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HomeMy WebLinkAbout1343 CarboIn Re: Richard J. Carbo File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen 02- 052 -C2 Order No. 1343 9/20/04 10/1/04 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 investigation, the Investigative Division served upon Respondent written notice of the specific allegation(s). Upon completion of its investigation, 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Carbo, 02- 052 -C2 Page 2 I. ALLEGATION: That Richard Carbo, a (public official /public employee) in his capacity as a member and Chairman of the Plymouth Township Council, violated the following provisions of the State Ethics Act (Act 93 of 1998) when he used the authority of his office for private pecuniary gain, including but not limited to soliciting members of the Plymouth Township Police Township Pension Association for increased pension benefits in return for his vote and support for a new police contract and ordinance amending captain promotion requirements; and when he failed to disclose all sources of income on Statements of Financial Interests filed for the 1996 through 2001 calendar years by intentionally failing to disclose his annual income in excess of $1,300 from Carriage Trade and Maslow Company. Section 1103. Restricted activities. (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. §1103(a). Section 1103. Restricted activities. (c) Accepting improper influence. - -No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee 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(c). Section 2. 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 office 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 P.S. §1102. Section 1105. Statement of financial interests. (b) Required information. - -The statement shall include the following information for the prior calendar year with regard Carbo, 02- 052 -C2 Page 3 to the person required to file the statement. (5) The name and address of any direct or indirect source of income totaling in the aggregate $1,300 or more. However, this provision shall not be construed to require the divulgence of confidential information protected by statute or existing professional codes of ethics or common law privileges. 65 Pa.C.S. §1105(b). II. FINDINGS: 1. Richard D. Carbo, Sr., served as a Councilman for Plymouth Township, Montgomery County, from January 1994 through December 2001. a. Carbo served as the president of council from January 1997 through December 2001. 2. Carbo was employed as a police officer for the Plymouth Township Police Department from March 28, 1971, to March 1, 1993. a. Carbo retired from the department effective March 1, 1993, as a result of sustaining an injury while on duty. 3. Carbo receives income from disability retirement as mandated by the collective bargaining agreement between Plymouth Township and the Plymouth Township Police Officers. 4. Carbo entered into a Retirement Agreement with Plymouth Township dated July 20, 1993, which outlined the provisions of his disability benefits, in part, as follows: a. Carbo would receive a monthly disability pension payment of $2,809.74 each month which has been determined in accordance with the benefits calculations which payments were guaranteed for ten years to either Carbo or his beneficiaries. b. Plymouth Township continued to provide hospitalization and major medical insurance coverage for the Disabled Officer and his spouse and minor children. c. Carbo was entitled to receive any cost of living increases which may be negotiated, arbitrated or statutorily mandated in the future, for either retired - superannuated Police Officers or retired - disabled Police Officers. 5. The $2,809.74 monthly disability retirement payment to Carbo was based on 75% of Carbo's monthly salary of $3,746.32. 6. The Retirement Agreement was entered into between Carbo and the township prior to his election to council. 7 On August 19, 1997, Carbo and the township entered into an amendment to the 1993 agreement whereby Carbo's benefits shall be increased by the same increases which may be negotiated, arbitrated or statutorily mandated in the future, for either retired - superannuated police officers, retired - disabled police officers or active police officers. 8. Carbo did not vote as a member of council to ratify the 1997 amendment increasing Carbo, 02- 052 -C2 Page 4 his compensation. 9. Carbo received 5% cost of living increases for calendar years 1994 through 1997 pursuant to the terms of this agreement. 10. As a result of his injury, Carbo was eligible to also receive disability insurance benefits from the United States Social Security Administration which he began receiving in June 1987. 11. Carbo's duties as chairman of council included, but were not limited to the operation of council meetings, approve meeting agendas, and appointing council members to various committees. 12. The chairman was responsible for the appointment of members to the police contract negotiation committee to represent the township for pending police contracts. a. The chairman determines the number of members on the committee. 13. Police officers covered under the collective bargaining agreement elect police representatives to serve on the police negotiation team. a. Police officers in the positions of sergeant and below are covered by the collective bargaining agreement. 14. Police officers holding the rank of lieutenant and above are not included in the collective bargaining unit. a. Officers in these positions sign individual agreements with the township entitling them to the same contractual benefits as outlined in the collective bargaining agreement. 15. Collective bargaining agreements negotiated while Carbo was a member of council include those covering the periods of 1997 through 1999 and 2000 through 2003. 16. As a member of council, Carbo participated in matters relating to the Plymouth Township Police Pension and Disability Plans and voted to approve collective bargaining agreements. a. This participation included votes on increasing pension and disability payments to officers, police labor contracts and civil service requirements for promotions. b. Participation also included re- opening the 1997 -1999 contract regarding retirement and disability. 17. Carbo is a member of the Plymouth Township Police Association. 18. 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. 19. The PTPA is funded by dues from Plymouth Township Police Officers who become members of the association and through fundraising activities. 20. The PTPA currently has investments through Morgan Stanley Dean Witter. Carbo, 02- 052 -C2 Page 5 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. 21. 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. 22. The determination 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. 23. In 1996, 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. 24. Carbo was a member of council at this time. 25. During this period, the township and the police officers were negotiating the 1997- 1999 collective bargaining agreement. 26. The eligibility for police 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. 27. 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, 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 Rothschild and a legal representative. 1. Carbo selected the council representatives to serve on the negotiating committee. 28. 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. 29. 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 Carbo, 02- 052 -C2 Page 6 amount of the PTPA payout of $350.00. 30. This initial solicitation was at a time Carbo was serving as council president and the township and the police officers were beginning negotiations on the collective bargaining agreement. 31. Myrsiades told Carbo that he would try to get him a $100.00 per month increase but not the amount Carbo desired. 32. In or around March 1999, a meeting was held regarding the 2000 -2003 collective bargaining agreement with a representative of the township and members of the police department. a. Carbo was the only representative of the township at the meeting. b. Carbo was not an official member of the township negotiating committee. c. Police Chief Joseph Cross, Captain Carmen Pettine, Lt. Michael Haig, Lt. John Myrsiades, and Attorney Buscillo represented the police officers. 33. During the meeting, Carbo vocalized his desire to receive compensation from the township in addition to his disability retirement payments. a. Buscillo informed Carbo that he could not legally receive additional compensation from the township as he was already receiving the full amount that he was entitled to under the terms of the collective bargaining agreement in effect at the time of his retirement. 34. From the spring of 1999 and continuing until the fall, official negotiating meetings occurred between the negotiating committees for the township and police officers. 35. During the period of time when negotiations for the police contract were on- going, Carbo made additional solicitations to Myrsiades regarding the increased payments. a. The nature of Carbo's requests changed from asking for to demanding the increased payments. b. 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. 36. 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. 37. Myrsiades informally spoke to a few members of the PTPA body and concluded that the body would not approve increased compensation to Carbo. 38. During several of the conversations between Carbo and Myrsiades, Myrsiades told Carbo that the PTPA body would not approve the increased compensation. 39. After Myrsiades told Carbo that the members of the PTPA would not approve the increased payments to him, Carbo responded by making a comment about the collective bargaining contract that was then being considered by the township and the fact that the PTPA members would not support his request for increased payments. Carbo, 02- 052 -C2 Page 7 40. Myrsiades understood Carbo's response to mean that Carbo, in his position of president of council, could and would adversely affect the negotiations regarding the collective bargaining agreement. 41. Over the period of approximately six months, beginning in January or February 1999, Carbo persisted to solicit increased compensation from Myrsiades even after being informed by Myrsiades that the members of the PTPA would not approve the increase. 42. 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. 43. 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. 44. 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. 45. Lacy agreed to support Myrsiades in taking Carbo's demand for the increased payment to the membership of the PTPA. 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. 1. Myrsiades told Lacy it was a dead issue (the payment had already been approved). 46. Myrsiades directed Haig to contact Wolfgang in order to authorize payment to Carbo in the amount of $525.00 per month effective October 1999. a. Haig subsequently contacted Wolfgang by telephone and authorized the payments to Carbo. 47. During the conversation, Wolfgang questioned Haig as to why Carbo was going to receive a higher payout than the other members. a. Wolfgang questioned Haig because Wolfgang's father was collecting payouts from the PTPA in the amount of $350.00 per month. Carbo, 02- 052 -C2 Page 8 b. Haig informed Wolfgang that Carbo was receiving the higher amount because Carbo was the president of council; the collective bargaining agreement was in play, and Carbo wanted the higher payment and that's what he would get. 48. 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. 49. Carbo received the additional $175.00 from the PTPA on October 7, 1999. 50. The 2000 -2003 police contract 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. 51. Carbo received ten additional payments totaling $5,250 from the PTPA. 52. Carbo received payments totaling $5,775.00 from the PTPA at the monthly rate of $525.00 during the period from October 1999 through July 2000. 53. In or about January or February of 2000, members of the PTPA began questioning the payments made to retirees, particularly Carbo. 54. The last payment to Carbo at $525 /month was July 2000. a. Payments to Carbo resumed on January 31, 2001, in the amount of $175.00. 55. Since February 28, 2001, Carbo has received monthly payments in the amount of $350.00. 56. Carbo received $1,925.00 for the eleven month period between October 1999 and July 2000 when he received the additional $175.00 payment from the PTPA. 57. Carbo subsequently repaid all excess compensation. 58. 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, a vacancy for the position of Captain became available. 59. 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 years as a lieutenant to be eligible. a. Only one member of the PTPD was eligible to take the promotion test for the Carbo, 02- 052 -C2 Page 9 position of captain. 60. Some members of council and the chief of police were interested in opening up the vacancy to more than one applicant but were bound by the civil service requirements. 61. On November 15, 1999, council discussed amending the civil service ordinance. a. Carbo was present at the meeting. 62. During the December 13, 1999, meeting an 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. b. Carbo voted for amending the ordinance. 63. Myrsiades was not promoted. The following findings relate to Carbo's failure to disclose all sources of income on Statements of Financial Interests. 64. As an elected councilman for Plymouth Township, Richard Carbo filed annual Statements of Financial Interests with the township for the 1993 through the 2000 calendar years. 65. From in or about December 1994 through May 19, 2000, Carbo worked at Carriage House Trade Auto Auction, and Maslo Company, Inc., to provide security services. a. Carbo annually earned in excess of $1,300.00 from each of these positions. 66. Carbo was receiving social security disability payments at that time. 67. Carbo's work generated approximately $96,000 from Carriage Trade and Maslo between December 1994 and May 2000, or over $17,600 a year on average. 68. At the time Carbo was working for Maslo Company and Carriage Trade, he was receiving Social Security Disability payments through the Social Security Administration. a. Social Security regulations determined that individuals who earn more than $500 per month were engaged in "substantial gainful activity" and not eligible for benefits. 69. From 1994 through 2000 when he was working at Carriage Trade and Maslo, Carbo used his son's and wife's social security numbers to conceal that he was actually working the shifts. 70. Carbo did not disclose either Carriage Trade or Maslo as sources of income in excess of $1,300 on Statements of Financial Interests filed for calendar years 1997, 1998, 1999 and 2000. 71. At the time of his failure to disclose Carriage Trade and Maslo on Statements of Financial Interests, Carbo was concealing this income from the Social Security Carbo, 02- 052 -C2 Page 10 Administration. 72. Carbo was indicted by a Federal Grand Jury on March 5, 2002, on a 45 count indictment of mail fraud (25 counts), wire fraud (18 counts) and concealment of an event affecting rights to benefits. a. The indictment addresses allegations that Carbo intentionally defrauded the Social Security Administration, Disability Insurance Program by engaging in substantial gainful activity (earning more than 500) while receiving Disability Insurance Benefits. b. Individuals engaged in substantial gainful activity are not eligible for Disability Insurance Benefits. 73. On September 9, 2002, Carbo pled guilty to counts one (1) and forty -five (45) of the indictment charging him respectively with mail fraud in violation of Title 18, United States Code, Section 1341 and with concealment of an event affecting the right to Social Security Disability Insurance benefits in violation of Title 42, United States Code, Section 408(a)(4) all arising from Carbo's failure to report work to the Social Security Administration (SSA) while receiving SSA disability insurance benefits between approximately 1994 and May 2000. a. Carbo pled guilty to failing to report work at Carriage Trade Auto Auction and Maslo Co., Inc. 1. Carbo worked as a security guard at Carriage Trade Auto Auction from approximately 1994 through August 2000. 2. Carbo worked as a security guard at Maslo Co., Inc., from approximately 1995 through 1998. b. Carbo received an average of approximately $17,600.00 per year from Carriage Trade Auto Auction and Maslo Co., Inc., combined. 74. Carbo's SFI filed in 1997 for 1996 did not include information as follows: a. Carbo failed to disclose Carriage Trade Auto Auction and Maslo Co., Inc. as sources of income. 75. Carbo's SFI filed in 1998 for 1997 did not include information as follows: a. Carbo failed to disclose Carriage Trade Auto Auction, and Maslo Co., Inc. as sources of income. 76. Carbo's SFI filed in 1999 for 1998 did not include information as follows: a. Carbo failed to disclose Carriage Trade Auto Auction, and Maslo Co., Inc. as sources of income. 77. Carbo's SFI filed in 2000 for 1999 did not include information as follows: a. Carbo failed to disclose Plymouth Township, Social Security Administration. Plymouth Township Police Association and Carriage Trade Auto Auction as sources of income. 78. During the time when he was concealing working at Carriage Trade and Maslo from Carbo, 02- 052 -C2 Page 11 the Social Security Administration by failing to disclose on Statements of Financial Interests, Carbo was paid as follows as a Plymouth Township Councilman: 1997: $3,300.00 1998: $4,125.00 1999: $4,125.00 2000: $4,125.00 III. DISCUSSION: At all times relevant to this matter, the Respondent, Richard D. Carbo, hereinafter Carbo, has been a public official subject to the provisions of the Public Official and Employee Ethics Law, Act 9 of 1989, Pamphlet Law 26, 65 P.S. § 401, et seq., as codified by the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter 11, 65 Pa.C.S. § 1101 et seq., which Acts are referred to herein as the "Ethics Act." The allegations are that Carbo, as a member and Chairman of the Plymouth Township Council, violated Sections 3(a)/1103(a), 3(c)/1103(c) and 5(b)(5)/1105(b)(5) of the Ethics Act when he solicited members of the Plymouth Township Police Township Pension Association for increased pension benefits in return for his vote and support for a new police contract and ordinance amending captain promotion requirements; and when he failed to disclose all sources of income on Statements of Financial Interests filed for the 1996 through 2001 calendar years by intentionally failing to disclose his annual income in excess of $1,300 from Carriage Trade and Maslow Company. Pursuant to Section 3(a)1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest. Section 3(a)/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 3(c)/1103(c) of the Ethics Act quoted above provides in part that a public official /public employee shall not solicit or accept anything of monetary value based upon any understanding that his vote, official action or judgment would be influenced thereby. Section 5(b)/1105(b) of the Ethics Act requires that every public official /public employee and candidate list the name and address of any direct or indirect source of income totaling in the aggregate of $1,300 or more. 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. Carbo served as a council member in Plymouth Township from January 1994 through December 2001. Prior to that time, Carbo was a township police officer from March 1971 until March 1993 when he retired due to a work related injury. As per a retirement agreement with the township, Carbo began receiving $2,809.74 a month as disability pension payments that were guaranteed for ten years. Carbo received 5% cost of living increases for the years 1994 through 1997. Carbo and the township in 1997 entered into an amendment to his retirement agreement which allowed Carbo to receive the same increases as obtained by active /retired /disabled police officers. Carbo did not participate in council's action as to the approval of his retirement agreement amendment. Carbo, 02- 052 -C2 Page 12 In addition to his disability retirement benefits, Carbo became eligible for payments from the Plymouth Township Police Association (PTPA) in September 1999 upon reaching age 52, as per a 1996 amendment to the PTPA bylaws concerning disabled officers. In the township, the PTPA is a for - profit organization established to supplement retired police officers' pensions. 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). Lt. John Myrsiades (Myrsiades), an employee of the Plymouth Township Police Department, served as president of PTPA during the relevant time period. 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. In 1996 PTPA amended its bylaws to extend eligibility for payments to disabled police officers. Standard eligibility requires 25 years of service and at least 52 years of age, provided the member has paid all dues. In 1999, both the township and the police officers formed negotiating committees for the purpose of a 2000 -2003 collective bargaining agreement. Carbo as a council member selected the council representatives to serve on the negotiation committee for the collective bargaining agreement. At about that time, Myrsiades was approached by Carbo who sought increased payments from PTPA for himself, effective September 1999 when he would become eligible for such payments. Carbo approached Myrsiades seeking double the pension amount ($700) per month from PTPA 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 wanted. Carbo made solicitations over several months and continued to demand increased PTPA payments. 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. Myrsiades believed that Carbo in his position as council president could and would adversely affect the negotiations. Myrsiades discussed the additional payment with PTPA officers Michael Haig and Mark Lacy. Myrsiades informed Haig and Lacy that Carbo was pressuring him (Myrsiades) and that Carbo raised the issue of the pending police contract. Lacy agreed to support Myrsiades in taking Carbo's demand to the membership. Later, when Lacy told Myrsiades that he (Lacy) did not support extra payments for Carbo, Myrsiades told Lacy that the payments to Carbo were already approved. 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. From February 2001, Carbo's payment dropped to $350 per month. Subsequently, Carbo repaid the excess compensation he received. During 1999, when Carbo was seeking action by Myrsiades for increased PTPA benefits, Myrsiades had been a lieutenant for less than a year. At that time when the position of police captain became vacant, Myrsiades was not eligible for that position because township civil service requirements dictated that an applicant must serve two Carbo, 02- 052 -C2 Page 13 years as a lieutenant for captain eligibility. Some 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 regulations to reduce the eligibility requirement to at least one year of service as sergeant to apply for a lieutenant position and similarly one year of service as a lieutenant to apply for the captain position. The amendment was approved at the December 1999 meeting of council. Carbo voted for the amendment. However, Myrsiades did not receive a promotion to captain. While Carbo served on council, he was required to file SFI's. Carbo failed to disclose Carriage Trade Auto Auction and Maslo Co., Inc. as sources of income on his 1996 through 2000 calendar year SFI's. For the calendar year 1999 SFI, Carbo also failed to disclose Plymouth Township, Social Security Administration, and the PTPA as sources of income. 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. The Consent Agreement proposes that this Commission find: "a. That a violation of Sections 1103(a) and 1103(c), of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(c) in relation to Carbo's solicitation of Members of the Plymouth Township Police Township Pension Association for increased pension benefits in return for voting to support a new police contract. b. That no violation of the Public Official and Employee Ethics Law Sections 1103(a) and 1103(c); 65 Pa.C.S. § §1103(a) and 1103(c) occurred in relation to the allegation that Carbo participated in amending the township civil service regulations to allow for the promotion of the individual who was the president of the Plymouth Township Police Association in return for that person's approving a pension increase for Carbo from PTPA based on an insufficiency of evidence. c. That a violation of Section 1105(b)(5) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1105(b)(5) occurred when Carbo failed to disclose on [sic] all sources of income on Statements of Financial Interests filed for the 1996 through 2001 calendar years by failing to disclose his annual income in excess of $1,300 from Carriage Trade and Maslow Company." In addition, Carbo agrees to pay $1,000 to the Commonwealth of Pennsylvania through this Commission. Payments shall be made in quarterly installments with the first payment of $250 due on or before ninety (90) days after the issuance of the adjudication in this matter with each subsequent payment due no later than each ninety (90) days thereafter. Carbo also agrees to file amended SFI's. Under Section 3(a)/1103(a) of the Ethics Act, 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 that 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 3(a)/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 were uses of authority of office on the part of Carbo as to the new police contract so that he would obtain more benefits from the PTPA. See, Juliante, Order 809. The stipulated findings reflect such uses of authority of office by Carbo. See, Fact Findings 27.b.1., 32, 33, 39. Carbo, 02- 052 -C2 Page 14 The uses of authority of office resulted in private pecuniary benefits consisting of the increased benefits that Carbo obtained. Accordingly, Carbo violated Section 3(a)/1103(a) of the Ethics Act when he used authority of office for a private pecuniary benefit for himself by supporting and participating in a new police contract in return for receiving increased PTPA benefits. See, Cuppels, Order 1237. As to Section 3(c)/1103(c) of the Ethics Act, it is necessary to establish by clear and convincing proof that there was something of monetary value offered by a public official to a person based upon the understanding that the public official's vote, official action, or judgment would be so influenced. The stipulated findings establish that Carbo's actions regarding the new police contract were offered to Myrsiades based on the understanding that Myrsiades would obtain increased PTPA benefits for Carbo. See, Fact Findings 39, 40. Accordingly, Carbo violated Section 3(c)/1103(c) of the Ethics Act regarding the solicitation by him as to receiving increased PTPA pension benefits in return for taking action to support a new police contract. See, Kasaback, Order 993. As to the allegation concerning Carbo's participation in the civil service regulation amendment for police promotions in return for increases as to PTPA pension benefits, there was a use of authority of office on the part of Carbo regarding an amendment to the township civil service regulations. See, Fact Findings 61, 62. However, the stipulated findings do not establish that such actions by Carbo resulted in any private pecuniary benefit to himself. Accordingly, Carbo did not violate Section 3(a)/1103(a) of the Ethics Act when he used the authority of office by participating in a change in the township regulations shortening the eligibility requirements for a lieutenant to become police captain, based upon an insufficiency of evidence. See, Myrsiades, Order 1301. As to Section 3(c)/1103(c) of the Ethics Act noted above, it is necessary to establish by clear and convincing proof that there was something of monetary value solicited by a public official from a person based upon the understanding that the public official's vote, official action, or judgment would be so influenced. However, the stipulated findings fail to establish that Carbo' actions as to the amendment to the civil service regulations and the PTPA payments to Carbo through Myrsiades action were effectuated based on an understanding that Carbo's vote or official action as a council member would be so influenced. Accordingly, Carbo did not violate Section 3(c)/1103(c) of the Ethics Act regarding the allegation of Carbo receiving increased PTPA pension benefits in return for Carbo taking action to reduce the eligibility period for Myrsiades seeking the township captaincy police position based upon an insufficiency of evidence. See, Dusenberry, Order 1064. As to the SFI allegations, the stipulated findings and the recitation above reflect that Carbo failed to comply with the SFI filing requirement as follows: for the 1996 through 2000 calendar year SFI's, Carbo failed to disclose Carriage Trade Auto Auction and Maslo Co., Inc. as sources of income; and for the calendar year 1999 SFI, Carbo also failed to disclose Plymouth Township, Social Security Administration, and PTPA as sources of income. The stipulated findings do not reflect any filing deficiencies as to the SFI Carbo filed for the calendar year 2001. Accordingly, Carbo violated Section 5(b)/1105(b) of the Ethics Act when he failed to disclose Carriage Trade Auto Auction and Maslo Co., Inc. as sources of income on his 1996 through 2000 calendar year SFI's. Carbo did not violate Section 5(b)/1105(b) of the Ethics Act regarding his filings for the 2001 calendar year SFI, based upon an insufficiency of evidence. 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. Accordingly, Carbo is directed to pay Carbo, 02- 052 -C2 Page 15 $1,000 to the Commonwealth of Pennsylvania through this Commission. Payments shall be made in quarterly installments with the first payment of $250 due on or before ninety (90) days after the issuance of the adjudication in this matter with each subsequent payment due no later than each ninety (90) days thereafter. If Carbo has not already done so, he is directed within 30 days to file amended SFI's with the township for the calendar years 1996 -2000 listing the sources of income noted above and to file copies of the SFI's with this Commission for compliance verification purposes. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Carbo, while a member and Chairman of the Plymouth Township Council, was a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Carbo violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit for himself by supporting and participating in a new police contract in return for getting increased PTPA benefits. 3. Carbo violated Section 3(c)/1103(c) of the Ethics Act regarding his solicitation to receive increased PTPA pension benefits in return for his taking action to support a new police contract. 4. Carbo did not violate Section 3(a)/1103(a) of the Ethics Act when he used the authority of office by participating in a change in the township regulations shortening the eligibility requirements for a lieutenant to become police captain, based upon an insufficiency of evidence. 5. Carbo did not violate Section 3(c)/1103(c) of the Ethics Act regarding the allegation that he received increased PTPA pension benefits in return for taking action to reduce the eligibility period for a lieutenant seeking the township captaincy police position, based upon an insufficiency of evidence. 6. Carbo violated Section 5(b)/1105(b) of the Ethics Act when he failed to disclose Carriage Trade Auto Auction and Maslo Co., Inc. as sources of income on his 1996 through 2000 calendar year SFI's. 7 Carbo did not violate Section 5(b)/1105(b) of the Ethics Act regarding his filings for the 2001 calendar year SFI, based upon an insufficiency of evidence. In Re: Richard J. Carbo ORDER NO. 1343 File Docket: 02- 052 -C2 Date Decided: 9/20/04 Date Mailed: 10/1/04 1 Carbo, while a member and Chairman of the Plymouth Township Council, violated Section 3(a)/1103(a) of the Ethics Act when he used the authority of office for a private pecuniary benefit for himself by supporting and participating in a new police contract in return for getting increased PTPA benefits. 2. Carbo violated Section 3(c)/1103(c) of the Ethics Act regarding his solicitation to receive increased PTPA pension benefits in return for his taking action to support a new police contract. 3. Carbo did not violate Section 3(a)/1103(a) of the Ethics Act when he used the authority of office by participating in a change in the township regulations shortening the eligibility requirements for a lieutenant to become police captain, based upon an insufficiency of evidence. 4. Carbo did not violate Section 3(c)/1103(c) of the Ethics Act regarding the allegation that he received increased Plymouth Township Police Association pension benefits in return for taking action to reduce the eligibility period for a lieutenant seeking the township captaincy police position, based upon an insufficiency of evidence. 5. Carbo violated Section 5(b)/1105(b) of the Ethics Act when he failed to disclose Carriage Trade Auto Auction and Maslo Co., Inc. as sources of income on his 1996 through 2000 calendar year SFI's. 6. Carbo did not violate Section 5(b)/1105(b) of the Ethics Act regarding his filings for the 2001 calendar year SFI, based upon an insufficiency of evidence. 7 If Carbo has not already done so, he is directed within 30 days to file amended SFI's with the township for the calendar years 1996 -2000 listing the source of income noted above and to file copies of the SFI's with this Commission for compliance verification purposes. 8. Per the Consent Agreement of the parties, Carbo is directed to pay $1,000 to the Commonwealth of Pennsylvania through this Commission. Payments shall be made in quarterly installments with the first payment of $250 due on or before ninety (90) days after the issuance of the adjudication in this matter with each subsequent payment due no later than each ninety (90) days thereafter. 9. Compliance with paragraphs 8 and 9 will result in the closing of this case with no further action by this Commission. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, John J. Bolger, Vice -Chair Carbo, 02- 052 -C2 Page 17 Chair Louis W. Fryman did not participate in this matter.