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HomeMy WebLinkAbout724 CostelloMr. Regis E. Costello c/o Ken Gormley, Esquire Mansmann, Cindrich & Titus Twentieth Floor Four Gateway Center Pittsburgh, PA 15222 Re: 87 -179 -C Dear Mr. Costello: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 724 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair W. Thomas Andrews G. Sieber Pancoast James M. Howley Date Decided: September ?(, 1989 Date Mailed: September 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 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. Alleaation: That you, Mayor of Emsworth Borough, Allegheny County, violated the following provisions of the Ethics Act (Act 170 of 197S), when you served and collected fees as borough building inspector and received fees for performing marriages: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential Mayor Regis E. Costello Page 2 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. S403(a). A. Findings: 1. You served as the Mayor of Emsworth Borough, Allegheny County, Pennsylvania: a. You have served in this position since 1982. 2. You also served as the Emsworth Borough Building Inspector and Zoning Inspector. a. You were appointed to these positions in 1979. b. You served as the building inspector until October of 1988 when a new building inspector was appointed. c. You served as the zoning inspector until March 13, 1985. 3. You also served as the borough manager May, 1973 until April, 1984. 4. Minutes of the Emsworth Borough Council regarding the instant situation: for Avalon Borough from indicate as follows a. April 9, 1979: Motion to appoint Regis Costello as building inspector and zoning inspector effective May 1, 1979 to replace Samuel Boyd who resigned. Motion carried. Councilmembers present: Lebanik, Otto, Koehler, Beitel, Mathews, Voelkl, Hauger. b. January 4, 1982: District Magistrate Donald Presutti administered the oath of office to newly elected Mayor Costello. Councilmembers present: Taylor, Lorinc, Voegl, Mathews and Voelkl and Tax Collector Marmo. The oaths of office and certificates of election were filed in the Office of the Borough Secretary. Councilmembers present: Taylor, Lorinc, Schwoegl, Mathews, Kracht, Voelkl and Turkovich. Mayor Regis E. Costello Page 3 c. January 11, 1982: As building and zoning inspector, Mr. Costello reported that he had stopped a major renovation of the old Emsworth School Building and told the owner to refer plans for renovation to the Department of Labor and Industry in Harrisburg for their review and approval. He stated that he had written citations against the electrician, carpenters and owner for lack of a building permit. Councilmembers present: Taylor, Lorinc, Schwoegl, Mathews, Kracht, Voelkl and Turkovich. d. January 18, 1982: Under communications, the following letters were read: Avalon Manager, Regis Costello, notification that State Representative Laurie Heiser will hold a town meeting on February 11, 1982 at Avalon Borough Building at 7:30 p.m. Councilmembers present: Lorinc, Schwoegl, Mathews, Voelkl and Turkovich. e. November 8, 1982: President Voelkl read a proposed ordinance establishing the rate of compensation for councilmembers and the mayor and requiring attendance for such compensation. Mr. Lorinc and Mrs. Turkovich moved and second, to pass the first reading of said ordinance and to advertise it prior to adoption at the next regular council meeting. Motion carried. Mayor Costello said that he would not sign this ordinance and although it would pass without his signature, he thought it was illegal to pass an ordinance setting their salaries while they are in office. He also said that it was a travesty to increase salaries when councilmembers ran for office knowing the duties involved and the money paid. Mayor Costello will donate his increase to the Emsworth public library. Councilmembers present: Taylor, Lorinc, Schwoegl, Mathews, Kracht, Voelkl and Turkovich. Mayor Regis E. Costello Page 4 f. June 14, 1982: Mayor Costello will issue a citation against Conrail since they have not demolished the railroad station which is in a dangerous condition. Mayor Costello gave them thirty days notice on April 16. Councilmembers present: Taylor, Lorinc, Schwoegl, Mathews, Kracht, Voelkl and Turkovich. g. November 9, 1983: Mayor Costello reported that he had filed a complaint with Magistrate Presutti regarding a violation of the zoning ordinance at 18 Walnut Street where a resident is running a boarding house and refused to vacate as of October 31, 1983. Board members present: Taylor, Lorinc, Schwoegl, Mathews, Kracht, Voelkl and Turkovich. h. March 13, 1985: Mr. Costello read his letter of resignation from the appointed position of Emsworth Borough Zoning Inspector effective March 13, 1985. Council accepted Mr. Costello's resignation. Mr. Boyd will be zoning inspector until a new one is appointed. Councilmembers present: Kelly, Schwoegl, Streiff, Kracht, Mathews, Knox, and Turkovich. i. April 10, 1985: Motion was made to receive a check a for $1,105.00 from Regis Costello as reimbursement for his Mayor's salary for the years 1982, 1983 and 1984 because of a conflict between building inspector. The funds were to be deposited into the general fund. Motion carried after a short recess to discuss the issue. Mr. Costello then presented his check for $1,105.00 to the borough secretary with a letter stating that he would refuse to accept a salary for 1985 as Emsworth Borough Mayor. Councilmembers present: Kelly, Schwoegl, Streiff, Kracht, Mathews, Knox, and Turkovich. Mayor Regis E. Costello Fage 5 July 9, 1986: Mayor Costello will address complaints in a letter to Sister Theresine of Holy Family Institute. Mayor Costello also explained that the State Department of Labor and Industry could not approve the plan for the new complex at the institute unless it was agreed that they provide a fourteen foot wide parkway as an emergency exit in the rear of the cottages. He stressed that this exit onto Maple Avenue would be an emergency exit only. Mayor Costello also stated that the steps onto Maple Avenue were constructed illegally and without permission, and as building inspector, he would not grant occupancy permits for new buildings until the steps were removed. k. October 9, 1985: Michael Marmo, 235 Hazelwood Avenue, asked that council consider amending Ordinance No. 664 to allow certain repairs and maintenance to existing structures without a building permit fee. Reports were filed in the secretary's office by Tax Collector Marmo, Building Inspector Costello, fire, by Mrs. Turkovich and finance, by Mr. Kracht. Councilmembers present: Kelly, Lawry, Streiff, Kracht, Mathews, Knox, and Turkovich. 1. November 11, 1987: Michael Marmo, 235 Hazelwood Avenue, addressed council referring to a letter he had submitted concerning the present building permit ordinances and the offices of the building inspector and mayor being held by the same individual. Mr. Marmo said that he had requested a ruling from the State Ethics Commission concerning the incompatibility of these two offices and called for Mr. Costello to step down as building Mayor Regis E. Costello Page 6 inspector until such time as a ruling is received from the State Ethics Commission. Solicitor DeJulio stated that he has requested a ruling from the State Ethics Commission and an advisory opinion should be received within thirty (30) days. Solicitor DeJulio stated that both Mr. Marmo and Mr. Costello have agreed to abide by the decision of the State Ethics Commission. Mr. Marmo addressed the fees collected by the building inspector which at this time are kept by the inspector and stated that he felt these fees should be turned over to the borough and the building inspector be given a monthly stipend for his services. President Turkovich said that further discussion on this issue will be tabled until an opinion is received from the State Ethics Commission. Councilmembers present: Kelly, Lowry, Duggan, Ambrass, Knox, and Turkovich. Mr. Streiff arrived later. m. December 9, 1987: Solicitor DeJulio read the response received from the State Ethics Commission regarding the issue of the Mayor also serving as building inspector. This letter advised that the Ethics Commission cannot give an advisory ruling on an issue that has already occurred. In such a case, a signed and sworn complaint must be received and an investigation of the issue would be initiated. Solicitor DeJulio advised Mr. Marmo has filed a complaint with the Ethics Commission and an investigation will take place within the next six months. n. November 9, 1988: Motion is made to have the solicitor draw up an amendment to the Zoning Ordinance No. 775 Mayor Regis E. Costello Page 7 §803.07 changing the zoning permit fee from $5 to $20. Motion carried. Motion made to have the solicitor draw up an ordinance setting compensation for building inspector at the rate of 50% of the permit or a minimum compensation of $35.00 per month. Motion carried. Motion to nominate John B. McDonald for zoning officer. Motion carried. Motion to appoint Rocko Bagnato as building inspector. Motion carried. Motion to appoint Jack Stauffer as assistant building inspector and zoning officer. Motion carried. Councilmembers present: Kelly, Ambrass, Ruzum, Mathews, Duggan, Turkovich and Knox. Motion is made to appoint a new building inspector. Motion is carried with Mr. Kelly abstaining. A discussion was held and President Mathews said we needed someone to fill vacancies on the planning commission and the building and zoning inspector positions. Councilmembers present: Kelly, Ambrass, Rozum, Mathews, Turkovich and Knox. Councilman Duggan was absent. o. July 13, 1988: Motion is made to appoint a new building inspector. Discussion followed. Discussion primarily centered on the fact that the addition to Joyce Automotive is infringing on the borough right -of -way along Greenwood Avenue and that a building permit was issued by Mr. Costello after reviewing a set of building plans. These building plans have apparently been misplaced and, therefore, it cannot be determined if the plan shows the new addition to be over the property line. The site plans for this construction which are to be reviewed and submitted by the zoning officer do, however, indicate that the building is approximately 18 inches onto Mayor Regis E. Costello Page 8 the borough right -of -way. However, the zoning officer did issue a zoning permit for the construction. Mr. Costello stated that he never reviewed the site plans only the building plans and assumed that since a zoning permit had been issued the addition was proper. Mr. Costello stated that how the building is situated on the property is not part of his review in issuing a building permit. President Mathews called for a roll call vote. Mr. Rozum and Ms. Turkovich voted in favor of appointing a new building inspector. Members Ambrass, Duggan, Kelly and Knox were opposed. Motion was defeated four to two. Councilmembers present: Kelly, Duggan, Ambrass, Rozum, Knox, Turkovich and Mathews. 5. Records of the Borough of Emsworth indicate the following information regarding the fees paid to you for issuance of building permits as the Emsworth Borough Building Inspector: a. Permit Book No. 1701 through 1750 inclusive of dates of October 3, 1981 through June 17, 1983. PERMIT NO. AMOUNT DATE MICS. INFORMATION 1706 $67.60 2/28/82 1702 9.00 3/15/82 1708 9.00 4/30/82 1709 9.00 5/2/82 1710 9.00 5/06/82 1711 6.00 5/08/82 1712 12.00 5/17/82 1713 9.00 5/28/82 1714 6.00 6/12/82 1715 12.00 6/22/82 1716 45.00 6/25/82 1717 6.00 6/29/82 1718 6.00 7/07/82 1719 37.00 7/10/82 1720 6.00 7/16/82 1721 6.00 7/27/82 1722 22.50 8/06/82 1723 5.00 8/17/82 1724 5.00 9/01/82 1725 5.00 9/06/82 Mayor Regis E. Costello Page 9 PERMIT NO. AMOUNT 1726 15.00 1727 6.00 1728 9.00 1729 6.00 1730 9.00 1731 22.50 1732 9.00 1733 n/c 1734 52.50 1735 9.00 1736 12.00 1737 45.00 1738 12.00 1739 9.00 1740 6.00 1741 6.00 1742 9.00 1743 1744 1745 1746 1747 1748 1749 1750 52.50 9.00 6.00 9.00 9.00 6.00 6.00 6.00 b. Permit book Nos. 1751 through 1800 inclusive of dates of June 6, and 21, 1983 through April 15, 1985. PERMIT NO. AMOUNT DATE M ;CS. INFORMATION 1751 1752 1753 1754 1755 1756 1757 6.00 135.00 12.00 6.00 N/C 12.00 9.00 DATE 9/13/82 9/21/82 9/24/82 10/05/82 10/21/82 10/25/82 10/28/82 12/09/82 01/19/83 02/25/83 03/03/83 03/14/83 03/23/83 04/01/83 04/11/83 04/12/83 04/13/83 05/06/83 05/06/83 05/06/83 06/07/83 06/07/83 06/13/83 06/15/83 06/17/83 06/17/83 06/23/83 07/19/83 08/02/83 08/16/83 08/22/83 08/24/83 MICS . INFORMTION, For Emsworth Borough Check issued to Regis Costello 5/10/83 from Harry and Dorothy Gardner in the amount of $9.00 for a building permit No. 1742 Mayor Regis E. Costello Page 10 PERMIT NO. AMOUNT 1758 37.50 1759 45.00 1760 12.00 1761 12.00 1762 9.00 1763 9.00 1764 9.00 1765 75.00 1766 6.00 1767 N/C 1768 6.00 1769 15.00 1770 240.00 1771 6.00 1772 6.00 1773 12.00 1774 15.00 1775 12.00 1776 37.50 1777 9.00 1778 22.50 1779 6.00 1780 6.00 1781 15.00 1782 6.00 1783 6.00 1784 12.00 1785 9.00 1786 6.00 1787 6.00 1788 9.00 1789 6.00 1790 37.50 1791 30.00 1792 45.00 1793 6.00 1794 127.00 1795 45.00 1796 12.00 1797 9.00 1798 12.00 1799 9.00 DATE 08/26/83 08/30/83 09/07/83 09/12/83 09/26/83 10/05/83 10/13/83 11/01/83 11/04/83 11/15/83 12/02/83 12/05/83 12/19/83 02/06/84 02/10/84 02/21/84 02/24/84 02/24/84 03/03/84 03/07/84 04/10/84 04/12/84 04/26/84 06/11/84 06/29/84 07/17/84 07/17/84 07/18/84 07/23/84 07/26/84 08/13/84 08/20/84 09/26/84 10/18/84 10/27/84 11/17/84 12/09/84 02/02/85 03/14/85 03/25/85 04/09/85 04/11/85 !1ICS . INFORMATIONS Same permit No. $9.00, 7/9/84 calling for extended Same permit No. $12.00, 7/24/84 Mayor Regis E. Costello Page 11 P4RM1T NO. AMOUNT 1800 45.00 PERMIT NO. AMOUNT 1801 9.00 1802 6.00 1803 12.00 1804 9.00 1805 9.00 1806 6.00 1807 5.00 1808 6.00 1809 19.00 1810 9.00 1811 5.00 1812 120.00 1813 5.00 1814 5.00 1815 9.00 1816 1817 1818 1819 1820 1821 1822 1823 1824 12.00 12.00 9.00 9.00 60.00 9.00 6.00 60.00 12.00 DATE 04/15/85 c. Permit book Nos. 1801 through 1850 inclusive of dates April 16, 1985 through June 30, 1986. DATE • 04/16/85 04/18/85 04/29/85 04/29/85 05/01/85 05/04/85 05/04/85 05/09/85 06/19/85 07/02/85 07/06/85 07/09/85 07/17/85 07/26/85 08/05/85 08/20/85 08/28/85 08/29/85 09/06/85 09/12/85 09/12/85 09/21/85 10/14/85 10/15/85 MICS. INFOIIMATIQN MICS. INFORMATION Receipt portion of building permit No. 1815 is included in the building permit book question about whether that fee was collected. Check issued to Regis Costello in the amount of $60.00 on September 13, 1985 signed by Leslie A. Kress. Check No. 783 for building permit No. 1820. Mayor Regis E. Costello Page 12 PERMIT NO. AMOUNT DATE MICS. INFORMATION 1825 9.00 10/26/85 1826 9.00 10/26/85 1827 6.00 10/30/85 1828 9.00 11/09/85 1829 9.00 11/18/85 1830 6.00 11/23/85 1831 6.00 11/23/85 1832 9.00 12/08/85 1833 115.00 12/10/85 1834 3,780.00 12/13/85 1835 22.50 12/17/85 1836 6.00 01/03/86 1837 12.00 01/06/86 1838 12.00 01/21/86 1839 60.00 03/06/86 1840 30.00 03/14/86 1841 30.00 03/22/86 1842 3,045.00 03/22/86 1843 9.00 03/24/86 1844 6.00 04/29/86 1845 6.00 04/30/86 1846 105.00 05/09/86 1847 15.00 05/16/86 1848 9.00 06/09/86 1849 9.00 06/19/86 1850 0.00 06/05/86 Incomplete d. Permit book Nos. 1851 through 1900 inclusive of dates July 8, 1986 to January 26, 1988. PERMIT NO. AMOUNT DATE MICS. INFORMATION 1851 6.00 07/08/86 1852 30.00 08/18/86 1853 9.00 08/20/86 1854 15.00 08/21/86 1855 12.00 09/04/86 1856 5.00 09/05/86 1857 6.00 09/07/86 1858 5.00 09/17/86 1859 45.00 09/30/86 1860 9.00 10/01/86 1861 6.00 10/07/86 1862 52.00 11/11/86 1863 12.00 11/13/86 Mayor Regis E. Costello- Page 13 PERMIT N9. AMOUNT 1864 12.00 1865 105.00 1866 30.00 1867 15.00 1868 12.00 1869 1870 1871 1872 1873 1874 1875 1876 1877 1878 1879 1880 1881 1882 1883 1884 1885 1886 1887 1888 1889 1890 1891 1892 1893 1894 1895 1896 1897 1898 1899 1900 45.00 225.00 45.00 45.00 9.00 6.00 75.00 6.00 6.00 52.00 9.00 6.00 6.00 22.50 6.00 6.00 15.00 15.00 9.00 9.00 6.00 6.00 9.00 9.00 15.00 6.00 12.00 15.00 6.00 6.00 15.00 100.00 DATE 11/24/86 12/03/86 12/15/86 12/16/86 02/09/87 02/10/87 02/14/87 03/05/87 03/17/87 03/28/87 04/07/87 05/02/87 05/04/87 05/18/87 05/18/87 05/25/87 05/26/87 06/03/87 06/03/87 06/09/87 06/12/87 06/14/87 06/15/87 07/08/87 07/14/87 07/14/87 07/25/87 08/12/87 08/13/87 08/13/87 08/23/87 08/27/87 09/09/87 09/28/87 09/30/87 11/02/87 01/26/88 MICS. INFORMATION Same permit No. marked above the 12.00, 6.00 same date, no notations Same permit No. 30.00, February 10, 1987 no notations Same permit No. 165.00, February 14, 1987 no notations Mayor Regis E. Costello Page 14 e. Permit book Nos. 1901 through 1912 inclusive of dates February 18, 1988 through September 19, 1988. PERMIT NO. AMOUNT DATE MICS. INFORMATION 1901 9.00 02/18/88 1902 22.00 03/02/88 1903 90.00 03/22/88 1904 2.00 03/31/88 1905 165.00 04/20/88 1906 15.00 04/27/88 1907 2.00 05/05/88 1908 9.00 05/17/88 1909 15.00 06/13/88 1910 9.00 08/24/88 1911 45.00 08/29/88 1912 90.00 09/19/88 1913 9.00 11/18/88 Issued by new building Inspector, Rocco Bagnatto. 