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HomeMy WebLinkAbout1364 BillhimeIn Re: Eugene Billhime File Docket: 04 -032 X -ref: Order No. 1364 Date Decided: 6/6/05 Date Mailed: 6/17/05 Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella 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 Effective December 15, 1998, Act 9 of 1989 was repealed and replaced by Chapter 11 of Act 93 of 1998, 65 Pa.C.S. § 1101 et seq., which essentially repeats Act 9 of 1989 and provides for the completion of pending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. Billhime, 04 -032 Page 2 I. ALLEGATION: That Eugene Billhime, a public official /public employee, in his capacity as a supervisor of West Hemlock Township, Montour County, violated Section 1103(a) provisions of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §1103(a) when he used the authority of his office for the private pecuniary gain of a member of his immediate family by participating in discussions and votes during a special meeting of the board of supervisors which resulted in the appointment of his son, Darin Billhime, to the position of township supervisor, without formally disclosing, on the record, his relationship to Darin Billhime, as required by 65 Pa.C.S. §1103(j). II. FINDINGS: 1. Eugene Billhime has served as a West Hemlock Township, Montour County Supervisor since February 3, 1981. a. Eugene Billhime has served as the Townships Secretary /Treasurer since 1983. 2. Darin Billhime is the son of Eugene Billhime. a. Darin Billhime expressed an interest in serving as a Township Supervisor to his father, early in 2004. 3. West Hemlock Township Supervisor Richard Shultz resigned his position as Township Supervisor on April 12, 2004, effective April 13, 2004. a. Shultz's term in office was scheduled to end in December 2005. b. Eugene Billhime and William Robinson remained as West Hemlock Township Supervisors after Schultz's resignation. 4. West Hemlock Township did not have a vacancy board at the time of Supervisor Schultz's resignation. a. Eugene Billhime referenced the township code and contacted the Pennsylvania State Association of Township Supervisors (PSATS) seeking advice on how to fill the vacancy. b. Billhime learned that the townships Board of Supervisors had thirty (30) days to appoint someone to fill the vacant position. 5. On April 21, 2004 a legal advertisement was published in the Danville News announcing that a "Special meeting will be held April 22 at 6 P.M. Purpose to fill board vacancy of West Hemlock Township Supervisors. Eugene Billhime Secretary" 6. A special meeting of the West Hemlock Township Board of Supervisor was held on April 22, 2004 at the Township Municipal building, to accept the resignation of Richard Shultz from the board of Supervisors and appoint a new supervisor. 7 Minutes from the West Hemlock Township Board of Supervisors April 22, 2004 special meeting include the following action taken accepting the resignation of Richard Shultz and subsequent appointment of Darin Billhime to the position of Township Supervisor: a. The purpose of the meeting was to accept the resignation of Mr. Richard Billhime, 04 -032 Page 3 Shultz from the board of supervisors as well as from the NMRPC and the Emergency Management Services Coordinator. Mr. Billhime made motion to accept. Second by Mr. Robinson. The need to fill the vacancy was then discussed with supervisor Billhime stating Darin Billhime had approached him in January of 2004 asking about running for the position of township supervisor. Darin was informed the next municipal election would be in 2005 and he would be able to run at that time. Due to Darin Billhime having expressed an interest in running for township supervisor he was asked if he was still interested in the position when the vacancy occurred due to Mr. Shultz's resignation. Darin stated he was still interested. As a result of the interest shown Mr. Robinson made the motion to appoint Darin Billhime to the position of Supervisor on the board of West Hemlock Township. Mr. Billhime seconded the motion." b. No other individuals appeared at the special meeting or made their interests known to the Township. c. Darin Billhime was the only individual who appeared at the special meeting and stated an interest in the position. d. This motion passed 2 -0 with Billhime voting. 8. Township resident, Roger Wintersteen, contacted Eugene Billhime at Billhime's residence before the legal advertisement providing notice of the meeting was published and stated he would be interested in the vacant position. a. Wintersteen never contacted the township office regarding the vacancy and did not appear at the special meeting. b. Eugene Billhime told Wintersteen that the Board had Darin Billhime in mind for the position. 9. Not satisfied with the selection of Darin Billhime to fill the vacant supervisor's position, Wintersteen and several other township residents attended the supervisors May 10, 2004 meeting to complain and request the board reconsider their decision. a. A lengthy discussion occurred on the appointment during the May 10, 2004 meeting. b. Supervisor's Eugene Billhime and William Robinson were asked to consider appointing Roger Wintersteen based on a petition with approximately 100 signatures on it. c. Both Eugene Billhime and William Robinson declined to consider changing their appointment to Wintersteen. 10. West Hemlock Township Supervisors are compensated at a rate of $78.00 per meeting. a. Darin Billhime has an anticipated financial gain of $1,560.00 for twenty months service between May 2004 and December 2005. b. Darin Billhime's anticipated financial gain is based on twenty months service at $78.00 per monthly meeting. 11. West Hemlock Township Solicitor John L. McLaughlin, Esquire provided the Board Billhime, 04 -032 Page 4 of Supervisors with correspondence on August 27, 2004 relating to the appointment of Darin Billhime as Township Supervisor. a. Solicitor McLaughlin was contacted by several township residents dissatisfied with Darin Billhime's appointment. b. Solicitor McLaughlin "reviewed various documents of record concerning the appointment, including the resignation of Mr. Shultz dated April 13, 2004, the Affidavit of Publication of a Special meeting signed by the controller of the Daily Item dated April 21, 2004 and the terms of the Notice in the Affidavit. The Affidavit evidences publication in the Danville News of Notice of a Special Meeting to fill the board vacancy for Supervisor in West Hemlock Township on April 22, 2004 at 6:00 P.M. Publication of the Notice was made on April 21, 2004 in the Danville News and the appointment was made at the Special Meeting on April 22, 2004." c. Solicitor McLaughlin did not perceive (any) illegalities related to the appointment of Darin Billhime as Township Supervisor" based on a review of the Second Class Township Code. III. DISCUSSION: At all times relevant to this matter, the Respondent, Eugene Billhime, hereinafter Billhime, 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 allegation is that Billhime, as a West Hemlock Township Supervisor, violated Section 1103(a) of the Ethics Act when he participated in discussions and votes during a special meeting of the board of supervisors which resulted in the appointment of his son, Darin Billhime, to the position of township supervisor. 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. The term "conflict of interest" is defined under Act 9 of 1989/Act 93 of 1998 as follows: Section 2/1102. 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. "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. § 402/65 Pa.C.S. § 1102 Billhime, 04 -032 Page 5 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. 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. Billhime has served as a West Hemlock Township Supervisor since February of 1981 and as the township secretary /treasurer since 1983. When one of the township's supervisors resigned in April of 2004, Billhime contacted the Pennsylvania State Association of Township Supervisors (PSATS) and sought advice on how to fill the vacancy. Billhime learned from PSATS that the vacancy had to be filled within 30 days. Since the township does not have a vacancy board, a legal advertisement was published indicating that there would be a special meeting of the board to fill the vacancy. At that meeting, the board first accepted the resignation of the outgoing supervisor. The board then filled the vacancy position with Billhime's son, Darin, the only individual to appear at the special meeting who expressed an interest in the position. The motion to appoint Darin passed on a 2 -0 vote with Billhime seconding the motion made by the other supervisor and then voting for that motion. Prior to that special board meeting, a township resident, Roger Wintersteen, contacted Billhime and advised that he (Wintersteen) had an interest in the vacancy position. However, Wintersteen did not contact the township business office or appear at the special meeting of the board. Billhime advised Wintersteen that the board members had Darin in mind for the position. After Darin Billhime was appointed to the board, Wintersteen and several other township residents appeared at the May 2004 board meeting to complain about Darin's appointment. Although the board was asked to reconsider its decision, Billhime and the other supervisor declined to nullify the appointment of Darin Billhime. Subsequently, the township solicitor provided the board with a letter of August 27, 2004, wherein the solicitor stated that several township residents who were dissatisfied with Darin Billhime's appointment contacted him, that he reviewed the various documents of record and concluded that he did not perceive any illegalities related to the appointment of Darin Billhime as township supervisor as per his review of the Second Class Township Code. 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 technical violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred when Billhime participated in discussions and votes of the board of supervisors resulting in the appointment of his son to a position of township supervisor." In addition, Billhime agrees to abstain from voting on any issues that involve members of his immediate family or any matter wherein he or members of his immediate family have an interest, except when such votes are permitted and /or required by law. Billhime, 04 -032 Page 6 In applying the provisions of Section 1103(a) of the Ethics Act to the stipulated findings, there were uses of authority of office on the part of Billhime. Billhime participated in discussions, seconded the motion and voted to hire his son to the vacant position of township supervisor on the three member board. But for the fact that Billhime was a supervisor, he would not have been in a position to take such actions. Such actions were uses of authority of office. See, Juliante, Order 809. In that Darin is Billhime's son, Darin is a member of his immediate family as that term is defined under the Ethics Act. See, 65 Pa.C.S. §1102. Such uses of authority of office on the part of Billhime resulted in a private pecuniary benefit to his son, Darin, consisting of the compensation that he receives as a township supervisor. Accordingly, Billhime technically violated Section 1103(a) of the Ethics Act when he participated in discussions and votes of the board of supervisors resulting in the appointment of his son to the compensated position of township supervisor. See, Schirq, Order 1146. Parenthetically, although Section 1103(j) of the Ethics Act allows for voting in conflict situations in certain circumstances, certain condition precedents must be satisfied. That did not happen in this case. Hence, Billhime's actions resulted in the above violation. Billhime is reminded that in any future conflict actions involving himself, an immediate family member or a business with which he or a member of his immediate family is associated, he must abstain from participation and observe the disclosure requirements of Section 1103(j) of the Ethics Act. 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 will take no further action in this case, which is closed. IV. CONCLUSIONS OF LAW: 1. Billhime, as a West Hemlock Township Supervisor, is a public official subject to the provisions of Act 9 of 1989 as codified by Act 93 of 1998. 2. Billhime technically violated Section 1103(a) of the Ethics Act when he participated in discussions and votes of the board of supervisors resulting in the appointment of his son to the compensated position of township supervisor. In Re: Eugene Billhime ORDER NO. 1364 File Docket: 04 -032 Date Decided: 6/6/05 Date Mailed: 6/17/05 1 Billhime, as a West Hemlock Township Supervisor, technically violated Section 1103(a) of the Ethics Act when he participated in discussions and votes of the board of supervisors resulting in the appointment of his son to the compensated position of township supervisor. BY THE COMMISSION, Louis W. Fryman, Chair