HomeMy WebLinkAbout399-R MarcinekMr. Joseph F. Marcinek
R.D. 41, Rox 12.0 -B
Vanderbilt, PA 15486
Re: Order No. 399, File No. 83 -177 -C
Dear Mr. Marcinek:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
RECONSIDERATION ORDER OF THE COMMISSION
June 16, 1986
Order No. 399 -R
This refers to the request for Reconsideration presented on May 22, 1986,
with respect to the above-captioned Order issued on May 9, 1986, pursuant to
51 Pa. Code 2.38. The discretion of the State Ethics Commission to grant
reconsideration is properly invoked, pursuant to our regulations, 51 Pa. Code
2.38(h) when:
(h) Any party may ask the Commission to reconsider an Order within 15
Mays of service of the Order. The person requesting reconsideration
should present a detailed explanation setting forth the reason why the
Order should he reconsidered. Reconsideration may be granted at the
discretion of the Commission only where any of the following occur:
(1) a material error of law has been made;
(2) a material error of fact has been made;
(3) new facts or evidence are provided which
would lead to reversal or modification of
the order and where these could not he or
were not discovered previously by the
exercise of due diligence.
The Commission, having reviewed your request, must DENY your request
because none of these circumstances are present.
You have specifically indicated that the Pennsylvania House of
Representatives has recently passed a hill, House Rill No. 2247, Printer's
Number 3087 and that such hill should he considered in reference to the
specific facts of the currently pending matter. Pursuant to that proposed
legislation, a township supervisor would not he prohihited from voting for his
own appointment as township secretary, treasurer, secretary /treasurer,
roadnaster or laborer if such memher is serving on a township hoard of
supervisors cnn'isti,ig of three individuals. Apparently you now seek the
extension of this concept by the Pennsylvania State Ethics Commission to allow
a memher of a township hoard of supervisors to appoint his wife to a
compensated position within the township.
►4r. Joseph F. Marcinek
Page 2
June 16, 1986
In relation to your argument, the bill currently pending before the House
of Representatives does not in fact authorize or extend this principle beyond
a township supervisor's action in relation to himself. The concept and theory
that has resulted in the promulgation in this proposed legislation is that on
a township hoard of supervisors with three members, the effective operations
of a township could he curtailed in townships consisting of three supervisors
in that supervisors are specifically authorized to he appointed to said
position. In the instant situation, however, there is no similar provision in
the Second Class Township Code indicating that the wife of a township
supervisor, or for that matter any other member of his immediate family, is
authorized to serve in that position. The effective operations of the
township would not be deterred if a township supervisor is restricted from
voting for his wife or other immediate family members as an employee of the
township. The purpose and intent of the proposed legislation does not
encompass or in any way impact upon the current situation. As a result, it is
our belief that the proposed house bill, even if passed, would not alter or
otherwise affect the current situation. You have not provided any additional
information which would otherwise lead us to reach a conclusion different than
that set forth in our order. Generally the facts remain uncontested and the
minutes of the township hoard of supervisors clearly reflects your actions in
relation to the appointment of your wife to the compensated position of
township roadmaster.
while the township hoard of auditors did in fact fix the salary to he
paid to supervisors who serve as roadmasters, the auditors never mentioned the
salary of a roadmaster who is not a supervisor. While the supervisors may
have followed the wages approved by the auditors for roadmasters /supervisors,
the auditors did not approve the wages for your wife. Additionally, you have
alleged that the fact that your vote was not determinative in this matter
should alleviate all Ethics Act considerations. This Commission has
consistantly held that regardless of whether an individual public official's
vote is determinative in a matter, the fact that he votes for the appointment
of his immediate family member to a compensated position within the township,
would violate the provisions of the State Ethics Act. See McCaigue, 392 -R.
Finally, you have argued that the Pennsylvania State Association of Township
Supervisors was contacted prior to the appointment and you advise that you
were informed by that association that the appointment of your wife to the
position of township roadmaster was a legal appointment. This Commission,
however, has not contested the legality of your wife serving as roadmaster hut
has only made its decision in relation to your actions as a puhlic official in
voting for that appointment._ There has been no evidence presented that you
were told that you could vote for your wife's appointment. Additionally, the
courts of this Commonwealth have heen adamant in upholding the principle that
good faith reliance upon the advice of a township solicitor or a state
association does not result in the official's action becoming justified. See
McCutchenn v. State Ethics Commission, 77 PA. Commw. 529, 466 A.2d 283,
(1,4'32).
Mr. Joseph F. Marci nek
Page 3
A review of the ahove indicates that there has been no material error of
law or fact.
In light of the foregoing, the State Ethics Commission concludes that
your request for reconsideration must be DENIED.
Our Order and this decision denying reconsideration are final and shall
he made availahle as public documents on the fifth husiness day following the
date of this Order.
