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HomeMy WebLinkAbout1458 FosterIn Re: John Foster, Respondent 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 Nicholas A. Colafella 06 -054 Order No. 1458 1/28/08 2/15/08 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 ( "Ethics Act "), 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 allegations. 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 requested. A Stipulation of Findings and a Consent Agreement waiving an evidentiary hearing were subsequently submitted by the parties to the Commission for consideration. The Stipulation of Findings is quoted as the Findings in this Order. The Consent Agreement has been approved. This adjudication of the State Ethics Commission is issued under the Ethics Act 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 the Ethics Act. Any person who violates such confidentiality commits a misdemeanor and, upon conviction, may be 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. Foster, 06 -054 Page 2 I. ALLEGATIONS: That John Foster, a public official /public employee in his capacity as Director for the Bureau of Career and Technical Education of the Pennsylvania Department of Education, violated Sections 1103(a), 1103(g) and 1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a), 1103(g), and 1104(a), when he used the authority of his position for a private pecuniary gain by attending meetings of advisory boards while on Commonwealth time and incurring expenses that were paid by the Commonwealth which were related to personal matters; when he represented the National Occupational Competency Testing Institute (NOCTI), as President /CEO, before his former governmental body within one year of leaving state service; when he failed to use annual or personal leave while traveling on personal matters; and when he failed to file a Statement of Financial Interests for the 2005 calendar year. II. FINDINGS: 1. John C. Foster was employed by the Pennsylvania Department of Education (PDE) as the Director of the Bureau of Career and Technical Education from April 17, 2000, to July 30, 2004. a. Prior to his employment with PDE, Foster served as the Administrative Director for the Carlisle Area School District. 2. The Bureau of Career and Technical Education is a unit within the Pennsylvania Department of Education responsible for the administration of Career and Technical Education (CTE) Programs throughout the Commonwealth. a. The bureau oversees the 81 area career and technical education schools, in addition to programs offered at approximately one -half of the high schools throughout the Commonwealth. Program numbers vary annually. b. The bureau is responsible for administering the approval process for CTE Programs. c. During the time of Dr. Foster's employment, the Bureau of Career and Technical Education consisted of five divisions: 1. Contract Administration. 2. Systems Delivery. 3. Field Support. 4. Product Quality. 5. Industry Partnership. 3. As Director for the Bureau of Career and Technical Education, Foster was responsible for supervision of five divisions in the bureau. a. Each division had a chief that reported to Foster. b. Foster was responsible for recommending program policy, goals, and priorities statewide and recommending approval to state review boards, as well as providing statewide leadership in the area of career and technical education. Foster, 06 -054 Page 3 c. Foster also assisted in the development of budgets for the bureau. 4. The Bureau Director's job duties as outlined in the official job description include: a. Plans, develops, and directs the statewide program for career and technical education, career development, and workforce innovation and related fields of service. b. Develops, recommends, and implements career and technical education program policies, goals, and objectives. Monitors programs at all levels of academic and industry skill standards. c. Manages the Bureau's strategic plan. d. Responsible for the submissions of all administrative budgets, vocations subsidy budgets, and various state restricted receipt of accounts for the bureau. e. Monitors and evaluates the expenditure of state and federal funds for reimbursement in accordance with applicable laws. f. Develops short and long range plans related to career and technical education programs. Develops and evaluates legislative changes and proposals relative to career and technical education, career development, and workforce innovation programs. g. 5. As part of his job duties, Foster represented the Bureau of Career and Technical Education in interactions with other Commonwealth agencies and school representatives. a. Foster routinely traveled in -state and out of the state, when approved, to participate in conferences, meetings and other interactions pertaining to technical and vocational education. 6. While traveling on Commonwealth business, Foster was entitled to travel reimbursement as outlined in Commonwealth Management Directive 230.10, Travel and Subsistence Allowances. a. Under the Directive, Foster was entitled to reimbursement consistent with Commonwealth guidelines for the following expenses that he incurred as a result of his Commonwealth business: 1. Mileage. 2. Subsistence. 3. Lodging. 4. Transportation. 5. Approved miscellaneous expenses. 7 Foster submitted travel expense vouchers (TEVs) to the department documenting incurred expenses, through his administrative assistant. a. Foster's TEVs were completed by his administrative assistant and then Foster, 06 -054 Page 4 signed by Foster, in accord with department practice and policy. b. Foster's administrative assistant routinely submitted TEVs for reimbursement of expenses while traveling on Commonwealth business. 8. When traveling out -of -state on Commonwealth business, Foster was also required to submit an out -of -state travel request form. a. Out -of -state travel request forms were to be submitted for approval prior to the business trip. b. The out -of -state travel request form includes the following information relating to the business travel: 1. Destination. 2. Dates of travel. 3. Purpose. 4. Method of transportation. 5. Estimated costs. 9. Foster's TEVs and out -of -state travel request forms were approved by his immediate supervisor, Deputy Secretary Dr. Thomas Carey, Dr. Gerald Zahorchak, Ron Tomalis and /or Dr. Thomas Waters. a. Director of School Services, James Bucheit, on occasion approved Foster's travel forms on behalf of Dr. Carey. 10. In approximately 1999, Foster became involved in the organization of the first Cisco Networking Academy in Pennsylvania, while employed at the Carlisle Area School District (CASD). 11. Cisco Networking Academies are technical educational programs located throughout the world that enable vocational students access to online curriculum and resources, with the added potential of gaining certifications in Cisco Computer Networking. a. In 1997, Cisco Systems developed the Cisco Networking Academy, a 4 semester course designed to train students to build and maintain computer networks. b. The networking academies are hosted by educational institutions that apply to be an academy. 1. This includes school districts, community colleges, private schools, universities, and technical centers. c. The program is currently offered nationwide; however it was initially only offered in four states. d. The networking academy is operated and funded through the charitable arm of Cisco Systems, Inc. 12. Sometime in 2000, Foster was invited by a Cisco regional marketing representative Foster, 06 -054 Page 5 to become a member of the Cisco Networking Academy Advisory Board. a. Foster was invited because of his familiarity with [the] Cisco Academy started in the Carlisle School District. b. The Networking Academy Advisory Board is made up of 14 selected members from around the country who are responsible for developing the curriculum for the networking academies. c. Board members are nominated by Cisco personnel to represent various educational entities across the United States. d. Board members are selected to serve two to four year terms. e. Board members did not receive any compensation for their participation. 1. Expenses related to board members' travel are paid by Cisco Systems. 