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HomeMy WebLinkAbout715 WilmotJack E. Wilmot, Jr. 331 Glorietts Hill Road Apollo, PA 15613 Re: 87 -170 -C Dear Mr. Wilmot: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF TICE COMMISSION Order No. 715 Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington Michael J. Washo Date Decided: July 27. 1989 Date Mailed: Julv 28. 1989 The State Ethics Commission received a complaint regarding you and a possible violation of the State Ethics Act, No. 170 of 1978, 65 P.S. 401 et. seq. You were notified in writing as to the commencement of the investigation and as to the specific allegation(s). The investigation has now been completed and a Findings Report was issued to you which constituted the Complaint by the Investigation Division of the State Ethics Commission. An Answer was filed and a hearing was deemed waived. The record is now completed. This Order of the Commission is hereby issued which sets forth the individual allegations, findings, discussion and conclusion as follows: I. Allegation: That you, Chief of Police of North Apollo Borough, Armstrong County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you contracted with the borough to have refuse dumped at a landfill owned by you and, when you failed to file Statements of Financial Interests with the borough for the 1982, 1983, 1984, 1985, 1986 and 1987 calendar years: 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 Jack E. Wilmot, Jr. Page 2 of his immediate family, or a business with which he is associated. 65 P.S. $403(a). (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. S403(c). Section 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1, of each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. S404(a). A. Findinas: 1. You have served as Police Chief for North Apollo Borough, Armstrong County, since May 17, 1982. 2. You have also served as a Kiski Township Supervisor since at least 1984. 3. You were the owner and operator of a landfill located in Risk' Township. This landfill operated from at least 1982 until August, 1985 when it was closed by the Pennsylvania Department of Environmental Resources. Jack E. Wilmot, Jr. Page 3 4. Minutes of the North Apollo Borough Council meetings disclose the following regarding your appointment as Chief of Police: a. May 17, 1982: Motion T. Shockey, second by K. Spahr that Jack Wilmot be named Chief of Police on a trial basis with no change in salary. Motion carried by a 6 to 0 vote. b. February 21, 1983: T. Shockey reported that a new agreement had been reached with Chief of Police Jack Wilmot. The only change from the last agreement was a $500 increase for each of two years. Motion Shockey, second by J. Smith to enter into an agreement with Jack Wilmot on contract terms for 1983 and 1984 effective January 1, 1983. Motion carried unanimously. c. December 17, 1984: Chief Wilmot requested action on a new contract for him. d. February 18, 1985: Motion J. Smith, second by D. Whitco to accept the proposed new police contract with Chief Jack Wilmot and to authorize the proper borough officials to enter into agreement with Wilmot. Motion carried 5 to 0. e. May 17, 1987: Motion T. Shockey, second by K. Spahr, that Jack Wilmot be named Chief of Police on a trial basis with no change in a salary. Motion carried unanimously. f. August 3, 1987: Motion D. Marsico, second by M. Hall to designate Jack Wilmot as Chief of Police. Motion carried by a 5 to 1 vote. 5. Borough records disclose that the township had been dumping refuse at your landfill since at least April, 1982. a. The initial cost was $10 per load dumped. b. Minutes of October 3, 1983 borough council meeting disclosed that the fee per load was increased to $15. c. Minutes of August 19, 1985 council meeting disclosed that it was reported that the Department of Environmental Resources closed the Wilmot landfill. 6. North Apollo Borough records disclosed that you were paid as follows for refuse disposal. Payments were made after bills were received from you: Jack E. Wilmot, Jr. Page 4 a. 1982: Check No. Amounj $10 oer load 5/3 145 $230.00 - 23 loads 6/7 149 130.00 - 13 loads 8/6 155 200.00 - 20 loads 9/7 159 100.00 - 10 loads 11/7 165 130.00 - 13 loads Total 1982 $790.00 b. 1983: Date Check No. Amount $10 per load 5/4 182 $230.00 - 23 loads 6/4 188 70.00 - 7 loads 8/3 194 170.00 - 17 loads 8/3 195 150.00 - 15 loads 9/6 201 160.00 - 16 loads 10/4 204 100.00 - 10 loads 11/3 208 120.00 - 12 loads Total 1983 $1,000.00 a. 1984: Date Check No. Amount $15 per load 6/5 229 $405.00 - 27 loads 7/5 232 285.00 - 16 loads Jack E. Wilmot, Jr. Page 5 a. 1985: 8/27 236 345.00 - 23 loads 10/2 242 285.00 - 16 loads 11/13 248 285.00 - 16 loads Total 1984 $1,605.00 Date Check No. Amount S15 per load 5/22 266 $600.00 - 40 loads 7/2 272 345.00 - 23 loads 8/20 279 240.00 - 16 loads 10/8 284 240.00 - 16 loads 11/6 287 240.00 - 16 loads Total 1985 $1,665.00 7. A review of North Apollo Borough records indicate that you did not file annual Statements of Financial Interests following your appointment as Police Chief in 1982. 