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HomeMy WebLinkAbout730 HeitzenraterMr. Albert Heitzenrater R.D. #3, Edgewood Road Sewickley, PA 15143 Re: 88 -011 -C Dear Mr. Heitzenrater: ' STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION Order No. 730 Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Date Decided: December 4, 1989 Date Mailed: December 15. 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. Allegation: That you, Councilman of Economy Borough, Beaver County, violated the following provisions of the Ethics Act (Act 170 of 1978), when you received compensation as borough road foreman: ,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). Heitzenrater, Albert Page 2 A. Findings: 1. You serve as a member of the borough council in Economy Borough, Beaver County, Pennsylvania. a. You have served in this position for approximately 16 years. b. You also are employed by Economy Borough in the Road Department. c. You have served as a road employee for about 14 years and have been roadmaster or road foremen since 1980. 2. Borough employees assigned to the Street Maintenance Department were represented by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters) Local Union 250 of Pittsburgh, Pennsylvania. a. Economy Borough and Teamsters Local No. 250 entered into collective bargaining agreements in January 1980, 1982, 1984, and 1986. b. Each of the noted contracts covered a two -year period except for the contract of 1986. c. Each contract had a provision in it captioned "Maintenance of Standards" which noted as follows; "the employer agrees not to enter into any agreement or contract with his employees individually or collectively which in any way conflicts with the terms and provisions of this agreement. Any such agreement will be null and void." d. Each of the foregoing contracts was executed by the President of Borough Council and a representative of Teamsters Local Union 250. 3. Each of the contracts noted in Finding 2b wages for various categories of Borough Street a. The wages indicated for the "working covered by contract were as follows: January 1, 1980 January 1, 1981 January 1, 1982 January 1, 1983 January 1, 1984 July 1, 1984 January 1, 1985 $ 7.83 per hour 8.36 per hour 9.06 per hour 9.76 per hour 9.86 per hour 9.94 per hour 10.06 per hour above, provided fixed Department employees. foreman" in each year Heitzenrater, Albert Page 3 July 1, 1985 January 1, 1986 January 1, 1987 January 1, 1988 10.16 per hour 10.66 per hour 11.16 per hour 11.61 per hour 4. Minutes of the meetings of borough council for Economy Borough indicate the following regarding the instant situation: a. January 7, 1980 - Motion by Mr. Testa, second by Mr. Lambert to appoint Albert Heitzenrater as road foremen. Votes on the motion: yes, Gross, Lambert, Testa, Barto and Rossi. No, Heitzenrater, motion carries 5 - 1. Mr. Heitzenrater was appointed to the following committees: Road, Building, Property and Supplies and Ordinances. b. January 3, 1984 - Motion by Mr. Testa, second by Mr. Fitzpatrick to nominate Albert Heitzenrater as Council Vice - President, motion approved unanimously. Motion by Mr. Rossi, second by Mr. Barto to close nomination for Council Vice - President. Motion approved unanimously. Mr. Heitzenrater is elected Vice - President of Council. Mr. Heitzenrater is also appointed to the following committees: Road, Building, Property and Supplies and Ordinances. Motion by Mr. Fitzpatrick second by Mr. Testa to retain Albert Heitzenrater as Road Foreman. Votes on the motion; yes, Gross, Rossi, Fitzpatrick, Pinchot, Testa and Barto. Mr. Heitzenrater abstains. Motion carried 6 - 1. Regarding union negotiations, there is no report on negotiations. Attorney Lewis and Mr. Rossi understood the police were going to hire a negotiator. They did note a letter has been written to the police asking for a meeting. A counter offer was made to the Teamsters for the Road Department contract. Nothing has been heard from the Teamsters. Attorney Lewis verified that the borough would be responsible for paying an arbitrator not a negotiator. c. February 14, 1984 - Mr. Rossi suggests that council go into executive session during the meeting to discuss road and police negotiations. Attorney Lewis also suggests that council enter into executive session at 9:45 p.m. Motion by Barto second by Pinchot to enter into executive session to discuss labor negotiations. Executive session ended at 10:30 p.m. Absent, Heitzenrater. d. May 8, 1984 - Solicitor's report there is a settlement between the Road Department employees, Teamsters Union and he Borough. The salary increase as follows: retroactive to January 1, 1984 to July 1, 1984 $.10, July 1, 1984 to Heitzenrater, Albert Page 4 December 31, 1984 $.05, January 1, 1985 to July 1, 1985 $.15, July 1, 1985 to December 31, 1985 $.10. One personal day is taken back. Hospitalization is a factor in the contract. There is a 23% in hospitalization per employee. The approved contract will be returned from the Teamsters for Council's approval. e. June 12, 1984 - The Road Department contract is discussed. Mr. Rossi does not agree with Page 11, Article 13 which pertains to an increase in hospitalization coverage for 1985. Solicitor will delete this line and send the contract back with a note. Motion by Mr. Rossi, second by Mr. Pinchot to sign the Road Department contract providing the Plan IX reference is deleted. Yes, Gross, Rossi, Fitzpatrick, Pinchot, Barto. Abstained Mr. Heitzenrater. f. July 10, 1984 - The hospitalization package was not agreed on after April 1, 1985 for the Road Department contract from the Teamsters. Mr. Rossi will clear this correction with Mr. Gross of the Teamsters. Retroactive pay has been made to the road employees. g. August 14, 1984 - A meeting is suggested with the Teamsters representatives and the Borough's negotiation committee regarding road contract benefits increases. Attorney Lewis will write to Bill Gross of the Teamsters and suggest a meeting. Regarding the PSAB unemployment compensation package the solicitor questions what are the terms for opting out. There are several options to begin payments Mr. Rossi will check out the options and questions raised by the solicitor. h. September 11, 1984 - Attorney Lewis and Mr. Rossi meet with Mr. Gross of Teamsters regarding the health care package. The 1984 -1985 costs were approved not an additional increase scheduled for April 1, 1985. It is decided to let it ride to see what the increase will be for April of 1985. Perhaps it will be only $12.00 per man, per month and Council will approve. Mr. Gross will see if he can guarantee $260.00 per man, per month for the entire year of 1985. i. January 8, 1985 - Mr. Testa explains that the new road budget for 1985 has been cut $30,000 to balance the budget. Mr. Testa discusses the 1985 budget explaining that revenue is down from 1984. The borough must do maintenance paving this year with no new construction funded. . February 12, 1985 - The Teamsters package of hospitalization insurance will be increased from $13.00 to $15.00 a month effective April 1, 1985. This is a substantial increase. i Heitzenrater, Albert Page 5 Council only agreed to the increase effective January 1, 1985 and said to let it lay to see if the increase for April 1, 1985 would be minimal. The contract was never signed. Council asked what happens if we do not agree. Solicitor feels that the Road Department would strike or pick up the balance. k. March 12, 1985 - Bill Gross of Teamsters cannot sign the application for Summer Youth Employment and Training Program due to the unsigned road contract. Council discusses the increase the for Teamsters hospitalization package effective April 1, 1985. Attorney Lewis and Mr. Rossi were not aware of the April 1, increase of $15.00 per man, per month. This increase was noticed when the contract was sent here for approval. The increase effective January 1, 1985 was the only one expected. Mr. Fitzpatrick feels the police contract is being settled late and their increase will be greater than that received by the Road Department. The $15.00 hospitalization package increase will help to balance out the difference. Motion by Fitzpatrick second by Mr. Barto to sign the road contract as presented and pay the additional $15.00 per man, per month, for hospitalization package. Yes: Gross, Fitzpatrick, Barto and Testa. No: Rossi; motion passes on a 4 - 1 vote. 1. July 9, 1985 - A certified notice is received from William D. Gross Teamsters, Secretary /Treasury of contract expiration date December 31, 1985 for Road Department. m. September 10, 1985 - Notice is received from the Bureau of Mediation, Department of Labor and Industry to William D. Gross, Secretary /Treasury of the Teamsters naming Joe Kadilac, Mediator for road contract negotiations. n. October 1, 1985 - Motion by Mr. Rossi second by Mr. Heitzenrater to approve the salaries and wages resolution for 1985. The resolution was limited to certain employees who were not in the road department. Motion approved unanimously. o. December 11, 1985 - A list of demands is received for Road Department from Teamsters negotiator Bill Gross. Council will meet following the council meeting to discuss 1986 road contract a meeting will be scheduled with Mr. Gross. p. January 6, 1986 - Mr. Heitzenrater is nominated as Council Vice - President. Mr. Heitzenrater elected after nominations are closed. Heitzenrater,.Albert Page 6 Mr. Heitzenrater is appointed to the following committees: Road, Building, Property and Supplies and Ordinances. Motion by Mr. Barto second by Mr. Testa to retain Albert Heitzenrater as road foreman. Yes: Gross, Rossi, Fitzpatrick, Hendrickson, Testa, Barto. Abstained: Heitzenrater. January 14, 1986 - A three year road contract is progressing and should be resolved this month. A counter proposal is received from the department and should be discussed by council. An executive session meeting of council will follow this meeting to discuss this contract. You did not attend the executive session. r. February 12, 1986 - Mr. Rossi gave Mayor Campbell a copy of the Road Department labor agreement for his review. Approval of this agreement is on hold till review by Mayor Campbell. s. March 11, 1986 - Mr. Rossi discussed with Bill Gross Teamsters negotiator the road crew contract. The Department has the right to withdraw all pension monies after completing five years of employment. No pension changes shall be finalized now, this item will remain. Consider changes will be reviewed with changes made before the contract expires. The three year agreement is explained by Mr. Rossi stating tight control will be placed on sick days. Employees may be contacted by the borough clerk if off sick. Mayor Campbell feels working foremen should be handled under a separate agreement, he should not be a union man. Mayor Campbell submitted a letter of veto listing all items he feels should be changed. He must be assured that all items of his veto have been addressed before he will remove his veto. Mayor Campbell feels that the borough cannot afford a 1 hour lunch period. Several other vetoed items are listed in a letter presented to council presented by Mayor Campbell. It is explained this has been part of the contract for some time. Mayor Campbell feels the individual should have the right to withdraw all vested monies and dividends. It should be deleted from the contract and insert individuals have the right to withdraw monies he has contributed if he resigns within a two week notice. This veto must stand for a period of ten days and Council may take action. Attorney Lewis explains that any negotiator needs instructions before contracts begin. The timing is bad for Mayor Campbell's veto items. They are after the contract has been presented and approved. Motion by Mr. Rossi second by Mr. Hendrickson to approve the Road Department contract. Heitzenrater, Albert Page 7 Comments: Mr. Testa feels Council went into negotiations with past practices; lunch periods were not a negotiated item but put up after Mayor Campbell's vetoed items were listed. Mr. Gross says Council was aware of what the demands of the Road Department were and what the past practices were. Mayor Campbell feels that in all negotiations we should try run the borough on the lowest tax basis available. Votes on the motion yes, Gross, Rossi, Hendrickson, Testa and Barto. Abstained: Heitzenrater. Mr. Heitzenrater notes that he has had no part in the negotiations but is bound by the contract. t. April 8, 1986 - Mayor Campbell believes council will take action tonight on the Road Department labor agreement. After this vote, Mayor Campbell will read his rebuttal. Mayor Campbell's items of veto were sent to the Department negotiator, William Gross. A reply is received from Mr. Gross explaining there are provisions that do not appeal to one side or the other. The letter provides: "There are points I would like changed, but quite frankly I believe that the present proposed agreement is one that both sides can live with. This union has approved the proposed agreement and encourage you to do likewise. We, of course, reserve all legal and economic recourse if you should fail to do so." In response, Mayor Campbell read his rebuttal. The items protested include one half hour paid lunch which should include travel to and from borough garage, misuse of sick days, use of borough equipment for repairs to personal vehicles and someone posting time on all time cards. Mr. Rossi explained the misuse of sick days and one half hour lunch period have been addressed and corrected. The Department will abide by the rules. Motion by Mr. Rossi second by Mr. Fitzpatrick to approve the 1986 -88 road contract. Ayes: Gross, Rossi, Fitzpatrick, Hendrickson, Testa and Barto. Abstained: Heitzenrater. u. Motion by Mr. Rossi second by Mr. Hendrickson to adopt the wages and salary resolution for 1986 No. 175. The motion, which was approved unanimously, did not concern the road department. v. May 13, 1986 - Negotiations are complete regarding the road foreman. Motion by Mr. Rossi second by Mr. Fitzpatrick to pay the road foremen the same salary as the police chief effective January 1, 1986 paying the normal road foreman salary as listed on the road contract with