, among others, your activity as county
treasurer and as a member of the salary board. The evidence clearly indicates
that you were on notice of this opinion. As such, your disregard of said
opinion was obviously intentional.
Mr. Richard T. McCaigue August 5, 1985
Page 6
Prior to reaching our conclusion in this matter, we feel compelled to
address two issues raised by your counsel.
Your counsel has ind that the county commissioners initi?ted a
personnel policy on April 3, 1978. That policy, in part, deals with and
prohibits "Nepotism" but also has, what your counsel calls a "grandfather
clause ". That provision provides that "this section shall in no way
jeopardize the job security of those presently employed by the County." This
clause, however, deals with the appointment or continued employment of an
official's relative. The Ethics Commission has not challenged the 1968
appointment of Mrs. McCaigue as such appointment predated the Ethics Act
(1978). The Commission here is dealing not with this person's continued
employment but rather with your participation in the determination of her
salary. Nothing herein deals with the issue of job security and the
"grandfather clause ", while purporting to allow such continued employment does
not authorize your participation in the fixing of such compensation.
In addition thereto, even if the Commission determined that such
continued employment was in violation of the Ethics Act, the township
personnel policy may and cannot take precedent over a state statute. See,
Commonwealth v. Ashenfelder, 413 Pa. 517 (1964); Rosevelt Drive -In- Theater
Inc. v. Middletown Township, 67 D & C 2d 561, (1974).
Thus, the personnel policy could not allow that which is prohibited by
state statute. See also 65 P.S. §412.
With respect to the fact that your vote was not the deciding vote, the
Commission does not agree with the contention that no violation of Section
3(a) could occur because 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. Your
interests in and of itself creates a disqualification. Genkinger v. City of
New Castle 308 PA 547. (1951)
Finally, with respect to the proposition that the County Code, 16 P.S.
§1625, permits Board members to set salaries of various office employees
without exception, the Commission observes as it did in the Leete opinion that
Section 12 of the Ethics Act gives the Act a pre - emptive capacity. If the
provisions of the Act conflict with any other statute, the provisions of the
Act shall control. 65 P.S. §412.
In light of the foregoing, we believe that you violated Section 3(a) of
the Ethics Act.
Mr. Richard T. McCaigue August 5, 1985
Page 7
The Act provides as follows:
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).
In addition thereto the Commission has the power to:
Section 7. Duties of the commission.
(11) Make recommendations to law enforcement officials
either for criminal prosecution or dismissal of charges
arising out of violation of this act. 65 P.S. 407(11).
C. Conclusion: You violated Section 3(a) of the Ethics Act when you voted
to increase the salary of your wife who served in your office as deputy county
treasurer. In accordance with the provisions of the Ethics Act, this matter
will be referred to the appropriate law enforcement authority with the
recommendation that you be prosecuted for violations of the State 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 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 Order, 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).
JJC /sfb
By the Co missio
erb: t B. Conner
Cha rman