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Home My WebLink About1466 PaganIn Re: Jem Pagan, Respondent File Docket: X -ref: Date Decided: Date Mailed: Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Raquel K. Bergen Nicholas A. Colafella 05 -047 Order No. 1466 4/28/08 5/15/08 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 Stipulated Findings are set forth 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. Pagan, 05 -047 Page 2 I. ALLEGATIONS: That Jem Pagan, a public official /public employee in his capacity as Director of the Bureau of Enterprise Architecture for the Office of Budget, violated Sections 1103(a) and 1104(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. § §1103(a) and 1104(a), when he used the authority of his office for a private pecuniary gain, including but not limited to, authorizing the purchases of computer hardware and software and then utilizing the computer hardware, software, which was the property of the Commonwealth, for his personal use; and when he failed to file Statements of Financial Interests for the 2003, 2004 and 2005 calendar years. II. FINDINGS: 1. Jem Pagan was employed by the Commonwealth of Pennsylvania as the Director of the Bureau of Enterprise Architecture of the Commonwealth Technology Center (CTC) from November 3, 2003, until November 4, 2005. 2. As Director of the Bureau of Enterprise Architecture, Pagan was responsible for the supervision of approximately twenty -one (21) employees and four (4) sections within the Bureau: (1) Program Management; (2) Strategic Planning; (3) Technology Engineering and (4) Information Security. a. The bureau was established in the Fall of 2003 and responsible for overseeing development of information technology standards and monitoring compliance in Commonwealth agencies. b. Pagan did not have a specific job description for this position. 3. Part of Pagan's job duties included researching new technology items for future Commonwealth needs. a. This would include the purchase of technology items for testing and evaluation purposes. b. Pagans responsibilities included approving technology purchases. c. Pagan established a computer lab for testing future technologies at the Commonwealth's Technology Center (CTC). d. All technology purchases are inventoried with employees being able to log out equipment. 4. The Commonwealth's Bureau of Enterprise Architecture did not have a formal policy on the personal use or removal of Commonwealth purchased hardware and software applications. a. The bureau did not have an official sign out sheet for employees to remove Commonwealth equipment. b. Employees were expected to follow Commonwealth guidelines including internet and e-mail user agreements. 5. Pagan signed a standard Commonwealth internet /e -mail user agreement included with Management Directive 205.34 on November 18, 2003. Pagan, 05 -047 Page 3 6. As part of Pagan's job responsibilities he would approve purchases of hardware and software applications for potential Commonwealth use. a. Pagan personally would select items as well as approve selections made by subordinate employees. b. Pagan's use of office came as the result of authorizing purchase orders. 7 Pagan, in his official capacity as Director of Enterprise Architecture, was assigned two Commonwealth laptop computers for official business. a. Pagan was issued a Toshiba laptop, Serial #15036654H. b. Pagan was also issued a Dell laptop, Serial #CF8Z851. c. Pagan did not share use of these computers with other employees. 8. Pagan also had the ability to remotely access the Commonwealth internet connection. a. Pagan used his personal high -speed broadband connection to access the Commonwealth remotely. b. The Commonwealth's internet user agreement was applicable to this connection. c. The access to the Commonwealth was provided at no cost to Pagan. 9. As Director of the Bureau of Enterprise and Architecture, Pagan had the ability to purchase hardware and software applications for future Commonwealth use. a. Pagan did not need the approval of his supervisor to purchase new technologies. b. Purchases were to be tested in a computer lab at CTC created by Pagan. 10. During 2003 to 2005, the Commonwealth was utilizing a PC based computer system(s). a. Apple -Mac computer hardware or software applications were not a standard for the Commonwealth and were of virtually no use. b. The Commonwealth had no intention of switching its computer system from PCs to Apple -Mac. 11. Purchases of hardware and software applications by Pagan were done through a purchase order process. a. Pagan would inform Michael Freyman, a subordinate, [of] the hardware or software items he intended to purchase. b. Freyman would locate a vendor who could supply the items and provide the information to Brenda Orth. c. Orth, also a subordinate of Pagan's, would confirm the availability of funds to make the purchase. PO # PO Date Approval Date Delivery Date 4500206146 03/03/05 03/10/05 03/11/05 4500178870 11/09/04 11/30/04 12/01/04 4500215165 04/05/05 04/14/05 04/15/05 4500215165 04/05/05 05/12/05 04/15/05 (change) 4500217122 04/12/05 04/12/05 04/22/05 4500195306 01/19/05 01/28/05 02/09/05 4500195211 01/19/05 01/19/05 02/01/05 4500195146 01/18/05 01/31/05 02/01/05 (change) Pagan, 05 -047 Page 4 d. Orth would process the order and confirm to Pagan that funds were available. e. Pagan had the authority to make the final approval in purchasing decisions. 12. Once items purchased were received by the bureau, they were inventoried and assigned to the requesting employee. a. An inventory spreadsheet was maintained by Michael Freyman. b. Items purchased by Pagan for mainly his use would be taken to the computer lab or his office. 1. Pagan maintained a secure office at CTC separate and apart from the computer lab. 13. Pagan did not have authorization to remove Commonwealth equipment from CTC or provide it to any Commonwealth employees for any purposes. 14. Beginning in 2005, Pagan utilized his position as Director of the Bureau of Enterprise and Architecture to authorize purchase orders for sixteen items purchased by the Commonwealth which were subsequently converted for personal use. a. Pagan identified the items to be purchased, including items which were not compatible with [the] Commonwealth's PC based system. b. Pagan directed subordinate employees to place the orders. c. Pagan physically took possession of the items once delivered to and inventoried by the bureau. d. Pagan was the only Commonwealth employee who had access to the sixteen items. e. Pagan provided some of the items for use by his church, without Commonwealth approval. 15. Between November 9, 2004, and April 5, 2005, Pagan initiated and approved ten (10) purchase orders for computer hardware and software items which he eventually converted to personal use. 16. Purchase orders for the Bureau include, in part, the following items initiated and approved by Pagan. 4500195146 01/18/05 01/20/05 02/01/05 4500195128 01/18/05 01/20/05 02/01/05 Pagan, 05 -047 Page 5 17. The following chart details sixteen items Pagan approved for purchase and eventually converted to personal use, along with their respective cost to the Commonwealth: Item # #1 #2 Item Description Apple Cinema HD 23 in. Wide Screen Monitor, Dell 2001 FP #3 Sony DRX -710UL #4 Western Digital 250GB Ext. #5 Western Digital 250GB Ext. #6 Avid Express Pro 4.X #7 Avid Express Pro 4.X #8 Forensic Toolkit 1.51a #9 iLife #10 iWork 05 #11 Macromedia Authorware 7 #12 Nero 6 Ultra Edition #13 TechSmith Camtasia Studio #14 TechSmith Snagit #15 Apple PowerMac G5 #16 Dell Precision 370 Drive Drive Equipment Type Display Display DVD +RW DL Hard Disk Hard Disk Software Software Software Software Software Software Software Software Software Workstation Workstation PO Number 4500206146 4500178870 4500195306 4500195306 4500195306 4500195128 4500195128 4500215165 4500217122 4500217122 4500195128 4500195211 4500195146 4500206146 4500206146 4500178870 Amount $1,671.62 $41.46 per month $178.66 $265.30 $265.30 $1,581.63 $1,581.63 $771.68 $67.25 $67.35 $4,887.44 $220.40 $259.18 $25.97 $4,249.77 $66.28 per month 18. None of the items in the previous finding were specifically required for the performance of Pagan's duties for the Commonwealth. a. Most of the applications are for Apple /Macintosh computer systems, which are not utilized by the Commonwealth. 1. Item nos. 1, 4, 5, 6, 7, 9, 10 Apple /Macintosh 2. Item nos. 8, 11, 12, 13, 14 Apple /Macintosh or PC 19. All sixteen items were eventually converted for personal use by Pagan. a. Item numbers 1, 2, 4, 15 and 16 were taken to Pagan's church, Church of the Redeemer of the Lord, 4123 Old York Road, Baltimore, MD on or about June 26, 2005. b. Pagan did not receive approval from any Commonwealth official to remove these items from CTC. c. Pagan did not inform any Commonwealth staff that he was removing the items from the Commonwealth of Pennsylvania. 20. Michael Freyman transported the Dell monitor (item #2) to Pagan's car parked in the lot at CTC. a. Daniel Hartzell was directed by Pagan to take some of the items directly to Pagan's office. Pagan, 05 -047 Page 6 b. Both Freyman and Hartzell were under Pagan's supervision at the time. 21. Pagan has been a member of Church of the Redeemer of the Lord, 4123 Old York Road, Baltimore, MD for approximately the past seven (7) years. a. Pagan does not hold any positions within the church. b. Pagan assisted with setting up the church's website. 22. Church of the Redeemer of the Lord weekly services are broadcast on TV and radio. a. Services are also available for purchase in both audio and video formats. b. Church staff produce the records. c. Pagan did not participate in the production. 23. Early in 2005, Pagan had discussions with Marsha Stokes and /or Dr. Jerome Stokes, Sr. about creating a television studio at the church to record music and events. a. Dr. Jerome Stokes, Sr. is the church pastor while Marsha Stokes is his wife. b. Stokes previously had recordings of church services professionally made. 24. Pagan and Ronald Butler (Marsha Stokes' nephew) set up recording equipment at the church around May or June 2005. a. Butler also was a member of the church. b. Some of the equipment transported by Pagan to the church was purchased by the Commonwealth and identified in Finding 28. c. This equipment was maintained in a secured locked room at the church. 25. Pagan offered to demonstrate for Stokes technologies available to record and produce church music and events in- house. a. Pagan did not inform Stokes that the equipment he intended to use was actually owned by the Commonwealth. b. Pagan removed the equipment from CTC, eventually transporting it to his church in Baltimore, Maryland. 26. Pagan did not get approval from the Commonwealth to transport the equipment outside of the Commonwealth and demonstrate its capabilities to members of his church. a. Item numbers 1, 2, 4, 5, 15 and 16 were at the church from prior of [sic] approximately June 26, 2005, to July 11, 2005. b. During this timeframe, the equipment was not in Pagan's possession nor was it available for Commonwealth use or testing. 27. Around the end of June 2005, questions were raised by Kristen Miller, Acting Deputy Secretary, Office of Information Technology, regarding Pagan's use of Pagan, 05 -047 Page 7 Commonwealth equipment. a. Miller was Pagan's immediate supervisor at the time. b. Miller had learned from employees under Pagan's supervision that he may have been removing Commonwealth owned equipment from CTC. c. Miller also learned from these same employees that Pagan directed the purchase of software and hardware items which were not standard for Commonwealth use. 28. As a result of Miller's concerns, an inventory audit of the hardware /software items purchased by the bureau was conducted on June 28, 2005. a. An inventory audit was conducted by Joseph C. Natoli, Assistant Comptroller for Audits, along with Michael Freyman and Daniel Hartzell. b. Freyman and Hartzell were the employees who maintained the inventory spreadsheet during Pagan's tenure as director and were familiar with the purchases. c. As a result of the inspection, a total of sixteen (16) computer items and software issued to Pagan were not found within the CTC facility. 