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HomeMy WebLinkAbout570 AndersonMr. Elmer Anderson 1620 Elm Street South Greensburg, PA 15601 Re: 86 -108 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 570 DECIDED: May, 26, 1987 MAILED: June 2, 1987 Dear Mr. Anderson: 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, a member of -the South Greensburg Borough Council, violated Section 3(a) of the Ethics Act, 65 P.S. §403(a), which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain other than compensation allowed by law, in that you voted at the November 11, 1985 council meeting to appoint yourself to a paid position on the Greater Greensburg Sewage Authority. A. Findings: 1. You have served as a South Greensburg Borough Councilman for at least the past fifteen years and as a public official, you are subject to the provisions of the State Ethics Act. 2. The South Greensburg Borough Council appoints Greater Greensburg Sewage Authority for five year terms . Memberseofothee authority are compensated at the rate of $100.00 /month; salary is set by each appointing authority. The authority consists of three members from Greensburg, two from South Greensburg and two from Southwest Greensburg., 3. Minutes of the South Greensburg Borough Council meetings confirmed the following: a. October 14, 1985 - Secretary reads a letter from William Lakin requesting to be reappointed to the sewage authority. His term expires on December 31, 1985. Mr. Elmer Anderson Page 2 Roman quest ; ons i ndc r:ion submitted a l ett r when the position had not been advertised ard stated that it was not fair for Anderson tc submit a letter prior to the advertisement - Motion by you, second by Miller to advertise for the sewage authority appointment. Roll ce...1I vote: Yes - Todaro, Anderson, Miller Ciarimboli, No - Roman, Kunkle. Motion carried. b. ; : :ovember 11, 1985 - Sewage authority appointment - secretary reports receiving three applications, William Lakin, Elmer Anderson and William Yancey. Moved by Roman, second by Kunkle to re4ppcint William Lakin to sewage authority board. Vote: Yes - Roman, Kunkle, Todaro, No - Banashak, Anderson, Miller Ciarimboli. A notion was made by Miller and seconded by Banashak to appoint Elmer Anderson to sewage authority board, but motion was rescinded. Mr. Dom Ciarimboli stated that Mr. Elmer Anderson cannot vote for himself. Mr. Kunkle stated that this situation has happened before and people have voted for themselves. Mr. Doan Ciarimboli stated it is not right. . • Mr. Elmer Anderson stated that he will resign from council. Moved by Miller, seconded by Banashak to have all three names put on blackboard for voting. Lakin - votes, Roman, Kunkle, Todaro. Anderson - votes, Banashak, Anderson, Miller, Ciarimboli. Yancey - 0. Anderson appointed to sewage authority boar! -• You submitted a letter of resignation effective December 9, 1985. You asked that it be put first on the agenda--tobe acted on so that you could leave and not vote on any issues. Mr. Elmer Anderson Page 3 c. December 9, 1985 - Secretary read letter of resignation from Elmer Anderson. Motion Kunkle, second Roman to accept the resignation of Elmer Anderson. Vote: Unanimous. d. January 6, 1986 - Miller stated that when Elmer Anderson was appointed to the sewage authority his wages were not set. Motion Miller, second by Banashak to set the pay for Anderson the same as other board members, $100.00 /month. Motion carried 4 to 2. - Mr. Elmer Anderson's apointment to the sewage authority board was discussed. Mr. Dom Ciarimboli stated that since more than one person was running for the appointment, in fact, three names were submitted, Mr. Anderson could vote. (In Roberts Rules of Order on Page 72 this is explained). Borough Code is very silent about voting. Mr. Dom Ciarimboli stated he is satisfied with voting procedure taken. In his judgement vote was legal. He did state that if council is not satisfied, a petition can be filed. 4. Correspondence obtained from the borough confirmed the following: a. September 23, 1985 - James DeMuth, Greater Greensburg Sewage Authority Manager, advises council that William Lakin's appointment_ to the authority will expire on December 31, 1985. b. October 3, 1985 - William Lakin informed council he would like to be reappointed to the board. c. October 14, 1985 - You submitted a letter to council applying for the position on the authority. Note: Occurred on same date as borougr meeting. (See Finding 3(a)). d. October 15, 1985: Borough secretary sends notice to publish advertisement to the Greensburg Tribune Review. Dates to be published October 21, 1985, October 25, 1985 and November 1, 1985. e. November 11, 1985 - Letter% "of application from William Yancey. - Letter of resignation to borough council from you effective December 9, 1985. Mr. Elmer Ande; Page 4 f. December 31, +,935 - Borough Secretary letter to James Detrut'i. G.G.S.A. advising tat at council mee':ing of November 11, 1985, you were appointed to the authority but that council did not specify the rate of pay. At the January council meeting, the rate was to be approved. 5. accords of the Greater Greensburg Sewage Authority disclose that you were compensated $100.00 per month for each month from January, 1986 through May, 1987 for a total of $1,700.00. 