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HomeMy WebLinkAbout1301 MyrsiadesIn Re: John Myrsiades File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Frank M. Brown Donald M. McCurdy Michael Healey Paul M. Henry 02- 049 -C2 Order No. 1301 12/1/03 12/15/03 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 Act, Act 9 of 1989, P.L. 26, 65 P.S. §§ 401 et seq., as codified by Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., by the above -named Respondent. At the commencement of its investi9ation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investi9ation 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 and Stipulation of Findings were submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement was subsequently approved. Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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 Act 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. Myrsiades 02- 049 -C2 Page 2 I. ALLEGATION: That John Myrsiades, a (public official /public employee) in his capacity as a Lieutenant for the Plymouth Township Police Association, Montgomery County, violated Sections 1103(a) and 1103(b) provisions of the State Ethics Act (Act 93 of 1998) 65 Pa.C.S. §1103(a) and 1103(b) including but not limited to offering or giving something of value to !chard Carbo, Chairman of the Plymouth Township Council, an increased pension benefit, in return for Carbo's support and vote to approve a police pension contract, and an ordinance to change the requirements for promotion to captain, enabling Myrsiades to become eligible for the position of Police Captain. II. FINDINGS: 1. John Myrsiades is employed as a lieutenant for the Plymouth Township Police Department (PTPD). a. Myrsiades has served as a lieutenant since January 16, 1998. b. Myrsiades has been employed by the PTPD since 1989 having served as a patrolman and detective sergeant before being promoted to lieutenant. c. Myrsiades has served as a lieutenant of patrol, lieutenant of administration, and lieutenant of administration in 1998 and 1999. d. Currently, Myrsiades serves as a lieutenant functioning as daily watch commander. 2. Plymouth Township is a first class township which has been governed by the Home Rule Charter form of government since 1976. a. Council consists of a five member board. 3. In 1998 and 1999 Myrsiades' job descriptions included the following job functions. a. Lieutenant of Investigations: - Commands Criminal Investigative Division - Functions as daily Watch Commander - Establishes and maintains acceptable crime clearance rate - Coordinates aid to juveniles and their families consistent with the "Juvenile Act" - Establishes and maintains an efficient community relations and crime prevention program - Maintains communications with the news media for accurate and timely dissemination of police information - Assists other police and private agencies - Evaluates the performance of those personnel under his direct supervision - Understands functions of the lieutenants of patrol and administration; exercises temporary command as needed. - Investigates allegations of police misconduct - Assigns surveillance details and schedules; coordinates processing and storage of evidence - Approves employment of school crossing guards - Works with other command personnel in the formulation of police department budgets - Participates in periodic staff meetings and general discussions with command personnel - Attends various training seminars and classes, and disseminates information to other officers as necessary Myrsiades 02- 049 -C2 Page 3 Performs related work as required b. Lieutenant of Patrol c. Lieutenant of Administration Commands patrol division, highway patrol unit, K -9 units and patrol sergeants Administers constant 24 -hour patrol coverage of the township Monitors activities and analyzes operations of the patrol division Holds conferences with patrol division personnel Evaluates subordinates' performance Arranges for off -duty police coverage of events as required by various businesses, organizations and individuals Works with other command personnel in the formulation of police department budgets Assists in defining, implementing and evaluating new management techniques Understands functions of lieutenants of administration and investigations; exercises temporary command as needed Attends various training seminars and classes, and disseminates information to other officers as necessary Performs related work as required Commands records and communication division Schedules all mandatory training of all department personnel; compiles annual training report for each member Schedules all patrol, investigative, and civilian divisions, coordinates