29. A review of the inventory log found that all sixteen items missing were in the possession of Pagan. a. Pagan directed that the items be ordered in his official capacity as Bureau Director. b. Pagan approved the purchase orders authorizing the equipment purchases. c. A search of Pagan's office and the computer lab determined none of the items were onsite at CTC. 30. On July 7, 2005, representatives from the Office of Inspector General met with Pagan and his supervisor Kristen Miller to discuss the missing computer hardware and software applications. a. Pagan initially indicated that all of the missing equipment was at his residence. b. After the OIG requested Pagan immediately turn over all of the items to the Commonwealth, Pagan indicated that some of the items were at his church in Baltimore Maryland. c. Pagan placed a call to Ronald Butler and arranged for the items to be returned the following day. d. Representatives of the Office of Inspector General and Miller traveled to Pagan's residence to retrieve the equipment. 31. Pagan returned some equipment on July 7, 2005, and the rest on July 11, 2005. a. Equipment returned by Pagan was turned over to the Office of Inspector General for forensic examination. Pagan, 05 -047 Page 8 32. At the time of the equipment's return, it had a cost to the Commonwealth of approximately $16,200 (see finding 17). This amount would increase as a result of monthly lease payments for item numbers 2 and 16. (See finding 17). 33. On July 7, 2005, Pagan was suspended without pay pending an investigation by the Office of Inspector General into the matter. a. Pagan remained in a suspended status until his termination on November4, 2005. b. During this time, the Office of Inspector General investigated the matter. 34. On July 8, 2005, correspondence was sent to Pagan confirming his suspension pending investigation effective 1:50 p.m. the previous day (July 7, 2005). a. This notification was sent to Pagan by certified mail #7000 0520 0023 1 857 2192. 35. By way of correspondence dated July 11, 2005, Pagan submitted his resignation as Director of the Bureau of Enterprise Architecture effective that day. a. On July 15, 2005, Kristen Miller sent Pagan correspondence rejecting Pagan's resignation request based on an ongoing investigation by the Office of Inspector General. 36. Upon return all of the missing equipment and software, the OIG conducted a forensic examination of Pagan's Commonwealth issued computers. a. Pagan was issued two (2) Commonwealth laptop computers; a Toshiba, serial #15036654H and a Dell, serial #CF8Z851. b. The forensic examination was conducted by Brian Bowman, Special Investigator, OIG. 37. As a result of the Forensic Examination of Pagan's Commonwealth computers by Brian Bowman, Special Investigator, OIG, photographs and movie files which depicted non - Commonwealth related subjects were found on both. Summary findings on the contents of both laptops are as follows: a. Summary Findings: Toshiba laptop, Serial #15036654H, 6 photo files that depicted non - Commonwealth related subjects, 101 movie files that depicted non - Commonwealth related subjects. b. Summary Findings: Dell laptop, Serial #CF8Z851, 72 photo files that depicted non - Commonwealth related subjects, 57 movie files that depicted non - Commonwealth related subjects. c. These images were obtained by Pagan through the use of the Commonwealth internet connection under users "OA- JPAGAN and /or "OA- JEPGAN" both assigned to Pagan. 38. The State Ethics Commission conducted forensic examinations on two Western Digital external hard drives and two hard drives removed from the Apple Powermac G5 issued to Pagan. a. All four (4) hard drives had images or video clips which did not relate to Pagan's Commonwealth responsibilities. Pagan, 05 -047 Page 9 39. Pagan had custody of two (2) Maxtor model MaXLine Plus 11 hard drives for Apple applications. a. Drive (Apple HDD01) had a serial number of Y65MPGPWE. b. Drive (Apple HDD02) had a serial number of Y65MGQQE. 40. Forensic examination of drive (Apple HDD01) found the following missing software applications and non Commonwealth related images: a. Installed Software Finding No. 17 of this report lists 16 items that were reported missing. Of interest in this examination are the following software items: #6 Avid Xpress Pro 4.X #7 Avid Xpress Pro 4.X #8 Forensic Toolkit 1.51a #9 iLife #10 iWork 05 #11 Macromedia Authorware 7 #12 Nero 6 Ultra Edition #13 TechSmith Camstasia Studio #14 TechSmith Snagit Out of the above list, items #6/ #7, #9, and #10 were found on Apple HDD 01. b. Discovered Media The Apple HDD 01 folder hierarchy contains a folder named Users. The Users folder holds data and files that belong to a particular user account. The Users folder contains three relevant folders. These folders are named alexander, eauser, and pagan. 1. eauser Folder Fourteen video clips have been found within the eauser folder hierarchy depicting a man introducing himself as Fred Hammond. Hammond mentions two other individuals. These individuals are Mo Horns and Marvin Thompson. Hammond describes Mo Horns as being the best in horns" and Hammond says "he's doing his thing" about Thompson. Many of these video clips are only a few seconds in length and contain various special effect experiments. Also, these clips appear to have been videoed directly outside a brick building. Along with these video clips is one audio file. The audio file is of a man singing music that sounds spiritual in nature. This song is also found to be the background music of one of the above mentioned video clips. Thirteen images of a funeral service have been found within the eauser folder hierarchy. The funeral appears to have taken place within a church. The images are of unknown people including an image of a deceased woman lying in a casket. Pagan, 05 -047 Page 10 There are also three video clips of this same funeral service. One clip is two minutes in length and displays a man talking. The casket is viewable in the background. The other two clips are one second long and are of the same man talking. The eauser folder hierarchy also contains media that appears to be of Pagan's family. This media consists of three video clips and one image. One vide clip has the words "Hope Ariel & Joy Ariel Pagan" superimposed across the video. This same video shows a woman feeding an infant. The image appears to be the same infant. 