2. Cisco did not pay for Dr. Foster's expenses for attendance at Networking Academy Advisory Board meetings, as his expenses were paid for by the Commonwealth Department of Education upon the recommendation of Department legal counsel provided in an opinion dated January 3, 2001, by Mark Zaccarelli, Esquire, PDE's Office of Chief Counsel. 13. Board members of the Cisco Networking Academy Advisory Board are strongly encouraged to attend annual board meetings held at Cisco's headquarters in San Jose, California. a. Advisory board meetings are held for several days during the first quarter of each year. b. During the meetings, the advisory board reviews and discusses the prior year's curriculum as well as formulates the curriculum and the course syllabus for each of the programs to be offered during the following school year. 14. Foster attended the advisory board meeting on an annual basis from 2001 through 2004. a. The advisory committee's first year was 2001; therefore Foster did not attend any advisory board meetings prior to his employment with PDE. 15. Prior to Foster attending the 2001 Cisco Networking Academy Advisory Board meeting, Don Lindsay, PDE, Deputy Secretary of Administration, sought an opinion from PDE's Office of Chief Counsel regarding a possible conflict of interest if Foster participated in Cisco's Networking Academy Advisory Board. a. The opinion was requested following questions from Deputy Secretary Thomas Carey. 1. Foster had requested permission from Carey to attend the board functions as a Commonwealth representative. b. Questions arose because of the relationship between the Department of Education and Cisco. Foster, 06 -054 Page 6 1 A partnership with Cisco allows the Department of Education to make known to schools the availability of programs such as the Cisco Academies. 2. At the relevant time, Pennsylvania schools had the highest numbers of networking academies in the United States, and representation on the board enabled schools in Pennsylvania to gain early access to educational resources. 16. On January 3, 2001, Mark Zaccarelli of PDE's Office of Chief Counsel issued a memorandum to Lindsay regarding Foster's participation: a. Zaccarelli reviewed the Governor's Code of Conduct, State Adverse Interest Act and State Ethics Act and spoke with Foster prior to rendering an opinion. b. Zaccarelli concluded that there did not appear to be a conflict of interest with Foster participating as a member of Cisco's Networking Academy Council. c. Zaccarelli opined that the department may wish to pay for Foster's attendance at the annual meeting in order to avoid potential conflict with Section 7.154 of the Governor's Code of Conduct. 1. Section 7.154 prohibits the delivering of gifts and favors to employees of the executive branch. d. Zaccarelli concluded that Foster's presence on the board did not create a conflict as defined in the State Adverse Interest Act. e. Zaccarelli determined that Foster's service on the board would not be prohibited by Section[s] 1103(a) and 1103(c) of the State Ethics Act. f. Zaccarelli recommended that since Foster's reimbursement of expenses for participating in the Cisco conferences could be considered as a conflict, the department should pay for his attendance at the annual meetings. This would avoid any potential conflicts with the Governor's Code of Conduct. Foster should abstain on any decisions as part of the council that directly pertain to Cisco Academies and its partnership with the Commonwealth and the Department of Education. 17. Based on Zaccarelli's memo Foster was authorized by Carey to attend the Cisco Academy meetings but expenses would be paid by the Commonwealth. 18. From 2001 to 2004, Foster attended the Cisco Networking Advisory Council Board meetings. a. The meetings were held at Cisco's headquarters in San Jose, California. 19. Cisco Networking Advisory Council Board meetings were held as follows: a. 2001: February 19, 2001 to February 22, 2001. b. 2002: February 18, 2002 to February 21, 2002. c. 2003: March 3, 2003 to March 6, 2003. d. 2004; March 8, 2004 to March 11, 2004. Foster, 06 -054 Page 7 20. A typical annual Advisory Board meetings itinerary consisted of the following: 1. Day 1, Monday- Participants arrive Member briefing -2:00 to 3:00 p.m. Informal reception -6:00 to 8:00 p.m 2. Day 2, Tuesday- Meetings -8:30 a.m. to 5:00 p.m. 3. Day 3, Wednesday- Meetings -8:30 a.m. to 5:00 p.m. 4. Day 4, Thursday- Meetings -8:30 a.m. to 12:00 p.m. 21. The following [sic] expenses were paid by Cisco for board members attending the annual advisory board meetings. a. Pursuant to the advice and recommendation of Department's legal counsel, the Pennsylvania Department of Education paid for Foster's expenses for attendance at the Networking Academy [meeting]. 22. On January 17, 2001, Foster's administrative assistant submitted a request for approval for out -of -state travel to attend [the] Cisco Networking Advisory Board [meeting] in San Jose, California. a. The request was for travel to San Jose, California from February 17, 2001 to February 23, 2001. b. The request noted that PDE would need to reimburse Cisco for his airfare and hotel accommodations. c. The estimated trip costs of $1,570.00 [are] as follows: Transportation $600.00 Lodging $700.00 Meals $220.00 Misc. Parking $50.00 d. The request was approved by James Bucheit and Ron Tomalis, Executive Secretary, PDE. 23. From February 19, 2001, to February 23, 2001, Foster attended the Cisco Networking Advisory Council meeting in San Jose, California. a. Council meetings were scheduled as follows: 1. Monday, February 19, 2001 - Participant check -in. 2. Tuesday, February 20, 2001 - Meetings. 3. Wednesday, February 21, 2001 - Meetings. 4. Thursday, February 22, 2001 - Meetings. b. The meetings concluded on February 22, 2001, at approximately 5:00 p.m. Date Lodging Meals Miscellaneous Total 2/19/01 $174.11 $44.00 - $218.11 2/20/01 $174.11 $25.52 $2.39 /phone $202.02 2/21/01 $174.11 $25.52 $3.85 /phone $203.48 2/22/01 $174.11 $34.76 $0.25 $209.12 Total $696.44 $129.80 $6.49 $832.73 Date Lodging Meals Total 2/23/01 $87.89 $34.76 $122.65 2/24/01 - $34.76 $34.76 2/25/01 - $9.24 $9.24 Total [$87.89] [78.76] $166.65 Foster, 06 -054 Page 8 24. Foster stayed at the Biltmore Hotel and Suite in Santa Clara, California, which is the same location where Cisco had made arrangements for all Board members attending the Networking Academy [meeting] to stay. a. Foster checked in on February 19, 2001 at 9:36 p.m. and checked out on February 23, 2001 at 9:18 a.m. b. Foster's expenses at Biltmore included the following: Room: $159.00 /night x 4 nights Tax: $15.11 /night x 4 nights Local phone calls: $6.49 Total $702.93 25. Foster incurred the following expenditures, excluding airfare, to attend the 2001 Cisco Networking Advisory Council meeting. a. The miscellaneous telephone charges totaling $6.49 were for accessing the internet to review activities within the Bureau during Foster's absence. 26. Following the conclusion of the Advisory Council meeting on February 22, 2001, Foster traveled to Mill Valley, California. a. Foster obtained lodging at a Travelodge in Mill Valley, California for the nights of February 23, 2001, and February 24, 2001. b. Foster departed California on the evening of February 25, 2001, and arrived in Harrisburg on February 26, 2001 at 2:00 a.m. c. Foster traveled to Mill Valley in order to secure savings to the Commonwealth for a supersaver airline ticket. 27. Foster incurred expenses for February 23, 2001, February 24, 2001, and February 25, 2001, the period following the conclusion of the meeting, including lodging and meals. 28. On March 1, 2001, Foster submitted a travel expense voucher for reimbursement of the expenses he incurred while attending the Cisco Advisory Board meeting. Foster, 06 -054 Page 9 a. Foster's TEV included expenses incurred from February 19, 2001 to February 25, 2001. b. Foster claimed the following expenses. 1. Hotel $789.38 Subsistence $173.80 Mileage $ 20.70 $983.88 2. Included in the total claimed expenses, were $166.65 of expenses that resulted in [sic] from Foster's additional days in California following the conclusion of the meeting. c. Foster's TEV noted that his airfare totaling $424.68 was paid by Cisco and needed to be reimbursed by PDE. 1. "Airline expense was paid by Cisco and needs to be reimbursed to them. Original receipt submitted to Cisco. Make check payable to Cisco Systems Networking Academy." d. Foster submitted copies of hotel receipts from the Biltmore Hotel and Suite in Santa Clara, California and from the Travelodge in Mill Valley, California. e. Foster's TEV was approved on March 16, 2001 by Thomas Carey. 