vacations, Kelly time, and other absences Responsible for monthly FBI Uniform Crime Report Reviews court cases for each offender held for Montgomery Court, expunges records as ordered by the courts. Evaluates performance of direct subordinates Understands the functions of lieutenants of patrol and investigation, exercises temporary command as needed Investigates allegations of police conduct Maintains inventory of department property and ensures proper maintenance Works with other command personnel in formulation of police department budgets Responsible for grant applications Assists in designing report forms and developing reporting formats Participates in staff meetings and discussions Attends various training seminars and classes, and disseminates information to other officers as necessary Performs related work as required 4. Myrsiades' current job description as lieutenant contains the following essential job functions. Functions as daily Watch Commander Administers constant patrol coverage of the township Works with other command personnel in the formulation of police department budgets Examines and evaluates activity reports, incident reports, overtime slips, schedule and other repots Enforces the observance of high ethical standards Monitors activities and analyzes operations of his /her assigned platoon Myrsiades 02- 049 -C2 Page 4 Prepares schedule of activities for directed patrol Holds conferences with members of his /her assigned platoon to discuss work and personal problems Ensures professional training and performance of sergeants reporting to him /her Participates in staff meetings and discussions Maintains communications with all divisional personnel for accurate and timely identification of needs for increased effectiveness in all operational areas Maintains statistical summary of all patrol officers in his /her assigned platoon with regard to traffic and criminal arrests, sick time expended, kelly time, vacation & holidays and calls for service handled. Maintains a record system on fiscal, operational, administrative and other related subjects Evaluates and informs the chief of police of operational needs to improve the overall effectiveness of the patrol division. Assists in defining, preparing, implementing and evaluating new management techniques. Maintains a familiarization with current management innovations in the law enforcement field. Assists in defining, implementing and evaluating new management techniques Maintains communications with the news media for accurate and timely dissemination of police information Works with other command personnel in the formulation of work schedules and the scheduling of mandatory training Investigates allegations of police misconduct Evaluates the performance of those personnel under his direct supervision Attends various training seminars and classes and disseminates information to other officers as necessary Performs related work as required or assigned 5. Myrsiades has been affiliated with the Plymouth Township Police Association since starting employment with the PTPD. 6. The Plymouth Township Police Association (PTPA) is a for - profit organization with the main purpose of supplementing retired Plymouth township police officer's township provided pension. a. The PTPA was incorporated in March 1, 1989. b. The PTPA is not affiliated with the township. 7. Annually the members of the PTPA elect individuals to serve in officer positions including president, vice president, secretary, and treasurer. 8. Myrsiades served as President of the PTPA from 1993 until 2000. 9. The PTPA is funded by dues from Plymouth Township Police Officers who become members of the association and through fundraising activities. a. Dues of $100.00 annually are garnished from officer's township paychecks. b. The PTPA main fundraiser includes a golf outing and mail -out campaign. 10. The PTPA currently has investments through Morgan Stanley Dean Witter. a. Michael Wolfgang is the Morgan Stanley Dean Witter dealer of record for the PTPA's account. 1. Wolfgang is the son of a retired Plymouth Township Police Officer. Myrsiades 02- 049 -C2 Page 5 b. The PTPA has utilized Morgan Stanley Dean Witter since February 1999. 11. Pursuant to the by -laws adopted by the PTPA, members of the PTPA are eligible to receive payments from the PTPA upon reaching eligibility requirements. 12. The documentation to make payments to members of the PTPA was made following a 1996/1997, actuarial study completed for the PTPA which determined it was feasible for monthly payouts for eligible members based on current projected funds. a. The actuary determined the PTPA could justify payouts in the amount of $350.00 per month to eligible members. b. The actuarial study recommended re- evaluating the payout amount every three to four years. 