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HomeMy WebLinkAbout1359 SmithIn Re: Timothy Smith File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Daneen E. Reese Donald M. McCurdy Paul M. Henry Raquel K. Bergen 03 -062 Order No. 1359 2/28/05 3/14/05 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 not 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Smith, 03 -062 Page 2 I. ALLEGATIONS: That Timothy Smith, a public official in his capacity as Mayor and a Member of Council of Perryopolis Borough, Fayette County, violated provisions of the State Ethics Act (Act 93 of 1998, C.S. 9 of 1989, 65 Pa. C. S. §1101 et seq.) when he used the authority of his office for a private pecuniary gain, including but not limited to participating in actions and votes of the council appointing him to a paid position on the Perrysville Area Joint Authority (PAJA); as a member of the PAJA he participated in actions of the board issuing payments to himself; and when he failed to disclose on Statements of Financial Interests filed for the 1998, 1999, 2000, 2001, 2002 and 2003 calendar years real estate interests, creditors, gifts, transportation and lodging, financial interests in any legal entity in business for profit and business interests transferred to immediate family members. II. FINDINGS: 1. Timothy M. Smith has served as the Mayor for Perryopolis Borough, Fayette County since January 7, 2002. a. Smith served on Perryopolis Borough Council from January 2, 1996, through December 2001. b. Smith served as the President of Council from January 1996- December 1999 and as the Assistant Treasurer from January 2000- December 2001. 2. Perryopolis Borough is governed by a seven - member council and a mayor. a. Council typically holds one regularly scheduled public meeting per month. b. Council members and the mayor each receive $50.00 per month for service to the borough. 1. Council members chose not to receive compensation in 2003 due to budgetary concerns in the Borough. 3. The Perryopolis Borough mayor is responsible for enforcing Borough ordinances, policies, and regulations and for oversight of the Borough police department. a. The mayor is not a regular voting member of council. b. The mayor receives $50.00 per month for serving in that capacity. 4. Smith has continuously received compensation from the Borough for serving as a member of Borough Council and as borough mayor while serving in those capacities. 5. The Perryopolis Area Joint Authority (PAJA) is a joint sewer and water authority between Perryopolis Borough and Perry Township. a. The joint authority was organized in November 1990. b. Perryopolis Borough had its own authority from 1955 until the jointure in 1990. 6. The PAJA is governed by a seven - member board comprised of five members appointed by the Perryopolis Borough Council and two members appointed by the Perry Township Supervisors. Smith, 03 -062 Page 3 a. The authority board has one regularly scheduled meeting per month with other meetings on an as- needed basis. 7 The Perryopolis Borough Council passed an ordinance in or about 1990 approving compensation for appointees serving on the PAJA. a. The ordinance set compensation up to $100.00 month [sic] subject to the discretion of the PAJA board. 1. The amount was approved by the PAJA consistent with the borough council ordinance. 8. PAJA members are paid $599.00 per year in quarterly payments for serving on the authority. a. This amount has been in effect since at least 1991. b. PAJA members receive three quarterly payments of $150.00 and one quarterly payment of $149.00. c. The payment of $149.00 is made to avoid the issuance of IRS Forms 1099. 1. IRS regulations require the issuance of Form 1099 for income of $600 or more. 9. Smith has served as a member of the PAJA since June 17, 1998. a. Smith was appointed by Perryopolis Borough to fill a vacancy on the Authority due to the resignation of member Arnie Traud. 10. Meeting minutes from the June 17, 1998, Perryopolis Borough Council meeting confirm the appointment of Smith to the authority and his abstention as follows: "Due to the resignation of Arnie Traud, the Perryopolis Area Joint Authority has a vacancy. The position was advertised but only one letter was received, Timothy Smith. Motion R. Schwenk, second J. Martinak to appoint Timothy Smith to Perryopolis Area Joint Authority board to fill the un- expired term of Arnold Traud. T. Smith's term will expire on January 1, 2000. Roll Call Vote -4 yes, 1 abstain (Smith), 2 absent (Lombard, Lipovsky)." a. The date of the expiration of the term noted in the meeting minutes was incorrect and was actually January 1, 2001. 11. Nicholas Timperio, an associate in solicitor Samuel Davis' firm, was present at the June 17, 1998, Borough council meeting. a. Timperio was questioned regarding Smith's appointment to the PAJA during the June 17, 1998, council meeting. 12. By letter dated June 22, 1998, to the Borough secretary, Timperio addressed Smith's appointment to the PAJA with the following: In addition, it is appropriate for Mr. Smith to also serve on the Authority Board." a. Timperio was not questioned, nor did he provide an opinion, regarding the appropriateness of Smith receiving compensation for serving on the authority Check Date Check No. Amount 09/08/98 2195 $150.00 12/03/98 2322 149.00 03/08/99 2457 149.00 06/08/99 2585 150.00 08/28/99 2696 150.00 12/09/99 2800 150.00 03/10/00 2933 150.00 06/05/00 3068 150.00 09/07/00 3194 150.00 12/12/00 3304 149.00 Total: $1,497.00 Check Date Check No. Amount 03/06/01 3421 $150.00 06/14/01 3546 150.00 09/13/01 3760 150.00 12/10/01 3880 149.00 03/13/02 4002 150.00 06/11/02 4125 150.00 09/06/02 4246 150.00 12/09/02 4376 149.00 03/11/03 4502 150.00 06/12/03 4639 150.00 Smith, 03 -062 Page 4 board. 13. Smith began receiving compensation for serving on the PAJA in September 1998 and received payments regularly until the end of his term in December 2000, as follows: 14. Smith was reappointed to the PAJA by Perryopolis Borough Council on January 17, 2001. a. Minutes from that meeting reflect the following: "R. Lombard made a motion to reappoint T. Smith to the Joint Authority Board. P. Black 2end [sic] —J. Martinak voted No —All others yes— Motion Carries." b. Smith was present at this meeting and participated in the affirmative vote to reappoint himself to the PAJA. c. The vote to reappoint Smith the PAIA [sic] was 6 affirmative and 1 opposed. 15. Smith continued his service as a member of PAJA following his service at [sic] Perryopolis Borough Mayor beginning in January 2002. a. At the time of his vote Smith was aware that service on the PAJA was a compensated position. 16. Payments to board members for service on the PAJA are made by the authority with approval by the board. 17. Smith received compensation totaling $1,797.00 while serving on the PAJA after he participated in council actions appointing him to that position as follows: Check Date Check No. Issued to Smith Period of Check Listing Date of Approval Smith's Action RE: Approval 03/06/01 3421 03/01 04/12/01 No Minutes 06/14/01 3546 06/01 07/12/01 Yes 09/13/01 3760 09/01 10/11/01 Yes 12/10/01 3880 12/01 01/10/02 Yes 03/13/02 4002 03/02 04/11/02 Yes 06/11/02 4125 06/02 07/11/02 Yes 09/06/02 4246 09/02 10/11/02 Yes 12/09/02 4376 12/02 01/09/03 Yes 03/11/03 4502 03/03 04/10/03 Yes 06/12/03 4639 06/03 07/22/03 Yes 09/03/03 4741 09/03 10/09/03 Yes 12/12/03 4866 12/03 01/04/04 Yes Check Date Check No. Amount 09/03/03 4741 150.00 12/12/03 4866 149.00 Total: $1,797.00 Smith, 03 -062 Page 5 a. Smith received $599.00 in PAJA board member compensation while serving as a Borough Councilman. b. Smith has received $1,198.00 in PAJA board member compensation since serving as Mayor for the Borough. 18. The approval of payments to PAJA members is an after - the -fact approval done by the Authority members approving the Treasurer's Report for the month that the payments were issued. a. The Treasurer's Report outlines the authority's various accounts activity and balances for a specific month. b. Attached to the Treasurer's Report is a check listing detailing all of the checks issued during the month. c. The check listings include quarterly stipend checks to authority members. 19. Smith, as an Authority board member, has participated in approving Treasurer's Reports and check listings that included quarterly checks to himself after January 17, 2001, as follows: a. Smith voted to approve payment of at least 11 of 12 quarterly checks issued to him for serving on the PAJA after January 17, 2001. 1. There are no minutes from the April 12, 2001, meeting on file at the PAJA to verify Smith's participation in approving check no. 3421. b. Smith does not have signature authority on PAJA financial accounts and did not sign any checks issued to himself. 20. Smith has approved and accepted compensation for serving on the PAJA board throughout his service on the Authority board. 21. Questions concerning Smith serving on the PAJA and receiving compensation were Smith, 03 -062 Page 6 again addressed in the fall of 2003. 22. Kris Vanderman, the PAJA solicitor, addressed the issue of Smith receiving compensation for serving on the Authority in a memo to the authority secretary dated September 3, 2003. a. The memo states, in part, the following: On another particular dealing with compensation to elected officials of a Municipality, my recollection of the particular, when it arose via Mr. Emricko/ Mr. Kmetz who were Township Supervisors, whether or not they were receiving compensation through the Municipal body. If they were, then my recollection is I advised they could not receive compensation from the Authority other than the actual direct reimbursement of out -of- pocket expenses. My understanding (which is by recollection only) is that you cannot be paid from two sources, one being elected and one being appointed through the elected position. I thought I had prepared a Memo on this particular a few years ago. I will ask you to check/review past minutes. If you can't find anything, then we can take it up again (if necessary)." 23. By letter dated September 18, 2003, Borough solicitor Sam Davis issued the following to Ron Krepps, PAJA manager, regarding Smith: We are not aware of any prohibition that would prevent Timothy Smith, Mayor of Perryopolis, from being compensated as a member of the Joint Authority. If there is authority that does exist regarding this matter, please provide this information to my office." 24. PAJA Solicitor Vanderman issued a written legal opinion regarding "Compensation of a Board Official While Sitting on an Authority Board" to the authority board members dated October 9, 2003, that included, in part, the following: a. An elected borough official, including a councilman and the mayor, can serve on the authority but that it is inappropriate to collect compensation in that capacity. b. Vanderman based his opinion on the Borough Code. 1. Vanderman included the following quote from the Borough Code: Any elective or appointive officer of the Borough shall be eligible to serve on any Board, Commission, Bureau, or other agency created on [sic] or for the Borough... but no Mayor or member of Council shall receive compensation therefore." c. Vanderman also based his opinion on a Commonwealth Court case known as the Koslow case. d. Vanderman advised that if this issue needed follow -up that an opinion should be requested from the State Ethics Commission. 25. In his opinion letter, Vanderman specifically addressed corrective action if this situation occurred as follows: "Accordingly, to the extent that a Borough official has been receiving compensation while an Authority member, that would clearly be illegal and those monies, if paid out, should be immediately returned." Smith, 03 -062 Page 7 26. By letter dated October 10, 2003, Vanderman advised Davis of his opinion and requested that Davis review it so the two could come to an agreement and close this matter. a. Ron Krepps, Authority manager, forwarded Vanderman's opinion to Davis on or about October 14, 2003. 27. Borough Council also requested that Davis look into the appropriateness of Smith's appointment to and receipt of compensation from the PAJA at this time. a. Council made this request after being forwarded Vanderman's opinion from the PAJA. 28. Davis did not respond to Vanderman's or Council's request to review this situation nor did he confer with Vanderman to bring a close to this situation. a. Davis felt that this was an Authority matter and was not intending to review the situation. 29. Authority meeting minutes from December 11, 2003, reflect that Smith made a motion to terminate Vanderman as solicitor. a. This motion was seconded and approved by way of a 5 -1 -1 vote, with Smith voting in favor of the motion. 30. Smith continued to receive compensation for serving on the Authority after Vanderman's October 9, 2003, opinion letter. a. Smith obtained and negotiated his December 12, 2003, stipend check. b. Smith obtained stipend checks in March and June 2004, but has not cashed or deposited the checks. 1. Smith is holding the checks until the completion of this investigation. 31. On or about July 9, 2004, approximately nine months after receiving Solicitor Vanderman's opinion, Smith requested an advice from the Legal Division of the State Ethics Commission. a. Smith requested the advice after being notified of the initiation of an investigation by the Investigative Division of the State Ethics Commission. 32. Smith's letter of request to the Legal Division included, in part, the following information: a. Smith requested an opinion on the legality of sitting on ajoint authority board and receiving compensation therefore. b. Smith was appointed to the joint authority in June 1998 while serving as a member of borough council. c. Smith was reappointed to the joint authority in January 2001 and participated as a councilman in that action. 1. The solicitor advised Smith "voting upon myself had no bearing because it was a reappointment and no one else put in a letter of the Smith, 03 -062 Page 8 position." d. The matter of Smith serving on the authority and receiving compensation was questioned several times and answered by both the authority solicitor and borough solicitor. 1. Both solicitors stated that Smith could serve on and receive compensation from the authority while serving on borough council. 2. The compensation for serving on the authority and as a councilman was $50.00 each per month. e. Subsequent to July 2003, the authority solicitor questioned the legality of Smith's appointment to the authority and compensation received in that capacity. f. On September 18, 2003, Smith received a letter from the borough solicitor stating that the solicitor is not aware of any prohibition that would prevent Smith from being compensated as a member of the joint authority. 33. On August 9, 2004, the Legal Division of the State Ethics Commission issued Advice of Counsel No 04 -581 to Smith, which included, in part, the following: a. For the purpose of the advisory, it shall be factually assumed that the authority was jointly created by one or more municipalities pursuant to the Municipality Authorities Act, in which case, Smith's position as an authority board member would not be considered a borough office. b. Smith would be precluded from using the authority of his Borough office to participate in any matters that would involve a financial gain to him as an authority board member. c. Smith may simultaneously serve as borough mayor and authority board member and receive compensation as a [sic] authority board member assuming that the authority, a joint authority, was created by one or more municipalities pursuant to the Municipality Authorities Act. 34. Advice of Counsel No. 04 -581 did not address the past action of Smith voting for himself for the paid position on the PAJA. a. Smith participated as a Borough Councilman in the January 17, 2001, vote to appoint himself to the paid position on the authority board. The following findings relate to the allegation that Smith filed deficient Statements of Financial Interests and failed to file Statements of Financial Interests. 35. Smith, in his capacities as a Borough Councilman, Borough Mayor, and a PAJA member, was /is required to annually file Statements of Financial Interests (SFIs) by May 1 of each year for the preceding calendar year. 36. SFIs on file for Smith at the PAJA verified that he filed SFIs as follows for calendar years 1998 through 2002: Calendar Year Date Filed /Form 1998 03/11/99 on SEC Form 01/98 1999 None on File Smith, 03 -062 Page 9 2000 01/18/01 on SEC Form 1/01 2001 01/10/02 on SEC Form 01/02 2002 01/07/03 on SEC Form 01/03 2003 02/19/04 on SEC Form 01/00 37. Smith failed to disclose information on SFIs for calendar years 1998, 2000, 2001, 2002 and 2003 as follows: a. Smith filed a deficient 1998 SFI by failing to complete blocks 08A (Occupation); 09 (Real Estate Interests); 10 (Creditors); 12 (Gifts); 13 (Transportation, Lodging, Hospitality); 14 (Office, Directorship, or Employment in Any Business); 15 (Financial Interest in any Legal Entity in Business for Profit); and 16 (Business Interest Transferred to Immediate Family Member). b. Smith filed a deficient 2000 SFI by failing to complete blocks 06 (Occupation); 08 (Real Estate Interests); 09 (Creditors); 11 (Gifts); 12 (Transportation, Lodging, Hospitality); 13 (Office, Directorship, or Employment in Any Business); 14 (Financial Interest in any Legal Entity in Business for Profit); and 15 (Business Interest Transferred to Immediate Family Member). c. Smith filed a deficient 2001 SFI by failing to complete blocks 05 (Agency); 06 (Occupation); 08 (Real Estate Interests); 09 (Creditors); 11 (Gifts); 12 (Transportation, Lodging, Hospitality); 13 (Office, Directorship, or Employment in Any Business); 14 (Financial Interest in any Legal Entity in Business for Profit); and 15 (Business Interest Transferred to Immediate Family Member). d. Smith filed a deficient 2002 SFI by failing to complete blocks 05 (Agency); 06 (Occupation); 08 (Real Estate Interests); 09 (Creditors); 11 (Gifts); 12 (Transportation, Lodging, Hospitality); 13 (Office, Directorship, or Employment in Any Business); 14 (Financial Interest in any Legal Entity in Business for Profit); and 15 (Business Interest Transferred to Immediate Family Member). e. Smith filed a deficient 2003 SFI by failing to complete blocks 05 (Agency); 06 (Occupation); 08 (Real Estate Interests); 09 (Creditors); 11 (Gifts); 12 (Transportation, Lodging, Hospitality); 13 (Office, Directorship, or Employment in Any Business); 14 (Financial Interest in any Legal Entity in Business for Profit); and 15 (Business Interest Transferred to Immediate Family Member). 38. Smith failed to file a Statement of Financial Interests for the 1999 calendar year by May 1, 2000. III. DISCUSSION: At all times relevant to this matter, Respondent Timothy Smith (also referred to herein as "Respondent," "Respondent Smith," or "Smith ") 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 Respondent Smith, a public official in his capacity as Mayor and a Member of Council of Perryopolis Borough, Fayette County, violated provisions of Smith, 03 -062 Page 10 the State Ethics Act when: (1) he used the authority of his office for a private pecuniary gain, including but not limited to participating in actions and votes of the council appointing him to a paid position on the Perrysville Area Joint Authority (PAJA); (2) as a member of the PAJA he participated in actions of the board issuing payments to himself; and (3) he failed to disclose on Statements of Financial Interests filed for the 1998, 1999, 2000, 2001, 2002 and 2003 calendar years real estate interests, creditors, gifts, transportation and lodging, financial interests in any legal entity in business for profit and business interests transferred to immediate family members. The pertinent provisions of the Ethics Act provide as follows: § 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). § 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 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. The term 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. § 1104. Statement of financial interests required to be filed (a) Public official or public employee. - -Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full -time or part -time solicitors for political subdivisions are required to file under this section. Smith, 03 -062 Page 11 65 Pa. C. S. § 1104(a). § 1105. Statement of financial interests (b) Required information. - -The statement shall include the following information for the prior calendar year with regard to the person required to file the statement: (1) Name, address and public position. (2) Occupation or profession. (3) Any direct or indirect interest in any real estate which was sold or leased to the Commonwealth, any of its agencies or political subdivisions or purchased or leased from the Commonwealth, any of its agencies or political subdivisions or which was the subject of any condemnation proceedings by the Commonwealth, any of its agencies or political subdivisions. (4) The name and address of each creditor to whom is owed in excess of $6,500 and the interest rate thereon. However, loans or credit extended between members of the immediate family and mortgages securing real property which is the principal or secondary residence of the person filing shall not be included. (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. (6) The name and address of the source and the amount of any gift or gifts valued in the aggregate at $250 or more and the circumstances of each gift. This paragraph shall not apply to a gift or gifts received from a spouse, parent, parent by marriage, sibling, child, grandchild, other family member or friend when the circumstances make it clear that the motivation for the action was a personal or family relationship. However, for the purposes of this paragraph, the term "friend" shall not include a registered lobbyist or an employee of a registered lobbyist. (7) The name and address of the source and the amount of any payment for or reimbursement of actual expenses for transportation and lodging or hospitality received in connection with public office or employment where such actual expenses for transportation and lodging or hospitality exceed $650 in the course of a single occurrence. This paragraph shall not apply to expenses reimbursed by a governmental body or to expenses reimbursed by an organization or association of public officials or employees of political subdivisions which the public official or employee serves in an official capacity. (8) Any office, directorship or employment of any nature Smith, 03 -062 Page 12 whatsoever in any business entity. (9) Any financial interest in any legal entity engaged in business for profit. (10) The identity of any financial interest in a business with which the reporting person is or has been associated in the preceding calendar year which has been transferred to a member of the reporting person's immediate family. 65 Pa. C. S. § 1105(b). 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. Pursuant to Section 1104(a) of the Ethics Act, each public official /public employee must file a Statement of Financial Interests for the preceding calendar year, each year that he holds the position and the year after he leaves it. Section 1105(b) of the Ethics Act details the substantive information that must be disclosed on the Statement of Financial Interests form. 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 material facts as contained therein. Respondent Smith has served in various public offices, specifically, as a Member of Council of Perryopolis Borough ( "Borough ") from January 2, 1996, through December 2001; as Borough Mayor since January 7, 2002; and as a Member of the "Perryopolis Area Joint Authority" ( "PAJA ") since June 17, 1998. The PAJA is a joint sewer and water authority. It was organized in November 1990 by the Borough and Perry Township. PAJA members receive compensation for serving on the joint authority. In June 1998, Borough Council appointed Respondent to his first term as a PAJA Member. Respondent was a Borough Council Member at the time, but he abstained from Council's vote to appoint him. Respondent's first term as a PAJA member ended in December 2000. On January 17, 2001, Borough Council reappointed Respondent to the PAJA. Respondent was present at the meeting and voted in favor of his own reappointment. During the period following his reappointment to the PAJA, Respondent received compensation totaling $1,797.00 as a PAJA Board Member. Respondent voted to approve payment of at least 11 of 12 quarterly checks issued to Respondent for serving on the PAJA after January 17, 2001, as set forth in Finding 19. In the fall of 2003, an issue arose as to whether Respondent could be compensated as a PAJA Member. The Borough solicitor did not review the issue but indicated that he was not aware of any prohibition that would prevent Respondent from being compensated as a PAJA Member. The PAJA solicitor issued an opinion letter stating that compensation received by a Borough official for serving as an authority member would be illegal and should be immediately returned. The PAJA solicitor advised that if the issue needed follow -up, an opinion should be requested from the State Ethics Commission. Smith, 03 -062 Page 13 In the summer of 2004, after being notified that he was being investigated by the Investigative Division of the State Ethics Commission, Respondent requested an advisory from the Commission's Legal Division. An Advice was issued to Respondent, but the Advice did not address Respondent's past conduct. Only Respondent's prospective conduct was addressed. The Advice determined, inter alia, that consistent with Section 1103(a) of the Ethics Act, Respondent could simultaneously serve as Borough Mayor and as a member of a joint authority and could receive compensation as a member of the joint authority based upon the assumption that the joint authority was created by one or more municipalities pursuant to the Municipality Authorities Act. Smith, Advice 04 -581. Finally, with regard to Respondent's Statements of Financial Interests, the parties have stipulated that in each of his capacities as a Borough Councilman, Borough Mayor, and PAJA Member, Respondent has been subject to the requirement to annually file Statements of Financial Interests pursuant to Sections 1104 and 1105 of the Ethics Act. Respondent failed to timely file a Statement of Financial Interests for the 1999 calendar year. Respondent filed deficient Statements of Financial Interests for calendar years 1998 and 2000 -2003 as detailed in Finding 37. 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 the following proposed resolution of the allegations: "3. The Investigative Division will recommend the following in relation to the above allegations: a. Than [sic] an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Act occurred when Timothy Smith participated in the vote of council to reappoint him on January 17, 2001, to the Perrysville Area Joint Authority. b. That Timothy Smith violated Sections 1105(b)(4), (6), (7), (8), (9), (10) of the Public Official and Employees [sic] Ethics Act by failing to complete, on the Statement of Financial Interests filed for the 1998 calendar year, creditors; gifts; transportation, lodging and hospitality; office, directorship or employment in any business; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members; and That Timothy Smith violated Sections 1105(b)(4), (6), (7), (8), (9), (10) of the Public Official and Employee Ethics Act when he failed to complete sections of the Statement of Financial Interests filed for the 2000 calendar year relating to creditors; gifts; travel, lodging, hospitality; employment; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members; and That Timothy Smith violated Sections 1105(b)(4), (6), (7), (8), (9), (10) of the Public Official and Employee Ethics Act when he failed to complete sections of the Statement of Financial Interests filed for the 2001 Smith, 03 -062 Page 14 calendar year relating to creditors; gifts; travel, lodging, hospitality; employment; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members; and That Timothy Smith violated Sections 1105(b)(4), (6), (7), (8), (9), (10) of the Public Official and Employee Ethics Act when he failed to complete sections of the Statement of Financial Interests filed for the 2002 calendar year relating to creditors; gifts; travel, lodging, hospitality; employment; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members; and That Timothy Smith violated Sections 1105(b)(4), (6), (7), (8), (9), (10) of the Public Official and Employee Ethics Act when he failed to complete sections of the Statement of Financial Interests filed for the 2003 calendar year relating to creditors; gifts; travel, lodging, hospitality; employment; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members. c. That Timothy Smith violated Section 1104(a) of the Public Official and Employee Ethics Act when he failed to file a Statement for the 1999 calendar year by May 1, 2000." Consent Agreement at 2 -3. In addition, as part of the Consent Agreement, Respondent has agreed to make payment in the amount of $500.00 in settlement of this matter, with said amount to be payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty (30) days of the issuance of the final adjudication in this matter. In considering the Consent Agreement, it is clear that the elements for the recommended violation of Section 1103(a) have been established. On January 17, 2001, Respondent participated as a Borough Council Member in the vote of Borough Council to reappoint Respondent to the PAJA. During the period following his reappointment to the PAJA, Respondent received compensation totaling $1,797.00 as a PAJA Board Member. Respondent's vote to reappoint himself to a compensated public position constituted a use of the authority of Respondent's office as a Borough Council Member for the private pecuniary benefit of himself. See, Crile, Order 1182; Marcolini, Order 1188. Although intent is not a requisite element for a violation of the Ethics Act, Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987), it is one of the factors that this Commission may consider in determining the proper disposition of a case. Based upon the Stipulated Findings, it would appear that Respondent did not intend to violate the Ethics Act in taking the above actions. We conclude that the application of the law to the facts before us supports a determination that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Respondent participated in the vote of Borough Council to reappoint Respondent on January 17, 2001, to the PAJA. As for the allegation that Respondent violated the Ethics Act when as a Member of the PAJA, he participated in actions of the Board issuing payments to himself, it would appear from the Consent Agreement that the Investigative Division has exercised its Smith, 03 -062 Page 15 prosecutorial discretion to not further pursue that particular allegation. Therefore, we shall treat it as a non pros. We shall now consider the allegations and proposed violations relating to Respondent's Statements of Financial Interests. The parties have stipulated that Respondent failed to file a Statement of Financial Interests for the 1999 calendar year by May 1, 2000. There is no question that pursuant to Section 1104(a) of the Ethics Act, Respondent was required to file the 1999 calendar year Statement of Financial Interests by the May 1, 2000, deadline. We determine that Respondent violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 1999 calendar year by May 1, 2000. The parties have further stipulated that Respondent's Statements of Financial Interests for calendar years 1998 and 2000 -2003 were deficient because Respondent failed to complete certain sections of the forms, including those sections requiring disclosure as to creditors; sources of gifts; transportation /lodging /hospitality received in connection with public office or employment; office, directorship or employment in any business entity; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members. There is no question that Section 1105(b) of the Ethics Act requires disclosure of such information. We note that the violations proposed by the Consent Agreement as to Respondent's Statements of Financial Interests do not encompass non - disclosure of real estate interests. It would appear that the Investigative Division has exercised its prosecutorial discretion to not further pursue that particular portion of the allegations. Finally, we note differences between the allegations and proposed violations with respect to the 1999 calendar year form and references to Section 1105(b)(8) of the Ethics Act. However, we agree in principle with the Consent Agreement, and with the parties having agreed to be bound by it, we accept the Consent Agreement. We hold that Respondent violated Sections 1105(b)(4), (6), (7), (8), (9), and (10) of the Ethics Act when he failed to complete, on his Statements of Financial Interests filed for the 1998 and 2000 -2003 calendar years, sections of the forms relating to creditors; sources of gifts; transportation /lodging /hospitality received in connection with public office or employment; office, directorship or employment in any business entity; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members. 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, Respondent Smith is directed to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission by no later than the thirtieth (30 day after the mailing date of this Order. If he has not already done so, Respondent is directed to file with the Borough and the PAJA a Statement of Financial Interests for calendar year 1999 and amended Statements of Financial Interests for calendar years 1998 and 2000 -2003, providing full financial disclosure as required by the Ethics Act, and to forward copies verifying such filings to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. Compliance with the foregoing will result in the closing of this case by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: Smith, 03 -062 Page 16 1. As a Member of Council of Perryopolis Borough ( "Borough ") from January 2, 1996, through December 2001; Borough Mayor since January 7, 2002; and Member of the "Perryopolis Area Joint Authority" ( "PAJA ") since June 17, 1998, Respondent Timothy Smith ( "Smith ") has at all times relevant to this matter been a public official subject to the provisions of the Ethics Act. 2. Smith unintentionally violated Section 1103(a) of the Ethics Act when he participated in the vote of Borough Council to reappoint him on January 17, 2001, to the PAJA. 3. Smith violated Sections 1105(b)(4), (6), (7), (8), (9), and (10) of the Ethics Act when he failed to complete, on his Statements of Financial Interests filed for the 1998 and 2000 -2003 calendar years, sections of the forms relating to creditors; sources of gifts; transportation /lodging /hospitality received in connection with public office or employment; office, directorship or employment in any business entity; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members. 4. Smith violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 1999 calendar year by May 1, 2000. In Re: Timothy Smith ORDER NO. 1359 File Docket: 03 -062 Date Decided: 2/28/05 Date Mailed: 3/14/05 1 Timothy Smith ( "Smith "), a public official in his capacities as a Member of Council of Perryopolis Borough ( "Borough ") from January 2, 1996, through December 2001; Borough Mayor since January 7, 2002; and Member of the "Perryopolis Area Joint Authority" ( "PAJA ") since June 17, 1998, unintentionally violated Section 1103(a) of the Ethics Act when he participated in the vote of Borough Council to reappoint him on January 17, 2001, to the PAJA. 2. Smith violated Sections 1105(b)(4), (6), (7), (8), (9), and (10) of the Ethics Act when he failed to complete, on his Statements of Financial Interests filed for the 1998 and 2000 -2003 calendar years, sections of the forms relating to creditors; sources of gifts; transportation /lodging /hospitality received in connection with public office or employment; office, directorship or employment in any business entity; financial interest in any legal entity in business for profit; and business interests transferred to immediate family members. 3. Smith violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 1999 calendar year by May 1, 2000. 4. If he has not already done so, Smith is directed to file with the Borough and the PAJA a Statement of Financial Interests for calendar year 1999 and amended Statements of Financial Interests for calendar years 1998 and 2000 -2003, providing full financial disclosure as required by the Ethics Act, and to forward copies verifying such filings to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. 5. Per the Consent Agreement of the parties, Smith is directed to make payment in the amount of $500.00 to the Commonwealth of Pennsylvania through this Commission by no later than the thirtieth (30 day after the mailing date of this Order. 6. Compliance by Respondent with paragraphs 4 and 5 of this Order will result in the closing of this case by this Commission. a. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair