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HomeMy WebLinkAbout625 ZynelMr. Eugene J. Zynel 998 Chestnut Street Freeland, PA 18224 Re: 87 -002 -C STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 625 DATE DECIDED: 12/14/87 Ut1iG tli1LGU. 12/26/87 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 in Freeland Borough, violated Section 3(a) of the State Ethics Act which prohibits a public official's or public employee's use of office or confidential information received through holding public office to obtain financial gain other than compensation provided by law, in that at the January 5, 1987 borough council meeting you cast the deciding vote to appoint yourself to a paid position on the Freeland Municipal Water Authority. A. Findings: 1. You have served as a Freeland Borough Councilman from October, 1983 to the present. a. You have also served as a member of the Freeland Water /Sewage Authority from January, 1987 to October 21, 1987. 2. Minutes of the borough council meetings reflect the following pertinent information: a. January 5, 1987: President Kraynak announced nominations would be accepted for one appointment to the Freeland Municipal Water /Sewer Authority; term to expire December 31, 1990. Mr. Eugene J. Zynel Page 2 Gretchen'nominated himself - John Gretchen; Schenk nominated Ann Marie Kufro; Ravi na nomi nated Eugene Zynel . On a discussion held prior to the vote, Attorney Phillips advised council that it would be illegal for a member of council to vote fJr his or herself to the authority under the Pennsylvania State Ethics Act because the position is one which receives compensation. Gretchen then withdrew his name from nomination stating his son is employed by the authority. The following is the roll call vote: Gretchen, Ravina, Roth and Zynel voted for Zynel; Bobby, Schenk and Kraynak voted for Kufro. You were elected by a 4 -3 vote to the Freeland Municipal Water /Sewer Authority -- term to expire December 31, 1990. b. January 29, 1987: You requested a correction or addition to the minutes of the January 5th meeting, stating you had advised council you would accept no compensation if elected to the authority. Minutes reflect that a di scussion among council members revealed no consensus of opinion. c. February 2, 1987: On a 6-1 roll call vote, council accepted the minutes of the January 5th meeting as presented. You voted against the acceptance of these minutes. On your motion, seconded by Councilman Ravina, council agreed to tape record all future meetings. s. Interview of three counci l members, confirmed that you cast the deciding vote to appoint yourself to a paid position on the Freeland Water /Sewage Authority. a. None of these councilmembers recalled hearing you state that you would not accept pay for serving on the Authority during discussions at the January 5th meeting. b< They advised that you have not accepted any payment for your services to the authority. You were handed a check of $78.33 for your first month of service but you returned this to the authority. Mr. Eugene J. Zynel Page 3 „ c. They stated that prior to the 4 to 3 vote, you received advice from Solicitor Bruce Phillips that voting would be a violation of the State Ethics Act. 4. You verified that at the borough council meeting of January 5, 1987, you cast the deciding vote to appoint yourself to a position on the Freeland Water /Sewage Authority. a. You insisted that at this meeting, you stated your intention not to accept any compensation for your services to this authority. b. You related that several discussions were going on pertaining to the amount of compensation when you stated your intention not to accept payment for services to the authority. c. You stated that at the first authority meeting you attended, your opening comments included an announcement that you would accept no compensation for your services to the authority. d. You recalled that a reporter for a local newspaper attended this authority meeting and in a news article reported your intention not to accept such payment. e. You asserted that a Pennsylvania Department of Community Affairs employee advised that you would be able to vote for yourself in this matter because you were not accepting any compensation. f. You stated you were not aware that you could have sought an opinion from the State Ethics Commission particularly with regard to whether or not you could vote. By letter of October 20, 1987, to the Freeland Borough Water Authority, you tendered your resignation effective October 21, 1987. B. Discussion: As a Freeland Borough Councilman, you are a "public official" as that term is defined in the Ethics Act. See Rider, No. 490 -R; 65 P.S. §402. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received _ g. Mr. Eugene J. Zynel Page 4 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). Section 3(a) basically provides that a public official may not use his public office or confidential information to obtain a gain for himself or a member of his immediate family other than compensation provided for by law. Under Section 3(a) of the Ethics Act this Commission has determined that a public official 's use of his public office through voting, making motions of participating which results in a gain or benefit to that individual which is not provided for in law constitutes a "financial gain other than compensation provided for by law" contrary to Section 3(a) of the Ethics Act. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. 529 (1983). See also Yocabet v. State Ethics Commission, Pa. Commw. , 531, A.2d 536 (1987). In Yocabet supra, this Commission found a Section 3(a) violation when a township supervisor voted to appoint himself as township secretary /treasurer and received a salary for that position which had not been established by the township auditors. Commonwealth Court, affirmed the order of the Ethics Commission which required a restitution of the financial gain, rioting on page 5 of his opinion: "Section 7 of the Ethics Act instructs the Commission to investigate situations where there is a reasonable belief that financial conflict may exist, and if conflict is found, to require the offender to remove himself from the conflict without gain." In the instant situation, you as borough councilman, participated in the .=ppointment of yourself to the Freeland Municipal Water /Sewer Authority on January 5, 1987. After council was advised by their attorney that it would be improper for a member of council to vote for himself, you did vote for yourself for that position; in fact, you cast the deciding vote. Although you assert that you stated that you would not accept compensation for the position on the authority, both the minutes and the statements of other councilmembers do not reflect that you made such a statement. It is noted that when you were handed a check for $78.33 for your first month of service on the authority, you did not accept that payment. Finally, by letter of October 20, 1987 to the authority, you resigned effective October 21, 1987. In this case, the minutes of borough council and the testimony of the other councilman reflect that you, in fact, did vote to appoint yourself to the position on the municipal authority. Such use of your office by voting to appoint yourself resulted in a gain or benefit on your part in your employment with the authority in violation of Section 3(a) of the Ethics Act. Mr. Eugene J. Zynel Page 5 In Rockovich; No. 356 -R, this Commission determined that a borough mayor violated Section 3(a) of the Ethics Act when he voted both to appoint his wife as building inspector and also voted against limiting her salary. This Commission found that financial gain was realized when the mayor voted against limiting the salary of his wife and consequently, directed the mayor to remit that financial gain to the borough. More specifically on point is Koslow, No. 458 -R wherein this Commission ruled that a township commissioner violated Section 3(a) of the State Ethics Act when he cast the deciding vote to appoint himself as a compensated member of the township's municipal authority. Although you did not accept compensation for this position and subsequently resigned, that does not alter the fact that you did in fact use your position by casting the deciding vote to appoint yourself to that position. This is a violation of Section 3(a) of the Ethics Act. C. Conclusion and Order: 1. You as a Freeland Borough Councilman, are a "public official" subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you cast the deciding vote to appoint yourself to the position of member of the Freeland Water /Sewage Authority. 3. Based upon the fact that you received no financial gain and, thereafter, resigned your position on the authority, we will take no 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 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, 2 • swe.1,1 4 b G. Sieber Pancoast Chairman