By:the Commission,
.e39.wt.en.
G. Sieber Pancoast
Chairman
Note: For public information purposes, Order No. 399 -R, issued
May 9, 1986, is attached.
June 16, 1986
Mr. Joseph Marcinek
R.D. #1, Rox 120 -R
Vanderbilt, PA 15486
Re: 83 -177 -C
Dear Mr. Marcinek:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
May 9, 1986
Order No. 399 -R
The State Ethics Commission has received a complaint regarding you and a
possihle 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 as a Supervisor in Franklin Township, you used your
public office for the henefit of yourself or members of your family, namely hy
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
suhject 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 passers 2 to 0,
you voters with the majority. Malosky abstained.
motion Malosky, second hy you, that suhject to auditor approval, the
roadrnaster's pay will he $40 per day with a 49 allowance for the use
of the supervisor's car. Passed unanimously and you voted.
Mr. Joseph Marci nek
Page 2
b. January 3, 1983: Motio v Seese, second Malosky, that Malosky,
Seese and Eva Marci nek `e appointed roadmasters. Eva Marci nek to
serve until you were ab -e :o return to your duties. Motion passed
unanimously and you voted.
Motion by you, second by ' that the roadmasters would be paid
$40 per day with a $10 _er day car allowance subject to auditor's
approval. Passed unani- ously, you voted.
c. January 3, 1984: Motioi by Malosky, second by Lerch, that Malosky,
Lerch and Eva Marci nek "De appointed roadmasters. Eva Marci nek to be
appointed until you cou-d return to your duties. Motion passed
unanimously and you voted.
Motion by Malosky, seco -d oy 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. The township board of auditors fixed the wages for supervisors serving as
roadmaster.
5. Township payroll records show tie following payments to your wife, Eva
Marci nek : a
a. 1982, totoal gross pay S9,)30.
b. 1983, total gross pay $ 5.
c. 1984, up to and includi -g September; total gross pay $6,956.
6. Before the original appoint of your wife, i n 1982, you
Pennsylvania State Association of Township Supervisors and that the
appointment was legal.
7. Your son was also appointed zo a labor position with the townshi a
worked from April until June, 19-31. P and
a. His hiring was not done at a public meeting:
b. He is not a minor, nor a _apendent child.
B. Discussion: As an elected .-
� � -
pubiic off ici al as that teen is in in Franklin Township, you are a
§402. Your conduct as a public : f=icia l l is t therefore E subject c to and must . 65 P.S.
conform to the requirements of : ^e Act. Sowers, 80 -050.
Mr. Joseph tearcinek
Page
Generally, the Ethics Act provides that:
Section 3. Restricted activities.
(a) No puhlic official or puhlic employee shall use his
puhlic office or any confidential information received
through his holding public office to ohtain financial gain
other than compensation provided by law for himself, a
memher of his immediate family, or a husiness with which
he is associated. 65 P.S. 403(a).
A memher of ones immediate family is defined as:
Section 2. Definitions.
May 9, 1986
"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 ahove provisions
of law,_ a township official may not participate to any extent in the selection
process of a memher 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 heing
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 he paid to a
memher of his immediate family if such memher 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, 1982 to January, 1984 inclusive. In 1982,
the vote was 2 -0 and your vote was determinative.
we do note that you had requested the advice of your state association
prior to the appointment of your wife to the position °of township roadmaster
in 1982. You were apparently advised that such appointment was aprropriate
While this may he so, there was no indication that you were advised that it
would he proper for you to vote for that appointment.
In any event, even a good faith reliance upon the advice of the
association has been held to he no justification for the type of activity in
question here. ticCutcheon v. State Ethics Commission, 77 Comm. 529, 466 A.2d
283, (1983).
Mr. Joseph Marcinek
Page 4
May 9, 1986
In r :i ation to this matter, it is clear that you voted on a matter in
which you had a direct financial interest. In at least one year your vote was
a deciding vote. As such, there can be no doubt that you violated the State
Ethics Act.
While we helieve that the compensation your wife received should he
returned to the township, at least in relation to the year in which you were
the deciding vote, we have reconsidered the imposition of this requirement as
a direct result of this order and have decided to refer this matter to an
appropriate law enforcement authority for further review and determination as
to whether further proceedings shoud he initiated.
C. Conclusion: As previously concluded, we helieve that your votes to
appoint your wife to the compensated position of township roadmaster were not
in accord with the State Ethics Act. We have decided to forward this matter
to the appropriate authority for a determination as to whether further
proceedings should to initiated.
Our files in this case will remain confidential in accordance with
Section R(a) of the Ethics Act, 65 P.S. 408(a). However, this 0rder is final
and will he 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).
Ry the Commission,
C. Sieber Pancoast
Chairman