29. Foster confirmed to his administrative assistant that the weekend time spent while in California for the Cisco conferences was used to sightsee. a. Foster maintains that any extra - curricular activities were undertaken during the time frame that the Cisco conferences were not in session; and that Foster remained in California to take advantage of the supersaver travel rates. 30. An ACH payment was made to Foster's bank account on March 23, 2001, in the amount of $938.88. 31. On March 30, 2001, the Commonwealth of Pennsylvania issued check number 00058482, in the amount of $424.68 to Cisco Systems Networking Academy. a. The check was issued to Cisco Systems as reimbursement for Foster's airfare. 32. Foster received $166.65 when he claimed and received expense reimbursement related to travel after the conclusion of the conference. 33. Foster attended the 2002 Cisco Networking Advisory Council meeting in San Jose, California. a. Foster's attendance was approved by Dr. Carey. 34. Foster's administrative assistant submitted a Request for Approval of Out -of -State Travel (STD -274) on November 20, 2001, seeking approval to attend Cisco's Networking Academy Advisory (CNAA) meeting in San Jose, California from February 16, 2002 to February 20, 2002. Dates of travel Supersaver 2/16/02 to 2/20/02 Conventional 2/18/02 to 2/20/02 Airfare $425.00 $1,100.00 Subsistence 5 @ $44.00 /day 3 $44.00 /day $220.00 $132.00 Lodging 4 @ $180.00 /night 2 (a7 $180.00 /night $720.00 $360.00 Miscellaneous $45.00 $35.00 Total each plan $1,410.00 $1,637.00 Savings to Commonwealth $227.00 Foster, 06 -054 Page 10 a. The method of transportation indicated was supersaver airline ticket. b. Estimated costs were determined as follows: Transportation $425.00 Lodging $720.00 Meals $220.00 Miscellaneous $25.00 Other $20.00 Total $1,410.00 c. The request was approved by James Bucheit on November 28, 2001. 35. Foster's administrative assistant also submitted form STD -201 Request for Approval to purchase supersaver ticket on November 20, 2001 to travel to San Jose, California. a. The form lists actual conference dates of February 19, 2002 to February 20, 2002, but notes travel began on February 16, 2002. b. The form compares estimated expenses for travel via supersaver and conventional: c. The supersaver request was approved by James Bucheit. 36. Foster departed Harrisburg on February 16, 2002, at 2:00 p.m. via flight #1463 to San Jose, California. a. Foster departed on Saturday, February 16, 2002, to take advantage of the supersaver airfare. b. Foster traveled to Monterey, California where he stayed at the Cypress Tree Inn for the nights of February 16, 2002, and February 17, 2002. 37. In utilizing the supersaver airfare, Foster arrived in San Jose, California on February 16, 2002, two days prior to the actual start of the board meeting. 38. Foster incurred expenses at the Cypress Tree Inn for February 16, 2002, and February 17, 2002, totaling $209.00. ($104.50 @ 2 nights). Foster, 06 -054 Page 11 a. Foster also claimed subsistence expenses of $40.00. 39. From February 18, 2002, to February 21, 2002, Foster attended the Cisco Networking Advisory Council meeting in San Jose, California. a. Council meetings were scheduled as follows: 1. Monday, February 18, 2002 - Participant check -in. 2. Tuesday, February 19, 2002 - Meetings - 8:30 a.m. - 5:00 p.m. 3. Wednesday, February 20, 2002 - Meetings - 8:30 a.m. - 5:00 p.m. 4. Thursday, February 21, 2002 - Meetings - 8:30 a.m. - 12:00 p.m. 40. Foster stayed at the Sheraton Hotel in San Jose, California, checking in on February 18, 2002, at 2:21 p.m. PST. a. Foster checked out on February 20, 2002. b. Foster departed San Jose, California on February 20, 2002, and arrived in Harrisburg on February 21, 2002, at approximately 8:20 a.m. 41. On March 1, 2002, Foster submitted a travel expense voucher for reimbursement of the expenses he incurred while attending the Cisco Networking Advisory Council meeting in San Jose, California. a. Foster's TEV included expenses incurred from February 17, 2002, to February 22, 2002. b. Foster claimed the following expenses: 1. Hotel $506.00 Airfare $454.50 Meals $157.00 Miscellaneous $20.99 Mileage $30.66 $1,169.15 2. Included in the total claimed expenses, were $249.00 of expenses that resulted from Foster's additional days in Monterey, California prior to the meeting. (See finding 36(a), (b)) c. Foster's TEV was approved on March 1, 2002, by Thomas Carey. 42. An ACH payment was made to Foster's bank account on March 14, 2002, in the amount of $1,169.15. 43. On January 2, 2003, Foster's administrative assistant submitted a request for approval of out -of -state travel to attend the Cisco Networking Advisory Council meeting in San Jose, California. a. Foster's request was for travel to San Jose, California from March 1, 2003, to March 6, 2003. b. Foster's trip was estimated as follows: Dates of travel Supersaver 3/1/03 to 3/6/03 Conventional 3/1/03 to 3/6/03 Airfare $225.00 $2,461.00 Subsistence 6 @ $44.00 /day 5 $44.00 /day $264.00 $220.00 Lodging 5 $80.00 /night 4 A $80.00 /night $400.00 $320.00 Miscellaneous $50.00 $50.00 Total each plan $939.00 $3,051.00 Savings to Commonwealth $2,112.00 Foster, 06 -054 Page 12 Transportation $223.00 Lodging $200.00 Meals $180.00 Miscellaneous $50.00 Total $653.00 c. Method of transportation listed as by plane supersaver. d. Foster's request is noted as being approved by the Deputy Secretary. 44. Foster's administrative assistant submitted a Request for Approval to purchase supersaver ticket on January 24, 2003, which outlined the following expenses: 45. On January 29, 2003, Foster made airfare arrangements in SAP for his travel to San Jose, California. a. Foster's airfare was reserved as follows: 1. Carrier Flight number Description United Airlines 1299 From Harrisburg to Chicago 3/1/03 at 5:45 p.m. 0397 From Chicago to San Jose 3/1/03 at 8:00 p.m. United Airlines 0556 From San Jose to Chicago 3/6/03 at 11:00 p.m. 7630 From Chicago to Harrisburg 3/7/03 at 8:05 a.m. b. Foster's airfare totaled $385.00 46. From March 1, 2003, to March 7, 2003, Foster traveled to San Jose, California to attend the Cisco Networking Advisory Council meeting. a. Foster arrived in San Jose, California at 10:38 p.m. on March 1, 2003, two days prior to the actual start of the Advisory Council meeting. 1. No activity was scheduled for the council meeting until Monday, March 3, 2003, at 6:00 p.m. b. Foster spent March 1, 2003, and March 2, 2003, in Monterey, California. 1. Foster departed on Saturday, March 1, 2003, to take advantage of the Date Lodging Meals Miscellaneous Total 3/3/03 $148.50 $40.00 - $192.50 3/4/03 $148.50 $9.24 $3.00 $160.74 3/5/03 $148.50 $34.76 $3.60 $186.86 3/6/03 - $34.76 $1.50 $36.26 3/7/03 - $56.00 - $56.00 Total $445.50 $178.76 $8.10 $632.36 Foster, 06 -054 Page 13 supersaver airfare. 47. Foster incurred expenses on March 2, 2003, the day prior to the start of the meeting, including lodging and meals. a. Date Lodging Meals Total 3/2/03 $68.93 $40.00 $108.93 b. Foster had lodging at the Best Western Beach Resort in Monterey, California on the nights of March 1 and March 2, 2003. 48. From March 3, 2003, to March 6, 2003, Foster attended the Cisco Networking Advisory Council meeting in San Jose, California. a. Council meetings were scheduled as follows: 1. Monday, March 3, 2003 - Participant check -in. 2. Tuesday, March 4, 2003 - Meetings - 8:30 a.m. - 5:00 p.m. 3. Wednesday, March 5, 2003 - Meetings - 8:30 a.m. - 5:00 p.m. 4. Thursday, March 6, 2003 - Meetings - 8:30 a.m. - 12:00 p.m. b. Foster stayed at the Sheraton Hotel in San Jose, California. 1. Cisco arranged reservations for Foster's room for March 3, 2003, to March 6, 2003. 49. Foster incurred the following expenditures while staying at the Sheraton attending the 2003 Cisco Networking Advisory Council meeting. 50. On March 11, 2003, Foster's administrative assistant submitted a travel expense voucher for reimbursement of expenses he incurred from March 1, 2003, to March 7, 2003, while attending the Cisco Networking Advisory Board meeting. a. Foster claimed the following expenses: 1. Hotel $522.53 Subsistence $195.76 Misc. expenses- airport parking $30.00 Mileage $16.20 Total $764.49 2. Included in the total claimed expenses was $108.93 of expenses that resulted from Foster's additional days in California prior to the Foster, 06 -054 Page 14 beginning of the council meeting. (See finding 46) b. Foster's TEV was approved on March 14, 2003. 51. An ACH payment was made to Foster's bank account on April 7, 2003 in the amount of $764.45. 52. On [sic] or around February 2004, Foster's administrative assistant made airfare arrangements through the Commonwealth Travel Center for his travel to San Jose, California. a. Foster's airfare reservations for the trip were as follows: 1. Carrier Flight number Description United Airlines 599 From Harrisburg to Chicago 3/5/04 at 8:00 a.m. 385 From Chicago to San Jose 3/5/04 at 10:00 a.m. American Airlines 288 From San Jose to Las Vegas 3/11/04 at 8:30 p.m. United Airlines 3073 From Las Vegas to Pittsburgh 3/11/04 at 11:30 p.m. 7630 From Pittsburgh to Harrisburg 3/12/04 at 7:55 a.m. 53. No records were ascertainable regarding Foster's request for approval of out -of- state travel. a. During this time period, the Commonwealth did undergo a changeover regarding approval of travel from a paper -based system to an electronic — based approval system. b. No records were ascertainable regarding Foster's submitted supersaver request forms. c. No records were ascertainable regarding Foster's receipt of approvals to travel prior to the start of the meeting. d. Though no records were ascertainable, Foster maintains that the same pattern and request process as the previous three years was followed regarding these approvals. 54. Foster arrived in San Jose, California at 12:34 p.m. on Friday, March 5, 2004, three days prior to the actual start of the Advisory Council meeting. a. Formal activity was scheduled for the council beginning at 2:00 p.m. on Monday, March 8, 2004. b. Informal activity with regional representatives began Sunday evening, March 7, 2004. c. Foster spent March 5 to March 6 2004 in Verdi, Nevada. 1. Personal expenses incurred on March 5, 2004, and March 6, 2004, were not charged to the Commonwealth. Date Lodging Meals Miscellaneous Total 3/8/04 $152.90 $18.48 $8.10/e -mails $179.48 3/9/04 $152.90 $9.24 $8.50/e -mails $170.64 3/10/04 $152.90 $34.76 $1.50 /e -mails $189.16 3/11/04 - $34.76 $1.50 /e -mails $36.26 3/12/04 - $22.00 - $22.00 Total $458.70 $119.24 $19.60 $597.54 Foster, 06 -054 Page 15 d. Foster did not utilize any form of leave for Friday, March 5, 2004. 55. Foster incurred expenses on Sunday, March 7, 2004, the day of the start of informal meetings, including lodging, meals and phone charges. a. Date Lodging Meals Phone Total 3/7/04 $152.90 $44.00 $4.60 $201.50 b. Foster stayed at the Sheraton Hotel in San Jose, California on the night of March 7, 2004. 56. From March 8, 2004, to March 11, 2004, Foster attended the Cisco Networking Advisory Council meeting in San Jose, California. a. The Advisory Council meeting was scheduled as follows: Monday, March 8 Participants arrive 2:00 to 3:30 p.m. -New council briefing 6:00 to 8:00 p.m.- Informal reception Tuesday, March 9 - Meeting -8:30 a.m. to 5:00 p.m. Dinner Wednesday, March 10 - Meeting -8:30 a.m. to 5:00 p.m. Thursday, March 11 Meeting -8:30 a.m. to 12:00 p.m. 57. Foster departed San Jose, California on March 11, 2004 at 8:30 p.m. PST. a. b. Foster had layovers in Las Vegas and Pittsburgh and was scheduled to arrive in Harrisburg on March 12, 2004, at 8:55 a.m. EST. During the return flight, the plane on which Foster was traveling suffered from a "mechanical breakdown" resulting in a delay in Foster's return, as is evidenced by the parking receipt for March 12, 2004, from the Harrisburg International Airport, indicating Foster's exit at 5:04 p.m. 58. Foster incurred the following expenditures, excluding airfare, to attend the Cisco Networking Advisory Council meeting. 59. On April 2, 2004, Foster submitted a travel expense voucher through SAP for his travel to San Jose, California to attend the Cisco Networking Advisory Board meeting. a. Foster claimed the following expenses: 1. Hotel Subsistence $611.60 $163.24 Foster, 06 -054 Page 16 Misc. expenses - parking charges $43.00 Misc. expenses- business calls $24.20 Mileage $16.20 Total $849.54 b. Foster's airfare was paid by the Commonwealth through SAP in the amount of $614.50. c. Foster's TEV notes that he began claiming overnight subsistence at 4:00 a.m. on March 7, 2004. d. Foster's TEV notes that the council meeting began at 3:00 p.m. on March 7, 2004. 1. Cisco Systems, Inc. records confirm the meeting beginning on March 8, 2004, at 6:00 p.m. 60. An ACH payment was made to Foster's bank account on April 13, 2004, in the amount of $849.54. 61. Foster did not work at his PDE job on Friday, March 5, 2004, the day he traveled to San Jose, California. a. Airfare records confirm that Foster's flight to San Jose, California was at 8:00 a.m. on March 5, 2004. b. No records were ascertainable regarding Foster's request of leave on March 5, 2004. c. Foster was compensated at an hourly rate of $46.10 in March of 2004. 62. Foster maintains that travel on March 5, 2004, was to take advantage of supersaver airfare rates. 63. Foster received $345.75 in pay on March 5, 2004. a. Hourly rate $ 46.10 Hours x 7.50 Total $345.75 64. No record is ascertainable regarding Foster's work status and /or use of leave regarding March 12, 2004. 65. Foster's service on the Cisco Academy Advisory Board ceased following Foster's leaving PDE employment. 66. Foster incurred a financial benefit through compensation received for expense reimbursement related to lodging and meal expenses incurred while traveling to and returning from Cisco Advisory Board meetings. a. 2001 expenses: $166.65 1. Foster concedes that these expenses were paid, but maintains that these expenses relate to authorized lodging required in order for the Commonwealth to benefit from the supersaver airfare Foster, 06 -054 Page 17 b. Wages March 5, 2004: $345.75 1. Foster concedes that he was compensated for March 5, 2004, but maintains that such compensation was authorized and payable in that Foster was required to travel on that specific day in order to take advantage of a supersaver airfare. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS CONCERNING FOSTER'S REPRESENTATION OF THE NATIONAL OCCUPATIONAL COMPETENCY TESTING INSTITUTE (NOCTI) BEFORE HIS FORMER GOVERNMENTAL BODY WITHIN ONE YEAR OF LIVING STATE SERVICE 67. On July 28, 2004, Foster submitted his resignation from his position as Bureau Director, to Deputy Secretary Gerald Zahorchak. a. Foster's resignation was effective the close of business on July 30, 2004. b. Foster's resignation was as a result of a request made to him by Deputy Secretary Zahorchak on July 16, 2004. 68. On January 24, 2005, Foster was appointed the President and CEO of The National Occupational Competency Testing Institute (NOCTI). 69. NOCTI is a not - for - profit corporation that provides occupational competency assessment products and services to secondary and post- secondary educational institutions. a. NOCTI provides approximately 80 standardized technical assessments in various occupational fields. b. NOCTI's headquarters are located in Big Rapids, Michigan. 1. NOCTI also maintains operational locations throughout the country. 70. The PDE is a client of NOCTI, though financial transactions are handled through Penn State University. 71. As President and CEO, Foster recommends actions and policies to his Board. a. Foster maintains his residence in Carlisle, Pennsylvania. 1. Foster is required to travel frequently to Michigan and other locations throughout the country. 2. In addition, Foster telecommunicates from various locations. b. Foster receives input from an 11 member board elected from a consortium representing 54 states and territories. 1. Board members are selected from various disciplines within the field of career and technical education. c. A 54 member consortium of states and territories assists in the development of curriculum and national assessment standards. Foster, 06 -054 Page 18 1. Consortium members are selected representatives from for [sic] each of the 54 states and territories. 2. Representatives consist of state directors and others in the field of technical education. d. Foster's job duties include interacting with entities NOCTI contracts with, including the Pennsylvania Department of Education. 