6. By letter dated May 16, 1986, South Greensburg Borough Solicitor Dominic Ciarimboli provided the following information to the State Ethics Commission: It is my recollection that at one of the regularly scheduled meetings of council for the Borough of South Greensburg, the matter concerning reappointment of a representative from the Borough of South Greensburg to the Greater Greensburg Sewage Authority was to be considered since the appointment of the then present representative would soon expire. It is my recollection that at this meeting of council, a motion-was made to reappoint James Lakin as representative of the Borough of South Greensburg to said Sewage Authority. This motion was defeated. After discussion, a motion was then put on the floor for council to select one out of several names to be appointed as the representative. After the motion was made and seconded, and before a vote was taken, council requested my opinion as solicitor of the persons named in the motion to be considered as South Greensburg's representative, and, also, as to whether any member of council could hold the position of councilman and representative of the Borough of South Greensburg to the Greater Greensburg Sewage Authority. The second half of the requested cpinn became moot because Mr. Anderson indicated that he would resign as councilman if appointed as the representative. I then rendered ar, opinion substantially as follows: 1. I reaffirmed that councilmen could not•hold a position of councilman and also a representative to the Sewage Authority since, as a representative of the Sewage Authority, he would be entitled to compensation, and that under the Borough Code, 53 P.S., Section 46104, this would amount to incompatibility of offices. 2. As to whether Councilman Anderson could vote on the motion, I explained to council that my research of the 'iay indicated that there was nothing directly on point concerning this issue. The Borough Code, under "Appointments; incompatible offices" at 53 P.S., 46104, Mr. Elmer Anderson Page 5 did not appear to provide an answer. I explained to council that I then referred to Robert's Rules of Order which did provide an answer to this issue. As stated in Robert's Rules of Order, Page 72: "No one can vote on a question affecting himself; but if more than one name is included in the resolution (though a sense of delicacy would prevent this right being exercised, excepting when it would change the vote) all are entitled to vote; for if this were not so, a minority could control an assembly by including the names of a sufficient number in a motion, say for preferring charges against them, and suspend them, or even expel them from the assembly." Based upon this reasoning, I then rendered an opinion that Councilman Anderson could vote on this motion since there was more than one name included in the Resolution. Relying on this opinion, Councilman Anderson then rendered a vote. The vote was taken by secret ballot and the votes were destroyed after the count. 7. You stated that you asked the solicitor if you could vote for yourself and that if the solicitor ruled negatively, you would not have voted. You stated your reason for voting was based on the solicitor's ruling in accordance with the Roberts Rules of Order. 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. 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 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 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 No»ember 11, 1985, participated in a vote whereby you were appointed to fill a vacancy on the South Greensburg Borough Municipal Authority. The minutes of that meeting clearly reflect that your appointment to that authority was approved by a vote of four to three and you cast the deciding vote. The only question remaining is whether your action constituted a violation of the State Ethics Mr. Elmer Anderson Page 6 At the outset, we must note that the issue w :til which we are concerned does not concern the compatibility of simultaneously serving as a borough councilmember and a member of the local 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. The matter currently before the commission is not one of first impression. In Koslow, No. 458 -R, we determined that a township commissioner could not cast the deciding vote to appoint himself to a compensated position on a municipal authority. 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 S;;a,:e 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 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 shal 1, be liberally construed to promote complete disclosure. 65 P.S. 401. Clearly the General Assembly has, without doubt, set forth the public policy to be served by the State Ethics Act. Based upon the above, the Act, in part, sets forth prohibited activity as outlined in Section 403(a), supra., One of the most important aspects of public office is the right to vote on matters within the jurisdiction of the public body. There is no doubt, therefore, that by voting to appoint yourself to the authority, you used your position as a public official. This use was heightened by the fact that your vote was the deciding vote. With this in mind, the only regaining issue is whether the financial gain obtained was part of the compensation provided for by law. The Municipal Authorities Act provides for certain compensation to be paid to members of such authorities and such is part of that provided for by law." 53 P.S. §301 et. seq. While such may be compensation provided for by law for authority members, it is not 'so for borough councilmember•s. That is, the Borough Code Mr. Elmer Anderson Page 7 does not provide that councilmembers may act as you have and receive compensation therefor. The statutory compensation for a borough councilmember is separate and distinct from that of a municipal authority member. Thus, we believe that you did use your