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HomeMy WebLinkAbout457 GabigMr. Jack Gahig c/o Rohert L. Ceisler, Esquire 321 Washington Trust Building Washington, PA 153C1 Re: R5- 085 -C, Order No. 457 Dear Mr. Gabig: EMS /rdp Enc. Mailing Address State Ethics Commission 308 Finance Building P. C. Box 11 470 Harrisburg,, Pa. 17108 -1470 May "2.; 1986 This refers to the ahove captioned matter in which you had requested reconsideration. As a result, the Commission has granted and completed such reconsideration and has issued Order No. 457 -R, a copy of which is enclosed. Pursuant to State Ethics Commission regulations, 51 Pa. Code 2.38(a), that Order and this letter evidencing reconsideration are iinl and will be made available as puhlic documents three business days after service. Sincerely, Edward M. Seladones Executive Director State Ethic Commission • 308 Finance Budding • Harrisburg, Pennsylvania Mr. Jack Gabig c/o Robert L. Ceisler, Esquire 321 Washington Trust Building Washington, PA 15301 Re: 85 -085 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION May 2, 1986 Order No. 457 -R Dear Mr. Gabig: 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 supervisor of Union Township, violated Section 3(a) of the Ethics Act which prohibits a public official's use of office or confidential information gained from that office to realize financial gain other than compensation allowed by law for himself, a member of his immediate family or a business with which he is associated when you voted to appoint yourself as township roadmaster. A. Findings: 1. You served as supervisor of Union Township at least since 1981 and are subject to the requirements of the State Ethics Act. 2. You have also served as a part -time township roadmaster from January, 1982 to December, 1983 and a full -time roadmaster since January, 1984. 3. Minutes of township meetings record the following actions to appoint roadmasters. a. January 5, 1981: Motion by you second by Spahr to appoint Daniel Nurnherger as roadmaster. Motion carried unanimously. h. January 4, 1982: Motion by Speer second by Spahr to appoint five supervisors as roadmasters for 1982. Motion carried unanimously. Mr. Jack Gabig Page 2 May 2, 1986 c. January 3, 1983: Motion by Speer second by Spahr to appoint all five supervisors as roadmasters for 1983. Motion carried unanimously. d. January 3, 1984: Motion by Speer second by Nurnberger that all five supervisors be appointed roadmasters for 1984. Motion carried unanimously. e. January 7, 1985: Motion by "Spahr" second by Nurnberger that all five supervisors be appointed roadmaster employees for 1985. Motion carried unanimously. 4. The township minutes reflect the following action on hourly wages: a. January 3, 1983, a motion by Speer, second by Parish, a $6.80 hourly rate was suggested for roadmasters. The motion passed 4 to 1. You voted against the motion. (1) The auditors approved this rate through a notation on the township minutes. The notation was signed by three auditors. b. January 3, 1984: Motion by Speer, second by Spahr, council suggested an hourly rate of $7.15 for supervisors serving as roadmasters. The motion passed unanimously and you voted. (1) The auditors approved this rate by way of a notation on the supervisors' minutes. Three auditors signed their approval. c. January 7, 1985: On motion by Spahr, second by Parish, an hourly rate of $9.11 was suggested for supervisors serving as roadmasters. (1) On January 8, 1985, the auditors approved this rate through a notation on the bottom of the supervisors' minutes. 5. The township was not divided into road districts in 1983, 1984, or 1985. 6. The township payroll records show that you were paid as follows: a. 1983 - Gross pay: $2,184.50. (1) There is no hourly rate identified. (2) No work title is shown. b. 1984 - Gross pay: $13,743.04. Mr. Jack Gabig May 2, 1986 Page 3 (1) Pay range shown are $7.15 and $9.11 for regular time and $10.73 for overtime. (2) No working title is shown. c. 1985 - Gross pay: $18,706.39 (1) Pay range shown are $9.11 for regular time and $13.67 hourly for overtime. (2) Your work title is shown as roadmaster. B. Discussion: As a township supervisor in a township of the second class, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. As such, your conduct must conform to the requirements of the Act. Sowers, 80 -050. Generally, 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). We have previously ruled that a township supervisor may not participate in any matter in which he has a pecuniary interest. As such, we have determined that a township supervisor, for example, may not vote to appoint himself to a position of employment within the township if he is to be compensated therefor. See King, 85 -025. It is without question that a township supervisor in a second class township is eligible to serve as the roadmaster at the same time that such person serves as township supervisor. 53 P.S. §65514. Specifically, the township code provides for such employment. It is also clear that the compensation of a township supervisor, who serves in that position, must be fixed by the township board of auditors. 53 P.S. §65514. While the General Assembly, through the Second Class Township Code and the aforecited provisions of that code, have clearly provided that township supervisors shall be eligible to hold the position of township roadmaster, no specific indication of whether a township supervisor may participate in their own appointment was provided for in the township code. As a result, our interpretation of whether such activity is permissible must be based upon the legislative intent of the Second Class Township Code provisions as well as the State Ethics Act. Mr. Jack Gabig Page 4 May 2, 1986 We have, as noted above, interpreted these provisions of law and have determined that the township supervisor serving in a township of the second class may not participate or otherwise vote to appoint him or herself to a position of employment in the township when that individual will receive compensation for serving in such position. Our analysis of this particular situation is fully set forth and outlined in our Opinion in King, 85 -025 and that analysis will be incorporated herein by reference. We do note that Section 1 of the State Ethics Act provides as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. The intent and purpose of the Ethics Act was clearly based upon the long line of judicial decisions which have set forth the principle that whenever.a public official has a direct personal interest in a matter under consideration by the public body on which they are serving, such official is disqualified from voting thereon. See Reckner, et. al., v. German Township School District, 341 Pa. 369, 19 A.2d 402, (1941). See also, Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303, (1951); McCreary v. Major, 343 Pa. 355, 22 A.2d 686, (1941); Commonwealth v. Raudenbush, 249 Pa. 86, 99 A. 555 (1915); Meixell v. Hillardtown Borough, 370 Pa. 420, 88 A.2d 594, (1952). The Second Class Township Code does not mandate that the roadmaster be a township supervisor. It merely permits that situation to occur. In this respect, the township board of supervisors or a majority thereof have the discretion to appoint a roadmaster who is not a member of the board. Thus, a township supervisor who votes for him or herself to secure the position of roadmaster could be considered to be placing oneself in conflict with the public trust. This is particularly so if the position of roadmaster has in the past been one for which compensation has been fixed by the board of auditors. It could, thus, be perceived that the township supervisor would be placing himself in a position to receive compensation even though that person does not actually set the amount of such compensation. This type of activity, Mr. Jack Gabig Page 5 May 2, 1986 while it may be considered an indirect benefit, i s nonetheless not so remote as to completely alleviate the concerns that gave rise to the promulgation of the Ethics Act. In making our determination of this particular issue, we have devoted considerable effort to determine the legislative intent behind the State Ethics Act and the affect that Act has had upon the other provisions of law involved herein, i.e. the Township Code. The Rules of Statutory Construction mandate that we attempt to determine the legislative intent in this matter. We have noted that one of the key elements involved in establishing such intent is to consider the mischief to he remedied as wel 1 as the former law on particular subjects now covered by statute. See 1, Pa. C.S.A. §1910. The prior law on matters of a similar nature, of course, is clearly set forth by the previously cited court decisions. In addition, the Ethics Act was established in order to remedy particular problems that had been occasioned by situations where public officials had acted i n order to forward their own interest rather than the interest of the public. In addition to the foregoing, we must presume that the General Assembly intended to favor the public interest as against any private interest. This presumption is specifically authorized by law. 1 Pa. C.S.A. §1922(5). Based upon these principles of statutory construction, it is our conclusion that a township supervisor may not participate in his or her own appointment as roadmaster if the supervisor will receive compensation for such appointment. We believe that such activity would violate both the intent and spirit of the Ethics Act. We do, however, realize that our interpretation of this matter is one that is recent and that our Opinion is one that is contrary to the interpretation of the Second Class Township Code that has traditionally been set forth by various individuals. Of course, your actions in voting for yourself to assume the position of township roadmaster and your receipt of the compensation in such position would not be in accord with our most recent interpretation of the Ethics Act. However, because your activities predated the issuance of our most recent Opinion, and more importantly because we do not find any other element in the instant situation that indicates you intentionally attempted to financially benefit yourself in violation of the law, we believe that the instant situation lends itself to a prospective apol i cation of our Ki ng Opinion. Thus, whil e your actions woul d not be i n accord with our most recent interpretation of the Ethics Act, we do believe that we should take no further action in relation to this matter. We do hasten to point out, however, that we are firmly committed to our interpretation of the Ethics Act and we do beli eve that when publi c official s have a financial interest in a matter, that they must not participate in said matter. We note that this would require their abstention in matters not only relating to their own appointment to a position of employment with their goverrmental body but also as to their participation in the preliminary decisions that lead up to such appointment. Finally, we note that our Mr. Jack Gahig Page 6 May 2, 1986 decision in this matter is one that is occasioned by various factors and under certain circumstances, the result reached herein could he altered. We also note that while the vote regarding your appointment was unanimous, we do not helieve this is a crntrolling factor. This Commission has previously determined that such a situation would still he contrary to the provisions of the Ethics Act. McCaigue, No. 392; Fields, 82 -006. C. Conclusion: Your act in voting for yourself to a position of employment in a township of the second class, where you served as a township supervisor, is not in accord with our most recent interpretation of the State Ethics Act. In light of the fact, however, that your actions in this matter predated our King Opinion and that there are no other factors which indicate that you intentionally attempted to obtain financial gain in violation of the law, we will take no further action in this matter. We do note that the decision in this particular case is a result of the specific factors outlined herein and that such decision could he different under other circumstances. 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 }, Ry the Commission, G. Sieber Pancoast Chairman