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Russell v. State Ethics Commission

December 17, 2009

SELMA RUSSELL, PETITIONER
v.
STATE ETHICS COMMISSION, RESPONDENT



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: October 13, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Selma Russell (Russell), a board member for the Municipal Water Authority of Washington Township (Authority) petitions for review from a final adjudication of the State Ethics Commission (Commission) which determined that Russell violated Section 1103(a) of the Public Official and Employee Ethics Act (Act), 65 Pa. C.S. § 1103(a) when she received compensation which was not provided for by law, by participating in actions of the Authority board to authorize the expenditure of Authority funds for compensation in excess of that approved by the Washington Township Supervisors (Supervisors). The Commission also determined that Russell violated Section 1103(a) of the Act, 65 Pa. C.S. § 1103(a), by accepting an increase in compensation prior to the beginning of a new term of office. The Commission ordered Russell to pay $5,025.00 in restitution. We affirm.

The stipulations and/or pleadings set forth in the Commission's findings are not contested by Russell and are as follows. The Supervisors created the Authority in 1952, pursuant to the Municipality Authorities Act.*fn1

Since 1999, the Authority has been a joint Authority responsible for both sewage and water. The Authority is governed by a seven member board.

From at least mid-1999 through February of 2000, both water and sewage issues were discussed at the same Authority board meeting. Russell began serving as a board member for the Authority on January 4, 2000. At various times she served as secretary and assistant secretary/treasurer.*fn2

From approximately March of 2000 and on going, the Authority board has conducted two separate meetings on published meeting nights, which have been referred to as the "water portion" and the "sewage portion" of the meeting. Such meetings have been consecutively held on the same date and at the same location. The second meeting would commence immediately after the first meeting would adjourn. From March of 2000 through March of 2001, board members who attended the meetings received only one check as payment for both meetings.

In April of 2001, Russell and other board members began receiving two checks per meeting night, with one check being for the water meeting and the additional check being for the sewage meeting. No official vote was taken by the board authorizing the issuance of an additional check, nor was any action taken by the Supervisors authorizing issuance of the second check. The board members accepted the additional check without seeking advice from the Supervisors, the appointing authority.

Payments for the board members' attendance at the Authority's water meetings were issued from the general fund account, while checks representative of the board members' attendance at the Authority's sewage meetings were issued from the Authority's sewage account. Russell participated in actions as an Authority board member in approving monthly bill lists on which payments received for attendance at the water portion of the Authority's meetings were discussed. Russell also participated in actions as an Authority board member in approving monthly bill lists on which payments received for attendance at the sewage portion of the meetings were discussed.

At the January 7, 2002 reorganization meeting of the Supervisors, the compensation set for the Authority board members was increased from $50 per meeting to $75.00 per meeting. The motion to increase the compensation identified the board members as officials for a single Authority. "Motion by John Yetsconish, second by Melvin Weiss to increase salaries of Board Members of Water & Sewage Authority to Seventy five ($75.00) dollars per meeting. Motion carried." (Appendix I- 24.) The motion did not include any language expressly authorizing payments for two separate meetings.

In July of 2003, the Authority board members amended the bylaws to reflect that they were holding a "sewage portion of meeting." The by-laws do not describe the sewage portion of the meeting as a second or additional meeting.

The published notices of the Authority board which provided public notice for its regular meetings for the years 2003 through 2007, did not mention a separate sewage meeting or list a separate time for a sewage meeting.

In May of 2007, the investigative division of the Commission informed Russell that a complaint had been filed against her and that a full investigation was being commenced. In July of 2007, the Authority members elected to stop receiving two pays for the single ...


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