position a member of council to receive a financial gain other than the compensation that is provided for you in that position. We have reviewed a similar 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 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." Mr. Elmer Andersc;? Page 8 The Ethics Act was, in part, promulgated in order to codify well established public policy prohibiting public officials from acting in matters where they have financial or pecun 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 public officials, are committed to the public trust in attempting to find the most qualified individuals to serve on such a municipal authority. A borough councilmember, who must act in accordance with the public trust, would be placed in a position of conflict if he were to judge his own qualifications for that position. Thus, a borough councilmember who votes for him or herself to secure the position on a municipal authority must be considered to be placing his own interests in conflict with the public trust. This is particularly so, if the position of municipal 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 borough councilmember would be placing himself in a position to receive additional compensation. This type of activity, as we have held in our King Opinion, is the type of activity that Nave rise to the promulgation of the Ethics Act. Once again, we note our analysis in this respect is not intended to question the ability of a public (.fficial to simultaneously serve in such a position but only his right to participation in his own selection. In making our determination in these particular matters, we have devoted cunsiderable effort to determine the legislative intent behind the State Ethics Act and the effect that Act has had upon the other provisions of law ;nvolved herein. The Rules of Statutory Construction mandate that we attempt to determine the legislative intent in this matter. We have noted that one of key elements involved in establishing such intent is to consider the mischief to he remedied as well 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 d:fcsions. In addition, the Ethics Act was established in order to remedy ;articular 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 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 borough councilmember may not participate in his or her own appointment as a member of a muricipal authority if the councilmember will receive compensation fur such appointment. We believe that such activity would violate both the intent and spirit of..the Ethics Act. Mr. Elmer Anderson Page 9 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 interests over that of the public trust. As such, we believe that you used your public position as a borough councilmember to receive financial gain other than the compensation provided for borough councilmembers by law. It is also important to note that while you subsequently resigned your position with the borough because of certain restrictions contained in the Borough Code, you did so only after you had insured your appointment to the authority by casting the deciding vote. 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 financial 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 financial gain obtained in violation of the Act. See McCutcheon /Hoak v. State Ethics Commission, 77 Pa. Commw. 529, 466 A.2d 823, (1982). It should also be noted that in McCutcheon, it has been determined that good faith reliance on the advice of a solicitor will not alleviate the requirement to divest oneself of a financial gain obtained in violation of the law. Based upon 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. When you cast the deciding vote to appoint yourself to the municipal authority you in effect cast a vote to place yourself in a position for which you would receive a financial gain. A review of this situation reveals that you were paid $100 per month as an authority member. You were paid this Mr. Elmer Andes :rr Page 10 amount from January, 1986 through May, 1987 and V• us, received a total of $1,700.00. 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 and Order: As a member of a Borough Council, you are a public official subject to the provisions of the State Ethics Act. You violated the State Ethics Act where you, in your official position, cast the deciding vote to appoint yourself to a compensated position on a local municipal authority. law. You received a financial gain other than the compensation provided by You are hereby ordered to divest yourself of the financial gain received in violation of the act. You must, within (30) days of the date of this order, remit payment in the amount of $1,700 to the State Ethics Commission made payable to the Greater Greensburg Sewage Authority. Failure to comply with this order will result in a referral of this matter for further civil or criminal proceedings in accordance with the provisions of the law. 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 the Commi ssion, L K • Afa-1.4.n. Qa�C.077 7L G. Sieber Pancoast Chairman Dear Mr. Anderson: JJC /na cc: Public Binder Mr. Elmer Anderson 1620 Elm Street South Greensburg, PA 15601 Re: Order 570, File 86 -108 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 June 24, 1987 On June 24, 1987, the State Ethics Commission received your payment for reimbursing the Greater Greensburg Sewage Authority as required by Order 570. We have forwarded your check no. 5408 in the amount of $1,700.00 to the township. This letter will be part of the Order and a public record as such. Si ontino Exe ive Director