6. Emsworth Borough Ordinance No. 664 of 1965, (Borough Building Code) established a schedule of rates for building permits based upon the cost of the work performed: a. Rates ranged from $5.00 to $90.00 for building projects costing from $1,000 to $50,000. Projects over $50,000 increase the fee at a rate of $1.50 per $1,000. b. This ordinance was amended in 1978 by Ordinance No. 776 and the work costs upon which permit fees were based were modified. 7. By letter dated December 6, 1988 from Regis E. Costello to Emsworth Borough Solicitor, Leonard DeJulio, Mr. Costello requests compensation for serving as Mayor during the months of October through December, which salary was inadvertently not paid for those months. a. Compensation requested is $35.00 per month. b. The letter notes that the Borough Council terminated his position as building inspector at the October, 1988 meeting. 8. Emsworth Borough records indicate that check No. 8182 dated December 13, 1988 in the amount of $62.57 was issued by the Borough to Regis Costello: Mayor Regis E. Costello Page 15 a. This check was returned to the borough without being negotiated. b. The note on the envelope in which said check was returned indicated that payment for October had been omitted. c. This note was signed Rege. 9. By letter dated December 19, 1988 to Regis E. Costello, Mayor, Emsworth Borough, from Edwin Matthews, Emsworth Borough Council President, it is requested that Mr. Costello forward a letter to council indicating that he had not received any fees for the month of October. 10. By letter dated January 10, 1989 to Emsworth Borough Council President Edwin Matthews, from Regis Costello, Mr. Matthews is advised that Mr. Costello received no fees as building inspector for October, 1988. 11. Records of the Borough of Emsworth indicate the following information regarding the fees paid to you for issuance of zoning permits as the borough zoning officer. The fee for each zoning permit was established by ordinance at $5.00. Where the projects were trivial you either waived the fee or reduced it to $2.00. a. Zoning permits numbers 235 to 285 inclusive of dates May 18, 1979 to December 10, 1981: Permit No. Date Misc. Information 235 5 -18 -79 236 5 -18 -79 237 5 -22 -79 238 7 -3 -79 239 7 -12 -79 240 7 -17 -89 241 8 -1 -79 242 8 -9 -79 243 8-9-79 244 8 -13 -79 245 8 -18 -79 246 8 -23 -79 247 9 -10 -79 248 9 -18 -79 249 10 -23 -79 250 10 -25 -79 $2 sign 251 12 -11 -79 252 12 -15 -79 $8, $2 per sign 253 3 -11 -80 $6 (3) signs Mayor Regis E. Costello Page 16 PERMIT NO. DATE MICS. INFORMATION 254 5 -12 -80 $2 sign 255 5 -20 -80 $2 256 6 -26 -80 257 6 -26 -80 No fee 258 7 -24 -80 259 7 -25 -80 260 8 -4 -80 261 8 -9 -80 $2 sign 262 8 -9 -80 $2 263 8 -30 -80 264 9 -12 -80 265 9 -15 -80 266 10 -6 -80 267 1 -12 -81 No fee 268 2 -16 -81 269 3 -9 -81 $10 270 4 -3 -81 271 4 -6 -81 272 5 -15 -81 273 6 -13 -81 274 6 -26 -81 275 7 -6 -81 276 7 -23 -81 277 7 -27 -81 278 8 -3 -81 279 8 -5 -81 280 8 -18 -81 281 9 -11 -81 282 9 -11 -81 283 10 -2 -81 $2 284 11 -7 -81 285 12 -10 -81 Total fees: $236.00 b. Zoning permit book Nos. 274 through 324 inclusive of dates June 26, 1981 through April 11, 1984. PERMIT NO. 286 DATE MICS. INFORMATION 02/22/82 Which was the first zoning permit issued after Regis Costello became Mayor. Mayor Regis E. Costello Page 16 PERMIT NO. DATE MACS. INFORWiTIO 254 5 -12 -80 $2 sign 255 5 -20 -80 $2 256 6 -26 -80 257 6 -26 -80 No fee 258 7 -24 -80 259 7 -25 -80 260 8 -4 -80 261 8 -9 -80 $2 sign 262 8 -9 -80 $2 263 8 -30 -80 264 9 -12 -80 265 9 -15 -80 266 10 -6 -80 267 1 -12 -81 No fee 268 2 -16 -81 269 3 -9 -81 $10 270 4 -3 -81 271 4 -6 -81 272 5 -15 -81 273 6 -13 -81 274 6 -26 -81 275 7 -6 -81 276 7 -23 -81 277 7 -27 -81 278 8 -3 -81 279 8 -5 -81 280 8 -18 -81 281 9 -11 -81 282 9 -11 -81 283 10 -2 -81 $2 284 11-7-81 285 12 -10 -81 b. Zoning permit book Nos. 274 through 324 inclusive of dates June 26, 1981 through April 11, 1984. PERMIT NO. 286 Total fees: $236.00 DATE MICS. INFORMATIQN 02/22/82 Which was the first zoning permit issued after Regis Costello became Mayor. Mayor Regis E. Costello Page 17 PER1 IT NO. DATE 286 02/22/82 287 02/28/82 288 04/13/82 289 04/30/82 290 05/08/82 291 06/29/82 292 07/05/82 293 07/21/82 294 07/29/82 295 07/30/82 296 08/12/82 297 08/17/82 298 09/06/82 299 09/21/82 300 09/24/82 301 12/01/82 302 01/19/83 303 04/12/83 304 05/06/83 305 06/01/83 306 06/01/83 307 06/07/83 308 06/07/83 309 06/21/83 No charge. Permit issued to Richard Miller. 310 07/03/83 311 08/01/83 312 08/02/83 313 08/03/83 314 08/08/83 315 08/26/83 316 08/30/83 TICS. INFORMATION No amount indicated at the top of the permit. Amount indicated at the top of the permit $2.00 317 11/01/83 No amount marked at the top of the permit. 318 11/04/83 No charge. Permit issued to Stephen Bache. 319 12/01/83 Amount listed $2.00. 320 12/19/83 Amount listed $7.00. 321 02/06/84 Mayor Regis R. Costello Page 18 PERMIT NO, DATE 322 03/07/84 323 04/10/84 324 04/11/84 Total $186.00 c. Zoning permit book No. 325 through permit No. 343 (book incomplete) inclusive of dates April 30, 1984 through September 9, 1985. PERMIT NO. DATE MICS. INFORMATION 325 04/30/84 326 05/21/84 327 05/21/84 Amount listed $2.00. 