1. Foster's interactions include meeting with officials, answering questions and resolving conflicts. 2. Foster serves as the "face" of NOCTI. e. Foster travels to meet with education officials regarding assessment and professional development services provided by NOCTI. 72. Foster is compensated as NOCTI President for duties and responsibilities related to his interactions with NOCTI clients. 73. In November of 1996, the Pennsylvania State Board of Education approved an occupational competency measure requiring the use of a student occupational competency assessment for all secondary and adult career and technical education program completers. a. The measure was approved in order to ensure that students in the career and technical education programs were meeting national standards and were job ready. b. This measure was followed by the Carl D. Perkins Vocational and Technical Education Amendments of 1998 which required that each state develop a system of core performance measures and standards for the purpose of evaluating its secondary, adult and postsecondary career and technical education programs. 74. Following the passing of these measures, PDE entered into agreements with various entities that created occupational competency assessments. a. Occupational competency assessments used by PDE include, but are not limited to: 1. NOCTI 2. National Institute for Metal Working Skills (NIMS) 3. Air conditioning and refrigeration institute industry competency exam (ICE) 4. American Hotel and Lodging Association (AHLA) Educational Institute 5. Certified Electronics Association (CEA) 6. Computer Technology Industry Association (COMP TIA) 7. American Welding Society (AWS) 8. Child Development Association (CDA) Foster, 06 -054 Page 19 9. (PrintEd) Graphic Arts Certification b. A complete listing of all certifications totals in excess of fifty (50). c. The NOCTI assessment catalog encompasses approximately 80 different occupational areas. 75. NOCTI has been the predominate company used by PDE since 1996 due to the amount of assessment tests it offers. 76. The Bureau of Career and Technical Education is the bureau in PDE largely responsible for overseeing aspects of occupational competency assessment. a. The bureau develops statewide standards and ensures that national standards are being met. b. The bureau is responsible for acquiring and approving assessments to ensure that they meet state and federal standards. c. The bureau is responsible for recommending allocation of resources to pay for assessment services. 77. PDE administers the assessments through the Educational Resource Center at the Penn State McKeesport campus. a. Additionally, PDE contracts annually with McKeesport for a variety of services including, but not limited to, conference logistics, tech prep coordination, technical assessment services, and special populations coordination. b. The Education Resource Center administers the state and federal funding to the assessment entities. c. The Education Resource Center coordinates the assessment materials to the secondary and postsecondary education programs. d. The Education Resource Center collects all tests from the programs for scoring. 78. The Bureau of Career and Technical Education enters into a yearly payment plan agreement with NOCTI for the purchase of assessment materials and shipping fees. a. Per the agreement the bureau pays NOCTI six (6) monthly lump sum payments. b. NOCTI invoices the bureau for the remainder of the costs associated with the materials and services. c. Penn State McKeesport acts as the purchasing agent on behalf of PDE. 79. Prior to leaving his position as Director of the Bureau of Career and Technical Education, Foster was responsible for projecting expenses regarding the Career and Technical Education Community for upcoming budget years. a. NOCTI assessment funding is included as a line item in the state assessment budget. Foster, 06 -054 Page 20 b. Foster, and his management team, made the following projected figures for funding of student assessment prior to his departure. The figures included projected CTE population growth commensurate with the overall student population, as well as increases in test costs and supplemental reports which may be requested. School year Figure 2004/05 $579,000.00 2005/06 $565,000.00 2006/07 $572,000.00 2007/08 $578,000.00 2008/09 $585,000.00 c. These projections were for all testing provided by a total of fourteen (14) providers, including NOCTI. 80. In accord[ance] with Pennsylvania's response to No Child Left Behind (NCLB) and the development of Pennsylvania's "Assessment Anchors," Deputy Secretary Zahorchak requested that an alignment between technical skills and academic skills be completed. a. In January of 2004, the Bureau of Career and Technical Education, under the direction of Foster, contracted with NOCTI to perform a study which aligned CTE Assessments with the PSSAS. b. NOCTI completed a majority of technical assessment work in the Commonwealth and maintained a national group of Subject Matter Experts in the academic areas to perform the analyses without bias. c. A payment was made by the Education Resource Center to NOCTI in the amount of $55,238.30 for this supplemental alignment work. d. The invoice from NOCTI, dated January 30, 2004, provided the following description: "Alignment of Pennsylvania Math Standards with NOCTI test and Integrated Mathematics Report." 81. With over 30 years of service in the Career and Technical Education field, Foster has many friends across the Commonwealth, some of whom work for the Bureau of Career and Technical Education. a. As such, Foster maintains close relationships with former co- workers in the Bureau of Career and Technical Education, PDE. b. Foster has been a PDE point of contact with NOCTI, mainly in light of Foster's familiarity with PDE, and their prior working relationship. c. Employees of PDE, many of which had previously existing personal and professional relationship with Foster, interacted with Foster in his position as NOCTI's President. d. PDE officials /employees have contacted Foster concerning a variety of issues with assessment testing provided by NOCTI. 82. From January 2005 through July 2005, Foster had contact with members of the Foster, 06 -054 Page 21 Bureau of Career and Technical Education concerning NOCTI includes [sic] the following: a. Current Director of the Bureau of Career and Technical Education, Dr. Lee Burket indicated in a Sworn Statement with SEC investigators that she had phone conversations and /or email conversations with Foster as President of NOCTI in regards to official PDE business. b. Bureau employee Robert Kline had two (2) separate phone contacts with Foster, concerning official PDE business. c. Bureau employee James Gronski, a close personal friend of Foster, contacted Foster on numerous occasions, for a variety of reasons. d. Education Resource Center employee Patty Bicanich indicated to SEC Investigators that she had phone contact with Foster concerning issues with NOCTI's services and fees regarding individual schools requesting the waiving of rush order fees. 1. Foster complied with this request, resulting in a cost saving to those schools and the Commonwealth. 83. Foster's duties and responsibilities, as a compensated employee of NOCTI, include occasional meetings with past and present clients. 84. Emails obtained for [sic] the Bureau of Career and Technical Education include emails between bureau staff and John Foster of NOCTI within one year of his leaving Commonwealth employment. a. The following topics were subjects of emails [that] were exchanged between Foster and bureau employees James Gronski and Chris Weller between February 2005 and June 2005. 1. Pennsylvania's use, free of charge, of an online security system that would protect the transmission of student data over the internet while performing testing with NOCTI. 2. Discussions regarding the use of NOCTI's network to help Pennsylvania validate their agriculture standards, free of charge. 3. The development of linkages between other industry certification groups and NOCTI for the benefit of Pennsylvania students. 4. Clarification of proposed collaboration involving parties regarding Pennsylvania student data streams and confidentiality. 