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HomeMy WebLinkAbout458-R KoslowMr. James Koslow R Norfolk 0ri ve Corapolis, PA 15108 Re: R5 -072 -C near Mr. Koslow: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 458 -R DECIDED NOV! 9 1986 MAILED 1 6 The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. On Septemher 10, 1986, a hearing on the matter was conducted and relevant evidence and argument was presented. The Commission has now completed its investigation. The individual allegations, conclusions, and findings on which those conclusions are hased are as follows: I. Allegation: That you, a Commissioner in Rohinson Township, Allegheny County, violated Section 3(a) of the Ethics Act which prnhihits a public official from using his office for financial gain other than compensation allowed hy law for himself, a memher of his immediate family or a business with which he is associated or Section 3(d) of the Ethics Act which prohibits other conflicts'of interests when you participated in decisions to have your daughter hired in the Robinson Township Tax Office, your son -in -law hired to work on the water authority, and when you continued to serve simultaneously as a Rohinson Township Commissioner and a member of the Robinson Township Municipal Authority. A. Findings: 1. You have served as a Commissioner of Robinson Township since January, 1984 and are subject to the requirements of the State Ethics Act. 2. Minutes of the hoard of commissioners show that you were appointed to a vacancy on the municipal authority of Rohinsnn Township on January 9, 1484, You voted for this appointment. The vote for your appointment Carried hy three to two. a. You are paid $70.00 per month as an authority member. From January, 1984 throuoh Septemher, 1985. You received a total of $1,470,00. Mr. James Koslow Page 2 3. Fred E. Baxter, Municipal Authority Solicitor, had ruled - prior to your appointment - that the appointment of a township commissioner to the authority board was legally allowed. This question was raised about the appointment of two other commissioners to the authority. 4. The minutes of the board of commissioners mpeti ng of January 9, 1984 show that commissioners routinely vote for themselves. At that meeting, five commissioners voted for their own appointments; two of them voted twice for themsel ves. 5. At a meeting on February 26, 198E, on a motirn by authority board member Mil les and second by you, your son-in-law Frank Mans low wa's hired. a. Seven members of the board were present for this vote, two abstained, your son -in -law was hired by three to two vote. You voted to hire him. b. You had advised Frank Mans low, your son-in-law. to submit an application for the water plant operator position. c. rr. Mensl ow was one of five applicants and one of the two finalists. d. Your son -i r< -law was hi red as a water pl ant operator by the munici pal authority of Robinson Township. e. The authority engineer said your son -in -law, Mr. Manslow, was the best qualified of the candidates. 6. On December 4„ 1984, your daughter was hired to work in the tax collector's office for 20 to 25 hours per week. She now works 32 hours a week and is paid $4.60 an hour. She is not a minor dependent child. a. Frank Murgia is the Tax Collector and the township commissioners fix salary. b. Mr. Mucgi a advised you that he was looking for ar, employee and you advised him to hire your daughter. Mr. Murgia states that he was not pressured to hire your daughter. He needed an employee and he stated that your daughter is good working with numbers. You do not dispute the facts as outlined above. 8. You assert that the compensation you received as a municipal authority member was part of the compensation set forth by law. Mr. James Koslow Page 3 B. Discussion: As a township commissioner in a first class township, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402. Mlakar, 84 -011. Blumling, No. 388. As such, your conduct must conform to the requirements of the Act. 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 hol di ng publi c office to obtain financi al 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). - Within this Section of law, a public official may not use his public position in order to obtain any financial gain other than the compensation that is provided by law for himself, or a member of his immediate family. He may not use confidential information for similar purposes. In the instant situation, the facts are clear that you, on January 9, 1984, participated in a vote whereby you were appointed to fill a vacancy on the Robinson Township Municipal Authority. The minutes of that meeting clearly reflect that your appointment to that authority was approved by a vote of three to two and you cast the deciding vote. The only question remaining i s whether your action constituted a violation of the State Ethics Act. At the outset, we must note that the issue with which we are concerned does not concern the compatibility of simultaneously serving as a township commissioner and a member of the Robinson Township Municipal Authority. The sole issue that we are addressing, at this point in time, is whether your actions in voting to appoint yourself to that authority constituted a violation of the State Ethics Act. You have asserted that this Commission, by addressing the issue set forth above, is attempting to establish "public policy." We disagree. The General Assembly of Pennsylvania has unequivocally established the public policy of this Commonwealth in relation to matters of the type involved herein. Specifically, that policy is enunciated in Section one of the State Ethics Act which provides as follows: Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal Mr. James Koslow Page 4 financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith aad confidence of the people of the State in their government, the Legislature further declares that ;he people have a right to be assured that the financial interests of hailers of or candidates for public office present 'either a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best he sustained by assuring the people of the impartiality and honesty of public officials, this at shall be liberally construed tc promote complete disclosure. 65 P.S. 401. Clearly the General Assembly has, without a doubt, set `orth the public policy to be nerved by the State Ethics Act. Based upo °: the above, the Act, in part, sets f:,rth as a prohibited activity outlined in Section 403(a), supra. ")ne of the most important aspects of public office is the right to vote on matters within the jurisdiction of the public body. There ''s no doubt, therefore that by voting to appoint yourself to tno au'-hority, ; use position u a public official. This use was heightened b4 r,', t your g vote was the deciding vote. e fact that your ''!i th this in mind, the only remaining issue is whether the financial gain obtained was part of the compensation provided for by low. YOU submit that because the Municipal Authorities Act provides for certain ro pensation to be paid to members of such authorities that such is part o law." 53 P.S. §301 et. se Whil'e� such may be ion ,:hat law for authority membe it is not so for township commissioners. That is, the First Class Township Code does not provide that township commissioners may act as you have and receive compensation therfor. The statutory compensation for a township commission is separate and distinct frog; that of a authority member. Thus, we believe that you did use your position m as�a ipal township commissioner to receive a financial gain other than the compensation that is provided for you as a township commissioner. We have reviewed a sir„ilar situation in relation to the activities of a township of the second class and concluded that a member of the board of township supervisors in a township of the second class may not participate or vote to appoint him or herself as a township secretary, treasurer or a secretary /treasurer if the supervisor will be compensated for such position. See King, 85 -025. We concluded that such actions by a public official would be in violation of Section 3(a) of the State Ethics Act. In order to be Mr. James Koslow Page 5 complete, we will thus review the basis for our decision in that matter. While our decision in King has been superseded by subsequent amendments to the township code, our analysis of the issue is still appropriate. The cases are many which set forth the general public policy regarding the participation of a public official in matters wherein such official has a personal interest. Generally, the courts of this Commonwealth have been adamant in upholding the principle that wherever a public official has a direct personal interest in a matter under consideration by the public body of which they are a member, such official is disqualified from voting thereon and if his vote is determinative, the action is void. See Reckner, et. al., v. German Township School District, 341 Pa. 369, 19 A.2d 402, (1941); 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). All of the above cases, of course, have recognized the inherent power of the General Assembly to declare the public policy of the Commonwealth and to confer upon public officials the power to appoint themselves to other positions and to fix their own salaries. These decisions have simultaneously recognized, however, that unless the intention is clear, the power will be denied because of the exceptional and extraordinary character of such power. In Reckner v. German Township, supra, the Supreme Court of Pennsylvania elaborated upon this concept stating that: "It necessitates an implicit direction on the part of the legislature to overthrow such a wholesome and salutary rule of the common law as that precluding a public servant from simultaneously representing both himself and his constituents. As pointed out in Goodyear v. Brown, 155 Pa. 514, 518... it does not follow that everything may be done by a public officer that is not forbidden in advance by some act of assembly." The Ethics Act was, in part, promulgated in order to codify the well established public policy prohibiting public ,officials from acting in matters where they have financial or pecuniary interest. In this respect, as noted previously, the purpose and intent of the Act was clearly established by the legislature. 65 P.S. §401. Municipal Authorities are clearly independent agencies that are part of the Commonwealth. Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 445, 281 A.2d 882, (1971). The members of these authorities are to be appointed by the governing authority of the municipality(s) that have created the authorities. 53 P.S. §309. Members of the governing municipalities, as Mr. James Koslow Page 6 public officials, are committed to the public trust in attempting to find the mcst qualified individurls to serve on such a municipal authority. A township commissioner, who must Fct in accordance with { : r e p u b l i c trust, would be placed in a position o:' conflict if he were to judge his own qualifications for that position. Thus, a township commissioner who votes for him or herself to secure the position oo a municipal authority must be considered to be placing his own interests in conflict with the .ublic trust. This is particu arty so, if the position c f ;aunicipal authority member has, in the past, or in the future will be one for which compensation is being paid. It could, thus, be perceived that the township commissioner would be placing himself in o position to receive additional compensation. This type of ectivity, ; we have held in our King Opinion, is the type of activity that pave rise to - Le premul gation of the Ethics Act. Once again, we note oo analysis in this respect is not intended to question the abi'ity of a public official to simultaneously serve in such a position but only his ri ht to ;participation in his own selection. making cue determination in these particular matteve, we have devoted considerable effort to determine the legislative intent behins the State Ethics Act and the affect that Aet has had upon the other reovi sions of law 'i volved herein,. The Rules of Statutory Construction mandate that we attempt to determine the 'i c ai sl ative intent in this matter. We have noted that one of the key elements involved in establishing such intent is to consider the mischief to be remedied as well as the former law on particular subjects now covered by statute. 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 in order to forward their own interest rather than the interest of the public. In addition to the foregoing, we ;rust presume that the General (Assembly intended to favor the public interest as ;;gai nst any private interest. This presumption is specificeIly authorized by law. 1 Pa. C.S.A. fi1922(b). Based upon these principles of statutory construction, it is our conclusion that a township commissioner may not participate in his or her own appointment as a member of a municipal authority if the commissioner w i l l receive cr for such appointment. We believe that such activity would violate both the intent anc spirit of the Ethics Act. In the instant matter and based upon the foregoing reasons, we believe that your actions were not in accord with the State Ethics Act. You cast the deciding vote to have yourself appointed to a compensated position on the municipal authority. You clearly were in a position to serve your own personal financial i oterests over that of the public trust. As such, we believe that you used your public position as a township commissioner to Mr. James Koslow Page 7 receive financial gain other than the compensation provided for township commissioners by law. In light of the fact that the Commission has determined that you have violated the State Ethics Act, we must now decide what, if any, further action we will take in relation to this matter. The Ethics 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). (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 fi nanci al gain resulting from such violation. 65 P.S. 409(c). Additionally, the Commission may make a recommendation for prosecution by the appropriate prosecuting authority unless the person who is in violation of the Act returns any fi nanci al gai n obtained i n violation of the Act. See McCutcheon /Hoak v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 823, (1982). Based upon the precedent, this Commision has the authority to offer a person the opportunity to divest themselves of the financial gain obtained in violation of the Act. We have reviewed the foregoing situation, and we believe that this result should be reached in the instant matter. We do not believe that the treble damages penalty should be imposed in this matter. When you cast the deciding vote to appoint yourself to the Robinson Township Municipal Authority you in effect cast a vote to place yourself in a position for which you would receive compensation. A review of this situation reveals that you were paid $70 per month as an authority member. You were paid this amount from January, 1984 through September, 1985 and thus, received a total of $1,470.00. It is our conclusion that this financial gain that you received in violation of the State Ethics Act should be reimbursed to the municipal authority. C. Conclusion: You violated the State Ethics Act when you, as township commissioner, cast the deciding vote to appoint yourself to a compensated position on the township municipal authority. In light of the foregoing, you must divest yourself of all gain obtained in violation of the State Ethics Mr. James Koslow Page 8 Act. Our calculations indicate that this would be an amount of exactly $1,470.00. Upon receipt by the State Ethics Commission of a check made payable to the Robinson Township Municipal Authority, we will close our files in this matter. Unless, however, we are in receipt of this check within thirty days of this order, we will refer this matter to the appropriate law enforcement official_ for further review and disposition. II. Discussion: In addi ;ion to the foregoing, ?s a member of the Robinson Township Municipal Authority, you participated in the oppointmeat of your ;on -in -law to a position on the authority. You seconded the motion to hire your scn -i n -law and voted for his hiring. The hiring of your son-in-law was approved by a vote of three to two. As noted previously, no public official may use his public position in order to obtain the financial gain other than the compensation provided for by_ for himself or a member of his immediate family. As a member of the municipal authority, you are a public official within the definition of the State Ethics Act. See Dice, 85 -021. As noted previously, : Ethics Act would prohibit you in that position from using your position to ob'..aii a financial gain for yourself or a member of your immediate family. T. member of one's immediate family is defined in the State Ethics Act as follows: Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. 402. Because of the strict definition in the State Ethic Jct, we do not believe that you violated the provisions of Section 3(a) of the Act because your son -in -law is not a member of your immediate family as defined in the Act. As such, we find no violation of the State Ethics At in this situation. With relation to the hi ri no of your daughter by the Robinson Tax Collector, we find no evidence that you used your position to influence this individual or otherwise influenced the hiring of your daughter. As a result, we do not believe that you violated the State Ethics Act in relation to the hiring of your daughter by the Robinson Township Tax Collector. C. Conclusion: You did not violate the State Ethics Act when your son -in -law was hired by the Robinson Township Municipal Authority and when your daughter was hired by the Robinson Township Tax Collector. Summary of Conclusions: 1. You violated the State Ethics Act when you, as township commissioner, cast the deciding vote to appoint yourself to a compensated position on the . r. James Koslow Page 9 township municipal authority. In light of the foregoing, you must divest yourself of all gain obtained in violation of the State Ethics Act. Our calculations indicate that this would be an amount of exactly $1,470.00. Upon receipt by the State Ethics Commission of a check made payable to the Robinson Township Municipal Authority, we will close our files in this matter. Unless, however, we are in receipt of this check within thirty days of this order, we will refer this matter to the appropriate law enforcement officials for further review and disposition. 2. You did not violate the State Ethics Act when your son -in -law was hired by the Robinson Township Municipal Authority and when your daughter was hired by the Robinson Township Tax Collector. 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 5 business days after service (defined as mailing). 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 Commission, S'ci,1 c erwa* G. Sieber Pancoast Chairman