HomeMy WebLinkAbout496 SmithMr. B. Edward Smith
537 Bluff Street
Johnstown, PA 15905
Re: 85 -09 -C
Dear Mr. Smith:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
ORDER OF THE COMMISSION
June 20, 1986
Order No. 496
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, a former Southmont Borough Councilman, violated
Section 3(a) of the Ethics Act which prohibits a public employee or public
official's use of office or confidential information gained through that
office to obtain financial gain by having yourself appointed Borough Manager.
A. Finding:
1. You served as a council memher of Southmont Borough for approximately 11
years and resigned on January 9, 1985. As a borough council memher you are
suhject to the requirements of the State Ethics Act (Act 170- 1978).
2. You also served as Borough President from 1978 until January 8, 1985.
3. You held a council workshop in July or August 1984 and the council
informally agreed to begin looking for a borough manager.
4. In November 1984, council passed Ordinance #329 to advertise for a full or
part - time borough manager. The motion was made by council memher Christman,
seconded by council memher Askey. You ahstained, and the ordinance was
approved by a vote of six to nothing.
Mr. B. Edward Smith
June 20, 1986
Page 2
5. On December 17, 1984, councilman Weir motioned that the ordinance be
accepted, councilman Glass seconded the motion and it was approved by a five
to nothing vote. You abstained.
a. On motion by councilman Weir, seconded by councilman Kelly, the
borough voted to advertise for a part -time borough manager. No
benefits would be included and the salary would be negotiable. The
motion carried ,and you abstained.
b. You appointed council members Kelly, Askey and Weir to an
i ntervi ewi ng committee.
c. The advertisement was scheduled to appear on December 19th and 20th,
the final day for receiving applications was established on December
23th, and a special council meeting was scheduled for January 9,
1985, to hire the borough manager.
6. At the January 9, 1985 council meeting the following actions took place:
a. You resigned from council effective January 8, 1985.
b. The i ntervi ewi ng committee reported that four appli cations were
received and one applicant withdrew before being interviewed.
c. Each candidate was interviewed individually. These candidates were
identified as Donald Costlow, Douglas Grubb, and you.
d. The committee recommended that you should be appointed because of
your knowledge of the borough and its functions.
e. On motion by councilman Kelly, second by councilman Glass. You were
hired as the Manager of Southmont Borough with a salary of $10,000
per year and a working week of 30 hours under a two year contract.
f. Two council members were absent, all others voted for your
a ppo i ntment.
7. On August 14, 1985, you resigned as Borough Manager to accept the township
manager's position in Upper Yoder Township.
B. Discussion: As an elected member of the borough council in Southmont
Borough, you were a public official as that term is defined in the State
Ethics Act. 65 P.S. §402 et. seq. As such, your conduct must conform to the
requirements of the Act. See, Davis, 84 -012; Domalakes, 85 -010.
Mr. B. Edward Smith
June 20, 1986
Page 3
Generally, the State Ethics Act provides as follows:
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).
Within the above provision of law, no public official may use his public
position in order to obtain any financial gain for himself, for a member of
his immediate family or for a business with which he is associated. An
individual may not use confidential information obtained in his official
capacity for similar purposes. Within the above provision of law, this
Commission has previously determined that an individual who is a public
official may not vote or otherwise appoint himself to a compensated position
within the governmental body that he serves. See, King, 85 -025; Gabig, No.
457. Additionally, if an individual were to use confidential information
obtained in his public office in order to place himself in a position of
employment with his govermental body, then such would also be a violation of
the State Ethics Act. The above principles of law have been set forth, not
only by this Commission, but by the courts of this Commonwealth as well. See,
Meixell v. Hillertown Borough, 370 Pa. 420, 88 A.2d 594, (1952), holding that
a borough councilman may not vote to appoint himself mayor.
In the instant situation, while you were appointed by the council to the
position of borough manager, the evidence reveals that you abstained from
generally participating in this matter. The record reflects that in November
of 1984, you abstained from the council's decision to seek, through
advertising, a part -time borough manager. Additionally, on December 17, 1984,
you similarly abstained from the borough's enactment of an ordinance to seek a
full -time manager. The only action which you took, in relation to this
matter, is that you did, in fact, participate in the appointment of the
members who were to serve on the interviewing committee. While your
participation in this respect may be considered questionable, you did not
participate in the decision to appoint yourself to the position of borough
manager. Additionally, the position of the borough manager was publicly
advertised and a number of candidates were, i n fact, interviewed. You were
the candidate that was selected. Because of your abstention in the matters,
as outlined in the findings of fact, we do not believe that Section 403(a) of
the State Ethics Act has been violated. In addition to the above, we must
note that Section 403(e) provides as follows:
Mr. B. Edward Smith
June 20, 1986
Page 4
Section 3. Restricted activities.
(e) No former official or public employee shall represent
a person, with or without compensation, on any matter
before the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403(e).
Generally, under the above provision of law, a former public official
would be prohibited from representing a person or entity before his
governmental body for a period of one year Deis employment is terminated.
In relation to this restriction, this Commission has determined that when such
a former official or employee obtains employment with another governmental
body or on a different level of government, the above restriction would not be
applicable. See, Hagen, 84 -019; Pinto, 84 -021. The Commission has also
determined that when a public official or employee transfers within a
governmental system, they do not become a former governmental employee or
official , but rather they continue as a public official or employee. See,
Gray, 83 -596; Cohen, 79 -045; Teets, 85 -542; McClellan, 86 -551.
C. Conclusion: You did not violate the State Ethics Act in that you did not •
participate in the borough's decision to appoint you as borough manager. You
abstained from participating in these matters and your abstention was publicly
recorded as required by the State Ethics Act. Section 403(e) of the State
Ethics Act would not prohibit a public employee or public official from
transferring positions within his governmental body or from otherwise
obtaining a position at a different level of government. An individual who
proceeds in this matter does not become a former public employee within the
provisions of Section 403(e).
Our files 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 will 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
releasi ng , di scussi ng or ci rcul ati ng thi s Order.
Any person who violates the confidentiality of a Commission proceeding
is guilty of a misdemeanor and shall be fined not more than $1,000 or
imprisoned for not more than one year or both, see 65 P.S. 409(e).
By the Commission,
G. Sieber Pancoast
Chairman