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HomeMy WebLinkAbout557 McGarryMr. Daniel J. McGarry 329 Dudley Avenue Narberth, PA 19072 Re: 86 -002 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 557 DECIDED 2i t987 MAILED,JUN 2- 1987 Dear Mr. McGarry: The 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, Councilman of the Borough of Narberth, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information obtained through that office to secure a financial gain in that you also serve as Borough Plumbing Inspector on a fee basis and inspect plumbing work performed by your firm, McGarry Plumbing. A. Findings: 1. You served as a Councilman in the Borough of Narberth from April, 1984 to the present. a. You were appointed borough plumbing inspector in 1960 and you have served in that role to the present date. b. You succeeded your father as the operator of a family business, McGarry Plumbing, sometime during 1952 and have operated this business to the present date. 2. Borough Council minutes of the meeting of January 13, 1986, reflect that you were reappointed to a two -year term as plumbing inspector on motion by Councilman James Denman, which was seconded by Councilman Edward McBryan. Records indicated that Councilman Chester Tyson then moved that the nominations be closed. This was seconded -by Councilman Denman. This motion carried. Mr. Daniel J. McGarry Page 2 a. You were i 7,,ecent at this meeting according to tie minutes. b. Records do not reflect whether or nu: you -oted c i the motion. 3. As a borough couaciimember you are subject '.o the State Ethics Act. 4. As the borough plumbing inspector you are also subject to the State Ethics Act. 5. Borough records reflect that you were paid as plumbing inspector for the years 1979 through 1986. a. For the years 1979 through 1981, the borough paid you a fee of $300.00 per year. b. During the years 1982 through 1986, a fee of $400.00 per year was paid to you as plumbing inspector. 6. Borough records further reflect that McGarry Plumbing completed work for the Borough of Narberth from 1979 through 1984 and was paid the following amounts: Date July 9, 1979 February 20, 1980 July 6, 1980 September 19, 1980 December 7, 1980 July 1, 1981 June 30, 1982 January 18, 1983 January 10, 1983 June 14, 1983 May 3, 1983 December 31, 1983 July 23, 1984 July 23, 1984 Calendar Year Calendar Year Total paid to Check No. Amount 14296 $229.60 16253 $ 32.50 16762 $417.80 17013 $ 20.75 14760 $ 82.35 14954 '$374.70 (Check No. not indicated) $194.75 19 896 $ 47.75 19896 $ 41.75 20278 $120.95 (Check No. not indicated) $ 87.15 15769 • $ 33.75 16113 $ 32.90 16113 $161.80 1985 - No payments to McGarry Plumbing were indicated. 1986 - No payments to McGarry Plumbing were indicated. McGarry Plumbing - $1,878.50 Mr. Daniel J. McGarry Page 3 Additionally, McGarry Plumbing, submitted a proposal and was awarded a contract to remove an oil -fired boiler and replace it with a gas -fired boiler at the Narberth Community Building. This occurred in October, 1981 at a cost to the borough of $4,085.00. A. Search of borough records failed to determine if a plumbing inspection was completed with regard to any portion of this contract. B. "'Township Manager, William J. Martin, who has been in office since August, 1983, advised that the former township manager (during October, 1981) is deceased. c. Martin stated that from his experience, any plumbing inspection or similar projects would be handled on a casual basis. He could not be certain as to whether or not you would, as plumbing inspector, be required to do an inspection on the plumbing portion of this work. d. You stated that a representative of the Philadelphia Electric Company performed the inspection of this work. e. You denied that you inspected any portion of this work as Borough Plumbing Inspector or that these circumstances required such an i nspecti on. 7. By letter of December 11, 1985, Borough Solicitor Morris Sheer advised that he was aware that work performed by McGarry Plumbing was, in fact, being inspected by you as the township plumbing inspector. a. Sheer stated that in the absence of specific` charges of impropriety, he could find no prohibition against you continuing in your duties as plumbing inspector. b. Mr. Sheer continued that should you contract with the borough for public work as a plumber, such work would have to be put out for public bid and that you, as a borough touncilman, should refrain from voting for or against the awarding of such a contract. Mr. Daniel J. McGarry Page 4 c. Also, Mr. Sheer stated that shoul with another contractor who bids borough council for the award- of building permit or for the amend should avoid the appearance of a from voting on such matters. d you subcontract for plumbing work for borough work or who applies to the contract from refusal of a ment of a borough ordinance, you conflict of interests by abstaining d. Mr. Sheer was uncertain as to whether or not you, as borough ..councilman, could properly accept $300 salary for acting as plumbing inspector, in light of Section 1104 of the Borough Code. This section pertains to incompatible offices and indicates that you should be eligible to serve as plumbing inspector but that you should not receive compensation therefor, due to your role as borough councilman. B. Township Manger William Martin advised that you usually inspect the smeller plumbing jobs, such as kitchen or bathroom alterations. a. Martin advised that the Borough of Narberth has little room for new construction. b. Martin advised that when bigger construction jobs require plumbing inspection, Mr. Marshall Stewart, the plumbing inspector for Lower Merion Township, who is a Narberth resident, will perform the plumbing inspection. c. Mr. Martin related that you have been in the plumbing business for over 50 years and that you have been reducing your work load over the last two years. d. You stated that your sore has gradually been assuming the operation of McGarry Plumbing. 