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HomeMy WebLinkAbout399 MarcinekMr. Joseph Marcinek R.D. #1, Box 120 -8 Vanderbilt, PA 15486 Re: 83 -177 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Aug "st 14, 1985 Order No. 399 Dear Mr. Marcinek: 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, conlcusions, and findings on which those conclusions are based are as follows: I. Allegation: That as a Supervisor in Franklin Township, you used your public office for the benefit of yourself or members of your family, namely by voting to or being instrumental in the Township's hiring /employment of your wife as roadmaster and your son on the road crew, thereby violating Section 3(a) or 1 of the Ethics Act, 65 P.S. 403(a) or 401 or Section 3(c) of the Ethics Act, 65 P.S. 403(c). A. Findings: 1. You serve as a supervisor of Franklin Township and as such you are subject to the provisions of the State Ethics Act. 2. You also served as roadmaster until the end of December, 1981. 3. Township minutes record the appointment of your wife as roadmaster beginning in January, 1982. a. January 4, 1982: On your motion, second by Seese; Seese, Malosky and Eva Marcinek were appointed roadmasters. Eva Marcinek was to serve until you were able to resume your duties. The motion passed 2 to 0, you voted with the majority. Malosky abstained. Motion Malosky, second by you, that subject to auditor approval, the roadmaster's pay will be $40 per day with a $9 allowance for the use of the supervisors car. Passed unanimously and you voted. Mr. Joseph_Marcinek Page 2 August 14, 1985 b. January 3, 1983: Motion by Seese, second Malosky, that Malosky, Seese and Eva Marcinek be appointed roadmasters. Eva Marcinek to serve until you were able to return to your duties. Motion passed unanimously and you voted. Motion by you, second by Malosky, that the roadmasters would be paid $40 per day with a $10 per day car allowance subject to auditor's approval. Passed unanimously, you voted. c. January 3, 1984: Motion by Malosky, second by Lerch, that Malosky, Lerch and Eva Marcinek be appointed roadmasters. Eva Marcinek to be appointed until you could return to your duties. Motion passed unanimously and you voted. Motion by Malosky, second by Lerch to increase the roadmasters pay by $3 per day and the car allowance by $2 per day subject to auditor's approval. Passed unanimously, you voted. 4. Township payroll records show the following payments to your wife, Eva Marcinek: a. 1982, total gross pay $9,030. b. 1983, total gross pay $9,815. c. 1984, up to and including September; total gross pay $6,956. 5. Before the original appointment of your wife, in 1982, you contacted the Pennsylvania State Association of Township Supervisors and were told that the appointment was legal. 6. You son was also appointed to a labor position with the township and worked from April until June, 1981. a. His hiring was not done at a puhlic meeting. b. He is not a minor, nor a dependent child. B. Discussion: As an elected Supervisor in Franklin. Township, you are a public official as that tenn is defined in the State Ethics Act. 65 P.S. §402. Your conduct as a puhlic official is therefore subject to and must conform to the requirements of the Act. Sowers, 80 -050. Generally, the Ethics Act provides that: Section 3. Restricted activities. (a) No public official or public employee shall use his puhlic office or any confidential information received Mr. Joseph - Marci nek Page 3 August 14, 1985 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). A member of ones immediate family is defined as: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. The Commission has previously determined that within the above provisions of law, a township official may not participate to any extent in the selection process of a member of his immediate family as a township employee. The Commission has also stated that such abstention includes not participating in discussions, motions, or voting in relation to any other candidate being considered as well. O'Reilly, 83 -012. Additionally, the Commission has determined that such an official may similarly not participate in the fixing of the compensation to be paid to a member of his immediate family if such member is appointed. Leete, 82 -005. The facts as set forth previously indicate that you, as a township supervisor, voted to appoint your wife, a member of your immediate family, to the position of township roadmaster. This action took place in three consecutive years, from January, 198X to January, 1984 inclusive. You also, on these occasions, voted on the compensation to be paid to the roadmaster. As a result, your wife received a total of $25,801 compensation for the above years. Under the above circumstances, we find that you violated Section 3(a) of the Ethics Act by using your public position to obtain financial gain for a member of your immediate family. Regarding the appointment of your son to a position on the township roadcrew, we find no violation of the act in that he is not a minor or dependent child and therefore not a member of your immediate family as set forth in the Act. Section 9. Penalties. (a) Any person who violates the provisions of Section 3(a) and (h) 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). Mr. Joseph Marcinek _Page 4 erb• rt B. Conner Chai rman (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). Additionally, the Commission may make 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. C. Conclusion: You violated Section 3(a) of the State Ethics Act when you, as a township supervisor, voted to appoint yourwife township roadmaster. The financial gain obtained thereby was not compensation provided by law. You must, therefore, return all such compensation to the township. Our = calculations indicated this amount to be $25,801. Unless, within thirty days of the date of service of this order, you remit to the State Ethics Commission a check made payable to Franklin Township in the above amount, we will refer this matter to the appropriate law enforcement officer for potential prosecution. Upon receipt of said check, we will take no further action in this matter. 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). By the Co mi ssio E'1S /sfb August 14, 1985