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HomeMy WebLinkAbout646 StubbinsMr. Roy E. Stubbins 900 Kennedy Drive Ambridge, PA 15003 Re: 87 -106 -C Dear Mr. Stubbins: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 646 Date Decided: April 8, 1988 Date Mailed: April 19, 1988 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, an Ambridge Borough Councilperson, violated Section 3(a) of the Ethics Act which prohibits a public employee's or public official's use of office or confidential information gained through that office to obtain financial gain, in that in January, 1985, you voted to appoint yourself to a paying position on the Ambridge Water Authority. A. Findings: 1. You serve as a borough councilperson in Ambridge Borough, Beaver County, Pennsylvania. a. You have served in this position for 16 years. 2. You also serve as a member of the Ambridge Borough Water Authority. a. You have served in that position since January, 1984. 3. Minutes of the Ambridge Borough Council reflect as follows: a. January 3, 1984 - Mr. Pugar read a letter of resignation from Mr. George Modrovich resigning from the Water Authority. Mr. Stubbins moved, second by Mr. Mr. Roy Stubbins Page 2 Schimonsky to accept the letter. On roll call vote, motion passed unanimously. At this time, Mr. Stubbins commented about Mr. Casello's performance and gave his reason for not supporting him for another term of office on the Water Authority. Mr. Stubbins then moved, second by Mr. Valentine to appoint Mr. Modrovich to the Water Authority for a five -year term to expire December of 1988. The motion was put to a roll call vote and passed unanimously. Mr. Aloi then moved second by Mr. Sheleheda that Mr. Roy Stubbins be appointed to a one year term of office to the Ambridge Water Authority. This term was vacated by Mr. Modrovich and will expire December 31, 1984. Mr. Valentine felt that Mr. Stubbins would be too busy with the borough budget and could not operate the authority and borough council. On the vote, ayes: Aloi, Schimonsky, Sheleheda, Krol. Nays: Valentine; abstained: Stubbins. b. January 21, 1985 - Letter from Ambridge Water Authority dated January 18 requesting the borough consideration in filling the expired term of Mr. Roy Stubbins on the board of directors. Mr. Aloi moved seconded by Mr. Schimonsky that Mr. Stubbins be reappointed to fill the term expiring on December 31, 1989. Motion passed unanimously. You were present at this meeting. c. February 18, 1985 - Minutes of the regular Ambridge Borough Council meeting held on January 21, 1985 were introduced for council's approval. Mr. Aloi moved, scond by Mr. Stubbins that the minutes be accepted as pâ– resented. A correction was made on page 3 paragraph 3 regarding a meeting with U.S. Realty. A motion to accept the minutes with the correction made was put to a roll call vote and passed as follows: Ayes: Aloi, Iorfido, Sheleheda, Stubbins, and Krol. Nays: none. Abstained: Valentine. (Not present at prior meeting). 4. Wage and Tax, Statements regarding your service on the Ambridge Borough Water Authority indicate as follows: a. 1986; wage, tips and other compensation: $600.00. b. 1987; wages tips and other compensation: $600.00. 5. You received no compensation for your services on the Borough Water Authority in years prior to those noted above. Mr. Roy Stubbins Page 3 6. You provided the following information in relation to this situation: a. You were first appointed to the Ambridge Borough Water Authority on January 3, 1984. b. At that time, you were a member of the Borough Council and you abstained from appointing yourself to this position. c. On January 21, 1985, you were again appointed to the Water Authority. d. You agreed that the borough minutes indicate that you voted for yourself, however, you stated there was no reason for you to do this as the vote was unanimous. e. You stated that you probably did not read the minutes of the meeting of the January 21, 1985 meeting and didn't realize that you had been marked as voting for yourself. f. The secretary at the January 21 meeting, probably just recorded a unanimous vote in that the minority members of the council were not present. You did not accept the salary for service on the borough authority during the years when you also served as a member of the borough council. B. Discuspjon: As a councilmember for Ambridge Borough, you are a "public official" as that term is defined under the Ethics Act. Rider, Order 490 -R; 65 P.S. §402; 51 Pa. Code 1.1. As such, you are subject to the provisions of the Ethics Act. 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 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). Mr. Foy Stebbins ?age 4 The above quoted provisicn of the law has been interpreted by this Commission to prohibit a public official's use of office which results in any financial gain or benefit to the public official unless it is authorized as part of the compensation provided by law. Thus, receipt of pension benefits paid by a second class township for supervisors violated this provision because the benefits were not compensation provided for by law. McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A..d 283 (1983). Likewise, a township supervisor violated Section 3(a) of the Ethics Act in a situation where he participated in appointing himself to a the position of secretary /treasurer and where he received compensation for that position which was not fixed by the township auditors. Yocabet v. State Ethics Commission, Pa. Commw. Ct. , 531 A.2d 536 (1987). Commonwealth Court, after noting that intent was not a prerequisite to a finding of a violation under the Ac , upheld the right of this Commission to order restitution of the :inancial gain which was received by a public official contrary to Section 3(a) of the Act: Section 1 of the Ethics Act 7 states that "the people have a right to be assured that the financial interests of holder of ... public office present neither a conflict nor the appearance of a conflict with the public trust." Section 7 of the Ethics Act instructs the commission to investigate situations where there is a reasonable belief that financial conflict may exist anc. if conflict is found to require the offender to remove himself from the conflict without gain. Id. at 539. Thus, the use of prohibited Domalakes, the receipt of any financial gain or benefit through office which is not compensation provided by law is under Section 3(a). See Huff, Opinion 84 -015, Opinion 85 -010. In this case, although you abstained as to your initial appointment for a one -year term to the Ambridge Water Authority, you did participate in your reappointment to that position as is evidenced by the council minutes which reflect that your reappointment was unanimously approved in the January 21, 1985 meeting of council at which you were present. Further, you seconded a motion to approve the minutes of council for the January 21, 1985 meeting at the February 18, 1985 meeting of Ambridge Borough Council. Under these circumstances, all of the factors necessary to establish a violation of Section 3(a) of the Mr. Roy Stubbins Page 5 Ethics Act have occurred. You, as a public official, used your office through voting in favor of your own appointment. You received a financial gain, consisting of your salary with the Authority, as a result of your use of public office. Lastly, there is no provision in law which allows such compensation for a councilmember under the borough code. There is a clear violation of Section 3(a) of the Ethics Act by your use of office to advance your own personal interest. The decision of the Commission in this case is consonant with prior decisions. Thus, in Koslow, Order 458 -R, this Commission found that a commissioner violated Section 3(a) of the Ethics Act when he voted to appoint himself to a municipal authority. Likewise, in Dodaro, Order 590 -R, a violation of 3(a) of the Ethics Act was found when a municipal authority member voted to appoint his minor son to a position with the authority. In both of the foregoing matters, the Commission specifically determined that an official voting to appoint himself to another position for which compensation is paid has used his office for a financial gain other than the compensation provided by law. The financial gain you received through the use of your powers as a councilperson, was in fact, not part of the compensation provided for borough officials. Therefore, there can be no doubt that you did use your powers, as a councilperson to obtain a financial gain that was not part of the compensation provided for borough councilpersons. In this respect, a further review of the Borough Code is in order. Th4 Borough Code specifically enumerates, the compensation that is to be received by elected officials of such boroughs. The Code provides inter alia: Councilmen may receive compensation to be fixed by ordinance at any time and from time to time as follows: In boroughs with a population of less than five thousand, a maximum of fifteen hundred dollars ($1500) a year; in boroughs with a population of five thousand or more but less than ten thousand, a maximum of two thousand dollars ($2000) a year; in boroughs with a population of ten thousand or more but less than fifteen thousand, a maximum of twenty -six hundred dollars ($2600) a year; in boroughs with a population of fifteen thousand or more but Mr. Roy Stubbins Page 6 