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HomeMy WebLinkAbout598 AbbottMr. Elias Abbott 220 Carpenter Lane N. Huntingdon, PA 15642 Re: 86 -160 -C Dear Mr. Abbott: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 598 DATE DECIDED: August 31, 1987 DATE MAILED: September 8, 1987 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 North Huntingdon Township Commissioner and a member of the North Huntingdon Municipal Authority, violated Section 3(d) of the Ethics Act which prohibits of conflicts of interests, in that as a township commissioner, you participated as a member of the Board of Commissioners at the August 13, 1986 board meeting, in approving Resolution No. 119 of 1986, dealing with sewage extension, a matter that directly relates to the activities of the township municipal authority. A. Findings: 1. You are a duly elected North Huntingdon Township Commissioner and an appointed member of the North Huntingdon Township Municipal Authority. 2. You were appointed by the Commissioners of North Huntingdon Township to the North Huntingdon Township Municipal Authority effective January 1, 1986. 3. On December 4, 1985, the Township Solicitor, Mr. Thomas P. Cole, Esquire, wrote to the State Ethics Commission asking for advice regarding whether a commissioner in a township of the first class may simultaneously serve as a member of a township municipal authority and receive compensation therefor. a. You were the subject commissioner referred to in Mr. Cole's letter. (fir•. Elias Abbott Page 2 4. On January 16, 1986, the General Counsel of the State Ethics Commission wrote Advice of Counsel No. 86 -503, wherein it was advised that the township commissioner "should not participate as a member of the township commission in any matter that directly relates to the activities of the municipal authority." a. The advice concluded that, "while the State Ethics Act presents no per se prohibition upon the simultaneous service by a township commissioner as a member of a township municipal authority, as a public official, this individual's activities must conform to the requirements of the State Ethics Act and the prior opinions of the State Ethics Commission. As such, this individual is to be guided, if he accepts the position as a member of the municipal authority, by the advice outlined above." 5. Advice No. 86 -503, was addressed to the township solicitor, Mr. Cole, and, according to a letter dated January 22, 1986, Mr. Cole wrote you a letter, wherein you were advised that you could serve as a commissioner and serve as an appointed member of the township authority. With his letter, Mr. Cole transmitted a copy of the advice. 6. According to the minutes of the meetings of members of the township municipal authority for the date of July 10, 1986, a planning module for extending sewer lines for the Farview and LaVista Drives area was presented to the authority members by Mr. John M. Seifarth, PE, Schneider Consulting Engineers. a. On that same date, you, as a member of the Township Authority, voted to ratify the Farview project which included asking the North Huntingdon Township Commissioners to pass a Resolution to allow the Authority to proceed with the extension. b. The vote on the motion was 4 -0, and you voted. 7. Minutes of the commissioners' meetings regarding that period of time show that there was considerable opposition to the proposal both from other members of the Township Commissioners and from the citizens of the Farview and LaVista areas. 8. By letter dated August 12,'1986, on township authority letterhead, Mr. Thomas V. Mance, Secretary, sought approval of a five year Capitol Improvement Plan, in compliance with Act 537, updating the Master Plan. The projects included in the improvement plan were Drennan Heights, Woodside Farview /LaVista, Park Meadows, among others. a. The letter was written to Mr. Gerald Hagan, Chairman, North Huntingdon Township, copy to all commissioners. Mr. Elias Abbott Page 3 9. Mr. Mance's letter made mention of the 1984 report completed by Mr. Seifarth, the township engineer, which stated that the project involving Farview /LaVista should not be completed at the present time since it was not economically feasible. 10. The minutes of the township commissioners' meeting of August 13, 1986, indicate that citizens from the Farview /LaVista area made a presentation through a representative, against the planned extension of their area, citing the financial hardship of the people of the area. 11. The foregoing minutes also show that under that portion of the commissioners' meeting regarding committee reports, you advised the Commissioners that, during the course of their regular meeting on July 10, 1986, the Municipal Authority directed the following action be taken: (there were three items, one of which was) Item 2. Forwarded the Farview Drive and LaVista Drive sewage planning modules to the Commissioners for approval an addition to the Township Master Plan. 12. During the Solicitor's portion of the same August 13, 1986, commissioners' meeting, the solicitor, Mr. Cole, introduced Resolution No. 119 of 1986, which was the resolution dealing with the Planning Module for sewage extension, Farview /LaVista Drives. a. You made a motion, seconded by Batley, that Resolution No. 119 and 1986 be approved. 