85. In November 2004, the bureau executed a payment plan with NOCTI for the 2004- 2005 school year. a. The agreement provided that PDE make 6 monthly payments of $60,000.00 to NOCTI beginning January 2005. 1. January 10, 2005 $60,000.00 2. February 10, 2005 $60,000.00 3. March 10, 2005 $60,000.00 Foster, 06 -054 Page 22 4. April 10, 2005 $60,000.00 5. May 10, 2005 $60,000.00 6. June 10, 2005 $60,000.00 Total $360,000.00 b. This agreement was executed by Lee Burket of PDE and Amie Thomas, Client Services on behalf of NOCTI. 86. In November 2005, PDE and NOCTI entered into a similar payment plan agreement for the 2005 -2006 school year. a. The agreement provided that PDE make 6 monthly payments of $60,000.00 to NOCTI beginning January 2006. 1. January 10, 2006 $60,000.00 2. February 10, 2006 $60,000.00 3. March 10, 2006 $60,000.00 4. April 10, 2006 $60,000.00 5. May 10, 2006 $60,000.00 6. June 10, 2006 $60,000.00 Total $360,000.00 b. This agreement was executed by Lee Burket of PDE and Amie Thomas, Client Services on behalf of NOCTI. THE FOLLOWING FINDINGS RELATE TO THE ALLEGATIONS CONCERNING FOSTER'S FAILURE TO FILE STATEMENTS OF FINANCIAL INTERESTS. 87. As Director of the Bureau of Career and Technical Education, PDE, Foster was required annually to file a Statement of Financial Interests (SFI) form by the May 1St deadline, containing information for the prior calendar year. a. Foster was also required to file a SFI with the bureau for the year following his leaving Commonwealth employment. 88. Statements of Financial Interests forms on file with The Pennsylvania Department of Education include the following filings by Foster for calendar years: a. Calendar year: 2001 b. Calendar year: 2002 c. Calendar year: 2003 d. Calendar year: 2004 89. Foster filed a SFI with the Department of Education [on] April 18, 2005, for calendar year 2004. Foster, 06 -054 Page 23 a. The form satisfied Foster's requirement to file a Statement of Financial Interests for the year after leaving his Commonwealth employment. III. DISCUSSION: As the Director of the Bureau of Career and Technical Education of the Pennsylvania Department of Education from April 17, 2000, until July 30, 2004, Respondent John Foster (also referred to herein as "Respondent," "Respondent Foster," or "Foster ") was a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The allegations are that Foster, as Director of the Bureau of Career and Technical Education of the Pennsylvania Department of Education, violated Sections 1103(a), 1103(g), and 1104(a) of the Ethics Act when he used the authority of his position for a private pecuniary gain by attending meetings of advisory boards while on Commonwealth time and incurring expenses that were paid by the Commonwealth and were related to personal matters; when he represented the National Occupational Competency Testing Institute (NOCTI), as its President /CEO, before his former governmental body within one year of leaving state service; when he failed to use annual or personal leave while traveling on personal matters; and when he failed to file a Statement of Financial Interests for the 2005 calendar year. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 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). The term "conflict of interest" is defined in the Ethics Act as follows: § 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. 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 Foster, 06 -054 Page 24 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Section 1103(g) of the Ethics Act prohibits a former public official /public employee from representing a person for compensation before the governmental body with which he has been associated for a period of one year after he leaves that body: § 1103. Restricted activities (g) Former official or employee. —No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent, "person," "governmental body," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. § 1102. Section 1104(a) of the Ethics Act provides that 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. 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. Foster, 06 -054 Page 25 Respondent Foster served as the Director of the Bureau of Career and Technical Education (the "Bureau ") within the Commonwealth of Pennsylvania Department of Education ( "PDE ") from April 17, 2000, until July 30, 2004. The Bureau is responsible for the administration of Career and Technical Education (CTE) Programs throughout the Commonwealth, including the approval process for CTE Programs. The Bureau oversees the 81 area career and technical education schools as well as programs offered at approximately one -half of the high schools throughout the Commonwealth. Foster's duties as Director of the Bureau included, inter alia, planning, developing, and directing the statewide program for career and technical education, career development, workforce innovation, and related fields of service; developing, recommending, and implementing career and technical education program policies, goals, and objectives; and managing the Bureau's strategic plan. As part of his job duties, Foster represented the Bureau in interactions with other Commonwealth agencies and school representatives. Foster routinely traveled in -state and out -of- state, when approved, to participate in conferences, meetings, and similar events pertaining to technical and vocational education. Pursuant to Commonwealth Management Directive 230.10, when traveling on Commonwealth business, Foster was entitled to reimbursement for expenses incurred for mileage, subsistence, lodging, and transportation, and for approved miscellaneous expenses. Prior to traveling out -of -state on Commonwealth business, Foster was required to submit an out -of -state travel form for approval by his immediate supervisor or another PDE official. The information provided on the out -of -state travel form included the destination, dates of travel, purpose, method of transportation, and estimated costs. Foster would obtain reimbursement of expenses incurred while traveling on Commonwealth business by submitting travel expense vouchers ( "TEVs ") to PDE documenting his expenses. In accordance with established practice and policy, Foster's TEVs were completed by his administrative assistant and then signed by him. Prior to beginning employment with PDE, Foster served as the Administrative Director for the Carlisle Area School District ( "School District "). In approximately 1999, while employed with the School District, Foster became involved with organizing the first Cisco Networking Academy in Pennsylvania. Cisco Networking Academies are technical educational programs that provide vocational students with access to online curriculum and resources, with the added potential of gaining certifications in Cisco Computer Networking. The Networking Academies are hosted by educational institutions, including school districts, that apply to be academies and are operated and funded through the charitable arm of Cisco Systems, Inc. Sometime in 2000, Foster was invited by a Cisco regional marketing representative to become a member of the Cisco Networking Academy Advisory Board (hereinafter referred to as the CNAA Board" or "Board "). The CNAA Board consists of fourteen members who are nominated by Cisco personnel and are responsible for developing the curriculum for the Networking Academies. Cisco does not compensate Board members for their participation but pays expenses related to Board members' travel. The CNAA Board holds an annual meeting at Cisco's headquarters in San Jose, California. During the meeting, which is held over several days during the first quarter of the year, the Board reviews and discusses the prior year's curriculum as well as formulates the curriculum and the course syllabus for each of the programs to be offered during the following school year. Foster first attended the annual CNAA Board meeting in 2001. Prior to attending the 2001 Board meeting, Foster requested permission from his immediate supervisor to attend the Board functions as a Commonwealth representative. Foster's request was Foster, 06 -054 Page 26 approved by his immediate supervisor after an attorney in PDE's Office of Chief Counsel issued a memorandum concluding that Foster's service on the Board would not be prohibited by the Ethics Act or the State Adverse Interest Act. Based upon the recommendation of PDE's Office of Chief Counsel, it was determined that PDE would pay Foster's expenses for attending the Board meetings. On January 17, 2001, Foster's administrative assistant submitted a request for approval for out -of -state travel to attend the CNAA Board meeting in San Jose, California. The request was for travel to San Jose from February 17, 2001, to February 23, 2001. After Foster's request was approved, he attended the 2001 Board meeting, which began on February 19, 2001, and concluded on February 22, 2001. Foster checked out from his hotel on February 23, 2001, and traveled to Mill Valley, California, where he stayed until February 25, 2001, when he departed on a flight to Harrisburg, Pennsylvania. Foster traveled to Mill Valley in order to secure savings to the Commonwealth for a supersaver airfare ticket, and he spent his time in Mill Valley sightseeing. In March 2001, Foster submitted a TEV for reimbursement of the expenses that he incurred while in California from February 19, 2001, to February 25, 2001. Foster subsequently received reimbursement of his claimed expenses, including $166.65 for meals and lodging for the period spent in Mill Valley following the conclusion of the 2001 Board meeting. After receiving approval from his immediate supervisor, Foster attended the CNAA Board meeting in San Jose, California the next year. Although the 2002 Board meeting did not begin until February 18, 2002, Foster flew to California on February 16, 2002, to take advantage of the supersaver airfare rate. Foster attended the 2002 Board meeting from February 18, 2002, to February 20, 2002, and departed on a flight for Harrisburg, Pennsylvania upon the conclusion of the meeting. In March 2002, Foster sought and received reimbursement of the expenses he incurred while in California in February 2002, including $249 for expenses incurred as a result of his arrival in California two days prior to the 2002 Board meeting. In 2003, Foster again attended the annual CNAA Board meeting in San Jose, California. Foster flew to California on March 1, 2003, two days prior to the actual start of the Board meeting, to take advantage of the supersaver airfare rate. Foster spent the first two days in Monterey, California and then attended the Board meeting in San Jose from March 3, 2003, to March 6, 2003. Foster subsequently claimed and received reimbursement for $108.93 of expenses that resulted from his arrival in California two days prior to the beginning of the 2003 Board meeting. Foster also attended the 2004 CNAA Board meeting. To take advantage of supersaver airfare rates, Foster flew to San Jose, California on Friday, March 5, 2004, three days prior to the actual start of the meeting. Foster did not work at his PDE job on March 5, 2004, but he did not utilize any form of leave on that date. From March 5, 2004, to March 6, 2004, Foster stayed in Verdi, Nevada, but he did not charge any expenses incurred on those dates to the Commonwealth. After attending the CNAA Board meeting in San Jose from March 8, 2004, to March 11, 2004, Foster took a flight back to Harrisburg, Pennsylvania. Foster received $345.75 in compensation from the Commonwealth for March 5, 2004. See, Finding 63(a). The parties have stipulated that Foster received financial benefits of $166.65 for reimbursement of expenses related to lodging and meal expenses for the 2001 CNAA Board meeting and of $345.75 in wages on March 5, 2004. See, Finding 66(a), (b). On July 28, 2004, Foster submitted his resignation from his position as Bureau Director, effective the close of business on July 30, 2004. On January 24, 2005, Foster was appointed as President and CEO of The National Occupational Competency Testing Institute (NOCTI). NOCTI is a not - for - profit corporation that provides occupational competency assessment products and services to secondary and post- secondary Foster, 06 -054 Page 27 educational institutions. Since 1996, NOCTI has been the predominant company used by PDE for the provision of occupational competency assessments. The Bureau, which is responsible for developing statewide standards and ensuring that national standards are being met, enters into a yearly payment plan agreement with NOCTI for the purchase of assessment materials and associated services. In November 2004, the Bureau executed a payment plan with NOCTI for the 2004 -2005 school year. The agreement provided for PDE to make six monthly payments of $60,000 to NOCTI beginning January 2005. As President and CEO of NOCTI, Foster recommends actions and policies to the board. Foster's job duties involve interacting with entities NOCTI has contracts with, including PDE, through meeting with education officials regarding assessment and professional development services provided by NOCTI, answering questions and resolving conflicts, and serving as the "face" of NOCTI. Foster is compensated for his duties and responsibilities related to his employment with NOCTI. Since leaving the Bureau, Foster has maintained close relationships with former Bureau co- workers. In light of Foster's familiarity with PDE and PDE's prior working relationship with NOCTI, Foster has been a point of contact for PDE officials /employees as to a variety of issues involving assessment testing provided by NOCTI. From January 2005 through July 2005, Foster had contact, via telephone or email, with the following Bureau officials /employees concerning issues related to NOCTI: Dr. Lee Burket, the current Bureau Director; Robert Kline; James Gronski; and Chris Weller. Some of the email topics included: Pennsylvania's use, free of charge, of an online security system that would protect the transmission of student data over the internet while performing testing with NOCTI; discussions regarding the use of NOCTI's network to help Pennsylvania validate its agriculture standards, free of charge; and the development of linkages between other industry certification groups and NOCTI for the benefit of Pennsylvania students. These interactions occurred within one year of Foster leaving the Bureau. As Director of the Bureau, Foster was required to annually to file Statement of Financial Interests ( "SFI ") forms with PDE. Foster was also required to file a SFI with PDE by May 1 of the year following termination of his Commonwealth employment. On April 18, 2005, Foster filed a SFI with PDE for calendar year 2004. The parties have stipulated that the form satisfied Foster's requirement to file a Statement of Financial Interests by May 1 of the year after leaving his Commonwealth employment. 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 as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a), occurred in relation to Foster's attendance at meetings of advisory boards while on Commonwealth time and submitting and being paid for personal expenses which were paid by the Commonwealth; and b. That a technical violation of Section 1103(g) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(g), occurred when he represented the National Occupational Foster, 06 -054 Page 28 Competency Testing Institute(NOCTI), as President /CEO, before his former governmental body within one year of leaving state service; and c. That no violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa. .S. §1104(a), occurred regarding Foster's failure to file a Statement of Financial Interests for the 2005 calendar year in that Foster was not required to file a 2005 Statement of Financial Interests form. 4. Foster agrees to make payment in the amount of $512.40 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 1 -2. As to the allegation that Foster violated Section 1103(a) of the Ethics Act, it would appear that said allegation would encompass the reimbursement of expenses incurred by Foster for meals or lodging as a result of arriving in California two days prior to the commencement of the 2002 CNAA Board meeting and one day prior to the commencement of the 2003 CNAA Board meeting. However, it appears that the Investigative Division, through the exercise of its prosecutorial discretion, has determined that it is appropriate to settle this case based on a violation of Section 1103(a) as to Foster's receipt of reimbursement for expenses incurred following the completion of the 2001 CNAA Board meeting and his receipt of wages in lieu of using leave time when traveling to the 2004 CNAA Board meeting