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HomeMy WebLinkAbout356-R RockovichMr. Bernard N. Rockovich Mayor, West Hazleton Borough 88 Susquehanna Boulevard West Hazleton, PA 18201 Re: Order No. 356; File 83 -08 -C Dear Mr. Rockovich: HBC /na af 1 STATE ETHICS COMMISSION 308 FINANCE BUILDING REC ONSIDE R ATION ORD OF C No. 356 -R March 13, 1985 This refers to the Petition for Reconsideration you presented on January 6, 1985, with respect to the above- captioned Order issued on December 27, 1984, pursuant to 51 Pa. Code 2.38. The State Ethics Commission, having reviewed same, orders that reconsideration is GRANTED. The Commission, having granted reconsideration may, pursuant to regulations, 5. P. Code 2.38(c) take any of the following actions: (1) Order new hearings, pursuant to Section 2.34. (2) Conduct oral argument to dispose of the matter or to determine how to proceed further. (3) Require further investigation as needed. (4) Take other actions and issue orders necessary to dispose of the case. Pursuant to these regulations, the Commission ih this case, hereby issues the attached Order dated Pursuant to State Ethics Commission regulations, 51 Pa. Code 2.38(a), this Order and this decision granting reconsideration are final and will immediately be made available as public documents. By th .mmissio Herb ` Conner Ch • rman Mr. Bernard N. Rockovich Mayor, West Hazleton Borough 88 Susquehanna Boulevard West Hazleton, PA 18201 Re: 83 -08 -C Dear Mr. Rockovich: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 ORDER OF THE COMMISSION March 13, 1985 Order No. 356 -R The State Ethics Commission has received a complaint regarding you and a possible violation of Act 170 of 1978. The Commission has now completed its investigation. The individual allegations, conclusions and findings on which those conclusions are based are as follows: I. Allegation: That you, Mayor of West Hazleton Borough Council, voted to appoint your wife as Building Inspector of West Hazleton Borough and that this is a violation of Section 3(a) and /or 3(c) of the Ethics Act. A. Findings: 1. You serve as Mayor of West Hazleton Borough and are a public official subject to the requirements of the Ethics Act. 2. At a Council meeting in January, 1982, your wife, Toni Rockovich, was appointed as Building and Zoning Inspector in West Hazleton Borough. a. Councilmen Horvat and Grink made the motion to appoint her. b. The motion was four to nothing to make the appointment and you cast one of the four votes. Three Councilmembers were absent. c. The appointment could have been made without your vote. 3. This appointment was made in accordance with normal hiring practices of the Borough. Mr. Bernard N. Rockovich March 13, 1985 a. At each re- organization meeting in January personnel appointments and re- appointments are made. b. Formal applications are required only for appointments to police and fire positions. c. Your wife did not submit an application. d. There was no prior public notice or advertisement for applications for this position. e. You stated that your wife was the best qualified person for the job because she had completed a Commonwealth of Pennsylvania course for building inspectors. 4. At a Council meeting on March 11, 1982, a motion was made to limit the Building and Zoning Inspector salary to $2,000 per year. a. Councilmembers Getz and Recklitis made this motion. b. Councilman Radziewicz objected to your being able to cast a tie - breaking vote. The solicitor ruled that you could either vote or table the motion. c. The vote was three for the motion and three against. You then voted to table the motion. 5. At the March 19, 1982 meeting, you voted to break a tie vote and not to limit your wife's salary. 6. Also at the March 19, 1982 meeting, a motion was made to limit the permit fee earned by the Building and Zoning Inspector to no more than $100 per permit. a. There is no written contract for this position. Payment to the inspector is usually 10% of the fees collected on building permits. b. You voted to break a tie Council vote and to limit the fee. c. The final vote was four to three to limit the fee. d. Councilman Radziewicz asked the Solicitor whether it would be a conflict if you voted, The Solicitor said an abstention is a no vote and the motion would be defeated whether you ahstained or voted no. Mr. Bernard N. Rockovich Page 3 9. As Building and Zoning Inspector, your wife earned $206 in 1982 and $2,076.71 in 1983. B. Discussion: The State Ethics Act provides that: 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). (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). March 13, 1985 7. There is no evidence that you ever sought a ruling by the Borough Solicitor or the State Ethics Commission about a possible conflict in your official actions affecting your wife. a. The rulings of the Solicitor cited in Findings 4b. and 8d. were made in response to questions of other persons. b. On December 30, 1982, you were notified that we were voiding an Advice of Counsel issued to Mr. Thomas M. Marsilio on December 7, 1982. That Advice had stated that a Mayor in your position would have to abstain from Council action on appointing his wife or on compensation for her. We notified you that we were voiding that request because we had found that Mr. Marsilio was not the Borough Solicitor or your personal counsel. 8. Your wife resigned from the Building and Zoning Inspector position in February, 1983. You voted to break a tie Council vote and to replace your wife. Mr. Bernard N. Rockovich Page 4 March 13, 1985 The possibility that you had a conflict of interest when voting on actions which affected your wife was raised at the meetings of March 11 and March 19, 1982. At the March 11th meeting, the solicitor said you could either vote on the motion or to table the motion. You voted to table the motion. At the March 19th meeting, the Solicitor said that an abstention was the same as no vote and the motion would be defeated whether you voted or abstained. You chose to vote no. You voted to appoint your wife as Building and Zoning Inspector. You also voted not to limit her salary to $2,000 annually although you did vote to limit each permit fee to no more than $100. This appointment enabled your wife to realize $2,282 in 1982 and 1983. Your wife is a member of your immediate family as -that term is defined in the Ethics Act and Sections 3(a) and 3(c) are applicable. Although you stated that your wife was the best qualified person for the job because she had taken a Commonwealth of Pennsylvania training course for building inspector and this appointment was made in accordance with Borough practices for filling this type of position, your vote violated Section 3(a) of the Ethics Act because it was a vote which obtained financial gain for your wife, a member of your immediate family. See Leete 82 -005. Penalties for violating Section 3(a) are included in Sections 9 a) and 9(c) of the Ethics Act which state: Section 9. Penalties. (a) Any person who violates the provisions of Section 3(a) and (b) is guilty of a felony and shall be fined not more than $10,000 or imprisoned for not more than five years, or be both fined and imprisoned. 65 P.S. 409(a). (c) Any person who obtains financial gain from violating any provision of this act, in addition to any other penalty provided by law, shall pay into the State Treasurey a sum of money equal to three times the financial gain resulting fran such violation. 65 P.S. 409(c). We find that you violated Section 3(a) of the Ethics Act when you voted on decisions affecting your wife, a member of your immediate family, who gained $2,2.82 because of her appointment to the Building Inspector position. It is well established in general law that public officials may not act in their official capacity on matters in which they are directly and professionally interested. We believe that our conclusions in this matter are specifically supported by the evidence in this record, by the applicable law and by the general concepts that public officials may not act in their official capacity on Mr. Bernard N. Rockovich March 13, 1985 Page 5 matters in which they are directly and personally interested. Coltar v. Warminster, 8 Pa. Cmwlth. Ct. 163, 302, A.2d 859 (1973); Ross Township v. McDonald, Pa. Cmwlth. Ct. , 431 A.2d 385 (1981); City Council Members v. Consumers Educ. & Protection Assoc., Pa. , 428 A.2d 711 (1981) and Genkinger v. New Castle, 368 Pa. 547, 551 -52, 84 A.2d 303, 306. This general law is well- established and well - reasoned. It is our duty to insure that the public trust which is conferred upon public officers is not violated. See Section 1 of the Ethics Act, 65 P.S. 401. In light of the general law and or specific statute, which so clearly condemns the votes of the Respondent which were to his personal and direct benefit, we are bound to conclude that the Ethics Act has been violated here. The Ethics Act specifically prohibits acting in matters from which one benefits. See Hoak, No. 128. While it might be argued that you acted in good faith because of the statements made by the solicitors prior to your casting both votes, we believe this is insufficient reason to allow the financial gain to your immediate family. The fact that we find no intent to defraud the Borough also is insufficient reason to allow this gain. C. Conclusion: While we are concerned about your vote to appoint your wife to her position with the borough, she would have been appointed without your vote. However, your vote on March 19, 1982, not to limit her income to $2000, was the decisive vote and we find that the financial gain she realized was $76.71 which was the amount she earned in 1983 in.excess of the $2000 limit. You are not entitled to the $76.71 she received from her employment with the Borough and unless, within 30 days of this Order, you remit $76.71, to the Treasurer of the Commonwealth of Pennsylvania as required by Section 9(c) of the Ethics Act, 65 P.S. 409(c), we will refer this matter to the appropriate law enforcement official. Our tiles in this case will remain confidential in accordance with Section 8(a) of the Ethics Act, 65 P.S. 408(a). However, this Order is final and well be made available as a public document 15 days after service (defined as mailing) unless you file documentation with the Commission which justifies reconsideration and /or challenges pertinent factual findings. See 51 Pa. Code 2.38. During this 15 -day period, no one, including the Respondent unless he waives his right to challenge this Order, may violate this confidentiality by releasing, discussing or circulating this Order. Any person who violates the confidentiality of a Commission proceeding is guilty of a misdemeanor and shall he fined not more than $1,000 or imprisoned for not more than one year or both, see 65 P.S. 409(e). EMS /rdp B the Commission erber. R. Conner Chair an f \ Rr+vt: mew. ^.� -,-.' Y'}!'.t.'W.Nawuc ? +'y {Y.�.- .w.v,.xFa.•M:. :. ^..lsi'ro.EG�ro'2TT•. W� .i -... ^.rrY�w��^siw.ai..r.+..n.: sv... , M.'+Y .t::..bT "Z... ^T(lyyyy. _ • Mr. Bernard N. Rockovich 88 Susquehanna Blvd. W,, Hazleton, PA 18201 Re: Receipt of Check No. 1394 Dear Mr. Rockovich: EMS /na STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARR!'1BURG, PA 7108-1470 TELEPHONE (717) 7E3 -1610 April 8, 1985 This acknowledges receipt of your check No. 1394 in the amount of $76.71 in accordance with our Order dated March 13, 1985, No. 356 -R. The Commission will take no further action in this case and our file will be closed because you have met the requirements of that Order. This letter will be part of the Order and a public record as such. Sincerely, Edwerd M. Seladones Executive Director