2. pagan Folder Four items have been found within the pagan folder hierarchy. These items are three video clips and one image. Two of the videos clips are twenty seconds in length. The other video is approximately seven minutes in length. These three videos are of two different men singing and talking while standing on a stage. The stage appears to be in a church. 41. Forensic examination of drive (Apple HDD02) found the following media: a. Apple HDD 02 does not contain any installed software. This hard drive was used as a data storage drive for audio /video projects. b. Discovered Media The Apple HDD 02 hard drive contains a parent folder called Lamp of Victory. Within the Lamp of Victory folder hierarchy, there are many folders with the .iMovieProject extension in the folder's name. 1. 20 Anniv Concert.iMovieProject Folder The 20 Anniv Concert. iMovieProject folder hierarchy contains eight videos. These videos are of various people talking, singing, and preaching. The length of these eight videos varies from 1.5 seconds up to approximately twenty minutes. 2. Carol Showell.iMovieProject Folder Five videos have been found in the Carol Showell.iMovieProject folder hierarchy. These videos are of a choir singing, and two women preaching. The women are very animated while preaching and the congregation is dancing and jumping around during the service. These five videos vary in length from nine to eleven minutes. 3. Concert DVD.iMovieProject Folder The Concert DVD. iMovieProject folder hierarchy contains one video. This video shows a man singing along with a band and background singers on the same stage as mentioned before. This video is approximately eleven minutes long. 4. Concert.iMovieProject Folder Pagan, 05 -047 Page 11 There is also a folder named concert.iMovieProject which contains eight video clips. The videos in this hierarchy are a few seconds up to nine minutes in length. 5. Father's Day AM Service.iMovieProiect Folder The Father's Day AM Service. iMovieProject folder hierarchy contains two video clips. Clip 01 is only two seconds in length. The other video, Clip 02 is approximately five minutes in length. Both of these videos are of a man preaching and singing from the same stage as found in the previous videos. 6. Friday.iMovieProiect Folder The Friday.iMovieProject folder hierarchy also contains two videos named Clip 01 and Clip 02. These two videos are of the same man as found [in] the Father's Day AM Service videos. In these videos the man is preaching and at one point the congregation starts to dance. Clip 02 is approximately ten minutes in length. 7 God's Vision Your Decision.iMovieProiect The God's Vision Your Decision. iMovieProject hierarchy also contains videos named Clip 01 and Clip 02. These videos appear to have been recorded in a small chapel area. Clip 01 is two minutes, twenty six seconds long while Clip 02 is one minute, twenty five seconds long. 8. May- 8 -05 -11 am.iMovieProiect Folder A folder named may- 8- 05- 11am.iMovieProject contains six video clips. Clip 01 shows a group of men singing spiritual music and is twenty one seconds long. Clip 02 is a video of the congregation during the offering service and this video is twenty one seconds long. Clip 03 is of a man preaching. Clip 03 is approximately nineteen minutes long. The Push 01 video is less than one second long and appears to be an editing experiment. The Strip Subtitle 01 video is a four second clip of the same group of men as found in Clip 01 of this same folder. Strip Subtitle 02 is a four second clip of the same preacher as found in Clip 03 of this folder. Both Strip Subtitle 01 and 02 have a banner superimposed across the video. The text of this banner is "Bishop Jerome Stokes, Pastor & Founder CRL Ministries `Kingdom Conqueror. "' 9. May29- 05.iMovieProiect Folder Six video clips are in the may29- 05.iMovieProject hierarchy. Clip 01 starts out with a choir in purple robs singing and transitions into a man preaching. Clip 01 is four minutes long. Clip 02 is one second long and displays a man standing at a podium. Clips 03, 04, 05, and 06 show the same man preaching. These videos are between one second and seven minutes in length. 10. Pastor.iMovieProiect Folder Pagan, 05 -047 Page 12 The folder hierarchy of Pastor.iMovieProject contains two videos. These videos show the man who is believed to be Bishop Jerome Stokes preaching. Clip 01 is nineteen seconds long while Clip 02 is approximately five minutes long. 11. Sunday- June- 12- 2005.iMovieProiect Folder The Sunday- June- 12- 2005.iMovieproject folder hierarchy contains three video clips. Clip 01 and Clip 02 are twenty one seconds long and show the purple robed choir singing spiritual songs. Clip 03 is approximately thirteen minutes long and shows the man who is believed to be Bishop Jerome Stokes preaching. 12. 5- 1 -05 -11 am.iMovieProiect Folder The folder hierarchy named 5-1 -05 -11 am. iMovieProject contains one video. Clip 02 is of the man who is believed to be Bishop Jerome Stokes giving a sermon. This video is approximately eight minutes long. 42. Pagan also had custody of two (2) Western Digital USB external hard drives, model number WD2500B012 -RNN. a. Drive (USB HDD01) had a serial number of WCAL72322644. b. Drive (USB HDD02) had a serial number of WCAL72324229. 43. Forensic examination of drive (USB HDD01) found the following media: Annalvsis of USB HDD 01 Discovered Media A total of 13 audio files have been discovered on USB HDD 01. 11 of these files are different song tracks in various stages of audio editing. Two of the audio files are final or near final versions of a song. This song is titled "Where My Christians At" and is in a jazz /rap style. Also found on USB HDD 01 are four video files. Two of these videos are a few seconds in length and show a flickering blue screen. One other video is 2 minutes and 52 seconds in length and shows a church style chair in a green room environment. The last video is very interesting in that it shows a man sitting on the same chair and he mentions that he is a recording engineer in the Baltimore area. He also says, "I have met quite a few people that have blessed me, spiritually and naturally, here at CRL. One of them is the camera operator Jem Pagan ". CRL refers to the Church of the Redeemed of the Lord which was founded by Dr. Jerome Stokes. This video is 3 minutes and 39 seconds long. 44. Forensic Examination of drive (USB HDD02) found the following media: Annalvsis of USB HDD 02 Discovered Media Two audio files have been found on USB HDD 02. These two files are 36 and 27 seconds in length. A man singing with an instrumental background can be heard on both of these files. 45. None of the images, files or video clips found on these computers and related Pagan, 05 -047 Page 13 storage devices related to Pagan's official duties with the Commonwealth. 46. On November 4, 2005, Pagan was sent notification by certified mail #700 0520 0023 1912 again from the Commonwealth's Executive Offices, Office of Human Resources informing him that his employment was terminated. a. The stated reasons were as a result of your removal of Commonwealth property without authorization, your use of Commonwealth property for other than officially designated purposes and your violation of both the Commonwealth Internet /E -mail User Agreement and the Commonwealth Standards for Internet Use and Electronic Mail Communications. b. This correspondence included the following explanatory language: This action is necessitated by your unauthorized removal of computer equipment and software from the worksite. Said equipment was determined to have been utilized at both your residence and at your church in Maryland for other than officially designated purposes. Further, upon a forensic analysis of both the Toshiba and Dell laptop which were assigned to you, it was determined that you had utilized such equipment to access and /or [non - Commonwealth related information]. Such actions constitute a violation of Commonwealth Internet /E -mail User Agreement, which you signed on November 18, 2003, as well as the Standards for Employee and Other Authorized User Internet Use and Electronic Mail Communications as outlined in Management Directive 205.34." THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT PAGAN FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS FORMS FOR CALENDAR YEARS 2003, 2004 AND 2005. 47. Pagan, in his official capacity as Director of the Bureau of Enterprise Architecture was annually required to file a Statement of Financial Interests form by May 1 containing information for the prior calendar year. 48. Pagan was required to file Statements of Financial Interests for calendar years 2003, 2004 and 2005 in his official capacity as Director of the Bureau of Enterprise Architecture. 49. Pagan was annually provided with blank Statement of Financial Interests forms to complete by the Office of Administration's Human Resources Department. a. Blank forms were annually provided to Pagan for completion. b. Filing reminders also were transmitted to employees through the Commonwealth's e-mail system. 50. Upon completion of a compliance review regarding filed Statements of Financial Interests, no forms were located for Pagan for calendar years 2003 through 2005. 51. Pagan purports that he timely completed and filed Statements of Financial Interests for calendar years 2003 through 2005, despite the fact that they were not located upon completion of the compliance review. 52. Pagan used the authority of his public position to convert Commonwealth computer software and hardware items valued at approximately $16,200 for his personal use, including providing computers and software for use by a church where he was a Pagan, 05 -047 Page 14 member of the congregation. a. These items were not needed for the performance of Pagan's duties with the Commonwealth. b. Some of the items purchased included an Apple Cinema 23 inch widescreen monitor, which is not compatible with the PCs used by the Commonwealth. c. Pagan utilized remote dial -up internet access to download and view non - Commonwealth related information through a Commonwealth internet connection in violation of the Commonwealth internet user agreement. 53. A majority of the sixteen (16) items listed in Finding No. 17, upon being returned to the Commonwealth, were never again utilized by the Commonwealth in that the items were non - compatible or otherwise unusable. a. Of those items which were non - compatible or otherwise unusable, efforts were made by the Commonwealth to sell or otherwise dispose of these items. 1. Efforts to sell or otherwise dispose of these items were unsuccessful. 2. Specifically, the following items have been deemed non - compatible and /or otherwise unusable by the Commonwealth, and as such, have remained in storage by the Commonwealth. #1 Apple Cinema HD 23 in. Wide Screen $1,671.62 #15 Apple PowerMac G5 $4,249.77 Total $5,921.39 54. As a result of the use of his authority or position, Pagan approved the purchase of at least $5,921.39 worth of computer hardware /software, which was converted for his personal use, and upon return was deemed non - compatible or otherwise unusable by the Commonwealth. III. DISCUSSION: As Director of the Bureau of Enterprise Architecture ( "Bureau ") of the Commonwealth Technology Center ( "CTC ") from November 3, 2003, until November 4, 2005, Respondent Jem Pagan, hereinafter also referred to as "Respondent," "Respondent Pagan," or "Pagan," was a public official /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 Pagan violated Sections 1103(a) and 1104(a) of the Ethics Act when he, as Director of the Bureau, used the authority of his public position for a private pecuniary gain, including but not limited to, authorizing the purchases of computer hardware and software and then utilizing the computer hardware and software, which was the property of the Commonwealth, for his personal use; and when he failed to file Statements of Financial Interests for the 2003, 2004 and 2005 calendar years. 