on March 5, 2004. In considering the Consent Agreement, we determine that the elements for the recommended violation of Section 1103(a) of the Ethics Act have been established. Foster used the authority of his public position when he submitted a TEV to PDE requesting reimbursement of expenses he incurred for meals and lodging for the two -day period spent in Mill Valley, California, following the conclusion of the 2001 CNAA Board meeting in San Jose, California. The reimbursement of said expenses that Foster received was a private pecuniary benefit, as there is no authorization in law permitting a Commonwealth employee to receive reimbursement from the Commonwealth for personal expenses. As to Foster's leave usage, Foster traveled to the 2004 CNAA Board meeting on Friday, March 5, 2004, two days prior to the commencement of said meeting, without taking a day of leave from the Commonwealth. Such action resulted in a private pecuniary benefit to Foster consisting of the wages Foster received from the Commonwealth when he did not work on that date. Each element of a conflict of interest has been established as to this allegation. Cf., Matta, Order 1439; Munford, Order 1390; Sullivan, Order 1245; Holt, Order 1153. The parties have stipulated that Foster received financial benefits of $166.65 for reimbursement of expenses related to lodging and meal expenses incurred following the 2001 CNAA Board meeting and of $345.75 in wages on March 5, 2004. Foster, 06 -054 Page 29 We are mindful of the recent judicial decision in Bixlerv. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004) (holding that a net profit in the amount of $561.77 resulting from business transactions between a township supervisor's employer and the township would fall within the "de minimis" exclusion to the definition of "conflict of interest "). If the parties had not determined to enter into a Consent Agreement, we might have been presented with factual and legal issues as to whether, under the circumstances of this case, Bixler would apply as to the aforesaid $166.65 in reimbursed expenses and $345.75 in wages received by Foster. However, given: (1) that the parties have entered into a comprehensive Consent Agreement with the benefit of legal counsel to assist them in weighing all relevant factual and legal considerations; and (2) the parties are in agreement that a violation of Section 1103(a) as to such expenses and wages would be appropriate as part of an overall settlement of this case, we shall accept the parties' proposed disposition. We note that this determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their facts and circumstances. Per the Consent Agreement of the parties, we hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred in relation to Foster's attendance at meetings of advisory boards while on Commonwealth time and submitting and being paid for personal expenses that were paid by the Commonwealth. We shall now consider the parties' recommendation that we find that a technical violation of Section 1103(g) of the Ethics Act occurred when Foster represented NOCTI, as President /CEO, before his former governmental body within one year of leaving state service. Section 1103(g) of the Ethics Act prohibits a former public official /public employee from representing a person for compensation before the governmental body with which he has been associated for a period of one year after he leaves that body. The term "person" is defined to include, inter alia, a business, corporation, or other organization. When Foster terminated employment with PDE on July 30, 2004, he became a former public employee subject to the restrictions of Section 1103(g) of the Ethics Act. Pursuant to Section 1103(g) of the Ethics Act, Foster was prohibited from representing "persons" before PDE, including but not limited to the Bureau, for promised or actual compensation during the first year following termination of employment with PDE. Foster receives compensation in his capacity as President and CEO of NOCTI. From January 2005 through July 2005, Foster, as President and CEO of NOCTI, had contact, via telephone or email, with the following Bureau officials /employees concerning issues related to NOCTI: Dr. Lee Burket, the current Bureau Director; Robert Kline; James Gronski; and Chris Weller. These interactions occurred within one year of Foster leaving the Bureau. With each element of a violation of Section 1103(g) established, we hold that a technical violation of Section 1103(g) of the Ethics Act occurred when Foster represented NOCTI, as President /CEO, before his former governmental body within one year of leaving state service. Cf., Pierce, Order 1449; Gagliardo, Order 1369; Nixon, Order 1280. As to the allegation that Foster violated Section 1104(a) of the Ethics Act when he failed to file a Statement of Financial Interests for the 2005 calendar year, the parties have agreed that no violation occurred in that Foster was not required to file a Statement of Financial Interests for calendar year 2005. We accept the parties' recommendation and find no violation of Section 1104(a) of the Ethics Act for the reason stated. There is no basis in the stipulated findings for concluding that Foster was required to file a Statement of Financial Interests for calendar year 2005, given that Foster terminated Commonwealth Foster, 06 -054 Page 30 service in 2004 and the following year filed a Statement of Financial Interests for calendar year 2004. See, Findings 1, 89(a). As part of the Consent Agreement, Foster has agreed to make payment in the amount of $512.40 in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. 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, Foster is directed to make payment in the amount of $512.40 in settlement of this matter, payable to the Commonwealth of Pennsylvania and forwarded 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 with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. John Foster ( "Foster "), as the Director of the Bureau of Career and Technical Education of the Pennsylvania Department of Education ( "PDE ") from April 17, 2000, until July 30, 2004, was a public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. Foster committed an unintentional violation of Section 1103(a) of the Ethics Act in relation to his attendance at meetings of advisory boards while on Commonwealth time and submitting and being paid for personal expenses which were paid by the Commonwealth. 3. A technical violation of Section 1103(g) of the Ethics Act occurred when Foster represented the National Occupational Competency Testing Institute ( "NOCTI "), as President /CEO, before his former governmental body within one year of leaving state service. 4. No violation of Section 1104(a) of the Ethics Act occurred regarding Foster's failure to file a Statement of Financial Interests for the 2005 calendar year in that Foster was not required to file a 2005 Statement of Financial Interests. In Re: John Foster, Respondent ORDER NO. 1458 File Docket: 06 -054 Date Decided: 1/28/08 Date Mailed: 2/15/08 1 John Foster ( "Foster "), a public employee in his capacity as the Director of the Bureau of Career and Technical Education of the Pennsylvania Department of Education ( "PDE ") from April 17, 2000, until July 30, 2004, committed an unintentional violation of Section 1103(a) of the Ethics Act in relation to his attendance at meetings of advisory boards while on Commonwealth time and submitting and being paid for personal expenses which were paid by the Commonwealth. 2. A technical violation of Section 1103(g) of the Ethics Act occurred when Foster represented the National Occupational Competency Testing Institute ( "NOCTI "), as President /CEO, before his former governmental body within one year of leaving state service. 3. No violation of Section 1104(a) of the Ethics Act occurred regarding Foster's failure to file a Statement of Financial Interests for the 2005 calendar year in that Foster was not required to file a 2005 Statement of Financial Interests. 4. Per the Consent Agreement of the parties, Foster is directed to make payment in the amount of $512.40 in settlement of this matter payable to the Commonwealth gf Pennsylvania and forwarded to this Commission by no later than the thirtieth (30 day after the mailing date of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair