HomeMy WebLinkAbout490 RiderMr. Charles C. Rider
12.5 Main Street
McSherrystown, PA 17344
Re: 85 -115 -C
Dear Mr. Rider:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
May 2, 1986
Order No. 490
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 borough councilman in the Borough of
McSherrystown, violated Section 3(a) of the Ethics Act which prohibits a
public official's use of office or confidential information gained through
that office to obtain financial gain other than compensation provided by law
for himself, a member of his immediate family or a husiness with which he is
associated, when you acted to employ the engineering firm of Nassaux - Hensley
to perform borough related work at the same time that you were employed by
that company as an engineer.
A. Findings:
1. You are a councilmemher of McSherrystown, Pennsylvania, and have served in
that position from January, 1981. Since January, 1984, you have also served
as council president.
2. As a borough councilmemher, you are subject to the State Ethics Act.
3. You are also employed by Nassaux- Hensley as a construction manager and
have heen employed by them since 1973.
4. Nassaux- Hemsley was appointed as McSherrystown Borough engineer on January
4, 1982. There is no fixed fee for their services.
Mr. Charles C. Rider
Page 2
May 2, 1986
a. On September 13, 1982, on a motion by Councilman Walter, seconded by
Councilman Forbes Nassaux - Hemsley, Inc., was "authorized to undertake
various projects for the Borough at a cost not to exceed $30,000.00
total, projects to include preparation of maps of streets, sewer,
stormwater drainage system, and other utilities in the Borough,
review of plumbi ng ordi nances, i ndustri al waste ordi nances, sewer
rate analyses, inter - municipal sewer agreements, grants applications
over the next two year period, such items being necessary preludes to
the final phase of the regional sewer setup. Ayes: Eline, Forbes,
Heagey, Smith,. Staub, and Walter, with Councilman Rider abstaining.
Nays: none. Motion carried.
5. As an employee of Nassaux - Hemsley, you admit that you represent them
before borough officials at borough caucus meetings and work sessions.
a. At those meetings you quote approximate dollar costs on prospective
borough jobs to be done by Nassaux - Hemsley.
b. You also answer questions on how the work will be performed by the
firm.
You believe your firm has provided engineering services to the
borough at cost less than the prevailing rates.
6. Township records show the following payments to your firm.
a. January 14, 1985: On a motion by Councilmember Forbes, second by
Councilmember Heagey, as salary scheduled for fiscal year 1985 was
approved. The vote was 6 to 1 for approval. You voted for approval.
This salary schedlue included the following:
(1) Borough Engineer Nassaux - Hemsley Incorporated no fixed fee.
(2) Sewage and enforcement officer, Nassaux- Hemsley Incorporated,
$240 per lot.
b. October 10, 1983: On your motion second by Co�uncilman Forbes
expenditures were $49,852.28 were approved. Visa expenditures
included payment of $300.00 to Nassaux -Hemsl e or printing 60 zoning
ordi nances.
c. May 14, 1984: On motion by Councilmember Forbes, second by
Councilmember Aline. Bills totalling $91,311.82 were approved.
(1) A payment of $1,541.51 for engineering I/I Sewer System No. 305
was included.
Mr. Charles C. Rider
Page 3
May 2, 19R6
d. September 12, 1983: On motion by you, second by Councilmember
Forbes. Bills totalling $34,323.30 were paid.
(1) Payment of a bill for $300.00 to Nassaux - Hemsley for public
hearings was included in this approval.
7. Township records show the following payments to Nassaux - Hemsley, Inc.
Date Check # Amount
2/8/82 2822 $ 48.00
6/14/82 2880 $ 500.00
7/12/82 2897 $ 48.00
9/13/82 2929 $ 72.00
10/12/82 2949 $ 725.97
11/8/82 8345 $ 22.50
1/10/83 2986 $ 961.31
1/10/83 8440 $ 300.00
5/9/83 3046 $1,034.50
9/12/83 8752 $ 300.00
10/10/83 8772 $ 300.00
3/12/84 101 $2,252.26
3/12/84 102 $2,296.31
3/12/84 103 $1,110.19
3/12/84 104 $3,507.19
4/9/84 106 $2,169.68
4/9/84 107 $1,408.03
5/14/84 114 $1,541.57
6/11/84 127 $ 462.46
7/9/84 139 $ 154.16
8/13/84 146 $ 390.56
8/13/84 147 $ 102.00
8/13/84 148 $ 308.32
2/11/85 9412 $1,790.61
3/11/85 9454 $ 385.38
5/13/85 9531 $ 382.98
7/8/85 9625 $ 116.94
8. On September 12, 1983, council approved three work authorizations to
Nassaux - Hemsley to perform a smoke test and sumbit a report on failure
detected within the borough's sewer system, to update the borough's sewer
system plan, and to conduct field survey drafting, design and permits to
correct deficiency with the existing sewer systems on Sewer Plant Road and
North Street. Payment for this last item was to come from the Harness Racing
Grant. You as chairman asked for a motion on this matter but abstained from
the final vote.
Mr. Charles C. Rider
Page 4
May 2, 19R6
9. On July 8, 1985, council passed Stormwater Management and Design Ordinance
#85 -2. This ordinance provided the following:
a. That a Stormwater Management plan shall be required for each
subdivision or land development at both the preliminary and final
submission stages.
b. In addition, a building permit would be requi red for multi - family
residential and normal residential building projects and also an
expansion of construction of - impervious surface area in excess of
10,000 sq. ft. for large or cumulative projects excluding single
family attached dwellings on individual lots.
c. Detailed requirements on the contents of a Stormwater Management
plan.
d. The borough engi neer would be required to review Stormwater
Management plans prior to borough approval and permission for
construction.
e. Periodic inspection by the borough or its designated representative
of the site of all Stormwater Management facilities construction.
10. On August 12, 1985, Mayor Thomas J. Weaver notified borough council that
he had vetoed the Stormwater Management Ordinance for the following reasons:
a. The law would be z. financial burden on the small developer.
b. On site storage pits could cause problems without proper mapping of
existing storm drains.
c. A possible conflict of interest between the borough engi neer and
council president.
11. Minutes of the borough council meeting of August 12, 1985 show that on a
motion by Councilmember Walter, second by Councilmember Heagey, council voted
to override the mayor's veto of Ordinance #85 -2. The motion carried by a vote
of 6 to 1. You voted with the majority to override the mayor's veto.
B. Discussion: As a member of borough council you are a public official as
that term is defined in the State Ethics Act. See 65 P.S. §402. As such, you
are subject to the provisions of that law and must conform your conduct to the
requirements of the Act. See Rodgers, No. 421 -R.
Generally, the State Ethics Act provides as follows:
Mr. Charles C. Rider
Page 5
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 fi nanci 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).
May 2, 1986
Within the above provision of law, no official may use his public
position in order to obtain a financial gain for himself, or for a business
with which he is associated other than the compensation that is provided for
by law. He may not use confidential information obtained in his public office
for similar purposes. The State Ethics Act defines business with which one is
a ssociated as follows:
Section 2. Definitions.
"Business with which he is associated." Any business in
which the person or a member of the person's immediate
family is a director, officer, owner, employee or holder
of stock. 65 P.S. 402.
Clearly, as an employee of the Nassaux-Hemsley, Engineering Firm, you are
associated with that business within the above definition, therefore, you are
prohibited from using your position to obtain any financial gain for that
business. We have reviewed similar situations, in the past, and have
determined generally that borough councilmembers and other public officials
may not participate in any matter as a public official that would benefit or
otherwise result in a company with which they are associated obtaining any
financial gain from the borough or other governmental bodies with which they
are associated. See, Rodgers, No. 421 -R; Glova, No. 324 -327.
In the instant situation, it is clear, that although you abstained from
the i ntiti al council decision to award certain projects to Nassaux-Hemsley,
Inc., you did represent that company before your fellow borough councilmembers
during work sessions of the borough and borough caucus meetings which were not
public. At those meetings you would quote approximate dollar cost on
prospective borough jobs to be done by the corporation and you would also
respond to questions on how that company would perform work. It is clear,
that in acting in the manner that you did during the private sessions, you
were clearly in a conflicting position in that you were representing the
private corporation that was to do work for the borough while at the same time
you were required to act in the best interest of the public as a borough
councilmember. Your representation of your private employer, in this respect,
was clearly aimed at obtai ni ng and continuing the receipt of a fi nanci al gai n
for them. In addition to the foregoing, as chairman of the borough council,
Mr. Charles C. Rider
Page 6
May 2, 1986
you had asked for a motion on awarding three work authorizations to
Nassaux - Hemsley on September 12, 1983. Although you abstained from the final
decision to award these work authorizations to that company, you were a
participant in the original matter that resulted in the motion being made.
Additionally, you voted on the payment of various bills to
Nassaux - Hemsley and you finally voted on an ordinance that would have required
the borough engineer, who was at that time Nassaux- Hemsley, to perform certain
work in regard to a stormwater management plan. In light of all of the
foregoing actions which, you took on behalf of your private employer while you
were on borough council, we believe that such activities constituted a use of
your position that was aimed at obtaining a financial gain for your private
employer. As such, we believe that your actions were in violation of the
State Ethics Act.
In addition to the foregoing, we also note that the Borough Code provides
as follows:
PENALTY FOR PERSONAL INTEREST IN CONTRACTS OR PURCHASES.
Except as otherwise provided in this act, no borough
official either elected or appointed, who knows or who by
the exercise of reasonable diligence could know, shall be
i nterested to any appreci able degree either di rectly or
indirectly i n any purchase made or contract entered into
or expenditure of money made by the borough or relating to
the business of the borough, involving the expenditure by
the borough of more than one thousand ($1000) in any
calendar year, but this limitation shall not apply to
cases where such officer or appointee of the borough is an
employe of the person, firm or corporation to which the
money is to be paid in a capacity with no possible
influence on the transaction, and in which he cannot be
possibly benefited thereby either financially or
otherwise. 53 P.S. §46404.
The above provision of law clearly indicates that an elected or appointed
official of the borough may not be interested either directly or indirectly in
any borough expenditures in excess of one thousand ($1000) in any single
calendar year. Because of the above limitation, if a borough official such as
yoursel f were to obtai n a fi nanci al gai n from bei ng i nterested i n a borough
contract contrary to the above provision of law, your action in securing such
benefit would also seem to violate Section 3(a) of the State Ethics Act. This
is so, in light of the fact that you would have used your position in order to
obtain a financial gain that is not part of the compensation provided for by
law. Indeed, in such a situation, you would be receiving a financial gain
that is expressly prohibited by the law. See Stone, 85 -597. In the instant
situation, we are unable to determine whether you received any financial gain
Mr. Charles C. Rider
Page 7
May 2, 1986
in violation of this provision of law or whether you were within the exception
that allows a counci l member to be interested in a contract if he is an
employee of the company that is doing business with the borough and will not
receive either directly or indirectly any benefit therefrom or if he has no
influence on the contract. Because of this provision of law, however, we do
believe that further review of the facts should be undertaken to determine
whether a violation of the Borough Code has also been committed. In light of
all of the foregoing circumstances, we believe that this matter should be
referred for further review by the appropriate law enforcement authorities.
C. Conclusion: You violated the State Ethics Act when you, as a member of
borough council, acted to represent your private employer who had been
appointed the borough engineer and who had been awarded certain borough
projects, before the council on which you were a member and of which you were
president. We also note that certain provisions of the Borough Code have been
implicated in the the instant situation and, as a result, we believe that this
matter should be referred for further review by the appropriate law
enforcement authorities.
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 Commission,
G. Sieber Pancoast
Chai man