9. You stated that most of the plumbing inspections you performed involved bathroom changes such as bathtubs, vanities, toilets and water closets. a. You state that there is very little construction of new homes in the Borough of Narberth. b. You explained that when a larger construction job requires inspection, Mr. Marshall Stewart, the Lower Merion Township Plumbing Inspector, will perform the necessary inspection. Mr. Daniel J. McGarry Page 5 c. You stated that as the borough plumbing inspector, you have inspected the work of McGarry Plumbing on an average of two or three times per year during 1979 through 1984. d. You are not certain of the amount of money paid to McGarry Plumbing during 1979 through 1984. You mentioned that records of the borough would certainly reflect such amounts. e. You stated that you did not handle any payments received from applications for plumbing permits. You advised that applications for plumbing permits were filed at the borough office and the applicable fee would be paid at that time. B. Discussion: As a borough councilmember, you are a public official as that term is defined in the State Ethics Act. 65 P.S. §402; Domalakes, 85 -010. Additionally, as a borough plumbing inspector, you are a public employee as that term is defined in the State Ethics Act. 51 Pa. Code §1.1. As a result of your positions, your conduct must conform to the requirements of the State Ethics Act. 65 P.S. §401. Generally, the 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). Within the above provision of law, this Commission has, on a number of occasions in the past, determined that a public employee may not participate or otherwise use his public position to benefit himself or the business with which he is associated. Sowers, 80 -050. Generally, the Act defines business with which one is associated 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. Mr. Daniel J. McGarry Page 6 As the owner of McGarry Plumbing, you are associated with that business within the above definition. As such, you may not as a public official or a public employee, use either position tc benefit thlt company. This Commission has, within Section 403(a) of the State Ethics Act, determined that a plumbing inspector or other public employee of a local municipality may not issue permits or otherwise inspect work that has been done by that individual in his private capacity. Thus, this Commission has determined that a zoning inspector may not issue permits or licenses that relate to his own private or personal. property. Similarly, a plumbing inspector may not participate in or otherwise review the work, as an official of the borough that he has performed or that his company has performed in a private capacity. Such would be a use of public office in order to obtain a financial gain for the business with which one is associated. This is in violation of the State Ethics Act and the Commission has, in the past, reviewed similar situations wherein such activity has occurred. In those particular situations, this Commission has determined that such activity would not be in accord with the State Ethics Act. In the instant situation, it is clear that as the borough plumbing inspector, you have, on a number of occasions, reviewed and approved the work that had been performed by McGarry Plumbing. In the instant situation, we have been unable to ascertain the number of specific occasions where you have, as a borough inspector, approved the work of your own company. We also have been unable to ascertain the amount of financial gain that has been realized as a result of this activity. Additionally, during the years that you served as inspector your business performed work for the borough and received compensation therefor. (See Finding G). You were not, during these years, a member of council and therefore, you could not have used your position to award these projects to yourself or to authorize payment to your company. In relation to the first instance, we believe that you violated Section 403(a) of the State Ethics Act when you, as a borough plumbing inspector, participated in and approved work that had been performed by your private business enterprise.: While we do believe that a violation of the Ethics Act has occurred, we do not believe that any further action should be taken in relation hereto. We were unable to identify any specific projects that you inspected and we found no evidence of the amount of financial gain received as a result thereof. In relation to the first instance, we believe that you violated Section 403(a) of the State Ethics Act when you,. as a borough plumbing inspector, participated in and approved work that had been performed by your private business enterprise. tt Mr. Daniel J. McGarry Page 7 While we do believe that a violation of the Ethics Act has occurred, we do not believe that any further action - should be taken in relation hereto. We were unable to identify any specific projects that you inspected and we found no evidence of the amount of financial gain received as a result thereof. You must, however, refrain in the future from participating as a borough official /employee in any matter in which you have a direct personal interest. Failure to do so may result in further action being taken. C. Conclusion: You violated the State Ethics Act when you, as a borough plumbing inspector, reviewed and approved work that had been performed by your private plumbing business, McGarry Plumbing. In light of the fact that you received no specific financial gain that was identifiable as a result of this violation, we will take no further action in this matter. You must, in all future situations, abstain from participating in any matter in which you have a direct, personal interest. Failure to comply with this direction may result in further action. 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 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, "At-ten- Oovx.r ra, -- G. Sieber Pancoast Chairman