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 Pagan, 05 -047 Page 15 65 Pa.C.S. § 1103(a). employee shall engage in conduct that constitutes a conflict of interest. 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 employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. 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 set forth above as the Findings of this Commission. We shall now summarize the relevant facts as contained therein. As noted above, from November 3, 2003, until November 4, 2005, Respondent Pagan was employed by the Commonwealth of Pennsylvania as the Director of the Bureau. The Bureau was responsible for overseeing the development of information technology standards and monitoring compliance in Commonwealth agencies. As Director of the Bureau, Pagan's job duties included researching new technology items for future Commonwealth needs, purchasing technology items for testing and evaluation purposes, and approving technology purchases including purchases of hardware and software applications for potential Commonwealth use. Pagan personally would select items as well as approve selections made by subordinate employees. Pagan had the authority to make the final approval in purchasing decisions. Purchased items were inventoried and assigned to the requesting employee. Purchases were to be tested in a computer lab established at CTC by Pagan. Pagan did not have authorization to remove Commonwealth equipment from CTC. As Director of the Bureau, Pagan had access to the Commonwealth Internet connection. On November 18, 2003, Pagan signed a standard Commonwealth Internet/e- Pagan, 05 -047 Page 16 mail user agreement included with Management Directive 205.34. In his official capacity as Director of the Bureau, Pagan was assigned two Commonwealth laptop computers for official business, specifically, a Toshiba laptop, Serial #15036654H, and a Dell laptop, Serial #CF8Z851. Pagan did not share use of these computers with other employees. During 2003 to 2005, the Commonwealth was utilizing PC based computer system(s). Apple -Mac computer hardware or software applications were not a standard for the Commonwealth and were of virtually no use. The Commonwealth had no intention of switching its computer system from PCs to Apple -Mac. As detailed in Fact Findings 14 -19, beginning in 2005, Pagan utilized his position as Director of the Bureau to initiate and approve purchase orders for sixteen items purchased by the Commonwealth, which items were subsequently converted for personal use. Pagan identified the items to be purchased, including items that were not compatible with the Commonwealth's PC based system. Pagan directed subordinate employees to place the orders. Pagan physically took possession of the items once delivered to and inventoried by the Bureau. Pagan was the only Commonwealth employee who had access to the sixteen items. Without Commonwealth approval, Pagan provided some of the items for use by his church ( "the Church ") located in Baltimore, Maryland. Pagan did not inform any Commonwealth staff that he was removing the items from the Commonwealth of Pennsylvania. Pagan has been a member of the Church for approximately the past seven (7) years. Pagan does not hold any positions within the Church. The following items purchased through the Bureau at Pagan's direction and owned by the Commonwealth were physically at the Church from approximately June 26, 2005, to July 11, 2005: Apple Cinema HD 23 inch Wide Screen (cost: $1,671.62); Monitor, Dell 2001 FP (cost $41.46 per month); Western Digital 250 GB Ext. Drive (cost: $265.30); Western Digital 250 GB Ext. Drive (cost $265.30); Apple PowerMac G5 (Workstation) (cost $4,249.77); and Dell Precision 370 (Workstation (cost: $66.28 per month). During this timeframe, the equipment was not available for ommonwealth use or testing. At or about the end of June 2005, questions were raised by Pagan's immediate supervisor, Kristen Miller ( "Miller "), Acting Deputy Secretary, Office of Information Technology, regarding Pagan's use of Commonwealth equipment. As a result of Miller's concerns, an inventory audit of the hardware /software items purchased by the Bureau was conducted on June 28, 2005. A total of sixteen (16) computer items and software issued to Pagan were not found within the CTC facility. On July 7, 2005, representatives from the Office of Inspector General met with Pagan and Miller to discuss the missing computer hardware and software applications. Pagan was asked to immediately turn over all of the items to the Commonwealth. Pagan returned some equipment on July 7, 2005, and the rest on July 11, 2005. Equipment returned by Pagan was turned over to the Office of Inspector General for forensic examination. At the time of the equipment's return, it had a cost to the Commonwealth of approximately $16,200, although that amount would increase as a result of monthly lease payments for certain of the items. (Fact Findings 17 and 32). On July 7, 2005, Pagan was suspended without pay pending an investigation by the Office of Inspector General into the matter. Pagan remained in a suspended status until his termination from employment with the Bureau on November 4, 2005. During this time, the Office of Inspector General investigated the matter. Pagan, 05 -047 Page 17 Upon return all of the missing equipment and software, the OIG conducted a forensic examination of Pagan's Commonwealth issued computers. Photographs and movie files that depicted non - Commonwealth related subjects were found on both laptops that had been assigned to Pagan. These images were obtained by Pagan through the use of the Commonwealth Internet connection. The Investigative Division of this Commission conducted forensic examinations on two Western Digital external hard drives and two hard drives removed from the Apple Powermac G5 issued to Pagan. All four (4) hard drives had images or video clips that did not relate to Pagan's Commonwealth responsibilities. Pagan had custody of two (2) Maxtor model MaXLine Plus II hard drives for Apple applications. Forensic examination of these drives found nine Commonwealth software applications that had been missing, as well as images, audio files, and video clips /video files that were unrelated to Pagan's official duties with the Commonwealth. On November 4, 2005, Pagan was notified that his employment with the Bureau was terminated. The stated reasons for termination were Pagan's removal of Commonwealth property without authorization, use of Commonwealth property for other than officially designated purposes, and violation of both the Commonwealth Internet /E -mail User Agreement and the Commonwealth Standards for Internet Use and Electronic Mail Communications. The parties have stipulated that Pagan used the authority of his public position to convert Commonwealth computer software and hardware items valued at approximately $16,200 for his personal use, including providing computers and software for use by the Church. These items were not needed for the performance of Pagan's duties with the Commonwealth. Some of the items purchased were not compatible with the PCs used by the Commonwealth. Pagan utilized remote dial -up Internet access to download and view non - Commonwealth related information through a Commonwealth Internet connection in violation of the Commonwealth Internet user agreement. The Apple Cinema HD 23 inch Wide Screen (cost: $1,671.62), and the Apple PowerMac G5 (Workstation) (cost $4,249.77) have been deemed non - compatible and /or otherwise unusable by the Commonwealth. The parties have stipulated that as a result of the use of his authority or position, Pagan approved the purchase of at least $5,921.39 worth of computer hardware /software, which was converted for his personal use, and upon return was deemed non - compatible or otherwise unusable by the Commonwealth. We shall now review the Fact Findings pertaining to allegations that Pagan failed to file Statements of Financial Interests (SFIs) for calendar years 2003, 2004, and 2005. In his official capacity as Director of the Bureau, Pagan was required to file SF's for calendar years 2003, 2004, and 2005. The Office of Administration's Human Resources Department annually provided to Pagan blank SFI forms for completion. Filing reminders also were transmitted to employees through the Commonwealth's e-mail system. Following a compliance review, no SFI forms were located for Pagan for calendar years 2003 through 2005. Pagan purports that he timely completed and filed SF's for calendar years 2003 through 2005, despite the fact that no such forms were located upon completion of the compliance review. 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: Pagan, 05 -047 Page 18 3. The Investigative Division will recommend the following in relation to the above allegations: a. That a violation of Section 1103(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1103(a) occurred in relation to Pagan utilizing computer hardware and software, which was the property of the Commonwealth, for his personal use; and b. That an unintentional violation of Section 1104(a) of the Public Official and Employee Ethics Act, 65 Pa.C.S. §1104(a) [occurred] when Pagan failed to file Statements of Financial Interests for the 2003, 2004, and 2005 calendar years. 4. Pagan agrees to make payment in the amount of $5,921.39 in settlement of this matter. Said settlement amount is to be made in monthly payments of $164.48 per month for thirty -six (36) months, made payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission with the first payment due [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. We shall first consider the recommendation of the parties that a violation of Section 1103(a) of the Ethics Act occurred in relation to Pagan utilizing computer hardware and software, which was the property of the Commonwealth, for his personal use. Each element of the recommended violation has been established. Pagan used the authority of his public position to purchase and convert Commonwealth computer software and hardware items valued at approximately $16,200 for his personal use, including providing computers and software for use by the Church. Pagan used the authority of his position as Director of the Bureau to initiate and approve purchase orders for these items, directing subordinate employees to place the orders. Pagan physically took possession of the items once delivered to and inventoried by the Bureau. All of these actions were uses of the authority of Pagan's public position. By using the authority of his public position to purchase the aforesaid items through the Bureau, at Commonwealth expense, Pagan received a private pecuniary benefit consisting of the use of the items without having to purchase them at his own expense. The Apple Cinema HD 23 inch Wide Screen, which cost the Commonwealth $1,671.62, and the Apple PowerMac G5 Workstation, which cost the Commonwealth $4,249.77, were deemed non - compatible and /or otherwise unusable by the Commonwealth when they were returned by Pagan. The parties have stipulated that as a result of the use of his authority or position, Pagan approved the purchase of at least Pagan, 05 -047 Page 19 $5,921.39 worth of computer hardware /software, which was converted for his personal use, and which, upon return, was deemed non - compatible or otherwise unusable by the Commonwealth. It is axiomatic that the use of government staff, time, equipment, facilities, or property for non - governmental purposes — including business, personal, or political purposes —is generally prohibited and may form the basis for a violation of Section 1103(a) of the Ethics Act. See, Confidential Opinion, 05 -001; see, Heck, Order 1251, Holt, Order 1153 (business purposes); Moore, Order 1317, Meduka, Order 1277, Sullivan, Order 1245, Dovidio, Order 1202 (personal purposes); Habay, Order 1313, Livingston, Order 1030, Rockefeller, Order 1004, Freind, Order 800 (political purposes). In Cobb, Order 1354, we held that a school district business manager violated Section 1103(a) of the Ethics Act when he utilized a school district account to purchase a Dell Inspiron 4000, Pentium III laptop computer with related software packages, which items were used for his personal purposes, and when he utilized school district equipment including a school district Dell Dimension 4100 Desktop Computer and monitor for his private personal interest. Recently, in Pierce, Order 1449, this Commission determined that a violation of Section 1103(a) of the Ethics Act occurred when a school district's director of communications utilized his public position to make purchases of a personal nature including meals and other personal items utilizing a school district credit card (see also, Krisher, Order 1425; Gorr, Order 1423) and when he utilized school district personnel, equipment and facilities for personal purposes (see also, Cagno, Order 1204; cf., Rembold, Order 1417; Koser, Order 1351; Farley, Order 1096). We conclude that the recommendation of the parties is the correct result, and accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred in relation to Pagan utilizing computer hardware and software, which was the property of the Commonwealth, for his personal use. We shall next consider the recommendation of the parties that an unintentional violation of Section 1104(a) of the Ethics Act occurred when Pagan failed to file SF's for the 2003, 2004, and 2005 calendar years. In his official capacity as Director of the Bureau, Pagan was required to file SF's for calendar years 2003, 2004, and 2005. Pagan purports that he timely completed and filed SF's for calendar years 2003 through 2005, despite the fact that no such forms were located upon completion of a compliance review. Under the factual circumstances, we conclude that the recommendation of the parties is the appropriate disposition for the allegation involving Pagan's failure to file SF's for calendar years 2003 through 2005. Accordingly, we hold that an unintentional violation of Section 1104(a) of the Ethics Act occurred when Pagan failed to file SF's for the 2003, 2004, and 2005 calendar years. As part of the Consent Agreement, Pagan has agreed to make payment in the amount of $5,921.39 in settlement of this matter, with said settlement amount to be paid in monthly payments of $164.48 per month for thirty -six (36) months, made payable to the Commonwealth of Pennsylvania and forwarded to this Commission, and with the first such payment to be due within thirty (30) days of the issuance of the final adjudication in this matter. 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, Pagan is directed to make payment in the amount of $5,921.39, with said amount to be paid in monthly payments of $164.48 per month for thirty -six (36) months, made payable to the Commonwealth of Pagan, 05 -047 Page 20 Pennsylvania and forwarded to this Commission, and with the first such payment to be due within thirty (30) days of the issuance of this adjudication and Order. To the extent that he has not already done so, Pagan is directed to file accurate and complete SFIs for calendar years 2003, 2004, and 2005 through the Bureau within thirty (30) days of the date of the issuance of this adjudication and Order, with copies of each such filing forwarded to this Commission for compliance verification purposes. 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. As Director of the Bureau of Enterprise Architecture ( "Bureau ") of the Commonwealth Technology Center ( "CTC') from November 3, 2003, until November 4, 2005, Respondent Jem Pagan ( "Pagan ") was a public official /public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. 2. Pagan violated Section 1103(a) of the Ethics Act when he utilized computer hardware and software, which was the property of the Commonwealth, for his personal use. 3. An unintentional violation of Section 1104(a) of the Ethics Act occurred when Pagan failed to file Statements of Financial Interests (SFIs) for the 2003, 2004, and 2005 calendar years. In Re: Jem Pagan, Respondent ORDER NO. 1466 File Docket: 05 -047 Date Decided: 4/28/08 Date Mailed: 5/15/08 1 Respondent Jem Pagan ( "Pagan "), a public official /public employee in his capacity as Director of the Bureau of Enterprise Architecture ( "Bureau ") of the Commonwealth Technology Center ( "CTC') from November 3, 2003, until November 4, 2005, violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when he utilized computer hardware and software, which was the property of the Commonwealth, for his personal use. 2. An unintentional violation of Section 1104(a) of the Ethics Act occurred when Pagan failed to file Statements of Financial Interests (SFIs) for the 2003, 2004, and 2005 calendar years. 3. Per the Consent Agreement of the parties, Pagan is directed to make payment in the amount of $5,921.39, with said amount to be paid in monthly payments of $164.48 per month for thirty -six (36) months, made payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission, and with the first such payment to be due within thirty (30) days of the issuance of this Order. 4. To the extent that he has not already done so, Pagan is directed to file accurate and complete SFIs for calendar years 2003, 2004, and 2005 through the Bureau within thirty (30) days of the date of the issuance of this Order, with copies of each such filing forwarded to this Commission for compliance verification purposes. 5. Compliance with Paragraphs 3 and 4 of this Order will result in the closing of this case with no further action by this Commission. a. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair