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HomeMy WebLinkAbout455 BeckwithMr. Gilbert P. Beckwith Tyrone Rorough Councilman 2.00 E. 12th Street Tyrone, PA 16686 Re: No. 84 -130 -C 1)N STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION march 3, 1986 Order No. 455 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 as a councilmember in Tyrone Rorough you Used your office for personal financial gain other than compensation provided by law in that you were instrumental in the borough's decision to remove the borough manager and to have yourself appointed temporary manager and to secure the salary and /or henefits associated with this position. A. Findings: 1. You have served as an elected councilmember in Tyrone Borough since 1978. Your term of office will expire at the end of December, 1985. 2. You also served as vice - president of council in 1483 and until January 27, 1Q84, when you resigned that position. 3. You served as acting borough manager from January 27, 1984, to September 17, 1984. 4. Tyrone Borough is governed by Home Rule Charter, which was approved by the voters in the May 18, 1982 primary election. a. The Home Rule Charter went into effect after that election. tir. Gi 1 bert Reckwi th Page 2 March 3, 1986 5. The Home Rule Charter, Article VIII, Sections 801 to 804, authorizes the appointment of a borough manager by council to supervise the day -to -day operations of the horough. a. Section 801 states council shall appoint a borough manager for an indefinite period and shall fix compensation. Appointment to be made solely on the basis of executive and administrative qualifications. h. Section 802 states that council may remove the borough manager at any time, with or without cause. c. Section 803 provides for the appointment of an acting borough manager. That section states that council may appoint any one of its members or any other officer or employee of the horough as, acti ng borough manager. Compensation to be set by council. d. Section 804 spells out the powers and duties of the borough manager and states that he shall he the chief administrative officer of the borough. 6. The Home Rule Charter, Article III, Section 303 prohibitions also states: a. A member of council shall not hold any other compensated borough office or he employed by the borough or act as a paid consultant to the horough, either during his term of office or until after the expiration of his term of office if, for any reason, he does not complete said tern. 7. Sometime after the May, 1982 passage of the Home Rule Charter, Borough Secretary Ray Irvin was appointed Acting Borough Manager. 8. Minutes of Tyrone Borough Council meetings confirm the following: a. March 2.8, 1983: Special Session. (1) - Finance -Legal Committee chairman reports that the committee recommends dismissal of Ray Irvin, Acting Borough "tanager. (2) - Motion Myers, second Beckwith to accept the recommendation. Roll call vote, 8 yes and 5 no. (3) - tiotion by you, second Myers to appoint Barbara George, Acting Borough Manager. Motion carried. (4) W Council President. Beals appointed committee of Thomas, Werner, James, Walsh and himself to take action to secure a borough manager. Mr. Ci 1 hert Reckwi th Page 3 b. April 11, 1983 (1) - You introduce Sam Harris, Affirmative Personnel Planning Associates. Harris explains fees and that his firm will select the top (3) applicants for council's consideration for borough manager. (2) - P1otion Beckwith, second Werner to appoint Affirmative Personnel Planning Associates. Motion carried. c. July 11, 1983 (1) - Reckwith, Chairman of Special Committee for selection of borough manager reported that the committee and consultant completed interviews July 2, 1983 and recommended to a roundtable meeting of council on July 5, 1983 an individual for the job. (2) - Motion by you, second James to accept recanmendation and approve the hiring of Joseph Dunn for the position of borough manager at a salary of $28,000/yr. Motion carried unanimously. d. January 27, 1984: Special Session. March 3, 1986 (1) - IDunn's letter of resignation, effective January 27, 1984, read by Mayor Beals. (2) - Motion Walsh, second Thomas to appoint you temporary borough manager. Roll call vote 5 yes, 1 no, 1 abstain (Beckwith). (3) - Wages for you referred to Legal- Finance Committee for future meeting. (4) - Walsh states council needs vice - president since you are now borough empl oyee. (5) - Motion Isenherg, second Werner to appoint Thomas Vice- President of Council. Roll call vote 5 yes, 2 ahstain (Thomas, you), e. February 13, 1984 (1) - Beals reports Legal- Finance Committee asks council's approval of wages for acting horough manager in an amount of $300.f0/wk, (2) - Beals reads letter form councilmemher Thomas stating she would take the duties of acting horough manager without pay. Mr. Gilbert Beckwith Page 4 March 3, 1986 (3) - Werner asks if the $300 salary would be net or gross. Beckwith stated, gross, (4) - Hall states there is a misunderstanding in the community. We need someone who is completely administrative. This is a temporary arrangement. We cannot pay an adequate salary because Beckwith is not a professional. Applications will be accepted until February 29, 1984, hope we can make a selection soon. Mr. Blair from DCA will sit in on interviews, but council will make the decision. (5) - Motion Hall, second Isenberg to employ you on a temporary basis with $300 /wk. gross pay. Motion carried 4 to 1. You were not listed as councilmember for this meeting, but you attended. You state that you continued as a councilmember. (6) - Your appointment as temporary borough manager was questioned by a citizen who inquires about your qualifications. Solicitor Bigelow states, the controlling section does not contain education qualifications. f. April 9, 1984: You, as acting borough manager and head of selection committee, report that all five candidates for borough manager have been notified of interviews on April 28, 1984. g. May 30, 1984: Special Session. (1) - Mayor Beals reports that you wish to have wages increased to $20,000 /yr. with all benefits retroactive to May 14, 1984. (2) - Lengthy discussion follows. Mayor Beals questions when interviews for borough manager were to he scheduled. You report interviews set -up for two applicants for June 8, 1984. (3) - Motion Dawson, second Isenberg to accept increase for Beckwith until a permanent position is filled. Motion carried unanimously. h. June 11, 1984: You report there are (5) interviews for borough manager scheduled for June 15, 1984. is July 11, 1984 (1) - Resolution No. 252 pertaining to you as councilman and acting borough manager. Motion Isenberg, second Dawson to accept the resolution. Roll call vote, (7) yes, (1) abstain (Beckwith). Mr. Gil Bert Beckwith Page 5 • J. • March 3, 1986 (2) - Resolution No. 2.52 affirmed council's intention that you serve as acting borough manager and continue to serve as a councilmember until a borough manager could be employed. (3) - Citizen questions wty you were in a council seat when after six months you were acting borough manager. Solicitor Bigelow explains that you are still a councilperson, and your seat was never vacated. August 13, 1984 (1) - Solicitor Bigelow reads agreement with Dennis Barr for the position of borough manager. (2) - Motion Walsh, second Beckwith to have the proper officials sign the necessary agreement. Roll call vote, motion passed unanimously. k. September 10, 1984 - Ordinance No. 885 passed by council approving the hiring of James DiBasilio as borough manager and the setting of compensation and benefits effective September 17, 1984. 9. The minutes reflect that for council meetings held in March, April , May and June of 1984, you are not listed as a voting councilmember. a. You were present at those meetings but acted in the capacity of acting borough manager. 10. You began affirmatively excercising duties of councilmemher at the July 11, 1984 meeting following considerable inquiry as to the vacancy of your council seat. a. Resolution No. 252 was passed at that meeting. b. At the January 27, 1984 meeting, Solicitor Bigelow initially advised that you should resign as vice - president of council and cautioned you against voting while acting as manager. c. Solicitor Bigelow changed his opinion which prompted the drafting of Resolution No. 252. 11. Payroll records obtained at the Tyrone Borough Building confirm that you were on the borough payroll frail the pay period ending February 12, 1984 to the pay period ending September 23, 1984. You were paid as follows: Mr. Gil bert Beckwith Page 6 March 3, 19R6 a. Pay period ending February 12, 1984 to period ending June 3, 1984 - gross salary $600.00, net $528.31 hi- weekly. b. Pay period ending June 17, 1984 to period ending September 23, 1984 - gross salary $858.81, net $72.0.58 bi- weekly. c. Total salary received - gross $12,270.48. 12. On June 29, 1984, James H. Bigelow, Solicitor for Tyrone Borough wrote to Edward M, Seladones, Executive Director, State Ethics Commission stating that you were employed in accordance with Section 803 of the Tyrone Borough Home Rule Charter. He noted that this Section provides: "During the period of any vacancy in the office of Borough Manager or during the period of his absence or incapacity, the Council may appoint any one of its own members or any other officer or employee of the Borough as acting Borough Manager. The acting Borough Manager shall then exercise the powers and perform the duties of the Borough Manager and receive compensation at a rate to he set hy Council." He did not cite or discuss Section 303. (See finding No 6). 13. Records confirm that . council placed advertisements seeking a manager in various newspapers throughout Pennsylvania effective February 5, 1984. a, The ads requested a reply to Search Committee, 200 East 12th Street, Tyrone, PA. That address is your home address. b. Resumes were accepted until February 29, 1984. c. There is no record identifying the selection committee members. d. During this period Mr. Dennis Barr, candidate selected hy council , (See finding No. 8 J(11) also received anonymous phone calls and newspaper clippings relating to the borough manager's position. c. Mr. Barr decided not to accept the position. 114, You as well as other councilmembers confirm that as of March 2, 1984 (58) applications were received by you. a. All applications were suhject to review by council. Mr. Gilbert Reckwith Page 7 march 3, 1986 b. Applicants to be interviewed was reduced to (5) and interviews scheduled April 28, 1984. (1) Only (3) applicants appeared for the April 28, 1984 i ntervi ews . c. Additional applicants were reviewed by council on May 17, 1984. d. Interviews for applicants were to be completed by July, 1984. 15. Mr. Dennis Barr was interviewed on July 13, 1984 by you and other members of council. a. Mr. Barr stated he required a three year contract with a one year severance pay. b. Mr. Barr was interviewed a second time. c. During this period, you attempted to have Mr. Barr agree to a one year or eighteen month contract. 16. You state that you resigned from the selection committee, but there is no record of your resignation; but there is evidence that you were negotiating with Mr. Barr at least during July, 1984. 17. In mid -May, 1984, it was reported that you were considering applying for the job as borough manager. a. You stated you were encouraged to reply and were quoted as stating you had the endorsement of the Tyrone Area Chamber of Commerce. (1) The Tyrone Area Chamber of Commerce denied giving you such an endorsement. b. You announced on May 16, 1984, that you would not accept the borough manager's joh. (1) You did not submit an application for the position. 18. At the September fol1owi ng the passage September 17, 1984. ( R. Discussion: As a official as that term As such, your conduct 84 -012. 10, 1984, meeting of council a horou of Ordinance No. 885. The hiring wa Related to 8K). member of_the Tyrone Borough Council is defined in the State Ethics Act. must conform to the requirements of gh manager was hired s effective you are a public 65 P.S. 5402. the Act. Davis,, Mr. Gilbert Beckwith Page 8 The State Ethics Act provides as follows: 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). Section 303. Prohibitions A member of Council shall not hold any other compensated Borough office or be employed by the Borough or act as a paid consultant to the Borough, either during his tem of office or until after the expiration of his term of office, for any reason he does not complete said tern. Section 803. Acting Borough Manager During the period of any vancancy in the office of Borough. Manager or during the period of his absence or incapacity, the Council may appoint any one of its own members or any other officer or employee of the Borough as acting Borough Manager. The acting Borough Manager shall then exercise the powers and perform the duties of the Borough Manager and receive compensation at a rate to be set by Council. March 3, 1986 Within the above provision of law, a public official may not use their position in order to obtain any financial gain other than the compensation provided for by law. A public official may not use confidential information obtained in their public position for similar purposes. This Commission has on previous occasions determined that when a public official accepts, in his public position, financial gain including compensation to which he is not entitled, such acceptance constitutes a violation of the State Ethics Act. See Moiling No. 388, Domalakes, 85 -010. As a result, the key factor to be determined in the instant matter is whether you, in your public position, accepted or received any compensation or financial gain to which you were not entitled. As a result of a voter referendum in May, 1982, the Borough of Tyrone adopted a Home Rule Charter form of goverment in accordance with the Home Rule Charter and Optional Plans Law, 53 P.S. 1.101 et. seq. Of particular interest in the Charter that was adopted by the Borough of Tyrone are the following sections: Mfr. Gilbert Reckwi th Page 9 March 3, 1986 Clearly, the above provisions of the Home Rule Charter conflict insofar as they regard the compensation of a member of borough council who is holding another borough office. Section 303 of the Charter specifically prohibits a member of borough council from holding any other compensated borough office or position. Section 803, however, appears to allow a borough councilperson to be appointed as acting Borough tanager and receive compensation therefor. Section 803 does not specifically require that the borough councilperson resign his borough council office while serving in this acting position. You apparently accepted the position of borough manager based upon Section 803 of the Charter. As noted, that Charter is not clear as to the specific intent of its drafters. You were appointed to the borough manager position in January of 1984. This, accordi ng to the mi nutes of the special meeting, was a temporary appointment. You did not participate in the vote to appoint yourself to this position. The borough council did not then fix the wages for this position hut rather referred the compensation issued to the Legal Finance Committee. In February, 1984 that canmittee fixed your salary at $300 per week. You did not participate as a councilmemher in any of the matters relating to the fixing of salary. You then proceeded to perform functions and duties as borough manager. You also, in the position of borough manager, assumed responsibility for the hiring of a permanent borough manager. You accepted the resumes of these i miividual s and a borough manager was hi red in September of 1984. We also not that the minutes for the borough council meetings for March through June of 1984 did not list you as a voting councilmemher. You were present at these meetings but acted in the capacity of acting borough manager. In `ray of 1984, you officialy announced that you were not a candidate for the bo"ouc:i manager's position. Based upon the totality of the circumstances t:',at •we have reviewed in this matter, we do not find sufficient evidence to beli that you violated Section 3(a) of the State Ethics Act. Of particula» concern to the Commission, however, is the conflicting nature of the Home :tile Charter regarding the activities of a borough councilmemher. Strictly read, the Charter appears to prohibit you as a borough council member from re,:e, ing any other compensation for serving in a borough office. If this in fact were the only provision of the Home Rule Charter that was to he considerM =n this matter, you clearly would have received compensation, in the " )ro .igh manager's position, that was not provided for by law and your re, of such would have been in violation of the State Ethics Act. However, Se.:tion 803 of the Charter apparently authorizes members of borough c ou—:il to receive compensation when serving as acting borough manager. This 'c:'on of the law does not require that you resign your position as counci' -'eon. This provision, however, appears to he in direct conflict with the fo O ng provision of the Charter. Neither you nor the members of borough coup; - 11 considered Section 303 when they appointed you as acting borough manager. lack of consideration has resulted in the public perception that you had , i:'ated that particular section of the Home Rule Charter as well as the Ste _thics Act. We believe that the potential public perceptions should have - i considered by both you and the borough council when acting in this ma: -�- The perception that you have violated the law was heightened by the fact -'•>: the period of time that elapsed in hiring Mr. Gilbert Beckwith Page 10 of a borough manager allowed you to collect in excess of $12,000.00 as a salary. Additionally, your request for a raise when serving as a borough manager created further misperceptions in this situation. While we do not believe that you violated the State Ethics Act. We do remind you that you should he constantly cognizant of public perceptions and act so as to strengthen the faith that the citizens have in their public officials. C. Conclusion: Based upon the foregoing factors and the relevant provisions of law, we do not believe that you violated the State Ethics Act when you served as acting borough manager when you were still serving as a borough councilperson. We note specifically that this result is occasioned by virtue of the fact that the Borough of Tyrone is governed by a Home Rule Charter, and the Charter apparently permits the receipt of compensation by a borough councilmemher for serving as a temporary acting borough manager. 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 he fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e), the ' om • ssi on, Herber Chai an nner March 3, 1986