less than twenty -five thousand, a maximum of thirty -three hundred dollars ($3300) a year; in boroughs with a population of twenty -five thousand or more but less than thirty -five thousand, a maximum of thirty -five hundred dollars ($3500) a year; and in boroughs with a population of thirty -five thousand or more, a maximum of four thousand dollars ($4000) a year. Such salaries shall be payable monthly or quarterly for the duties imposed by the provisions of this act. 53 P.S. S46001. The Code also provides: Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau of other agency created by or for the borough, or any borough office created or authorized by statute and may accept appointments thereunder, but no mayor or councilman shall receive compensation therefor. 53 P.S. §46104. Strikingly omitted from the provisions of the Borough Code, and in fact no where to be found therein, is any authorization for a Borough Councilperson to receive as part of his legitimately authorized compensation any additional funds. In this respect, there are a number of prior judicial decisions that unequivocally establish the legal principle that a public official many not receive, in his position of public employment, compensation in excess of that which is specifically provided for in law. The law, of course, to be reviewed in such situations, is the enabling legislation through which the public office has been created. See McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283, (1982); Coltar v. Warminster Township, 8 Pa. Commw. Ct. 163, 302 A.2d 859, (1973); Hendricks v. East Rock Hill Township, 1 D & C 3d 763, (Bucks 1977); Warminster Township Appeal, 56 D &'C 2d, (Bucks 1971). Indeed, so stringent is the law regarding the compensation which a public official may receive within the provisions of the governing body's enabling legislation, that any official receiving compensation in excess of that which is specifically set forth in said enabling legislation, is obligated to make restitution therefor, albeit that such was received in good faith or without criminal intent. See County of Allegheny v. Grier, 179 Pa. 639, 36 A. 53, (1897); Kestler Appeal, 66 Pa. Commw. Ct. 1, 444 A.2d. 761 (1981). See also Rockovich, Order 356 -R where this Mr. Roy Stubbins Page 7 Commission found that a borough mayor violated 3(a) of the Ethics Act when he voted to appoint his wife as a building inspector and also voted against limiting her salary. In Zvnel, Order 625, this Commission also found that a borough councilmember violated Section 3(a) when he voted in favor of his appointment to a municipal authority. The State Ethics Act provides, in part, as follows in Section 7(9)(iii): "If the Commission finds that there is a conflict, the information shall be provided for criminal proceedings unless the alleged offender removes himself from the conflict with receiving financial gain." 65 P.S. §407(9)(iii): The above provision allows this Commission to order restitution of any unlawful gain received by a public official in violation of the Ethics Act. See McCutcheon, supra; Yocabet, supra. In the instant matter, you have received an unlawful gain of $1200 for the years 1986 and 1987. You are directed to return that gain to your governmental body within 30 days of the date of this order; otherwise, this matter will be referred to the appropriate law enforcement authority. C. Conclusion and Order: 1. As a councilperson for Ambridge Borough, you are a public official subject to the provisions of the Ethics Act. 2. You violated Section 3(a) of the Ethics Act by voting in favor of your own reappointment to the Ambridge Water Authority. 3. You are directed within 30 days of the date of this order to forward a check to the State Ethics Commission payable to the Ambridge Water Authority, in the amount of $1200. 4. Failure to comply with the provision of paragraph 3 of this order will result in the referral of this matter to the appropriate law enforcement authority. 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 Mr. Roy Stubbins Page 8 y04.1 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, Joseph W. Marshall, III Chairman Mr. Roy E. Stubbins 900 Kennedy Drive Ambridge, PA 15003 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 May 23, 1988 Re: Order No. 646, File No. 87 -106 -C Dear Mr. Stubbins: On May 10, 1988, the State Ethics Commission received your payment for reimbursing the Ambridge Water Authority as required by Order No. 646. We have forwarded your check No. 548 dated May 4, 1988 in the amount of $1,200.00 to the Ambridge Water Authority. This letter will be part of the Order and a public record as such. JJC /na cc: Public Binder Si J . ant' no Execu ve Director