13. In 1996, the PTPA changed its corporation status from non - profit to a for - profit corporation. a. This change was necessitated by the PTPA before making its first payout to a retired member. b. At the same time, the PTPA amended its by -laws to allow for the inclusion of police officers who were on disability retirement from the township membership in the association. c. Individuals eligible through this provision were required to pay dues to remain an active member. d. These changes became effective in February 1997. 14. The eligibility for olice officers to receive payments from the PTPA is twenty -five (25) years of service and fifty -two (52) years of age provided the member has paid all dues. a. The service and age requirements are the same as those in the collective bargaining agreement associated with the township pension. 15. Richard Carbo served as Chairman of Plymouth Township in 1999. a. Carbo was a former sergeant for the PTPD before becoming disabled in March 1987. b. Carbo was on workmen's compensation from 1987 until taking a disability retirement on March 1, 1993. c. Carbo was a member of the PTPA until becoming disabled. 1. Disabled officers were not eligible for membership in 1993. d. The 1997 amendment to the PTPA by -laws enabled disabled officers to participate. e. Carbo became eligible for payments from the PTPA in October 1999 upon reaching age 52. 16. In early 1999, the township and the police officers formed negotiating committees for the purpose of negotiating the 2000 -2003 collective bargaining agreement. a. The police negotiating committee included Sgt. Jeff O'Brien, Sgt. Karen Mabry, Myrsiades 02- 049 -C2 Page 6 Det. Mark Lacey, and Attorney Anthony Buscillo. b. The official township negotiating committee included Councilman Joseph Lawler, Frank Gillen, and John Slavish (alternate); Township Manager Joan Mower, Human Resources Director Ray R othschild and a legal representative. 1. Carbo selected the council representatives to serve on the negotiating committee. 17. In or around January or February 1999 Carbo approached Lt. John Myrsiades seeking increased payments from the PTPA effective in October 1999 when Carbo would become eligible for the payments. a. Myrsiades, at that time, was President of the PTPA. b. Carbo reached fifty -two years of age in September 1999 and consistent with the by -laws was eligible to begin receiving monthly benefits. 18. Carbo asserted that police officers disabled in the line of duty deserved a higher payout from the PTPA than police officers who were not disabled. a. Carbo wanted a monthly payout in the amount of $700.00, double the normal amount of the PTPA payout. 1. The payment approved by the PTPA was $350.00 per month. 19. This initial solicitation came at a time when Carbo was serving as council president and the township and the police officers were beginning negotiations on the collective bargaining agreement. a. Carbo made the township appointments to the negotiating committee. 20. Myrsiades told Carbo that he would try to get him a $100.00 per month increase but not the amount Carbo desired. 21. At the time of Carbo's solicitation he was the only former police officer who met the eligibility requirements to receive a disability payment from the PTPA. 22. During the period of time when negotiations for the police contract were on- going, Carbo made countless solicitations to Myrsiades regarding the increased payments. a. The solicitations persisted over several months. b. The nature of Carbo's requests changed from asking for to demanding the increased payments. c. These solicitations increased to at least a weekly basis. d. These continued solicitations were at a time when Carbo was serving as council president and the township and the police officers were actively negotiating the collective bargaining agreement. 23. The PTPA by -laws in effect in 1997 mandated that decisions regarding compensation to members be approved by seventy -five (75 %) percent of the body of the association. a. Minutes of the February 25, 1997, PTPA meeting confirm that the membership approved a change in the by -laws requiring that 75% of the body must approve before any changes can be made in a pension issue. Myrsiades 02- 049 -C2 Page 7 b. Carbo was present at this meeting. 24. Myrsiades informally spoke to a few members of the PTPA body and concluded that the body would not approve increased compensation to Carbo. a. The members told Myrsiades that they would [not] approve the increase because they did not like Carbo. 