328 05/27/84 329 06/11/84 330 07/18/84 331 07/18/84 332 08/13/84 333 08/20/84 334 08/23/84 335 09/26/84 336 10/27/84 337 11/17/84 Amount listed $2.00. Notation Permit Nos. 338 through 343 were issued by James G. Ambrass who was appointed zoning inspector after Mr. Costello resigned. d. Zoning permit book Nos. 3255 through 3301 inclusive of dates September 21, 1985 through July 28, 1987. Permits No. 3255 through and including 3268 were issued by James G. Ambrass. Ambrass resigned and you were asked by council to serve as interim inspector. You collected the permissible $5 fee for each of these permits. PERMIT NO. 3269 3270 Total: $59.00 DATE ISSUED BY 07/29/86 Regis Costello 08/05/86 Regis Costello Mayor Regis E. Costello Page 19 PERMIT NO. 3271 09/09/86 Regis Costello 3272 09/17/86 Regis Costello 3273 09/30/86 Regis Costello 3274 10/07/86 Regis Costello Total: $30 e. Permit Nos. 3275 through 3301 inclusive were issued by Zoning Inspector, Frank M. Colucci. Permit Book Nos. 3302 through 3350 inclusive of dates August 6, 1987 through November 17, 1988. Permit Nos. 3302 through 3305 were issued by Frank M. Colucci. Permits Nos. 3306 through and including 3308 were issued by Mark A. Prazer. Colucci resigned as zoning inspector and his replacement, Mark Prazer, was involved in a serious accident. You were asked by council to act as temporary zoning inspector. PERMIT NO. 3309 03/02/88 Regis Costello, marked in by inspectors signature is the word acting Total: $5 Permit Nos. 310 through 314 were issued by Sam Boyd. Permit Nos. 3315 and 3316 were issued by Andrew G. Pelkowski. Permit No. 3317 issued by J. B. McDonald. Permits 3318 through 3350 are incomplete. f. The following copies of zoning permits were filed within the Emsworth Borough files. The permits were issued by Regis Costello, each is marked that a $5.00 fee was collected for the permits. These permits consist of the following: PERMIT NO. DATE 3271 09/09/86 3272 09/17/86 32 09/30/86 3274 10/07/86 PATE ISSUED BY DATE ISSUED BY Total: $20 12. Emsworth Borough Ordinance No. 775 of 1988 established the compensation of the Borough Building Inspector regarding the erection of billboards at no more than $2.00 for commercial signs: Mayor Regis E. Costello Page 20 a . The compensation of the borough zoning officer was fixed at $5.00 to be paid at the time of the filing of an application and plot plan. b. This ordinance was amended by subsequent Ordinance No. 841 of 1988 and the compensation of the zoning officer was raised to $20.00. 13. By way of letter dated March 13, 1985 from Regis E. Costello to Emsworth Borough Council, Mr. Costello resigned from the position of borough zoning inspector effective immediately. 14. Records of Emsworth Borough indicate the following wage and tax statements on file with the borough for Regis E. Costello, 234 Center Avenue, Emsworth, Pennsylvania, 15202 regarding amounts paid to Mr. Costello by the borough in his position as Mayor: YEAR 1982 1983 1984 AMOUNT $300.00 385.00 420.00 15. Emsworth Borough Ordinance No. 800 of 1982 established the salary of the borough mayor and councilmembers at $35.00 per month. 16. By letter (handwritten) to Emsworth Borough Council from Regis E. Costello dated April 10, 1985, Mr. Costello forwards payment of $1,105 to the Borough: a. This payment represented Mr. the years 1982 through 1984. b. The letter also notes that Mr payment for the year 1985. 17. By letter dated April 11, 1985 to Emsworth Borough Secretary, Jean Simmons from Regis E. Costello, Mr. Costello requests that the borough transfer his compensation as Mayor to the Borough Public Library, which he believes is a worthy community organization. 18. By letter dated April 18, 1985 from Borough Solicitor, Carl W. Brueck, Jr., to Regis Costello, Mr. Brueck advises that the request to transfer funds to the library cannot be done without specific action by borough council: a. It is noted that as long as Mr. Costello serves as Mayor and building inspector he was not entitled to the compensation. Costello's salary as Mayor for . Costello would also reject Mayor Regis E. Costello Page 21 19. The summary report of the treasurer, Borough of Emsworth, for April, 1985, reflects a payment of $1,105 by Regis Costello to the borough for reimbursement of Mayor's salary. a. Deposit slip dated April 11, 1985 to Equibank for the Borough of Emsworth General Fund listed among other deposits: Costello $1,105.00. Total deposit: $1,271.03. 20. The Pennsylvania Borough Code provides as follows: a. Eligibility of mayor No mayor shall hold any other borough office or appointment during the term for which he is elected, except as is permitted by section 1104 of this act. He shall be eligible to succeed himself. He shall not be a member of the council, nor shall he preside over or vote at any meeting of the council, except as provided in section 1003 of this act. 53 P.S. §46021. b. Appointments; incompatible offices Unless there is incompatibility in fact, any elective or appointive officer of the borough shall be eligible to serve on any board, commission, bureau or 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. Where there is no incompatibility in fact, and subject to the foregoing provisions as to compensation, appointees of council may hold two or more appointive borough offices, but no mayor or member of council may serve as borough manager or as secretary or treasurer. Nothing herein contained shall affect the eligibility of any borough official to hold any other public office or receive compensation therefor. 21. The Pennsylvania Municipalities Planning Code 53 P.S. 510614 provides as follows: Mayor Regis E. Costello Page 22 Appointment and powers of zoning officer For the administration of a zoning ordinance, a zoning officer, who may not hold any elective office in the municipality, shall be appointed. The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. 22. Edwin Matthews provided the following information in relation to the instant situation: a. He currently serves as the Emsworth Borough Council President. b. He has served on council for approximately 15 years. c. There are no records in the borough regarding the fees collected by the Building Inspector or zoning inspector. d. The only record of the fees collected are on the permits that were issued which would list the amount of the fee charged for each item. e. The fees were collected by the building and zoning inspector and were not turned over to the borough. f. Mr. Costello returned some of the compensation that he received to the borough. He believed that this was $1,100. g. He was aware that Mr. Costello was collecting fees or gifts for performing marriages as borough mayor. The borough never addressed this issue. h. The current building inspector reports all fees to the borough and is paid a stipulated sum for the services rendered in that position. 23. Carl Brueck provided the following information in relation to the instant situation: a. He has served as Solicitor for Emsworth Borough for approximately 10 years. He no longer represents the borough. b. Mr. Costello formerly worked for Columbia Gas Company and later as Avalon Borough Manager. Mayor Regis E. Costello Page 23 c. As borough solicitor, he wrote a letter of opinion to borough council which he was sure that he copied to Mr. Costello. This letter regarded one individual holding three positions in the borough as mayor, building inspector and zoning officer. d. His research on the Borough Code found no conflict with holding these three positions but Mr. Costello could not be paid for these positions when serving as Mayor. e. His research further indicated that the Planning Code provides that positions of building inspector and zoning officer are incompatible. f. He reported this to Costello Costello the option of which keep. Costello resigned his opted to retain the building Mayor compensation. As Solicitor, he gave Costello the choice of which fee he should forego, and was aware of his decision. h. In retrospect, Brueck believes that Costello should have also surrendered zoning officer fees because of the incompatibility as noted in the Planning Code, however, this advice was not given at the time, because the issue was not considered. g. and Borough Council and gave fee or salary he wished to position as zoning officer and inspector fees and forego his i. Solicitor Brueck believed that any gifts or fees received by Costello for performing weddings would be considered honoraria and, therefore, there would be no problem with him accepting and retaining these items. This was so because Mr. Costello did not specifically submit a bill or have a rate schedule whereby a fee was charged for performing these services. 24. By way of letter dated December 31, 1987 to the State Ethics Commission, you indicated as follows regarding the instant situation: a. While acting in the elected capacity of Mayor of Emsworth Borough, one of the duties vested in you was to perform marriage ceremonies upon the request of interested parties. b. You have performed approximately 36 or 37 ceremonies since you first began serving in this position. Mayor Regis E. Costello Page 24 c. From time to time, some ceremonies have taken place in your home while the vast majority have required you to travel to various locations. d. You and your wife have been invited to rehearsal dinners, wedding receptions and you have been provided with gifts of appreciation such as pen and pencil sets or cash ranging from $10 to $25 as a token of thanks. e. These gifts were received without solicitation. f. You never charged any individual a fee, and did not request compensation for gas, use of car, or time expended. 25. Records on file with the Emsworth Borough Secretary indicate the following regarding Statements of Financial Interests filed by Regis Costello. a. Filing date March 6, 1980 for the year 1979. Source of Income - Borough of Avalon. All other financial interests categories - none. b. Filing date - January 28, 1981 for the year 1980. Source of income - Borough of Avalon, Borough of Emsworth. All other financial interests categories - none. c. Filing date - March 25, 1982 for the year 1981. Source of income - none. All other financial interests categories - none. Occupation or profession - secretary /manager. d. Filing date - January 14, 1983 for the year 1982. Source of income - none. All other financial interests categories - none. Occupation or profession - borough secretary /manager. e. Filing date - February 7, 1984 for the year 1983. Source of income - none. All other financial interests categories - none. Occupation or profession - borough secretary /manager. f. Filing date - February 20, 1985 for the year 1984. Source of income - none. All other financial interests categories - none. Occupation or profession - borough secretary /manager. g. Filing date - February 14, 1986 for the year 1985. Source of income - reserve township. Mayor Regis E. Costello Page 25 All other financial interests categories - none. Occupation or profession - township manager. h. Filing date - January 21, 1987 for the year 1986. Source of income - reserve township Emsworth Borough building inspector. All other financial interests categories - none. Occupation or profession - township manager. i. Filing date - April 16, 1988 for the year 1987. Source of income - Emsworth Borough Building Inspector and TOD Incorporated. All other financial interests categories - none. Occupation or profession - accounting. 