Loading...
HomeMy WebLinkAbout649 SmetankaSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 649 Date Decided: June 10, 1988 Date Mailed: June 24, 1988 Ms. Connie Smetanka c/o Daniel M. Berger Esquire Law and Finance Building, 5th Floor 429 Fourth Avenue Pittsburgh, PA 15219 Re: 87-105-C Dear Ms. Smetanka: 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, President of Ambridge Borough Council, 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 you voted at the March 23, 1982 meeting of council to appoint your husband to fill an unexpired term on the Ambridge Water Authority. A. Findings: 1. You served as a member of the Ambridge Borough Council. a. In 1982 you were serving as the president of borough council. 2. Minutes of the Ambridge Borough Council meeting of March 23, 1982 provide as follows: a. Mr. Sangermano asked Mr. Gill to read the letter from Father Farino which Mr. Gill then did. The letter dated February 28, 1982 from Reverend Edward R. Farino stating for personal reasons he finds it necessary to resign membership of Board of Directors, Borough of Ms. Connie Smetanka Page 2 Ambridge Water Authority. Mr. Sangermano motioned to accept letter of resignation from Reverend Father Farino with regret. Mr. Valentine second the motion. AYES: Iorfido, Krol, Sangermano, Stubbins, Towcimak, Valentine, Smetanka. Nays : None Mr. Sangermano then placed the nomination of John Smetanka to fill unexpired term of Father Farino. Mr. Valentine second the motion. Mr. Krol nominated Mr. Flory Aquino. Motion by Mr. Stubbins and second by Mr. Iorfido to close the nominations. Motion passed. AYES FOR JOHN SMETANKA AYES FOR FLORY AOUINO Iorfido Krol Sangermano Stubbins Valentine Towcimak Smetanka President Smetanka declared John Smetanka to fill Father Farino's position by a 4 to 3 vote. Mr. Iorfido motion that passed a letter be sent to the water authority that John Smetanka was appointed. Mr. Sangermano second the motion. Motion passed. 3. John Smetanka is your husband. 4. Records of the Borough of Ambridge Water Authority regarding W -2 wage and tax statements for John Smetanka provide as follows: YEAR WAGES /COMPENSATION 1982 $450.00 1983 $550.00 1984 $600.00 1985 $600.00 1986 $600.00 5. By letter dated August 5, 1987 your attorney provided the following information: - ter_ -- -- Ms. Connie Smeta.sa Page 3 a. The funds ($50 per month) that your husband received as a result of his service on the authority was compensation provided by law and there was no violation of section 3(a) of the State Ethics Act. b. The monthly stipend received from the authority should not be deemed compensation because of its de minimus nature. c. No one in today's economy would give anything to a public official to obtain a $50 per month position. d. The Ethics Act was not intended to prohibit conduct such as Ms. Smetanka's. By classifying the violations of the law as felonies the law was aimed at under the table pay -offs to public officials. e. The law was not aimed at officials who cast a public vote for a family member. f. The solicitor was present at the meeting where Ms. Smetanka voted and raised no objections to her actions. Ms. Smetanka performed a public service by ensuring that the authority had a highly qualified individual; her husband. g. 6. You provided the following information in relation to this matter: a. Your husband had retired from ARMCO Steel. b. He was in charge of all water used in the mill and tested it daily. c. Mr. Smetanka saved the authority a considerable amount of money. d. He had worked with the water at the plant for 20 years and had received a commendation for his boilers. e. The other individual being considered for the position was totally unacceptable. f. You asked your husband if he would take the position and he reluctantly agreed. g. You just wanted to help the people of Ambridge. h. You didn't talk to anyone else about the position. Ms. Connie Smetanka Page 4 i. You did not vote for your husband in order to obtain the money. Your husband thought that the authority members should give up the monthly allotment. k. You did things for the borough without compensation. B. Discussion: As President of Ambridge Borough Council, you are a "public official" as that term is defined in the State Ethics Act. 65 P.S. S402; 51 Pa. Code 51.1: Rider, Order 490 -R. As such, your conduct is subject to the restrictions of the Ethics Act. j. 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). Section 3(a), quoted above, specifically provides in part that a public official shall not use his public office to obtain a financial gain other than compensation provided for by law for himself or for a member of his "immediate family." Section 2. Definitions. "Immediate family." A spouse residing in the person's household and minor dependent children. 