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Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter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