25. During several of the conversations between Carbo and Myrsiades, Myrsiades told Carbo that the PTPA body would not approve the increased compensation. a. Myrsiades told Carbo that the reason the members of the PTPA would not approve the increase was because they did not like Carbo. b. After Myrsiades told Carbo that the members of the PTPA would not approve the increased payments to him, Carbo responded by stating: "Those ...[expletive deleted] want this contract and they are going to ...[expletive deleted] me." 26. Myrsiades believed that Carbo's response meant that Carbo, in his position as president of council, could and would adversely affect the negotiations regarding the collective bargaining agreement. a. Myrsiades knew that Carbo would eventually be voting on the collective bargaining agreement as a member of council. b. Carbo was in the majority faction of council at this time. 27. Over the period of approximately six months, beginning in January or February 1999, Carbo persisted to solicit increased PTPA payments from Myrsiades even after being informed by Myrsiades that the members of the PTPA would not approve the increase. a. The solicitation by Carbo of Myrsiades occurred on at least a weekly basis. b. On many occasions during this time period, Carbo made statements to Myrsiades where he proclaimed to be the "most powerful man in Plymouth Township." 28. In order to appease Carbo's continued solicitations, Myrsiades contacted Bonnie Ostrofsky, PTPA attorney, to determine if compensation to members could be increased without the approval of the membership of the PTPA. a. Myrsiades was President of the PTPA when an amendment to the by -laws was approved requiring that any changes to pensions required a 75% approval of the membership. 1. Minutes of the February 25, 1997, PTPA meeting confirmed passage of this amendment. b. Myrsiades was aware that the membership would not approve the increased compensation and needed a way to make the payments to Carbo without going to the PTPA membership. 29. Ostrofsky reviewed the by -laws, but not the 02/25/97 amendment, and informed Myrsiades that the officers of the association could vote to increase compensation to members without taking the issue before the membership. Myrsiades 02- 049 -C2 Page 8 a. Ostrofsky recommended that officers include the membership in the decision even though it was not required. 30. Myrsiades eventually gave in to Carbo's demands but did not agree with Carbo's insistence of $700.00 per month. a. Myrsiades reasoned that a $525 per month payment could be made based on the township pension agreement that provided a 50% higher payment to disabled retirees. b. The PTPA payout to Carbo would be $350.00 plus $175.00 (or 50% of $350.00) to equal the $525.00 per month. 31. In or about June 1999, Myrsiades discussed the additional payment with PTPA officers Lt. Michael Haig and Officer Mark Lacy. a. Myrsiades informed Haig and Lacy that he was approached by Carbo who wanted an increased payment from the PTPA because he was on disability. 1. Myrsiades advised that Carbo wanted a 100% increase from $350 /month to $700 /month. b. Myrsiades told Haig and Lacy that Carbo was putting pressure on him for the extra payment and that Carbo brought up the pending police contract. 1. Myrsiades discussed with Haig and Lacy Carbo's position as chairman of the council and as a result Carbo could hold up approval of the contract. c. Questions were raised by Lacy whether the payments could be approved without a vote of the membership of the PTPA. 1. Myrsiades then informed of the advice he received from Attorney Bonnie Ostrofsky. 32. Haig agreed with Mrysiades' decision based on discussions with Mrysiades in which Myrsiades stated that Carbo was "strong- arming" him. a. Myrsiades advised Haig that Carbo would adversely affect the collective bargaining agreement if Carbo did not receive the increased payments from the PTPA. b. Myrsiades never conveyed to Haig that the statements about Carbo's strong - arming were made in a yoking or light- hearted fashion. 33. Lacy agreed to support Myrsiades in taking Carbo's demand for the increased payment to the PTPA membership. a. About a month later, in July or August 1999, Lacy approached Myrsiades and told him he did not support any extra payment to Carbo. Myrsiades told Lacy it was a dead issue (the payment had already been approved). b. Lacy became irritated with Carbo's incessant demands for more money. 34. Myrsiades directed Haig to contact Wolfgang in order to authorize payment to Carbo in Myrsiades 02- 049 -C2 Page 9 the amount of $525.00 per month effective October 1999. a. Haig subsequently contacted Wolfgang by telephone and authorized the payments to Carbo. b. During the conversation, Wolfgang questioned Haig as to why Carbo was going to receive a higher payout than the other members. c. Wolfgang questioned Haig because Wolfgang's father was collecting payouts from the PTPA in the amount of $350.00 per month. d. Haig informed Wolfgang that Carbo was receiving the higher amount because of the following. 1. Carbo was the president of council; 2. The collective bargaining agreement was in play, and 3. Carbo wanted the higher payment and that's what he would get. 35. Carbo received his first payment from the PTPA on October 5, 1999, in the amount of $350.00. a. Carbo contacted Myrsiades and demanded the additional $175.00. b. Myrsiades then directed Haig to contact Wolfgang to issue the additional $175.00 to Carbo. 36. Carbo received the additional $175.00 from the PTPA on October 7, 1999. 37. The 2000 -2003 collective bargaining agreement for the police was approved by Plymouth Township Council on October 11, 1999. a. The contract was approved by unanimous vote. b. Carbo voted to approve the contract. 1. Carbo's vote came after he received the increased payment from the PTPA. c. Carbo took no action to block approval of the contract. 38. Carbo received additional payments from the PTPA as follows: 11/08/99 $ 525.00 12/07/99 $ 525.00 01/04/00 $ 525.00 02/04/00 $ 525.00 03/02/00 $ 525.00 04/04/00 $ 525.00 05/02/00 $ 525.00 05/30/00 $ 525.00 07/05/00 $ 525.00 07/28/00 $ 525.00 Total $ 5,250.00 39. Carbo received eleven payments totaling $5,775.00 from the PTPA at the monthly rate of $525.00 during the period from October 1999 through July 2000. Myrsiades 02- 049 -C2 Page 10 40. In or about January or February of 2000, members of the PTPA began questioning the payments made to retirees, particularly Carbo. a. Some members were questioning whether Carbo was receiving increased payments. 41. During a meeting of the PTPA held in February 2000 Michael Cassidy, a Plymouth Township Police Officer and a member of the PTPA questioned Myrsiades regarding payments to retirees. a. Cassidy asked Myrsiades how many police officers were receiving payments. 1. Myrsiades responded that five officers were receiving payments. b. Cassidy next asked if all five were receiving the same amount. 1. Myrsiades stated that it was $350 /month and that all the retirees were receiving the same amount. c. At the time Myrsiades made that statement, he was aware that he had authorized the increased payment to Carbo. 42. In or about Mary [sic] 2000 the Montgomery County District Attorney's Office initiated an investigation into the propriety of Carbo receiving additional payments from the PTPA. 43. The investigation resulted in Carbo being charged on August 21, 2000, by Montgomery County Detectives with Theft by Extortion, Threats and Other Improper Influence in Official and Political Matters, and Criminal Attempt at Theft by Extortion. a. The charges were filed as a result of the investigation which concluded that Carbo used his position as Chairman of the Plymouth Township Council to obtain a larger payment from the PTPA. b. Charges are pending. 44. Following Carbo's indictment payments from the PTPA were suspended from August 2000 to January 31, 2001. a. The last payment at $525 /month was July 2000. b. Payments to Carbo resumed on January 31, 2001. 1. The payment on January 31, 2001, was in the amount of $175.00. c. Since February 28, 2001, Carbo has received monthly payments in the amount of $350.00. 45. During the time period in 1999 when Carbo was pressuring Myrsiades for an increased payment from the PTA fund, Myrsiades had been lieutenant for less than one year. a. At that time, former Chief Joseph Cross was diagnosed with a terminal illness. b. Captain Carmen Pettine was serving as acting chief. c. Pettine was eventually appointed chief of police creating a captain vacancy. 46. Myrsiades was not eligible to be considered for the vacancy because township civil service requirements in effect at the time required that an applicant must serve two Myrsiades 02- 049 -C2 Page 11 years as a lieutenant to be eligible. a. Only one member of the PTPD was eligible to take the promotion test for the position of captain. 47. Members of council and the chief of police were interested in opening up the vacancy to move [sic] than one applicant but were bound by the civil service requirements. 48. On November 15, 1999, council discussed amending the civil service ordinance. a. Carbo was present at the meeting. 49. Borough Solicitor Herbert Rubenstein reported as follows during the meeting regarding modification of the Civil Service Commission ordinance. "Mr. Rubenstein read the ordinance amending Chapter 2, Administration, Article II, to the Administrative Code, Division 5, Police Department rules and regulations of the Plymouth Township Code, Ordinance No. 1121 as amended to require at least one year of service as sergeant for an applicant to the position lieutenant. To provide for further processing and examinations to the top thirty ranking persons after the written exams, to provide for the top thirty persons to be given the oral exam, to provide for an oral exam panel, and to provide for the background investigation to be completed for those persons who have passed the written and oral exams and the physical fitness testing. Mr. Lawler made a motion to approve the ordinance and was seconded by Mr. Gillen. 50. The first reading of the ordinance was approved on November 15, 1999, by unanimous vote. a. Carbo voted in favor of the ordinance. b. At the time of his vote, Carbo was receiving the extra payment from the PTPA. 51. During the December 13, 1999, meeting the amendment to Chapter 2, Administration, Article II, to the Administrative Code, Police Department Rules and Regulations of the Township Code, Ordinance 1121, was approved. a. The amendment required at least one year service as a lieutenant for an application to the position of captain and one year service as a sergeant for the position of lieutenant. 52. Carbo was supportive of amending the ordinance during the same time period that Myrsiades was authorizing increased payments to Carbo from the PTPA. 53. Myrsiades was not promoted to captain. III. DISCUSSION: At all times relevant to this matter, the Respondent, John Myrsiades, hereinafter Myrsiades, has been a 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 se as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Myrsiades, in his capacity as a Lieutenant for the Plymouth Township Police Association, violated Sections 1103(a) and 1103(b) of the Ethics Act when he gave an increased pension benefit to Richard Carbo (Carbo), Chairman of the Plymouth Myrsiades 02- 049 -C2 Page 12 Township Council, in return for Carbo's support and vote to approve a police pension contract enabling Myrsiades to become eligible for the position of Police Captain. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: 1102. 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 f of ce 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 Pa.C.S. § 1102. Section 1103(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. Section 1103. Restricted activities (b) No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa.C.S. § 1103(b). Section 1103(b) of the Ethics Act provides in part that no person shall offer to a public official /employee anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. As noted above, the parties have submitted a Consent Agreement and Stipulation of Findings. The parties' Stipulated Findings are reproduced above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. Myrsiades has been employed by the Plymouth Township Police Department since 1989 when he started as a patrolman and later became a detective sergeant. Myrsiades Myrsiades 02- 049 -C2 Page 13 served as a lieutenant of patrol administration in 1998 and 1999 and currently holds the position of a lieutenant functioning as the daily watch commander. In the township, the Plymouth Township Police Association (PTPA) is a for - profit organization established to supplement retired police officers' pensions. Myrsiades served as president of PTPA from 1993 until 2000. PTPA is funded by dues of police officers who are members of the association as well as through fund raising activities. PTPA funds are invested through Morgan Stanley Dean Witter (Firm). Under the adopted PTPA bylaws, members are entitled to receive payments from PTPA upon reaching eligibility requirements. Following a 1996/1997 actuarial study, it was determined that PTPA could make payouts in the amount of $350.00 per month to eligible members. When PTPA in 1996 changed its corporate status from non - profit to for - profit, it amended its bylaws to include disabled police officers as eligible for payments. Standard eligibility requires 25 years of service and at least 52 years of age, provided the member has paid all dues. Carbo was a former township police serceant who became disabled in March of 1987 and was on disability until his retirement on 'March 1, 1993. Carbo became eligible for payments from PTPA in October 1999 upon reaching age 52, as per the 1997 amendment to the PTPA bylaws concerning disabled officers. In 1999, both the township and the police officers formed negotiating committees for the purpose of a 2000 -2003 collective bargaining agreement. Around that time, Myrsiades was approached by Carbo who sought increased payments from PTPA for himself, effective October 1999 when he would become eligible for such payments. Carbo as a council member selected the council representatives to serve on the negotiation committee for the collective bargaining agreement. Carbo approached Myrsiades seeking double the pension amount ($700) per month when he would become eligible. Carbo asserted that police officers who were disabled deserved a higher payout than the standard $350 per month. Myrsiades initially responded to Carbo that he would try to get a $100 per month increase but not the amount Carbo desired. At the time, Carbo was the only police officer who met the eligibility requirements to receive disability pension payments. Carbo made solicitations over several months and continued to demand increased payments from PTPA. This occurred at the time when Carbo was serving as council president and the township and police officers were actively negotiating for a collective bargaining agreement. Since the PTPA bylaws required that any decisions regarding members' compensation be approved by 75% of the body of the association, Myrsiades informally spoke to several PTPA members about the possibility of increased payments for Carbo. Myrsiades concluded that no approval could be obtained in that the members told Myrsiades they did not like Carbo. Since Myrsiades believed that Carbo in his position as council president could and would adversely affect the negotiations, Myrsiades contacted the PTPA's attorney to determine if compensation could be increased without the approval of the membership. Legal counsel advised Myrsiades that although the officers of the association could vote to increase compensation to members without taking the issue before the membership, counsel recommended that the membership be included in any such decision. Myrsiades then discussed the additional payment with PTPA officers Michael Haig and Mark Lacy. Myrsiades informed Haig and Lacy that Carbo was "strong- arming" him (Myrsiades) and that Carbo would adversely affect the collective bargaining agreement if he did not receive increased payments. Lacy questioned whether payments could be approved without a vote of the membership and suggested Myrsiades take the matter up with the PTPA membership. Myrsiades directed Haig to contact the Firm that invested PTPA funds and authorize payments to Carbo in the amount of $525 per month. When Carbo received his first payment of $350, he contacted Myrsiades and demanded an additional $175 which was issued to Carbo. Thereafter, Carbo received payments of $525 per month from November 1999 through July 2000. Myrsiades 02- 049 -C2 Page 14 In the beginning of 2000, members of PTPA began questioning payments made to Carbo. When a PTPA member asked Myrsiades if all retirees were receiving the same payments, Myrsiades responded affirmatively that all retirees were receiving $350 per month. Myrsiades knew that he had authorized a higher payment to Carbo when he made that statement. The monthly payments to Carbo were suspended after July of 2000 when Carbo was indicted by the Montgomery County District Attorney on charges of theft by extortion, threats and other improper influence on official and political matters, and criminal attempt of theft by extortion. Payments to Carbo resumed in February of 2001 at the rate of $350 per month. During 1999, when Carbo was seeking action by Myrsiades for increased PTPA fund payments, Myrsiades had been a lieutenant for less than a year. At that time when the police captain became acting chief thereby opening up the vacancy for captain, Myrsiades was not eligible for that position because township civil service requirements dictated that an applicant must serve two years as a lieutenant for captain eligibility. Members of the council and the police chief were interested in opening up vacancies to more than one applicant. To that end, in November of 1999 council discussed amending the civil service ordinance to limit the eligibility requirement to at least one year of service as sergeant for an applicant to apply for a lieutenant position. The amendment was approved on its first reading in November of 1999 and was approved at the December 1999 meeting of council. Carbo was supportive of the amendment but Myrsiades was not promoted to captain. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations: insufficient evidence to establish a violation of the Ethics Act by Myrsiades in relation to Section 1103(b) and under Section 1103(a) as Myrsiades received no private pecuniary benefit. Myrsiades also agrees to supply a sworn affidavit to the Investigative Division of the State Ethics Commission that the statement made by him on June 19, 2003, in the matters of 02- 049 -C2 and 02- 052 -C2 to representatives of the Investigative Division of the State Ethics Commission is true and correct, said affidavit being made subject to 18 Pa.C.S. § §4902 and 4903; and 65 Pa.C.S. §1109(e). In applying Section 1103(a) of the Ethics Act to the instant matter, in order to establish a violation by clear and convincing proof, the following elements must be present: a public official /public employee, a use of authority of office, a private pecuniary benefit, and a pecuniary benefit inuring to either the public official /public employee, an immediate family member or business with which associated. Unless all of the above elements exist, there can be no violation of Section of 1103(a) of the Ethics Act. See, Marchitello & McGuire v. State Ethics Commission, 657 A.2d 1346 (Pa. Commw. 1995). As to the stipulated findings, relative to the interplay between Carbo and Myrsiades regarding Carbo's efforts to get increased PTPA benefits for himself, there is no showing of a use of authority of office on the part of Myrsiades regarding an amendment to the township ordinance so that he would be eligible for the captain position. Further, the stipulated findings reflect that Myrsiades did not receive the captain position even when council changed the ordinance to reduce the eligibility period from two years to one. Accordingly, the stipulated findings reflect neither a use of authority of office nor a private pecuniary benefit to Myrsiades. Accordingly, Myrsiades did not violate Section 1103(a) of the Ethics Act regarding a change in the township ordinance shortening the eligibility requirements for lieutenant to become police captain, in that there was neither a use of authority of office nor a private pecuniary benefit as to Myrsiades. As to Section 1103(b) of the Ethics Act, it is necessary to establish by clear and convincing proof that there was something of monetary value offered by a person to a public official based upon the understanding that his vote, official action, or judgment would be so Myrsiades 02- 049 -C2 Page 15 influenced. However, the stipulated findings fail to establish that Myrsiades' actions regarding the PTPA payments to Carbo were offered or given based on the understanding that Carbo's vote or official action as a council member would be influenced to reduce the waiting eligibility period from two years to one for the police captain position. Accordingly, Myrsiades did not violate Section 1103(b) of the Ethics Act regarding the allegation of IVyrsiades increasing PTPA pension benefits to Carbo in return for Carbo taking action to reduce the eligibility period for lieutenant seeking captaincy based upon a lack of clear and convincing proof. See, Kasaback, Order 993. We determine that the Consent Agreement submitted by the parties sets forth the proper disposition for this case, based upon our review as reflected in the above analysis and the totality of the facts and circumstances. We take administrative notice that Myrsiades executed the sworn affidavit as per the Consent Agreement on September 29, 2003, which was then filed with the Investigative Division. We will take no further action in this case which is closed. IV. CONCLUSIONS OF LAW: 1. John Myrsiades, as a Lieutenant for the Plymouth Township Police Association, is a public employee subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Myrsiades did not violate Section 1103(a) of the Ethics Act regarding a change in the township ordinance shortening the eligibility requirements for lieutenant to become police captain, in that there was neither a use of authority of office nor a private pecuniary benefit as to Myrsiades. 3. Myrsiades did not violate Section 1103(b) of the Ethics Act regarding the allegation of Myrsiades increasing PTPA pension benefits to Carbo in return for Carbo taking action to reduce the eligibility period for lieutenant seeking captaincy based upon a lack of clear and convincing proof. In Re: John Myrsiades ORDER NO. 1301 File Docket: 02- 049 -C2 Date Decided: 12/1/03 Date Mailed: 12/15/03 1. John Myrsiades, as a Lieutenant for the Plymouth Township Police Association, did not violate Section 1103(a) of the Ethics Act regarding a change in the township ordinance shortening the eligibility requirements for lieutenant to become police captain, in that there was neither a use of authority of office nor a private pecuniary benefit as to Myrsiades. 2. Myrsiades did not violate Section 1103(b) of the Ethics Act regarding the allegation of Myrsiades increasing PTPA pension benefits to Carbo in return for Carbotaking action to reduce the eligibility period for lieutenant seeking captaincy based upon a lack of clear and convincing proof. BY THE COMMISSION, Louis W. Fryman, Chair