65 P.S. §402. In the instant matter, when the Reverend Edward R. Farino resigned from the Ambridge Water Authority, the borough council proceeded to fill the vacancy. At the March 23, 1982 meeting, both the names of John Smetanka, your husband, and Mr. Krol were placed in nomination. Your husband was elected by a 4 to 3 vote and you cast the deciding vote by voting for his appointment. Your actions have implicated Section 3(a) of the Ethics Act. You as a public official used public office by voting. A financial gain was obtained in that your vote put your husband in a salaried position with the authority. The financial gain enured to a member of your immediate family; your husband. Lastly, the gain received is not compensation provided by law Ms. Connie Smetanka Page 5 since there is no provision in the Borough Code which authorizes a member of a borough council to vote to appoint themselves or a member of their immediate family to a salaried position with a municipal authority. Based upon the above, it is the decision of this Commission that there has been a violation of 3(a) of the Ethics Act. Our conclusion is in accord with prior orders and opinions of the Commission. In Rockovich, Order 356 -R, this Commission specifically found a violation of Section 3(a) of the Ethics Act when the mayor of a borough voted against limiting his wife's salary as building inspector. See also, Rupinski, Order 338, wherein this Commission found that there was an appearance of a conflict of interest with the public trust in the case where a borough councilman voted in favor of hiring his son as a borough employee in the street department, even though the son was neither a minor nor a dependent as provided in the definition of "immediate family ". See also O'Reilly /Johnston, Opinion 83 -012. In Koslow v. State Ethics Commission, Commonwealth Court in an Opinion filed on May 5, 1988 at 3687 C.D. 1986, affirmed a decision of this Commission which found that a township commissioner violated Section 3(a) of the State Ethics Act when he voted to appoint himself to a salaried position with a municipal authority and which directed the commissioner to make restitution of the financial gain while serving on the authority. The situation in Koslow is virtually identical to the instnt matter. Just as Koslow, your vote was the deciding vote. Just as in Koslow, you used your vote on the governing body to make an appointment to a municipal authority. Just as in Koslow, the appointment resulted in financial gain since it was to a salaried position. Just as in Koslow, the appointment is contrary to law: "The controlling principle developed by our case law is that a council member is disqualified from voting in any matter or proceeding in which he or she has a personal interest. McAdoo Borough v. Pennsylvania Labor Relations Board, 506 Pa. 422, 485 A.2d 761 (1984); Consumer Education and Protection Association v. Schwartz, 495 Pa. 10, 432 A.2d 175 (1981); Raynovich v. Romanus. 450 Pa. 391, 299 A.2d 301 (1973) (plurality opinion). By casting the controlling vote in favor of appointment, Koslow violated this clear precept of public policy. Koslow's vote was therefore illegal and void and could not he counted in computing a quorum or majority. Raynovich, 450 Pa. at 395, 299 A.2d at 304. Discounting Koslow's vote, the board's vote tied at 2 to 2; Koslow's appointment to the municipal authority was not supported by the majority of the board and therefore failed. Ms. Cc rinie Smetanka Page i amount of gain that yo°x received as a result of your voting to appoint your husband to the authority. 4. Failure to remit the sum of $2,800.00 within thirty (30) days of this order will result in the referral of this matter to the appropriate law enforcement authorities for further civil or criminal proceedings. 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 E1 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. John Smetanka 1005 Eighth Street Ambridge, PA 15003 Dear Mr. Smetanka: such. JJC /na cc: Public Binder STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 21, 1988 Re: Order No. 649, File No. 87 -105 -C Si 0 xecu ve Director The State Ethics Commission received your payment for reimbursing the Ambridge Water Authority as required by Order No. 649. We have forwarded your check in the amount of $2,800 to the Ambridge Water Authority. This letter will be part of the Order and a public record as