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HomeMy WebLinkAbout1168 RusnockIn Re: Andrew Rusnock 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- 031 -C2 Order No. 1168 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11, Act 93 of 1998, which essentially repeats Act 9 of 1989 and provides for the completion of pending matters under Act 93 of 1998.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. Rusnock, 99- 031 -C2 Page 2 I. ALLEGATION: That Andrew Rusnock, a public official /public employee, in his capacity as a Board 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; and when he was compensated as an employee of the Authority without Board approval. II. FINDINGS: 1. Andrew Rusnock served as a member of the Beaver Meadows Municipal Authority from April 6, 1987, until resigning on September 19, 1999. 2. Andrew Rusnock has also served as a member of Beaver Meadows Borough Council since approximately April 6, 1985. 3. Rusnock was appointed and reappointed to the municipal authority board as follows: a. Initial appointment by council on April 6, 1987. b. Reappointed by council on January 1, 1991, and December 4, 1995. c. Rusnock participated in borough council actions appointing him in 1987 and reappointing him in 1991 and 1996 to the BMMA. 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. The March 5, 1970 minutes of the Authority state that the Authority on that Rusnock, 99- 031 -C2 Page 3 date set the amount of compensation for meeting attendance at $10.00 per month effective May 8, 1969. b. This compensation existed prior to Rusnock and Moyer becoming members of the authority. 8. The minutes of the Beaver Meadows Municipal Authority reflect the following actions setting and increasing compensation for board members attending meetings and for 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. 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 9. The Beaver Meadows Borough Council is responsible for making appointments and setting compensation for authority board members when attending meetings. 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. BMMA members, including Rusnock, have been compensated in equal amounts from both the sewer fund and water fund for attendance at the same meetings since December 1992. a. Rusnock made the motion authorizing the source of payments during the December 14, 1992, board meeting. 12. Payments to Rusnock as board member and a part -time laborer were included with the authority's monthly bills. a. Rusnock was compensated from both the authority's sewer and water funds. 13. Monthly bills of the BMMA to be paid, including salaries, are approved during regular meetings of the BMMA. a. Itemized bill lists are voted on in their entirety by a single motion. 14. Rusnock 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 a part -time employee of the Authority. Rusnock, 99- 031 -C2 Page 4 15. Rusnock received the following payments each year from the municipal authority for meeting attendance as follows: 1994 Total $400.00 1995 Total $560.00 1996 Total $870.00 1997 Total $540.00 16. Rusnock participated in authority action taken to approve the payment of meeting pay to himself on eighteen (18) occasions between May 9, 1994, and December 8, 1997. 17. Rusnock received a total of $2,370.00 in meeting pay between May 9, 1994, and December 8, 1997. a. Annual totals were as follows: 1994: $ 400.00 1995: $ 560.00 1996: $ 870.00 1997: $ 540.00 $ 2,370.00 18. 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. 19. Rusnock 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. 20. Rusnock 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. 21. Rusnock stated 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. II. DISCUSSION: At all times relevant to this matter, the Respondent, Andrew Rusnock, hereinafter Rusnock, has been a public official /public employee 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 Rusnock violated Section 3(a) of the Ethics Act as to the allegation that he, as a public official /public employee, 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 Rusnock, 99- 031 -C2 Page 5 without the approval of the Beaver Meadows Borough Council; and when he received compensation as an Authority employee without the Board's approval. 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 Rusnock served as one of five Board members of the Beaver Meadows Municipal Authority (Authority) from April 6, 1987 until he resigned on or about September 13, 1999. Rusnock has served as a member of the Beaver Meadows Borough Council (Council) since approximately April 6, 1985. The Authority was created by the Borough of Beaver Meadows, Carbon County 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. 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 Rusnock became an Authority Board Member. Rusnock, 99- 031 -C2 Page 6 The Minutes of the Authority reflect that on December 14, 1992, Rusnock made a motion, which was seconded by another Board member, to pay Board members $20.00 from the water fund and $20.00 from the sewer fund for attending Authority meetings. Rusnock participated in the vote to approve payment retroactive to January 1, 1992. Rusnock was absent at the January 15, 1996 Authority meeting when the Board voted to increase the members' compensation for attending Authority meetings by $10.00 from the water fund and the sewer fund. The Minutes of Council do not reflect any official action approving the foregoing increases in compensation for attending Authority meetings. Since December 1992, Rusnock received compensation in equal amounts from both the sewer fund and the water fund for attending Authority meetings. For the years 1994 through 1997, Rusnock's annual compensation for attending Authority meetings ranged from $400.00 to $870.00. Rusnock's compensation for those four years totaled $2,370.00. Rusnock regularly participated in the routine payment of Authority bills which sometimes included the approval of his compensation for serving as a Board member and a part -time Authority employee. Between May 9, 1994 and December 8, 1997, Rusnock participated in Authority action on 18 occasions to approve payments to himself for attending Authority meetings. Rusnock ceased receiving compensation for attending Authority meetings effective December 8, 1997; however, he continued receiving compensation for work as a part -time Authority employee. Rusnock resigned from the Authority Board on or about September 13, 1999. Council accepted his resignation at its January 3, 2000 meeting. Rusnock 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. Rusnock 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 Rusnock 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 Rusnock'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 $1,940.00 by Rusnock in settlement of this matter within 30 days of the issuance of this Order through this Commission to the Borough of Beaver Meadows. As to Section 3(a) of the Ethics Act, Rusnock 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, Rusnock made the motion to pay Board members $20.00 from the water fund and $20.00 from the sewer fund, thereby increasing the amount of compensation. Such action constituted a use of authority of office. See, Juliante, Order 809. The use of authority of office by Rusnock resulted in a private pecuniary benefit consisting of additional compensation to Rusnock himself for attending Authority Board meetings during the years 1994 through 1997. Accordingly, Rusnock 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. Rusnock, 99- 031 -C2 Page 7 In that it appears that the Investigative Division, through the exercise of prosecutorial discretion, has chosen not to pursue the allegation as to Rusnock's receipt of compensation as an Authority employee without Board approval, we therefore need not address that particular issue. 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, Rusnock is directed to make the payment of $1,940.00 through this Commission to the Borough of Beaver Meadows within 30 days of the date of this Order. 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. Rusnock, 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. Rusnock unintentionally violated Section 3(a) of the Ethics Act when he made the motion 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: Andrew Rusnock ORDER NO. 1168 File Docket: 99- 031 -C2 Date Decided: 9/20/00 Date Mailed: 10/5/00 1 Rusnock, as a member of the Beaver Meadows Municipal Authority, unintentionally violated Section 3(a) of the Ethics Act when he made the motion 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, Rusnock is directed to make payment of $1,940.00 through this Commission to the Borough of Beaver Meadows within thirty (30) days of the issuance of this order. 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