13. During the discussion of that motion, the chairman was told by Commissioner Gross, that you could not vote on motions pertaining to the municipal authority. a. The Chairman, Mr. Hagan, asked the solicitor, Mr. Cole, to_ comment on Mr. Gross' question. 14. In his opinion, Mr. Cole told the chairman and the commissioners of which you were one, that to be on the safe side, if you would withdraw your motion, and if there were someone else who would make a motion, so be it." Mr. Cole said that he was not going to rule that you must withdraw your motion, but if you would and someone else would make a motion and have it seconded, it would avoid any appearance of a conflict whatsoever. 15. You told Mr. Cole that was his opinion, and that you respected it. You said that you talked to other attorneys and they said no such thing. a. You then stated, "No, I'ni not withdrawing my motion." 16. In response to a request from Commissioner Gross that the chairman rule your motion out of order, Mr. Hagan declined to comply with Mr. Gross' request. Mr. Elias Abbott Page 4 17. There was a lengthy discussion among the commissioners relative to your right to propose the motion and to vote on the motion. After some time, the motion was brought to a vote and you voted to pass Resolution No. 119. a. The vote was 4 in favor and 3 against and you were the deciding vote. 18. Minutes of the North Huntingdon Township Commissioners meeting of December 30, 1986, confirmed the following: a. Special Meeting to action on seven items, including to take input from citizens concerning 537 Sewage Plan submitted by the North Huntingdon Township Municipal Authority. b. Solicitor Cole advised that it would be appropriate for the board to take any action in addition to input. This included motion to adopt Act 537 Plan Revision, Official Sewage Facilities Plan submitted by the North Huntingdon Township Municipal Authority, dated December 5, 1986, prepared by Schneider Engineers constituting official revision and by the passage of Resolution #130 of 1986. c. Motion Bately, second Ludwicki to accept Cole's recommendation. d. Motion Gross, second Tempero to table the motion for 30 days. Defeated by a 5 to 2 vote. You voted with the majority. e. Motion Beeler, second Gross to add to the Cole motion to include Fairview Drive into this group. Defeated by a 4 to 3 vote. You voted with the majority. f. Vote on original motion as read by Cole. Roll call vote: (5) Yes - You, Beeler, Bately, Ludwicki, Hagen (2) No - Gross and Tempero 19. The minutes of the North Huntingdon Township Municipal Authority for the date of February 12, 1987, show that the Resolution No. 3, 1987, which dealt with the disposal of refuse materials by incineration, landfills or other methods, incineration plants and steam production from the burning of such refuse, was introduced by the solicitor for the resolution, the vote being 5-0. 20. According to the minutes of the Township Commissioners' meeting, date of February 25, 1987, the Authority's Resolution No. 3, was on the agenda, but due to the wording of the resolution, especially that portion of the resolution dealing with landfills, Batley made a motion, seconded by you, to table the vote on Authority Resolution No. 3. On the roll call vote, the vote was 5 -2 to table and you voted with the majority. Mr. Elias Abbott Page 5 21. On February 27, 1987, the members of the Authority held a special meeting, wherein a motion to rescind Resolution No. 3 and accept Resolution No. 4, which eliminated the referral to a landfill and included their interest in looking into a solid waste to energy plant. a. The motion was made by J. Abraham, second by T. Mance and passed 4 -0 and you voted with the majority. b. The motion recommended approval by the Township Board of Commissioners. 22. By letter on the Municipal Authority letterhead, dated of March 5, 1987, Mr. Terry Koelsch, Vice Chairman of the Authority, transmitted Authority Resolution No. 4 to the Board of Commissioners recommending that the Commissioners approve an amendment to the Authority's Articles of Incorporation to include the disposal of solid waste and sludge by a number of different ways. 23. The minutes of the March 25, 1987 meeting of the township commissioners disclosed that you made a motion to table Resolution No. 4 until the Authority people can sit down with the Board, and questions be asked to resolve the problem once and for all. The motion was seconded by Mr. Batley and-was carried, 6 -0 and you voted on the motion. 24. The township records show that on April 2, 1987, the commissioners and the members of the Authority met together to discuss a resolution relative to the disposal of refuse and you were present. The meeting adjourned 41 minutes later with the attorneys for the Authority and the Township being directed to work out the language problems and present a draft (of the resolution) to the Board. 25. The township minutes also show that on April 8, 1987, Mr. Batley made ,a motion to adopt Resolution No. 102, Authority Resolution No. 4, second by Mr. Ludwicki. After some discussion, the motion was put to a vote and was passed, 4 -2, with your vote for the passage of the motion. 26. Minutes of the North Huntingdon Township Commissioners meeting of July 8, 1987, disclosed the following: a. Solicitors Report: Proposed Ordinance #12 of 1987, creating an on -site disposal management program and providing penalties for violation. If adopted, this would be Ordinance #678. b. Motion Batley, second Ludwicki to pass Ordinance #12 of 1987. Roll call vote: (5) yes - Beeler, Batley, Ludwicki, you, Hagan (2) no - Gross, Tempe ro Mr. Elias Abbott Page 6 c. New business item: North Huntingdon Township Municipal Authority resolutions #14 and #17 of 1987 concerning proposed construction of sanitary sewer lines along Fairview Drive and Ardaro Road, including construction plans and costs, front foot assessment. Motion Bately, second Ludwicki to approve the resolutions. Discussion ensures regarding reduction of tap -in Fees. You stated that this had already been established upstairs. Roll call vote: (5) yes - Tempero, Beeler, Bately, Hagan, udwicki; you. (1) no - Gross d. Motion Gross, second Tempero that a letter be sent to the North Huntingdon Township Municipal Authority that before they construct any line or pumping station, information should be supplied to this board concerning the cost to go to the Western Westmoreland Treatment Plant. You stated Act 537 was passed and everything had been approved in Act 537.. Roll call vote: (4) no - You, Hagan, Ludwicki, Batley (2) yes - Gross, Tempero (1) abstain - Beeler 27. When interviewed by our investigators on May 7, 1987, you said that yob had contacted three attorneys, Mr. John Means, Mr. Danny Bertani and Mr. Evasivich and were told it was alright to vote as a member of the Authority. You said that the Farview /LaVista project was approved by the Board of Commissioners and that in July, 1986, you voted to approve the project as a member of the authority -and that you voted to approve the project as a member of the Board of commissioners in August, 1986. 28. You said that you contacted the township solicitor, Mr. Cole, and he said that it was a grey area and that you voted anyway, because of the fact that the other three attorneys said that it was appropriate. 29. You said that you told Mr. Flaherty, the spokesman for the Farview /LaVista group who were against the extension, that you were ordered to pay for sewer lines, they should pay too, they were no different than anyone else. You said that the state and federal governments had mandated the sewers in the area. Mr. Elias Abbott Page 7 30. When you were asked about Mr. Cole's problem with your making the motion and then voting on the extension, you said that Mr. Cole had been wrong before. 31. When you were asked why you voted in both entities, especially in the face of the directive from the Ethics Commission that he probably should not participate in such votes, you said that you felt that there was nothing wrong with it, you felt that it was right, that other attorneys had advised you that there is nothing wrong voting in both positions on such issues. 32. You said that you did not know if the extension would have been passed without your vote. You indicated that roads in your district are being sewered and you voted for them, adding that you know that it isn't cheap to put in sewers but it had to be done. 33. When asked again about the letter from the State Ethics Commission to Mr. Cole, you said that you had the letter at home and had read it. You said that the cases cited were not First Class Townships. Mr. Cole, the solicitor, said that there was nothing wrong with serving on both boards. B. Discussion: As North Huntingdon Township Commissioner and member of the North Huntingdon Township Municipal Authority, you are a public official /employee as that term is defined in the Ethics Act and the restrictions therein are applicable to you. Section 3(d) of the Ethics Act provides: Section 3. Restricted activities. (d) Other areas of possible conflict shall be addressed by the commission pursuant to •paragraph (9) of section 7. 65 P.S. 403(d). One of the other areas of possible conflict that the Commission has addressed pursuant to Section 3(d), concerns appearances of conflict of interest as set forth in the Preamble under Section 401. Section 401 of the Ethics Act provides: 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 Mr. Elias Abbott Page 8 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 Ethics Act was enacted to strengthen the faith and confidence of the people in their government by assuring the public that the financial interest of the holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. 65 P.S. 401. - In the instant situation, you simultaneously serve in the positions of township commissioner for North Huntingdon Township, hereinafter Township Commission and municipal authority member for the North Huntingdon Township Municipal Authority, hereinafter Authority. Although you were issued an Advice of Counsel on January 16, 1986, No. 86 -503 that there was no per se prohibition against the simultaneous service in those two positions, you were specifically advised, by General Counsel, that situations could occur wherein the interests of the Authority could be adverse to the interests of the municipality that created the authority. In his advice, General Counsel indicated that you should not participate, as a member of the Township Commission, in any matter that related directly to the activities of the Authority. Conversely, you were advised that you should abstain from participating as an Authority member as to any Township Commission related matters. Factually, according to the July 10, 1986 minutes of the Authority, you voted to ratify a project which would request the Township Commission to allow the Authority to proceed with a sewer line extension for Fairview and La Vista Drives. Even though there was considerable opposition to that extension and even though the secretary of the Authority, in a letter to the Township Commission, referred to the Township Engineer's Report that the project was not economically feasible at that time, you advised the Township Commission of the above actions. Thereupon, at the August 13, 1986 meeting of the Township Commission you voted in favor of Resolution No. 119, which concerned the Fairview /LaVista Drives sewage extension. Even though it was suggested to you that you could not vote on the motion in light of your position with the Authority, you ignored that admonition and cast the deciding vote in favor of a motion to pass Resolution No. 119. Subsequently, in a December 30, 1986 Commissioners meeting concerning No. 537 Plan Revision submitted by the Authority, you voted against a motion for the inclusion of Fairview Drive in that plan and you cast the deciding vote to defeat that motion. Mr. Elias Abbott Page 9 On February 12, 1987, the Authority considered Resolution No. 3, dealing with the disposal of refuse materials, said resolution being carried unanimously by a vote in which you participated. Thereafter, at a Township Commission meeting on February 25, 1987, regarding Authority Resolution No. 3, a motion was made to table the vote on that resolution and you voted with the majority in a 5 -2 vote. On February 27, 1987, the Authority held a meeting regarding the possible recision of Resolution No. 3, and the acceptance of Resolution No. 4. The motion, which recommended approval by the Township Commission, was carried by a 4 -0 vote in which you participated. The Authority, on March 5, 1987, transmitted the resolution to the Board of Commissioners for approval. The Township Commission voted on your motion on March 25, 1987 to table Resolution No. 4, until the Authority people could discuss the matter with the Township Commission. The motion was carried 6 -0 and you voted. You also •participated in a joint meeting of April 2, 1987, between the Township Commission and the Authority relative to the discussion of refuse disposal. Thereafter, on April 8, 1987, Authority Resolution #4 was voted upon by the Township Commission and you voted in favor of that motion, which passed by a 4 -2 vote. In a Township Commission meeting on July 8, 1987, it is reflected - that you voted in favor of Authority Resolutions No. 14 and No. 17 of 1987, regarding sewer construction to Fairview Drive. The vote was 5 -1 in favor, with you voting with the majority. Secondly, there was a motion that a letter be sent to the Authority that information should be supplied to the Township Commisiion before the construction of any line or pumping station. The vote was 4 in favor, 2 against and 1 abstention, with you voting with the majority. As justification for your actions of voting on matters that were interrelated between the Authority and the Township Commission, you state that you contacted three attorneys who told you that it was all right. You state that you believed that you did not do anything wrong even though there was a directive from the State Ethics Commission that you should not participate in such instances. In light of the fact that there is no evidence in the case to show that you have obtained financial gain or have received something of value based upon the understanding that it would influence your vote, official action or judgment as a public official, this Commission finds that there is no violation of Section 3(d) of the Ethics Act. We must note, however, that we strongly urge you, in future situations, to review and comply with the previous Advice of Counsel. C. Conclusion and Order: 1. As a Township Commissioner and member of the Municipal Authority, you are a public official /employee as that term is defined in the Ethics Act. Mr. Elias Abbott Page 10 2. There is no violation of Section 3(a) of the Ethics Act, but you should comply with the previously issued Advice of Counsel in the future. 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 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, Goy G. Sieber Pancoast Chai rman