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HomeMy WebLinkAbout01-002-R ShimekOPINION OF THE COMMISSION Before: Daneen E. Reese, Chair Louis W. Fryman, Vice Chair John J. Bolger Frank M. Brown Susan Mosites Bicket Donald M. McCurdy DATE DECIDED: 8/24/01 DATE MAILED: 9/7/01 John J. Shimek, III, Esquire Quinn, Buseck, Leemhuis, Toohey & Kroto, Inc. 222 West Grandview Boulevard Erie, PA 16506 -4508 01 -002 -R Re: Conflict, Public Official /Employee, Township, Council- Manager Plan, Council Members, Salary Increase as Reimbursement for Restitution Imposed Upon Township Manager by State Ethics Commission, Anthony, Order 1179, Motion, Second, Vote, Reconsideration. Dear Mr. Shimek: This Opinion is issued in response to your request for reconsideration of Shimek, Opinion 01 -002. I. ISSUE: Whether this Commission should grant reconsideration of Shimek, Opinion 01 -002. II. FACTUAL BASIS FOR DETERMINATION: This matter initially arose from your advisory request letter dated March 15, 2001, which resulted in the issuance of Shimek, Opinion 01 -002 on May 30, 2001. As Solicitor for Washington Township, you sought an Opinion from this Commission on behalf of the following members of the Washington Township Council: David Patterson, Louella M. (Bunny) Bucho, David Munzert, and Vere Woods (collectively referred to herein as the "Council Members "). Your request for reconsideration has been submitted on behalf of these same Council Members. The primary question which you posed in your initial advisory request letter was whether the Council Members would violate the Public Official and Employee Ethics Act Shimek, 01 -002 -R September 7, 2001 Page 2 (the "Ethics Act "), 65 Pa.C.S. §1101 et seq., if they would offer, second and /or vote in favor of a motion to grant Washington Township Manager David L. Anthony (Anthony) additional "pay" from Township funds, above his current salary, to "compensate" him for certain expenses which he incurred in an action before this Commission involving his admitted violations of the Ethics Act. You specifically stated that such additional pay would be to compensate Anthony for expenses including attorney fees and /or the $4,000 which Anthony agreed to pay to the Commonwealth as part of the Consent Agreement by which his case was settled. (Shimek Letter of March 15, 2001, at 1; see, Anthony, Order 1179). You also posed a second question, specifically, whether the analysis would vary if the increase in Anthony's "pay" would be based upon the attorney fees, the $4,000 payment, or both. In responding to your request, we noted that we found the proposed use of taxpayer funds to pay Anthony's expenses for violating the law to be unconscionable. Nevertheless, we fulfilled our duty to answer your question under Section 1103(a) of the Ethics Act. Through a straightforward application of Section 1103(a) of the Ethics Act and the related statutory definition of "conflict" or "conflict of interest" at Section 1102 of the Ethics Act to the facts which you submitted, we were compelled to conclude that the proposed action by the Council Members would not violate the Ethics Act itself, because the requisite statutory elements of a violation would not be established. Our Opinion was conditioned upon the assumption that the proposed action would not result in a private pecuniary benefit to any such Council Member, a member of his immediate family, or a business with which he or a member of his immediate family is associated. We further noted, in response to your secondary question, that our Opinion would not vary if the increase in Anthony's "pay" would be based upon his attorney fees, $4,000 payment to the Commonwealth, or both. Finally, we stated: Although Section 1103(a) of the Ethics Act would not prohibit the proposed conduct, it is recommended that the Council Members obtain legal advice as to the applicability of other laws. Consideration should be given as to whether the Council Members would be subject to a surcharge, such as is provided in the Second Class Township Code. See, 53 P.S. §§ 65907 and 65908. If the Council Members go forward with their plan, there may be some remedy available to the electors and taxpayers. Shimek, Opinion 01 -002 at 4 -5. In a timely reconsideration request, you broadly assert that Opinion 01 -002 includes "erroneous presumptions and faulty conclusions based thereon." (Shimek letter of June 28, 2001 at 1). You further claim: (1) that this Commission abused its discretion and exceeded its statutory authority by assuming facts not contained in the request letter; and (2) that certain portions of the Opinion are based on speculation and "have the effect of impugning the integrity of the Council Members, simply because they have made an inquiry of the Commission." (Shimek letter of June 28, 2001 at 1). However, your specific arguments are limited to the following. First, you object to references in the Opinion to the Council Members' "proposed" conduct, or to what they "plan" or "propose." (Shimek letter of June 28, 2001 at 2). In this regard you state: Apparently, the Commission erroneously presumed that the Council Members making the Request had already decided to make the payments detailed in the Request. The Commission used this erroneous presumption to justify making the extraneous commentary in the Opinion. Unfortunately, this presumption has the effect of impugning the integrity of the Council Members. Shimek, 01 -002 -R September 7, 2001 Page 3 (Shimek letter of June 28, 2001 at 2). Ironically, and despite our specific determination that the Council Members' proposed conduct would not violate the Ethics Act, you impugn the integrity of this Commission by stating, "While the mission of the State Ethics Commission may have grown into a mandate to find ethics violators around every corner, under the applicable Statutes and Code sections, Advisory Opinions must be based upon the facts submitted with the Request, and not upon the Commission's presumption that anyone submitting a Request for Advisory Opinion must be planning to violate the Act." Id. Finally, you object to references in the Opinion to other laws and their potential violation. Id. You ask that the Commission grant reconsideration and reissue Shimek, Opinion 01 -002 after deleting the following portions of the Opinion: the final two paragraphs on page 3; the first paragraph and the first sentence of the second paragraph on page 4; the paragraph which begins at the bottom of page 4 and continues at the top of page 5; and the last sentence of the first paragraph of the Conclusion section on page 5. III. DISCUSSION: We have been asked to reconsider Shimek, Opinion 01 -002. This Commission may exercise broad discretion in determining whether to grant or deny reconsideration as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 499 A.2d 735 (Pa. Cmwlth. 1985). The Regulations of this Commission provide: §13.3. Opinions. (d) Reconsideration may be granted in the discretion of the Commission under §21.29(e). §21.29. Finality; reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 30 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (e) Reconsideration may be granted at the discretion of the Commission if: (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. 51 Pa. Code § §13.3(d); 21.29(b), (e). We determine that you have not met the criteria for reconsideration and therefore, your request for reconsideration must be denied. No new facts or evidence have been submitted. Shimek, 01 -002 -R September 7, 2001 Page 4 Likewise, no material error of fact or law has been established. Although your letter broadly alleges "assumed facts," "speculation," and "erroneous presumptions and faulty conclusions based thereon," (Shimek letter of June 28, 2001 at 1), none have been established. In fact, you do not seek any different result on the merits. Upon close examination, your specific arguments are nothing more than objections to the Opinion's phraseology and incidental references to other laws. As for phraseology, we parenthetically note that: (1) requestors do not dictate to this Commission how its Opinions shall be phrased; and (2) regardless of whether the Council Members "plan" or "propose" to provide additional pay to Anthony in the sense of an actual intent or in the context of a purely hypothetical question, the end result is the same and is as you have already been advised: such conduct would not violate the Ethics Act subject to the conditions and restrictions set forth in Opinion 01 -002. Finally, this Commission routinely cautions requestors to secure legal advice as to other laws which may apply to them. In that there has been no material error of fact or law and in the absence of any new facts or evidence, we must deny the request for reconsideration. IV. CONCLUSION: The request for reconsideration of Shimek, Opinion 01 -002 is denied. Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. By the Commission, Daneen E. Reese Chair