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HomeMy WebLinkAbout882 RobinsonSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 In Re: Gerald Robinson File Docket: 92- 060 -C2 : Date Decided: May 6, 1993 Date Mailed: Mav 11, 1993 Before: James M. Howley, Chair Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger The State Ethics Commission received a complaint regarding a possible violation of the State Ethics Act, Act 9 of 1989, 65 P.S. §401 et secs. Written notice, of the specific allegation(s) was served at the commencement of the investigation. A Findings Report was issued and served, upon completion of the investigation, which constituted the Complaint by the Investigation Division. An Answer was filed and a hearing was held. The record is complete. This adjudication of the Commission is hereby issued which sets forth the individual Allegations, Findings of Fact, Discussion, Conclusions of Law and Order This adjudication is final and will be made available as a public document fifteen days after- issuance. However, reconsideration maybe requested which will defer public release of this adjudication pending action on the request by the Commission. A request for reconsideration, however, does not affect the finality of this adjudication. A reconsideration request most be received at this Commission within fifteen days of issuance and must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 pa. Code 52.38. The files in this case will remain confidential in accordance with Act 9 of 1989, 65 P.S. §408(h) during the fifteen day period and no one unless the right to challenge this Order is waived, may violate confidentiality by releasing, discussing or circulating this Order. However, confidentiality does not preclude discussing this case with an attorney at law. Any person who violates confidentiality of the ,E,tlii,cs Act is guilty of a misdemeanor subject to a fine of not more than $1,000 -or imprisonment for not more than one year,. 6 P . -S . , 541 (e) . Robinson, 92- 060 -C2 Page 2 I. E TION: That Gerald Robinson, a member of the Water Authority ter , the Borough of Newport, Perry County, violated the €dllowing prob4 Lehs of the State Ethics Act (Act 9 of 1989) when he used the Mhthe of his position to obtain compensation hat provided fof by lAW by participating in the decision to !et compensation fof hie sef"r° rice on the Authority. Section 3. Restricted Activities (a) No public official or ptiblie employee shall engage in Conduet that constitutes a conflict of interest. 65 P.t. 5403(a). Section Definitions "Conflict" or '` cenf li€t of ithtefest. Use by a public official or public efpleyee at the authority of his office cr efiiployffleht or any confidential iiif ormatiOn received thfa1i fl his holding public office of ernplbyfneht fef the private pecuniary benefit 6f himseif, a member of his immediate family dr a busiheess with which he or a member Of his imMediate family is associated. "Conflict" or "oonfliot of interest" doers not ineltude ah action having a de minimis economic impact or which affe'ets to the same . degree a class C€>nsisting of the general public or a subclass consisting of an industry, occupation or other gfcup which includes the public Official Or public te employee, a mr of his immedia fay ly of a business with which he or a mesbei 6f hat immediate family is associated. 65 P.S. S402 . II. FIItMO: A. PLEADINGS': 1. Gerald Robinson has served. as a measber of the ifetopdtt Bo ±®tqh Water Authority for fort y=am`s: 2. The members of the Newport 1 orOugn fiatee Atthoti-ty ere appointed by the Newport Cdundi e 3.. The Newport Borough Council • tievt at 'ed cbitipensittion for members' of the Water Authority. 4. In early 1991, the memb.rs of the Autrhogi began d sciissi iig Robinson, 92- 060 -C2 Page 3 the issue of compensation for Authority members. 5. The Authority Secretary was instructed to determine the average amount of member's water bill and report back to the Authority members with . the information. a. This action was not approved at any Authority meeting since instructing an employee to carry out an assigned task . required no formal action. 6. At the April, 1991 meeting of the Authority, board members decided not to pay their water bills as compensation for their work. a. The members decided to begin the compensation by not paying their second quarter of 1991 water bill. (1) Robinson classifies the above as a water bill forgiveness by action of the board officers. b. Robinson asserts that some form of compensation was -e, appropriate in order to offset the increasing duties of the officers. (1) To minimize the financial impact it was agreed to accept the water assessment of the combined water and sewer billing since the water production and delivery was a lesser expense to the Authority. 7. The discussions and the decision on the compensation were not recorded in the minutes of the Water Authority meetings. 8. The minutes of the January 14, 1991, Water Authority meeting indicate Steve Flickinger was elected Chairman, Jerry Robinson was elected Vice Chairman, and James Shiek was elected Secretary /Treasurer. 9. The minutes of the January 13, 1992, Water Authority meeting do not reflect a Chairman, Vice Chairman, Secretary or any other officer being elected or appointed. a. No change in the makeup of the Authority board occurred. 10. Minutes of the June 8, 1992, Water Authority meeting confirm that _a discussion ensued among members of .he Authority that since the second quarter of 1992, the water.. . pert' on of Authority members water and sewer bills- had, waiyed as an incentive to serve on the Water Authority. a. Members 'discussed provisions of , tfe Municipal Code and indicated that borough council sets remuneration for Robinson, 92=060-C2 4 1 1. b. Based on the discgggion, a Amsler, secg4ed by Jim Shicis of the AuthffitY remuneration Motion carried No gbstentiong -rioted. c, b.- b, members of a W9PsIng Agthority, but the Aut.hority Pets remuneration fpr officers of the working Authogity, motien WeS 0 49 1 e OY Dick to waive 7 el4ter pgrtion water WI Sewer biii es • Neater Robinson present, The minutes also indicate the following gppointmepts #g officers of the Agthority: Chairman: Vice PIO-rms./ Ile gecretafyi ASsistant §gcEetary/TFegsurer; Oe4 A444§@4 1404E4 1 Ja404 Mick Daniel §teigleman New Member 1) The above action occurred following the regigp#tion of Steve Flickinger. Ttl@ 40.a S of the AlltheFltY M@Miaers di4 not change following th isppointmerAs M4de 4t the June §, 1992, meeti 4- Pgin 4,Wert§ th4t the dlities of the AuthoritY gfficeFs are cPASten01 changing- iP 9.14lPe4 bY P-obin§@n that the Authority officers S4pPleMent the Ofer4.4 Of regular employees. 12. Al4h9EitY IneMPerP cOnflrill that not paying the Water bill AP coMPenSetign fo r Serving en the Autherity was .discussed fe„r some a Membefs elleyog they should be colgP@AA4t04 for sttep4ing meetings much the same as members isefe4gh council- i%) RolginsOn denies that soRNEVAPetion 941Y Fel4t94 t9 meeting atten4apee but resqltq frem various duties 444 hours o time by the Authority officers, 4@ifit@r§ tePk the compenSgtien /4 the fgEm cfwatve4 water bills bePAUse it was betteg. than taking a salary, 13. Agthffity Fe99rAs in4ig4te eqcount # 146 is in the name of H.F, :?Ahnestockf R.P 41,2, Be4 13, Newport, PA 17074 gpd is the residence rented by paral4 Robinson. 14. 14-409E Fecc;dg ind that R01E411E94 0i4 !Let pay the following bills as cempensation ter his service on the Authority; Robinson, 92- 060 -C2 Page 5 Third Quarter 1991 Fourth Quarter 1991 First Quarter 1992 Second Quarter 1992 TOTAL B. TESTIMONY: - $ 35.45 $ 33.11 - $ 24.95 $ 40.20 $133.71 15. Gerald Robinson is a Member of the Newport Borough Water Authority (NBWA). a. The following arguments are made by Robinson. 1. That pecuniary is defined as money exacted or money given as a reward so that no member or officer received a pecuniary 'benefit, 2. That the duties of the Authority have changed dramatically. • That the investigation relates to compensation that he; 'Amster and Shic1 , Mad , AVailable to "themselves 4. That the Municipality Authorities Act may be construed h mean that'theliKtthority may compensate officers. 5. That he, Amsler and Shick did not take money but only water. b. The Authority serves three municipalities. 1. Board. members attend Meetings of the municipalities. a■ ._ • c. Authority members provide in -1ie4a assistance to permanent staff of the Authority. d. The .first members of the Authority just like the current Board had the same responsibilities of issuing bonds, of deciding which water wells were needed, .of deciding whether new wells were needed and of determining whether other wells should be shut down. ' e. The Authority officer position of Assistant Secretary/ Treasurer did not exist prior t6'1992. f. In 1991, the Authority officer positions we' 'Chairmart, Vice - Chairman, and.Secretary /Treasurer.' :4tctbi on, 92- 060 -C2 Page {6 g• h. In 1991, there were five members but only three were elected to ptsitions. i In 1992, these were four members with five elected positions. 1. Four members Were each el+ec?tea to a pnsi.t oh 2. The fifth position was left open for the new siei&Ber to be appointed Each Authority meitber does what is necessary to get a job done irrespectitre of their pdsitiofi title. 1. The duties that the members perform are not unique to office pOsltiOns. 2. The duties that ate performed aft as board members. j C. EXHIBITS: 1. TA prior years, the position of Secretary and Treasurer were sepatd. (a) At that time, there were four memrs. The slew Authority position Of Assistant Secretary/ Treasurer occurred at the June. 1992 Authority meeting. 16. The minutes of the Newport Bofough Water Authority (NBWA) for January 14, 1991, reflect in p&ft that Authority members were elected as officers. a . ' Jerry Robinson Bras made Vice - Chairman upon motion by Shick, seconded by rliakinger, which carried: b. James Shick was made Secretary /treasurer upon motion by Flickinger, seconded by Steiglemai, which carried. 17. As to the January 11, 19$`2 meetifig of the NBWA, the minutes reflect in= part that no action was taken to elect officers for the NBWA. a. The followinq exettpt ag15664§ on p t o three of the minutes: Have council, • re•a64it Lek Aitsler retroactivvtly to the= 1st ckt tie yeah'. 18. The following, is a quatexi ecei"p f t' th'eriiiiiiiiit4S ' of the NBWA for the meeting of Junt 8,, 19392: jtobir;son, 92- 060 -C2 Page 7 III. DISCUSSION: A motion was made by Dick Am.1e ,,Q nominate Gerald Robinson as Chairman sic. ; ; by Jim Shick. There were no other nominatins. Motion carried. A motion was made by Jim Shick sec. by Jerry Robinson to nominate Dick Amsler as Vice Chairman. There were no other nominations. Motion carried. Chairman: Vice Chairman: Treasurer: Secretary: Assistant Sec. /Treas.: * * * Since the second quarter of 1992, the water portion of the authority members water and sewer bills has been waived as incentive to serve on the Water Authority. According to Municipal Code, borough council sets renumeration for members of a working authority, however the Water Authority themselves set renumeration for officeFs,,of the working authority. Therefore: A motion was made by Dick Amsler sec. by Jim Shick for waiver of the water portion of the officers of the Water Authority's water and , sewer bill as renumeration. Motion carried. The officers of the Newport Borough Water Authority are as follows: Gerald Robinson Richard Amster James Shick Daniel Steigleman New Member As a Member - of the Water Authority for the Borough of Newport, Perry County, Gerald Robinson, hereinafter Robinson,. is a public official-as that term is defined under Act 9 of 1989. 65 f.S. §402. As such, his conduct is subject to = the . - provisions of the Ethics Law and the restrictions therein are applicable to him. Initially, it is noted that Section 9 of Act 9 of June 26, 1989 provides, in part, as follows: "This amendatory act shall not apply to violations committed prior to the effective 34 ,92- 0_fi0 -C2 date of =this ate, .and „causes of action initiated for ,sixth vidiations shall lbe governed by the parixr '1 -a4 - Ts continued in effect for that purpaa ,mss :if This act were not in force. For the ;purposes .af this s ption, a violation wnm committed xceimr to the 1pf fxective date °Qf fib'i. act if -am-elements of the violation occurred-prior thereto ; ce the -occurrences in -till case - tr piredi after the e f f epti;,ve :date f ,Act 9 (June 28, 1'9B9 ),, we .must 'may the prgv tA os of t V to determine whether the :Ethics A'ct was vi.�aad,. Under _Sect :gin (a;) of At =g of 1989 Aparted allows, a public Uf a /empl,oyge Khal.J- not enrage ln conduct that constitutes a t1:4 tt -o-f illtereSt, The jL a before us is whether 'Robinson at Member of the Newpg t 13o_tolIgh Water Aut o-r ty :(TWA) violated Section .3; of Act 9 gf .1. 1 9 V using t. e authority of office to obtain a primate Pfle..vniary beinetit Vhen. bie voted to provide compensation to himself $sj.Sttgg ,Qf the tog fovgiverlers of Authority ntiLity bills from the third ,gooney t .fling .of 2991 forward. Yactual' :y, Aobinson is a giber of the : UL with the Newport Borough ; council as the governing body. Due to NBWA board members perfor ing additional Mies, action was taken 'whereby, ". . . the water portion of the authority members water and sewer bills has been waf.ved as incentive to serve on the Water Authority." NBWA Public Meeting Min teP Of June 16, 1993. The foregoing occurred by motion and vote of tbeA board members. Robinson, on behalf of - himself and Shick and Armlet, argues that the duties of the Authority members have drastically changed, that the Municipality Authorities Act allows the Authority to compensate Officers, and that they did not take money but (the forgiveness of) their water bills. Prior to making our determination of whether a violation occurred, we must consider and review the Municipality Authorities Act in the context of whether such compensation is allowable under the law. If such compensation is prohibited by law, it is cleat that the use of authority of office by municipal authority board members to give themselves such compensation would constitute a Private pecuniary benefit. Means, Opinion 90 -007; SwickLAmerk, Opinion 91 -006. The Municipality Authorities Act provides in part as follows: Every Authority is hereby granted, and Robinson, 92- 060 -C2 Page 9 (f) To make by -laws for the management and regulation of its affairs. (g) To appoint officers, agents, employees . and servants, to prescribe their duties and to ,,o tix their compensation. •S.• $306p. The Municipality l uthorities. At further provide's : LC B. Members shall hold 'Qf<fice until 'their successors have been , a } 5 iointed, Apd 'mtay succeed themselves, and, except" members of the boards of Authorities organized or created by a school district or school districts, shall receive such salaries as may be determined by the aoverning body bTr - bodi _ - of - ' the municipality or municipalities; but - none of such salaries shall be increased. or diminished by such governingg, riaody or bodies during the term for which the meitber receiving the same shall have been appginted. . . shall have and may exercise all powers necessary or convenient for the carrying out of the aforesaid purposes, including but without limiting the generality of the foregoing, the following rights and powers: C. A majority ..of the members shall constitute a .gtpdm: of the board for the purpose. of organizing the Authority 'and conducting the.busihess thereof and for all other purposes,., and`"all action may be taken by vote of a majority of the;' - present, unless in an ;case the by -laws ha11 require a larger number.` The board` shall have full authority to manage the.. properties and business of the Authority aid to prescribe, amend and.,- repeal ky -laws, rules and regulations governi the m4iner in which the business of the Authority hay' be conducted, and the. powers granted tp it l ay ,be exgrFised and ,embodied. the beard °°Shall fix `'and determine the iumi i t.5f i ;fir ` atie fte — *nd employees of el e AutItb respective pd5gers. __$litres' - compensation may appoint to ".suc off re or o ffices any member of 7 th su w w bh - - poers ; ` ilir r. :aud.,,compen og a s » oard may deem proper: /tabir an, 92- 060 -C Peg ._ 53 ' • 55309B, C (Emphakis added) . Sect 7 of Municipality Authorities Act of 1945, 53 P.S. 5307 ,does ,grant an authorirty wtth all powers necessary or convenient (or the carrying out of the purposes of the Act. Subsection C provides that all actions of an authority may be taken py avgte of the majority pf the :members present and further ewers a authority to fix as d determine the number of officers, s and employees of the authority and the respective powers, 0 #nc componsation. The board may appoixit to euch office or .cep any member' of the board with ss, h pow s, duties and copyp?epsati,on as the board may deem proper. As to the three di.f'firept references to the phraseology of the municipality Aut orWes Act, the genesalized language of the first phrase does not 'form a basis for a specific autho4e4ti94 to appoint oneself to an authority office or position and theh vote to set the salary for such position. See, SwickfAman, supra. As to the second phrase which authorizes all actions to be taken by 9 rote of the majority of the members present, such language is werely a statefgent that a majority vote is sufficient to take ofi'icial action. That phraseOlggi does A2t, countenance or authorize votes by authority members in ea *ass where they have a conflict. it if Were the intent of the General Assembly to allow munici:?01 authority members to vote in matters wherein they had a personal financial interest, the General Assembly would have done so with very clear specific language. For example, the Second Class " Township Code as to three Member boards makes it clear that the members Township-Code those boards may specifically vote for themselves to enumerated. township compensation positions. See, 53 P.S. 565514. Thus, if the G eneral Assembly had the intent for municipal authority members to vote in all instances through a majority vote of the members present, specific language would have been utilized for such "purpose,. As noted above,, the instant phraseology merely directs that official, action, oc.enr; by a vote of the majority of the members present but does not condone a blanket voting in cases where conflicts, would exist as to the individual member so voting. As to the third referenced phrase concerning the fi..iag of officers, agents and employaa with, compensation and appointments to, those positions by board member we mus-t once again nxate the express absence of any la<ng age wbijc rr w%4 authorize an individual l mepaher of a municipal` board to vot tor his own appointment ar: vote, f or the setting at the, cr mpensa:t ; oja, for his own: g¢tsistimrm.. Absent such an express au we. halve. concJ d it that t i m contrary. to the Ethics Law- f a municipal1 authority hoard member to vote for his own appointment and compe rsatiort. qv, Swick/ ;man,,, supra,. It is important to note that the Muni,ci Authorities, Act, 5 ; 3, P.S. 5309B, does require that, the compensation. of an itobinsor;, 92- 060 -C2 Page 11 authority boaE4 fiber must be determined by the appointing authorit ,r. As wg notR4 j., §wick /Amara, we are particularly concerned about those instailpes vh ' a Ogioipal boaEd attempts to create so called offigff petitions 444 'set tae compensation for those positions a4 , L m nt board members as a means'of ctrc.imventing the at stutory . , 4 ',ons` that the compensation _ for a municipal s.uthority boar metier be set by the governing body. In applying the provisions of Section 3(a) of Act 9 of 1989 quoted above °to the instant matter, we find that Robinson violated the Ethics Law by goting to provide compensation for the members. §ee, Abraham, Order jo. 827; Koelschi Order No. 828; and Abbott, Order No. 829. It is c lear that there has been a use of authority of office by Robinson n voting. As a result of such use of authority of office, Robinson received a private pecuniary benefit,-, consisting of the compensation consisting of the forgiveness of his NBWA utility bills. As to the privte pecuniary benefit, we need only summarize our review of the Municipality Authorities Act as to whether the compensation was authorized in law. As noted above, although it is true that the 44i4paiity Authorities Act does allow a municipal authority boara to fix abd dQtermine the number of officers and appciint bard $}e ?gyp§ tp tho §e offices (53 P.S. 309C) and furtnet' provides that thg aut }grity, ma pit officers and . fix ' their compensation (5 3 F . . Q 5 (g)) , 4 t rd mgm�agr may na vote to .set the salary for his 9f icer pas3.tir�1,} ea 4.MR1 t offi o a.tion d are bon {,j] y O -tionS v supra. . Fin lly, the setting of t cpmpensatip r gr . a b- d melmbers themseives must be set b# ;Ile governing authority as plar 53 P.S. S309A. In the context of the TBWA, it is clear that the bos.sd A}embers to were we must look at the s u enga e trying fix their cola tign as boar�}me ; } this _ _ _ look _ - stance over f oran . $� 4gthgF§ v. i clear a ""t mh `t Y - bedo s that the : the s b s az g of th A tran was for th ragmbirs to recei Cam► asatio and` in order_ to achieve that reset the NBWA b9a14 un4 of €icep Pci5-itions% Tau a1thc41 the f9FR pf the tPaaaaF was ilk! utilization of the officer position, the si}b leAs the NB board 'compensating its board embers �.a de =ggatigm Q tke M Authorf ties Pict whit re that suci ar tg done - authority. authority. Having found that the subs of the NBWA board getign was to compen §4te authority members .P1%411 gific P9aitigns it is clear that such is coflttary tq tag thics Lei: pa fact, such con senstion is stricti h4 . rot0 the Municipali +,�}t horities Act, $3098. T e efore, 44itson did lag pub4E Office by voting to obtain private pecuniary benefit w} .Fh was in violation Robinson, 92- 060 -C2 Page 12 of Section 3 ( ti Qf -Act : of 1,,W. We ..do j.ot S need to question whether the duties of the NBWA »card membe have changed since that is not material to our determination. As to the issue of whether such forgiveneso of the utility bills is not a pecuniary benefit, the fact thattau out -of- pocket expense ' `does nbt have to be paid Is a private benefit. 136e, S'zvmanowski, Opinion 87 -002. TLa-st as to the argument that such compensation is allowed by-the 'Municipality Authorities Act, we considered and rejected that argument for the reasons noted above. In reaching the above result we do not believe that Robinson acted with an intent to violate the EthicsLaw or with any improper motive. We likewise do not need to question or. dispute that additional work was performed. In any event,- an' such work was not as officers but as board members As Stich, the additional compensation must be obtained from the'governing' body and not the authority board as was done in this case. GivelYthe totality of the circumstances .iii this case, we will take no •further action. Robinson is reminded-as to future action that the appropriate and regal mechanism for authority board members seeking additional `compensation is through action by the governing body. IV. CONCLUSIONS OF LAW: 1 ?' -Gerald Robinson, as a Member of the Newport Borough Water Authority, is a public official subject to the provisions of At 9 of 1989. 2. Robinson violated Section 3(a) of Act 9 when he used the authority of office to obtain a private pecuniary benefit for himself when he participated in obtaining compensation r of the forgiveness of his own authority utility bills. In Re: Gerald Robinson : File Docket: 92- 060 -C2 : Date Decided: )av 6. 1993 : Date Mailed: rav 11. 1993 ORDER NO. 882 1. Gerald Robinson, as a Member of the Newport Borough Water Authority, violated Section 3(a) of Act 9 when he used the authority of office to obtain a private pecuniary benefit for himself when he participated in obtaining compensation consisting of the forgiveness of his own authority utility bills. 2. Based upon the totality df the facts and circumstances, no further action will be taken. BY THE COMMISSION, 0osw Af JAMES M. HOWLEY, t Commissioner Allan M. Rluger did not participate in the final decision of this case because he presided at the hearing as one Commissioner and recused himself.