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HomeMy WebLinkAbout1167 MoyerIn Re: Mark Moyer File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Vice Chair Julius Uehlein John J. Bolger Frank M. Brown Susan Mosites Bicket 99- 032 -C2 Order No. 1167 9/20/00 10/5/00 This is a final adjudication of the State Ethics Commission. Procedurally, the Investigative Division of the State Ethics Commission conducted an investigation regarding a possible violation of the Public Official and Employee Ethics Law, Act 9 of 1989, P.L. 26, 65 P.S. §401 et seq., by the above -named Respondent. At the commencement of its investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, the Investigative Division issued and served upon Respondent a Findings Report identified as an "Investigative Complaint." An Answer was filed and a hearing was waived. The record is complete. A Consent Agreement was submitted by the parties to the Commission for consideration which was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998. This adjudication of the State Ethics Commission is issued under Act 93 of 1998 and will be made available as a public document thirty days after the mailing date noted above. However, reconsideration may be requested. Any reconsideration request must be received at this Commission within thirty days of the mailing date and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code §21.29(b). A request for reconsideration will not affect the finality of this adjudication but will defer its public release pending action on the request by the Commission. The files in this case will remain confidential in accordance with Chapter 11 of Act 93 of 1998. Any person who violates confidentiality of the Ethics Law is guilty of a misdemeanor subject to a fine of not more than $1,000 or imprisonment for not more than one year. Confidentiality does not preclude discussing this case with an attorney at law. Mover, 99- 032 -C2 Page 2 I. ALLEGATION: That Mark Moyer, a public official, in his capacity as a member of the Beaver Meadows Municipal Authority, violated Section 3(a) of the State Ethics Act (Act 93 of 1998, 65 Pa.C.S. §1101 et seq.) when he used the authority of his office for a private pecuniary benefit by participating in actions of the Authority to increase the meeting pay for members of the Authority without the approval of the appointing authority. II. FINDINGS: 1. Mark Moyer served as a member of the Beaver Meadows Municipal Authority Board from April 6, 1981, until resigning on September 13, 1999. a. Moyer also served as Authority Treasurer from August 10, 1983, until his resignation on or about September 13, 1999. 2. Moyer was appointed and reappointed to the municipal authority board as follows: a. Initial appointment by council on April 6, 1981. b. Reappointed by council on January 5, 1987; January 6, 1992; and December 2, 1996. 3. Mark Moyer has also served as a member of Beaver Meadows Borough Council since January 5, 1998. 4. The Beaver Meadows Municipal Authority (BMMA) was created on August 13, 1963, under the provisions of the Municipal Authorities Act of 1945 by the Borough of Beaver Meadows, Carbon County. a. A five (5) member authority board was created with each member appointed to a five (5) year term. b. Member terms are staggered so one position is up for appointment annually. c. Beaver Meadows Borough Council is the appointing body for the municipal authority board. 5. The BMMA provides water and sewer service for the Borough of Beaver Meadows. 6. The authority held one (1) regular meeting per month to handle authority business. a. Issues relating to sewer or water operations were discussed during each regular meeting. b. The authority did not hold separate regular meetings relating strictly to sewer or water issues. c. Special meetings and /or work sessions were held as needed. 7 Members of the Beaver Meadows Municipal Authority have been compensated for their attendance at authority meetings. a. This March 5, 1970 minutes of the Authority state that the Authority on that date set the amount of compensation for meeting attendance at $10.00 per month effective May 8, 1969. Mover, 99- 032 -C2 Page 3 b. This compensation existed prior to Rusnock and Moyer becoming members of the authority. 8. The Beaver Meadows Borough Council is responsible for making appointments and setting compensation for authority board members when attending meetings. 9. The minutes of the Beaver Meadows Municipal Authority reflect the following actions setting and increasing compensation for board members attending meetings and holding officer positions: a. December 14, 1992: "A motion by Andy Rusnock and seconded by Steve Delman to pay board members $20.00 from water and $20.00 from sewer. It was brought to our attention that both should be paying directors fee(s) since both water and sewer business is conducted at the regular meeting. Roll call - all yes. A motion to also make this retroactive to January 1, 1992, was made by Steve Delman and seconded by John Hearity. Roll call - all yes." Present: Steve Delman, Andy Rusnock, Mark Moyer, Ruth Donald, John Hearity b. December 13, 1993: Motion approved setting the compensation of the treasurer and secretary at $300.00 per quarter. c. January 15, 1996: "Meetings: to increase by $10.00 each water and sewer. Motion Mark Moyer, second Ruth Donald. Roll call - all yes." Present: Steve Delman, Ruth Donald, Bill Hines, Mark Moyer Absent: Andrew Rusnock d. Motion approved increasing the compensation of the secretary and treasurer by $100.00 per quarter. Abstention: Moyer. 10. The Beaver Meadows Borough Council was advised of the recommended increases in compensation for Board members attending meetings of the Authority and the members of the BMMA believed the increases were approved by the Borough Council before such increases were implemented. The minutes of the Beaver Meadows Borough Council do not reflect any official action of the Borough Council approving increases in the compensation for meeting attendance of members of the BMMA. 11. From 1983 to on or about September 13, 1999, Moyer was an authority member. During this period, Moyer served as Authority Treasurer and a part -time employee of the Authority. 12. Payments to Moyer for the positions of employee, treasurer and authority member were included with the authority's monthly bills. a. Moyer was compensated from both the authority's sewer and water funds. 13. The BMMA's monthly bills to be paid, including salaries, are approved during regular authority meetings. a. Itemized bill lists are voted on in their entirety by a single motion. 14. BMMA members, including Moyer, have been compensated from both the sewer Mover, 99- 032 -C2 Page 4 fund and water fund for attendance at Authority meetings. a. Moyer participated in approving the source of payments during the December 14, 1992, board meeting. 15. Moyer regularly participated in the routine payment of authority bills, which payments at times included the approval of payments to him for his positions as an Authority member and Authority Treasurer and a part -time employee of the Authority. 16. Moyer received the following payments per year from the municipal authority for meeting attendance as follows: 1994 Total $400.00 1995 Total $580.00 1996 Total $990.00 1997 Total $720.00 17. Moyer received meeting pay totaling $2,690.00 between May 9, 1994, and December 8, 1997. a. Annual totals were as follows: III. DISCUSSION: 1. 1994 $ 400.00 1995 $ 580.00 1996 $ 990.00 1997 $ 720.00 $ 2,690.00 18. Moyer participated in authority action taken to approve meeting pay to himself on twenty —one (21) occasions between May 9, 1994, and December 8, 1997. 19. The receipt of meeting pay by BMMA members Andrew Rusnock and Mark Moyer ceased effective December 8, 1997. a. Authority members continued to be compensated for work performed for the Authority as part -time employees of the Authority. 20. In his capacity as BMMA Treasurer, Moyer signed checks issued by the Authority for payroll and bills, including checks issued to himself. 21. Moyer and the other four members of the municipal authority board resigned on or about September 13, 1999. a. Council accepted the resignations at their January 3, 2000, meeting. 22. Moyer stated that at no time did he willfully or intentionally act to violate the provisions of the State Ethics Act or Public Official and Employee Ethics Law. 23. Moyer stated that he believed his actions at all times were reasonable, in good faith and permitted by the State Ethics Act and Public Official and Employee Ethics Law. Mover, 99- 032 -C2 Page 5 At all times relevant to this matter, the Respondent, Mark Moyer, hereinafter Moyer, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. §401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. §1101 et seq., which Acts are referred to herein as the "Ethics Act." The issue is whether Moyer violated Section 3(a) of the Ethics Act as to the allegation that he, as a public official, used the authority of his office for a private pecuniary benefit by participating in actions of the Beaver Meadows Borough Authority to increase the compensation of Board members for attending Authority meetings without the approval of the Beaver Meadows Borough Council. Pursuant to Section 3(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. facts. The term "conflict of interest" is defined under Act 9 of 1989 as follows: Section 2. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. §402. Section 3(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Having noted the issues and applicable law, we shall now summarize the relevant Moyer served as one of five Board members of the Beaver Meadows Municipal Authority (Authority) from April 6, 1981 until he resigned on or about September 13, 1999. Moyer also served as Treasurer of the Authority from August 10, 1983 until the date of his resignation. Moyer has served as a member of the Beaver Meadows Borough Council (Council) since January 5, 1998. The Authority was created by the Borough of Beaver Meadows pursuant to the Municipal Authorities Act of 1945 to provide water and sewer service to the Borough. The Council is responsible for appointing members to the Authority Board and setting their compensation for attending Authority meetings. Mover, 99- 032 -C2 Page 6 The Authority held one regular meeting each month to handle Authority business and to discuss issues relating to sewer and water operations. Special meetings and /or work sessions were held as needed. The Authority's monthly bills, which included Board members' salaries, were approved at the Authority's regular meetings. Itemized bill lists were voted on in their entirety by a single motion. The March 5, 1970 minutes of the Authority reflect that on that date, the Authority set the rate of compensation for attending Authority meetings at $10.00 per month, effective May 8, 1969. This rate of compensation was established before Moyer became an Authority Board Member. The Minutes of the Authority reflect that on December 14, 1992, Moyer participated in the vote to approve payment to Board members of $20.00 from the water fund and $20.00 from the sewer fund for attending Authority meetings, and to approve the payment of directors' fees, retroactive to January 1, 1992. On December 13, 1993, a motion was approved setting the compensation of the Treasurer and Secretary at $300.00 per quarter. On January 15, 1996, Moyer made a motion to increase the members' compensation for attending Authority meetings by $10.00 from the water fund and the sewer fund, which was approved by all present. Moyer abstained from the vote approving an increase in the compensation of the Secretary and Treasurer by $100.00 per quarter. The Minutes of Council do not reflect any official action approving the foregoing increases in compensation for attending Authority meetings. Moyer received compensation from both the water fund and the sewer fund for attending Authority meetings. For the years 1994 through 1997, Moyer's annual compensation for attending Authority meetings ranged from $400.00 to $990.00. Moyer's compensation for those four years totaled $2,690.00. Moyer regularly participated in the routine payment of Authority bills which sometimes included the approval of his compensation for serving as a Board member, the Authority Treasurer and a part -time Authority employee. Between May 9, 1994 and December 8, 1997, Moyer participated in Authority action on 21 occasions to approve payments to himself for attending Authority meetings. As the Authority Treasurer, Moyer signed Authority checks for payroll and bills, including checks issued to himself. Moyer ceased receiving compensation for attending Authority meetings effective December 8, 1997; however, he continued receiving compensation for work as a part -time Authority employee. Moyer resigned from the Authority Board on or about September 13, 1999. Council accepted his resignation at its January 3, 2000 meeting. Moyer stated that at no time did he willfully or intentionally act to violate the provisions of the State Ethics Act and Public Official and Employee Ethics Law. Moyer also stated that he believed his actions at all times were reasonable, in good faith and permitted by the State Ethics Act and the Public Official and Employee Ethics Law. Having summarized the above relevant facts, we must now determine whether the actions of Moyer violated Section 3(a) of Act 9 of 1989. The parties have submitted a Consent Agreement together with a Stipulation of Findings wherein they propose to resolve the case by finding an unintentional violation of Section 3(a) of the Ethics Act in relation to Moyer's participation in Authority actions to increase the amount of compensation for Board members for attending Authority meetings without the prior recorded formal approval of the Beaver Meadows Borough Council; and a payment of $2,260.00 by Moyer to be paid in installments, commencing with a payment of $260.00 within 30 days of the issuance of this Order through this Commission to the Mover, 99- 032 -C2 Page 7 Borough of Beaver Meadows, and payment of $200.00 per month thereafter for 10 consecutive months until this obligation is satisfied in full. As to Section 3(a) of the Ethics Act, Moyer used the authority of his office as an Authority Board member by participating in Authority actions to increase the compensation of Board members for attending Authority meetings when such an increase was not authorized by Council. In particular, Moyer voted to approve paying Board members $20.00 from the water fund and $20.00 from the sewer fund, thereby increasing the amount of compensation. Further, on January 15, 1996, Moyer made the motion to increase the members' compensation for attending Authority meetings by $10.00 from the water fund and the sewer fund. Such actions constituted uses of authority of office. See, Juliante, Order 809. The uses of authority of office by Moyer resulted in a private pecuniary benefit consisting of additional compensation to Moyer himself for attending Authority Board meetings during the years 1994 through 1997. Accordingly, Moyer unintentionally violated Section 3(a) of the Ethics Act when he used the authority of office to obtain a private pecuniary benefit for himself by participating in Authority actions to increase the compensation of Board members for attending Authority meetings when such an increase was not authorized by Council. As to the Stipulation of Findings and Consent Agreement, we believe that the Consent Agreement is the proper disposition for this case based upon our review as reflected in the above analysis and the totality of the facts and circumstances. Accordingly, Moyer is directed to make the payment of $2,260.00 in installments, commencing with a payment of $260.00 within 30 days of the issuance of this Order through this Commission to the Borough of Beaver Meadows, and payments of $200.00 per month thereafter for 10 consecutive months until this obligation is satisfied in full. Compliance with the foregoing will result in the closing of this case with no further action. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Moyer, as a member of the Beaver Meadows Municipal Authority, was a public official subject to the provisions of Act 9 of 1989/Act 93 of 1998, Chapter 11. 2. Moyer unintentionally violated Section 3(a) of the Ethics Act when he participated in Authority actions to increase the amount of compensation for Board members for attending Authority meetings and when he received compensation not authorized by the Beaver Meadows Borough Council. In Re: Mark Moyer ORDER NO. 1167 File Docket: 99- 032 -C2 Date Decided: 9/20/00 Date Mailed: 10/5/00 1 Moyer, as a member of the Beaver Meadows Municipal Authority, unintentionally violated Section 3(a) of the Ethics Act when he participated in Authority actions to increase the amount of compensation for Board members for attending Authority meetings and when he received compensation not authorized by the Beaver Meadows Borough Council. 2. As per the Consent Agreement, Moyer is directed to make payment of $2,260.00 in installments, commencing with a payment of $260.00 within 30 days of the issuance of this Order through this Commission to the Borough of Beaver Meadows, and payments of $200.00 per month thereafter for 10 consecutive months until this obligation is satisfied in full. a. Compliance with the foregoing will result in the closing of this case with no further action by the Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Vice Chair