Appeal from the Order of the State Ethics Commission in the case of Frank Dodaro, Order No. 590-R, File No. 86-106-C, dated December 14, 1987.
Joseph M. Stanichak, for petitioner.
Vincent J. Dopko, General Counsel, for respondent.
President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Palladino, McGinley and Smith. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case. Dissenting Opinion by President Judge Crumlish, Jr. Judge McGinley joins in this dissent. Dissenting Opinion by Judge Barry. Judge McGinley joins in this dissent.
[ 124 Pa. Commw. Page 165]
Frank Dodaro (Petitioner) appeals an order of the State Ethics Commission (Commission) which concluded that Petitioner had used his public office to obtain a financial gain for a member of his immediate family, thereby violating Section 3(a) of the State Ethics Act (Act).*fn1
Petitioner, as a member of the Board of Directors of the Borough of Ambridge Water Authority, voted to hire his minor son for summer employment in the years 1982, 1983, and 1984.*fn2 By preliminary order dated July 28, 1987, the Commission found that Petitioner violated the Act by using his position to obtain employment for his minor dependent son. Subsequently, Petitioner requested reconsideration pursuant to 51 Pa. Code § 2.38(a) challenging the Commission's finding as erroneous because without intent there can be no violation of the Act. Furthermore, Petitioner argued that since the penalty provisions in Section 9 of the Act, 65 P.S. § 409, are criminal in nature, the Commission must meet the same burden as required in a criminal proceeding, i.e., proof beyond a reasonable doubt.
After hearing, a final order was issued on December 28, 1987 concluding that Petitioner was in violation of Section 3(a) of the Act and was thereby ordered to make
[ 124 Pa. Commw. Page 166]
restitution in the amount of $4,890.00, the total amount of compensation paid to Petitioner's minor son for the years 1982 through 1984.
Petitioner raises three issues for review. First, Petitioner argues that no penalty may be imposed against Petitioner without the necessary element of intent. Second, Petitioner argues that the order which required Petitioner to repay the monies would result in an unjust enrichment to the Borough since the Borough has received the benefit of work performed by Petitioner's son. Lastly, Petitioner argues that Section 3(a) of the Act is unconstitutional as a violation of due process because it imposes severe criminal penalties for unknowing, unwitting and unintentional violations with no reasonable standards to protect his rights. Petitioner's arguments will be addressed seriatim, keeping in mind that this Court's scope of review is limited to determining whether constitutional rights have been violated, an error of law has been committed, or whether necessary factual findings are not supported by substantial evidence. Koslow v. State Ethics Commission, 116 Pa. Commonwealth Ct. 19, 540 A.2d 1374 (1988).
The clear intent of the Legislature in enacting the Act is found in Section 1 of the Act, 65 P.S. § 401, which provides:
The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the ...