the balance paid by separate check as a bonus. Yes Gross, Rossi, Fitzpatrick, Hendrickson, Testa and Barto; abstained Mr. Heitzenrater. Heitzenrater,. Albert Page 8 w. June 14, 1988 - Mr. Testa notes a motion is necessary to increase Mr. Heitzenrater's salary to pay him a bonus to place him on the same salary status as Chief of Police Harrington. Both of these salaries needed upgrading effective January 1, 1988 but it was necessary to wait until the amount was determined. Attorney Joyce says that this is the same as it has been in the past. Motion by Mr. Barto second by Mr. Fitzpatrick to pay Mr. Heitzenrater a bonus retroactive from January 1, 1988 to match the salary of police chief. Mr. Steele questions how we can agree to pay the road foremen the same salary as agreed by the negotiator of the police. Attorney Joyce states that this is just a yardstick to go by to match the salary. Votes on the motion Fitzpatrick, Hendrickson, Barto and Testa, yes; Mrs. Steele, no. x. September 13, 1988 - Mayor Campbell wrote a letter to council last month but gave it to Mr. Joyce to review instead. Mayor Campbell reads the letter and the reply from Attorney Joyce. Mayor Campbell states his opposition in reference to the salary of the road foremen. Attorney Joyce's reply states an opinion was granted on this matter previously and restated the practice of council of awarding additional salary for the road foreman position is premised and based on the collective councilmanic discretion. While there maybe disagreement as to the manner and method of exercising this discretion the contest is more properly a part of the political arena than legal. Mayor Campbell further discusses having the road foreman as part of the union. Mr. Testa says basically we are rehashing what has already been brought before this council. Mayor Campbell fails to remember the present foreman position was forced by him to become a member of the union. Mr. Testa questions how we would operate equipment without all members of the Road Department being union members. Mr. Campbell says that Mr. Fitzgerald was a road foreman but not a councilman. Mr. Gross says Mr. Fitzgerald was told he would join the union or look for another job. Mr. Campbell noted that at that time there was a four man crew; we could not afford to have one man stand around and watch. Mr. Heitzenrater says to forget the hassle and put someone else in charge if that is what they choose. y. January 25, 1989 - Motion by Mr. Testa second by Mr. Barto to pay Mr. Heitzenrater a bonus retroactive from January 1, 1989 to match the salary of the police chief as was negotiated in the past. Motion approved unanimously. Absent, Heitzenrater. Heitzenrater,. Albert Page 9 • 5. W -2 wage and salary statements for you in your position as Economy Borough Road Foreman indicated that you received compensation as follows: 1981 1982 1983 1984 1985 1986 1987 1988 YEAR 1986 1987 a. Mr. Campbell notes foreman salary has there should be no another employees s $17,684.57 21,381.57 22,102.48 22,308.14 18,673.98 29,584.11 31,972.52 33,099.17 6. Economy Borough payroll records indicate that you received bonuses from the borough for serving in the position of road foreman as follows: AMOUNT $6,102.58 6,150.32 7. By way of letter dated August 1, 1988 from Mayor Kenneth E. Campbell to Economy Borough Council, Mayor Campbell expresses his opinion regarding the fact that the Road Department foreman salary has been renegotiated to equal that of the police chief. that it is his believe that the road been negotiated through contract and that further modification of such based upon alary. b. It is further noted that Mr. Campbell believes that the fact that an employee is represented by two different bargaining units, i.e. a member of Teamsters receiving all benefits negotiated by that union as well as benefits negotiated by police negotiator is inappropriate. 8. By way of letter dated April 10, 1986 from K. E. Campbell, Mayor to Economy Borough Council, Mayor Campbell outlines certain problems that he believes exist in the Economy Borough Road Department. a. Mr. Campbell notes that while he has respect for Mr. Heitzenrater, he believes that Council has placed him in an awkward position and a position that results in a conflict of interest in that he serves as union employee, road foreman, vice - president of council, Chairman of Property and Supplies Committee of council and on the Council Road Committee. Heitzenrater, Albert Page 10 b. Mr. Campbell's letter notes that Mr. Heitzenrater performs far too much councilman work on his Road Department time. It is further noted in this letter that Mr. Campbell believes the pay for Mr. Heitzenrater being councilman far exceeds that being set by council. 9. By way of letter dated January 9, 1988 to the Councilmembers from Mayor Kenneth E. Campbell, Mr. Campbell notes that he has made a recommendation to council to delay committee appointments in order to allow time to discuss Mr. Heitzenrater's circumstances. a. The letter notes that Mr. Heitzenrater's position being a benefactor and also a participant in meetings appears to be creating an unhealthy situation, if not a conflict of interest. 10. In addition to serving as borough councilmember and an employee of the borough, you also were compensated for performing inspections of driveways pursuant to a 1976 Borough Ordinance, No. 179. a. Pursuant to the ordinance, the road foreman was responsible for performing the inspection of all driveways covered by the ordinance in order to insure that they meet borough specifications. b. Pursuant to the decision of borough council of February 10, 1976 a $10.00 fee would be charged to individuals seeking to construct driveways in the borough. 11. You were compensated as follows for the issuance of driveway permits: YEAR AMOUNT 1982 $160.00 1983 370.00 1984 NONE 1985 90.00 1986 60.00 1987 NONE 1988 NONE TOTAL $680.00 12. Kenneth E. Campbell provided the following information in relation to the instant situation: a. He is the Mayor of Economy Borough and has served in this position for 26 years. Heitzenrater, Albert Page 11 b. He generally does not vote on council matters, however, he is authorized to cast a vote in the event of a tie. c. He was originally unaware of Mr. Heitzenrater's bonus but he believed that it was authorized by council. d. He does not believe that Mr. Heitzenrater voted on the approval of the union contract as a member of borough council. 13. Thomas Harrington, Chief of Police of Economy Borough, provided the following information in relation to the instant situation: a. Mr. Heitzenrater was not involved in the negotiations of union contracts with the borough. b. He does believe that Mr. Heitzenrater attended the meetings where the contract was negotiated. (1) You deny that you ever attended any private negotiating or executive session concerning the contract. c. He does not believe that Mr. Heitzenrater voted on the approval of the union contract. d. Mr. Heitzenrater indicated that he has as many responsibilities as the Chief of Police and that he should, therefore, be paid as much as that individual. 14. Vincent Testa, an Economy Borough Councilman, provided the following information regarding the instant situation: a. He has served as a councilman for Economy Borough for the past 20 years. He has known Albert Heitzenrater since approximately 2 years prior to Heitzenrater taking office. b. He believes that Councilman Tom Rossi and another Councilman brought up the idea of a bonus for Heitzenrater in his position as borough road foreman. He believed that the bonus came about as a result of rewarding Heitzenrater for what he saved the borough on major repairs, road repairs and general savings to the community. He believed that Heitzenrater, as a department head similar to the Chief of Police, should be earning a salary that was comparable to what the Chief of Police was making. c. The bonus for Heitzenrater was discussed with the solicitor and the union. He believed that these discussions occurred openly at public meetings over a period of two months. This Heitzenrater, Albert Page 12 was not a quick decision but required considerable thought on the part of council. To the best of his recollection, no one was against the motion on the bonus strictly because of Heitzenrater's ability. d. To the best of his knowledge, Heitzenrater was not present at any of the meetings where the bonus was discussed. He noted that Heitzenrater always abstained from voting on anything relating to himself or the Department, except for voting on the annual budget. 15. Thomas Rossi, an Economy Borough Councilman from 1980 through 1987, advised as follows: a. He has known Heitzenrater for a number of years. He believes that Heitzenrater is a good friend and an honorable person. b. Council had discussed a bonus for Heitzenrater earlier in December and decided that the heads of the Police and Road Departments should receive an equal amount of salary. He does not recall if Heitzenrater asked for the increase. c. Heitzenrater had many qualifications within the Road Department and Council felt that Heitzenrater was extremely qualified and deserved more money than he was being paid. Council also felt that Heitzenrater's salary should be more in line with what the Chief of Police was earning. d. Heitzenrater always abstained from voting on his salary and on any other matters pertaining to the road crew. Heitzenrater would be present at the executive sessions relative to the contracts but would abstain from road crew discussions. e. The idea of the bonus for Heitzenrater was discussed with a union representative as well as the borough solicitor. Both the union advisor and the solicitor advised that there were no problems with the bonus being paid to Heitzenrater. f. He was not aware that the union contract with the Teamsters precluded any private agreement with any individual union member such as the bonus being paid to Heitzenrater. He relied solely on the advice of the solicitor and the fact that the union had no problem with the bonus being paid to Heitzenrater. g. It is his belief that several years earlier, council wanted Heitzenrater to leave the union to become part of management. Heitzenrater declined saying that he was afraid Heitzenrater, Albert Page 13 that with the make up of council, he could be out of a job without the protection of the union. h. He has no knowledge of Heitzenrater receiving the $10 permit fee for inspection of curb cuts or driveway permits. He thought that the money was going to the borough. 16. Blaine Hendrickson, an Economy Borough Councilman since January of 1986, advised as follows: a. He has known Albert Heitzenrater for approximately the past 20 years. b. He doesn't believe anyone opposed the bonus for Heitzenrater and that council felt they could bring Heitzenrater up to the police wages at that time. The reason for bringing Heitzenrater's salary up to the Police Chief's was that council felt that Heitzenrater was also running a department just like the chief of police considering that which resulted in considerable savings to the borough. c. The solicitor checked over the contract for the members of council. He wasn't aware of the clause about private agreements being in the contract. He could not recall anything specific about the contract bonus or the executive sessions that occurred when the bonus was discussed. He only knows that the solicitor and councilman Tom Rossi said it was permissible to give Heitzenrater the bonus. d. Since he has been on council only one council person has objected to the bonus being paid to Heitzenrater. 17. Robert Gross, an Economy Borough Councilman for approximately the past 20 years and presently chairman of council, provided the following information: a. Members of Borough Council felt that Heitzenrater was doing a very good job as roadmaster for the borough. It was a lot of work, there was a lot of work that had been contracted out for repairs in the past and Heitzenrater, as roadmaster, began doing repairs or having repairs done by the borough employees which saved the borough a considerable amount of money. Heitzenrater also had considerable experience operating equipment and was doing an excellent job in running the borough road crew. b. He was not familiar with the section about the union contract that forbade private agreements with union members. He believed that the bonus was cleared with union representative for the Road Workers' Union. In addition, Heitzenrater, Albert Page 14 the solicitor was also aware of the bonus and informed council that the bonus was permitted under the terms of the contract. c. No one opposed the motion to give Heitzenrater the bonus and that there was no question that Heitzenrater worth the money that he received. d. To his knowledge, Heitzenrater was never given the option of getting out of the union and being part of management. In regards to the $10 driveway permit fees that were collected by Heitzenrater, he said that the road foreman should have gotten the $10 fee. He assumed that council saw no problem with it at the time that the ordinance was passed requiring the $10 permit. He assumed the hours other than work hours were needed to issue the permits to inspect the various projects. 18. James Fitzpatrick, an Economy Borough Councilman for approximately the past 10 years, provided the following information: a. The bonus for Albert Heitzenrater as an effort to equalize payments to the two department heads, that is the Police Department and the Road Department. He recalled one of the councilman introducing the measure to award Heitzenrater a bonus. All of the councilman were in favor of the motion and he added that foreman like Albert Heitzenrater don't come around every day. b. Heitzenrater was extremely good with the equipment saving the borough considerable amount of money when it came to repairs for borough equipment. The idea of a bonus had been discussed for some time by council because they always figured that Heitzenrater was underpaid for what he was doing for the borough. c. He was not aware of any clause in the contract with the union that said that they could not enter into any agreement with any of the union members. The bonus was done because of Heitzenrater's ability not because of any way to give Heitzenrater any more money. He believed that the council asked the solicitor for his advice for making any decision about the bonus. d. To his knowledge, Heitzenrater was never a participant in any meetings where the bonus for his work as road foremen was discussed. 19. Donald Barto, Economy Councilman since July of 1976, provided the following information: Heitzenrater,. Albert Page 15 a. Heitzenrater was a good employee who saved the borough a considerable amount of money in the repair of vehicles. Heitzenrater was exceptionally qualified for the position that he held. b. Tom Rossi, a councilman and the borough solicitor, were the negotiators for the borough in 1986. c. The bonus was talked about for many months prior to it actually being awarded. It was council's belief that Heitzenrater's worth outweighed his wages. Council thought that since Heitzenrater was a department head with the same number of men as the police chief, he should receive the same pay as the police chief. d. He scanned through the contract and didn't really realize the contract included the clause restricting private agreements. The solicitor and the union negotiator, as well as Councilman Rossi, were in charge and they had no problem with Heitzenrater receiving the bonus. Council relied on the advice of the solicitor. e. He was in favor of the motion provided that any new person that came in as road foreman or roadmaster would have to prove his worth before receiving such a bonus. In regards to the driveway permit fees, he recalled that the borough had a problem with people cutting in driveways so a driveway permit ordinance was established. He thought that the person who did the inspection of the road cut or the curb was to receive the money for the inspection. He thought that Councilman Tom Fitzgerald was to get the money but when Heitzenrater got promoted, he took over and received the money for the permits. He believed that $10 was not enough for the inspection job because they were to be done before and after the curb was cut and were to be conducted on off duty hours. He did not know how the ordinance was written up but he felt that it was compensation for the inspector, whoever might hold that position. 20. You provided the following information in relation to the instant situation: a. You served as a Borough Councilmember in Economy Borough. You have served in this position for approximately 16 years. b. You are an employee of Economy Borough and have served as a road worker for about 14 years. You have been road foreman since 1980. Heitzenrater, Albert ' Page 16 c. Prior to becoming a councilmember you were involved in excavating, road work, driveways and similar projects. d. You have been a member of the Teamsters Local Union, Local 250 since you started to work for the borough. e. You were not responsible for signing borough checks regarding expenditures. f. As a member of council, you were assigned to the Property and Supply Committee (Chairman), the Ordinance Committee, the Building Committee and the Road Committee. g. Although you were present during the signing of union contracts, you did not participate in the deliberations relative to the contract. h. You abstained and never voted on any of the contracts and you have never voted on anything that would be a personal benefit to yourself. i. As a member of council, you never discussed union contracts and if such were discussed you would leave the meeting. Mayor Campbell objected to the fact that he, as the road foremen, was also a member of the Road Workers Union, but originally Mr. Campbell insisted that Mr. Heitzenrater be a member of the union. k. You have not played any part in the process of negotiating any union contracts. 1. You admit that you routinely voted for the annual budget including the amount allocated to the Road Department and also voted to pay all borough bills as they became due and were presented at the monthly meetings. m. You voted against the borough appointing you as road foremen because you did not want the job. n. You do not believe that there was any problem in voting for payment of bills accumulated by the Road Department because these items did not personally benefit you. o. The Solicitor, Mr. Lewis, advised you that there was no conflict in performing in two positions for the borough. You did not vote on the supplemental compensation agreement whereby you received a bonus so that your salary would be equivalent to that of the chief of police. j Heitzenrater, Albert Page 17 p. You were unaware of how this situation developed. q. You believe that the solicitor contacted the union in order to received their approval or their acceptance of the bonus as a separate item apart from the previously negotiated union contracts. You were not involved with these dealings. r. To the best of your knowledge, the solicitor received the union's approval. You did not believe that you conducted yourself in any manner or way that could be considered improper. B. Discussion: As an Economy Borough Councilmember, you are a "public official" as that term is defined under the Ethics Act and Regulations of the State Ethics Commission. 65 P.S. 402; 51 Pa. code 1.1. As such, you are subject to the Ethics Act and 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) quoted above, 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, Pa. Commw. Ct. , 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to Heitzenrater, Albert Page 18 advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, 116 Pa. Commw. Ct. 19, 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, the allegation relates to whether you violated Section 3(a) quoted above regarding your receipt of compensation as a borough road foreman. You have served on Economy Borough Council for sixteen years and were appointed to various committees including Road, Building, Property and Supplies and Ordinances. You were nominated and appointed to the compensated position of road foreman but you voted against your own appointment. Thereafter, when any matter arose as to the road department, you either absented yourself or abstained. In particular, you were absent from February 14, 1984 executive session which concerned road and police labor negotiations. In a June 12, 1984 council meeting, you abstained as to matters involving the road department contract. You were not present at a March 12, 1985 council meeting wherein a motion was passed which approved the road contract. Although you were present and voted on a wages and salaries resolution at a October 1, 1985 meeting, that resolution did not include road department employees. You did not attend the January 14, 1986 executive session which discussed a three year road contract. In a March 11, 1986 council meeting when the road crew contract, inter ali, was discussed, you abstained and noted of record that you "had no part in the negotiations but - -- [would be] bound by the contract." You were absent from the June 14, 1988 meeting wherein a motion was passed to give you a bonus to increase your salary to the same amount which the police chief was receiving. Finally, in a January 25, 1989 meeting a motion was passed to pay you a bonus retroactive to January 1, 1989 but you were absent from the meeting. In applying the above facts to Section 3(a) of the Ethics Act, we note that thee has been no use of office on your part. You voted against your appointment as road foreman and thereafter you either abstained or were absent from public council meeting or executive sessions wherein matters involving the road contract, negotiations, or salaries were discussed. We also note that the financial gain which you have received is compensation provided by law. In Deitrick, Opinion 89 -022 we determined that a borough councilmember could be employed by a borough as street manager and waterworks operator. In reaching our decision in that case, it was necessary to review Section 1104 of the Borough Code because of its possible impact on Section 3(a) of the Ethics Law. Section 1104 provides that elected borough officers could serve on borough boards, commissions, bureaus, agencies or any borough office but could not receive compensation thereof. Since we concluded that Heitzenrater, Albert Page 19 the positions of street manager and waterworks operator were not borough offices, we found that Section 3(a) of Act 9 of 1989 did not restrict such employment. Although we are deciding the instant matter under Act 170 of 1978, we believe that the principles espoused in Detrick, supra, remain applicable. Therefore, because the position of road foreman is not a borough office, you may receive compensation in that position and such would be a financial gain which is authorized in law. Accordingly, you did not violate Section 3(a) of the Ethics Act regarding the receipt of your compensation as borough road foreman. C. Conclusion and Order: 1. As an Economy Borough Council member, you are a public official subject to the provisions of the Ethics Act. 2. You did not violate Section 3(a) of the Ethics Act when you received compensation as a borough road foreman because there was no use of office on your part and because the compensation was a financial gain which was authorized in law. 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 §2.38. 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. Heitzenrater, Albert - Page 20 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). lena G. Chair