26. You provided the following information through your attorney: a. In your role as building inspector, and in your role as zoning officer, you were required to make a monthly report to council which was a separate item on the agenda. The roles of each position was kept separate at all times during council meetings. b. In March of 1985, you had an informal conversation with the Borough Solicitor, Carl Brueck, Esquire, about the possible conflict between receiving fees as zoning inspector and building inspector (to which positions you had been appointed by council), and also receiving a salary as mayor. He believed the solution to this possible conflict in the Borough Code was for you to choose one of the fees and forego the other two; in this fashion, he felt there could be no question raised concerning the propriety of you holding these positions simultaneously. He advised you that you should pick on one of the three positions for purposes of receiving compensation, and surrender any further payments with respect to the other positions. He also discussed the possibility that you might consider resigning as Borough Zoning Inspector, because he felt the positions of building inspector and zoning inspector might be incompatible under the Borough Code. You stated to Solicitor Brueck that you intended to do whatever was proper, and you would follow his advice in every respect. c. Solicitor Brueck thereafter wrote you a letter summarizing your discussion; to wit, that it might be incompatible under the Borough Code for you to hold all three positions as mayor, building inspector, and zoning officer, at least if you were getting compensated for each of these positions. Based upon his advice, you resigned your appointment as Mayor Regis E. Costello Page 26 zoning inspector on March 13, 1985, and also returned your mayor's salary for the years 1982, 1983, and 1984, in the amount of $1,105. You elected to continue to be paid fees for your services as building inspector, as Solicitor Brueck had given you the option of which salary to retain. d. At the time, you decided to reimburse your salary as Mayor, Solicitor Brueck did not believe it was mandatory, but believed it was the sensible and just thing to do. You agreed, and also presented a letter to council stating that you would not accept your salary as Mayor for the year 1985. This was the course of action Solicitor Brueck felt would best avoid any potential conflict, and you agreed to do whatever he felt best. e. Solicitor DeJulio was the newly appointed solicitor of the borough, and was aware that the council had appointed you the positions of building inspector and zoning inspector at the same time you served as mayor. Since you were still serving as building inspector at this time, and Mr. Marmo was dissatisfied with the fact that council had appointed you to this position, all of the parties agreed that Solicitor DeJulio would seek a ruling by the State Ethics Commission in order to resolve any uncertainty as to whether it was appropriate for counsel to appoint you to this position at the same time you served as mayor. Solicitor DeJulio himself had no opinion on the matter, and believed the State Ethics Commission was the best avenue to assure that you abided by the letter and the spirit of the law. f. No fees were ever collected in performing marriages. You never charged any individual fees at any time. It is not proper to impose a fee for this service. You did receive small gifts in the amount of $10 or $20, or sometimes a pen or pencil st which Solicitor Brueck specifically advised you were permissible as honoraria. Because weddings generally occurred on weekend afternoons or evenings, and took place at various places throughout Allegheny County, you were often required to drive quite a distance, in order to accommodate the couple. You never charged any individual any fee, even for my gas, use of car, or time expended. Parties often made some small gift to you, and you had been informed by the solicitor that it was appropriate to keep these. You are also aware that this is common practice for mayors in virtually every borough with which you are acquainted throughout the Commonwealth of Pennsylvania. Mayor Regis E. Costello Page 27 This letter was written by Solicitor Brueck after our informal conversations, and you informed him you were willing to do whatever he believed was just and proper. h. Solicitor Brueck gave you the option of choosing which fee or salary you wished to keep. He believed you were doing a service to the borough, since the council had appointed you to multiple positions which would save the borough money by not having to pay an additional person for each position. i. At the time you discussed the situation with Solicitor Brueck, he suggested that you resign as zoning officer, which you did. Solicitor Brueck did not suggest that you surrender zoning officer fees. If he had done so, you would have clearly followed his advice. 27. By check dated August 9, 1989, you have voluntarily repaid Emsworth Borough the sum of $481.00, which is the amount of fees received by you as zoning officer from 1979 through 1984. B. Discussion: As the Mayor of Emsworth Borough, you are a "public official" as that term is defined under the Ethics Act and the regulations of this Commission. 65 P.S. Section 402; 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. 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, 466 A.2d 283 (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. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official /employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. In the instant matter, we must determine whether your actions as Mayor in receiving and collecting fees as Borough Building Inspector and also receiving gratuities for performing marriages transgresses Section 3(a) of the Ethics Act quoted above. g. Mayor Regis E. Costello Page 28 In Emsworth Borough, you have served as Mayor since 1982; in addition, you have served as building inspector from 1979 to October, 1988 and as zoning inspector from 1979 to March, 1985. You also held the position of Borough Manager of Avalon Borough between May of 1973 and April of 1984. You accepted compensation for the three positions you held in Emsworth Borough, although you did reimburse the Borough in the amount of $1,105 for your salary as Mayor between the years 1982 and 1984. In addition, you have made restitution in the amount of $536 for the fees which you received as zoning inspector for the years 1979 through 1984. As to the gratuities you have received for performing marriage ceremonies, you indicate that you never charged any fees nor did you request compensation for gas, use of car or time expended, but you did receive various "gifts of appreciation" ranging from cash between $10 to $25 and other tokens, such as pen and pencil sets. In applying the provisions of Section 3(a) quoted above to your conduct as a public official, you received a financial gain consisting of the borough building permit fees and such was a use of office to receive a financial gain other than compensation provided for by law since such fees are not authorized in law. In particular, the above quoted provision of the Borough Code (Finding No. 20) expressly prohibits you, as a mayor, from receiving any compensation for service on any board, commission, bureau, or other agency created by or for the Borough. Contrary to the foregoing provision of law, you received compensation for the building permits which you issued. Conversely, the Pennsylvania Municipalities Planning Code (Finding No. 21) also prohibits a zoning officer from holding any other elected office in the municipality; you nevertheless served as Mayor and received your salary for that elected position. The receipt of such salary as mayor is prohibited by the above provision of the Pennsylvania Municipalities Planning Code. You, therefore, violated Section 3(a) of the Ethics Act when you received compensation as Mayor which was compensation other than provided for by law for a zoning inspector. Restating the above, you violated Section 3(a) of the Ethics Act when you as Zoning Inspector received a salary as Mayor since a zoning officer may hold no other elective office in the municipality. Our decision in this case is consonant with prior decisions. See Shugarts, Order No. 623 wherein we found that a borough councilman violated Sections 3(a) and 3(c) of the Ethics Act when he contracted and received compensation from the Borough for performing snow plowing services. Turning to the matter of the gratuities for performing marriages, we note that the Ethics Law does not prohibit an official from receiving gifts. Such gifts, however, if in excess of $200 from an individual source are required to be reported on your annual Statement of Financial Interests. A review of the totality of the circumstances Mayor Regis E. Costellq Page 29 does not indicate that such payments to you constituted compensation for services rendered or were specifically obtained through the use of your public office. As such, we find no violation of the State Ethics Act in relation to such activities. Lastly, in reviewing your Statements of Financial Interests on file, we note that you failed to list Emsworth Borough as a source of income for the years 1982 through 1985, even though you had income in excess of $500 for each of those years. Accordingly, you are directed to file within thirty days of this Order amended Statements of Financial Interests for the four years in question which would list Emsworth Borough as a source of income. C. Conclusion and Order: 1. As Mayor for Emsworth Borough, you are a public official subject to the provisions of the State Ethics Act. 2. You violated Section 3(a) of the Ethics Act when you received fees as Borough Building Inspector, which is a financial gain other than compensation provided by law. 3. You violated Section 3(a) of the Ethics Act when you, as borough building inspector, served and received a salary as elected mayor of Emsworth Borough. 4. You must file amended Statements of Financial Interests within thirty days of the date of this Order which would list Emsworth Borough as a source of income for the years 1982 through 1985. Such statements should be forwarded to this Commission and copies must be filed with the Borough. 5. In light of the fact that restitution has been made, no further action will be taken. 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 52.38. 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 Mayor Regis E. Costello Page 30 releasing, discussing or circulating this Order. However, confidentiality does not preclude you from discussing this case with your attorney at law. 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 t e Commission elena G. Hughes Chair