8. A review of records of Kiski Township, where you serve as Township Supervisor, disclose that you filed as follows: a. July 17, 1984 for the 1983 calendar year. Sources of Income: Police Chief, North Apollo. b. February, 1985 for 1984 calendar year. Sources of Income: Police Chief, North Apollo. c. February 14, 1987 for 1986 calendar year. Sources of Income: None. d. April 20, 1988 for 1987 calendar year. Sources of Income: Police Chief North Apollo. 9. You provided the following information to State Ethics Commission investigator. Jack E. Wilmot, Jr. Page 6 a. You have been a North Apollo Borough Police Officer since March, 1977. You were appointed Chief of Police on May 17, 1982. b. The borough requested to dump refuse at our landfill in 1982. You agreed and charged $10 per load which you increased to $15 per load in 1984. c. The Department of Environmental Resources closed your landfill in 1985. d. You have also served as a Supervisor of Kiski Township since January, 1984. e. As a supervisor, you annually filed Statements of Financial Interests. You did not file as North Apollo Borough Police Chief. f. You did not claim income received from the land fill on your Statements of Financial Interests. You were also employed full -time with D.S. Steel Corporation from July, 1969 until August, 1983. h. You did not intentionally violate the State Ethics Act. You would file amended Statements of Financial Interests. 10. On April 28, 1989, you submitted Statements of Financial Interests dated April 22, 1982 to the State Ethics Commission for your position as Police Chief for the 1982, 1983, 1984, 1985, 1986 and 1987 calendar years. Those forms listed your sources of income as follows: a. 1982: North Apollo Borough (dumping) D.S.S. Corporation. b. 1983: North Apollo Borough (dumping) D.S.S. Corporation, Kiski Township. Apollo Borough Police. c. 1984: North Apollo Borough (dumping) Kiski Township. d. 1985: North Apollo Borough (dumping) Kiski Township. e. 1986: North Apollo Borough (dumping) Kiski Township. f. 1987: North Apollo Borough (dumping) Kiski Township. Apollo Borough Police. g. Jack E. Wilmot, Jr. Page 7 B. Discussion: As the Police Chief for North Apollo Borough, you are a public employee as that term is defined under the Ethics Act and Regulations of this Commission. 65 P.S. 5402; 51 Pa. Code 1.1. As such, you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Initially, it is noted that Section 5 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective date of this act, and cause of action initiated for such violations shall be governed by the prior law, which is continued in effect for that purpose as if this act were not in force. For the purposes of this section, a violation was committed prior to the effective date of this act if any elements of the violation occurred prior thereto." Since the occurrences in this case transpired prior to the effective date of Act 9 (June 26, 1989), we must apply the provisions of Act 170 of October 4, 1978, P.L. 883 to determine whether the Ethics Act was violated. Under Section 3(a), this Commission has determined that use of office by a public official to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, A.2d (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Comm. Ct. , 540 A.2d 1374 (1988). Likewise, a public officia /employee may not use the status or position of public office for his own personal advantage; Muff Opinion 84 -015. Additionally under section 3(c) of the Ethics Act quoted above, this provision of law provides, in part, that no public official shall enter into a contract valued at $500 or more with this governmental body unless the contract was awarded through an open and public process. Jack E. Wilmot, Jr. Page 8 In the instant matter, you served as Police Chief from May of 1982 through 1985 and from May of 1987 to the present time. In addition you were the owner and operator of a landfill in Kiski Township from 1982 until August 1985 when the landfill was closed by DER. During the period of the operation of the landfill, you had an arrangement with the Borough for dumping refuse at the landfill for a charge of $10, (later $15), per dump load. In 1985, one transaction on May 22 exceeded $500. Under the outlined circumstances, you have violated section 3(c) of the Ethics Act by contracting with you governmental body without an open and public process when the contract was in excess of the $500 provision. However, you have not violated section 3(a) of the Ethics Act under these circumstances since the evidence does not establish that you have used public office in obtaining this financial gain. Thus, since you are not a member of Borough Council of North Apollo Borough and since there is no evidence to indicate that you attempted to insert influence upon the Borough to contract with you as the landfill owner operator, we find that there is no violation of section 3(a) of the Ethics Act. Turning to the allegation that you failed to file Statements of Financial Interests with the Borough for the years 1982 through 1987 inclusive, the records of Kiski Township establish that you did file Financial Interests Statements in 1984 and in 1985, 1987 and 1988, in your capacity as Township Supervisor, wherein you listed sources . of income as Police Chief of North Apollo Borough for the forgoing years with the exception of 1987. You have filed amended Statements of Financial Interests for the years 1982 through 1987 wherein you list inter alia receiving income as a result of dumping by North Apollo Borough at your landfill. Further, in your 1983 amended Financial Interest Statement, you include income from North Apollo Borough in your capacity as Police Chief. Based upon the forgoing, this Commission finds that you have violated section 4(a) of the Ethics Act by failing to list your income from the Borough in your position as Police Chief in 1983 and also in failing to list the income from North Apollo Borough as to your landfill dumping contract with the Borough. However, since you have filed amended statements of Financial Interests and since there does not appear to be any evidence that your action was an attempt on your part to conceal financial information, this Commission will take no further action as to the financial statement allegation. The violation of section 3(c) of the Ethics Act will however be referred to the appropriate law enforcement authority for review and appropriate action. Jack E. Wilmot, Jr. Page 9 C. Conclusion and Order: 1. As Police Chief for North Apollo Borough, you are a public employee subject to the provisions of the Ethics Act. 2. You did not violate section 3(a) of the Ethics Act regarding the award of contracts by the Borough to you for dumping of refuse by the Borough at your landfill. 3. You violated section 3(c) of the Ethics Act when you contracted with North Apollo Borough for the dumping of refuse at your landfill when the contract was in excess of $500 and was not awarded through an open and public process. 4. You violated section 4(a) of the Ethics Act when you failed to list your income for 1983 as Policeman from North Apollo Borough and when you failed to list the income from your contract with the Borough for dumping refuse for the years 1982 through 1987. 5. Since you filed amended Financial Interests Statement for 1982 through 1987, the Commission will take no further action as to the Financial Interests violation. 6. Your violation of section 3(c) of the Ethics Act will be referred to the appropriate law enforcement authority for review and appropriate action. This Order is final and will be made available as a public document fifteen days after issuance. However, you may request reconsideration which will defer public release of this Order pending action on your request by the Commission. A request for reconsideration, however, does not affect the finality of this Order. A reconsideration request must be received at this Commission within fifteen days of issuance and must include a detailed explanation of your reasons as to why reconsideration should be granted in conformity with 51 Pa. Code S2.38. The files in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a) during the fifteen day period and no one, including yourself, unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. Jack B. Wilmot, Jr. Page 10 Any person who violates 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, 65 P.S. 409(e). By = Commissi /✓ elena G. Hughes Chair