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HomeMy WebLinkAbout1463 BornsteinIn Re: Rita Bornstein, 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 06 -070 Order No. 1463 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 amended Investigative Complaint was filed to correct the issuance date. 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 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. Bornstein, 06 -070 Page 2 I. ALLEGATIONS: That Rita Bornstein, a public official /public employee in her capacity as the Health Code Officer for the City of Connellsville, Westmoreland County [sic], violated Sections 1103(a), 1104(a) and 1104(d) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §§ 1103(a), 1104(a) and 1104(d), when she used the authority of her public position for a private pecuniary gain by utilizing her office including equipment, materials and supplies as Connellsville City Health Code Officer in support of her part -time positions as Health Code Officer for the Borough of South Connellsville and Dunbar Borough; when she performed duties related to these part -time positions during the same hours for which she was being compensated as an employee of the City of Connellsville; and when she failed to file Statements of Financial Interests for 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with the City of Connellsville, South Connellsville Borough and Dunbar Borough. II. FINDINGS: 1. Rita Bornstein has served as the full time Health Officer /Code Enforcement Officer for the City of Connellsville (hereafter Connellsville), Fayette County since January 10, 2000. a. Bornstein has also served as the Zoning Officer for Connellsville since at least 2003. 2. Connellsville is a third class city governed by a five member board consisting of four council members and a mayor. a. Connellsville follows a strong mayor form of government. b. Connellsville follows the Third Class City Code in relation to city governance. 3. Bornstein's job description as the Connellsville Health Officer /Code Enforcement Officer separates Bornstein's general duties and responsibilities from her specific duties and responsibilities. a. Bornstein's general duties and responsibilities note, in part, the following points: 1. The Health Code Officer is directly responsible to the Board of Health. 2. The HCO is responsible for attending all meetings of the Board of Health and to be available for the prompt performance of his /her official duties at all times. 3. The HCO shall quarantine places of communicable diseases in accordance with the law. 4. The HCO shall make sanitary inspections. 5. The HCO shall monitor any condition associated with environmental problems. 6. The HCO shall report any conditions found to be detrimental to public health. 7 The HCO shall execute the orders of the Board of Health and all other Bornstein, 06 -070 Page 3 laws, rules, regulations and orders pertaining to this office. 8. The HCO shall work with the Board of Health in the continual effort to preserve or improve the public health in the City of Connellsville, and shall be a member of the City Planning Board. b. Bornstein's specific duties and responsibilities note, in part, the following points: 1. It is the responsibility of the Health /Code Officer to be acquainted with the local ordinances affecting the health and safety of the residents of the City and the appropriate legal enforcement of each ordinance. aa. Ordinance No. 1126 — bb. Ordinance No. 942 — cc. Ordinance No. 1407 Code dd. Ordinance No. 1408 family dwellings Eating and Drinking Establishments Housing Ordinance — International Property Maintenance — International Residential Code for 1 -2 2. Make inspections, issue and sign all licenses to appropriate businesses and organizations. 3. Keep accurate and physical evidences [sic] of all violations of ordinances. 4. Work primarily with the interpretation and implementation of the ordinances and be responsible for reporting progress and needs of the City to the board and recommend[ing] and evaluating results. 5. Monitor all state and federal laws regulating health /code standards. 6. Arrange for preparation of all reports required by City, State, or Federal government. 7. Execute and administer all policies, plans, rules, and regulations adopted by the board, exercising professional judgment and discretion in [their] execution. 8. Prepare the annual budgetary requests including all appropriates [sic] necessary to meet anticipated needs of the ensuing year. 9. Attend all health board meetings, excluding the power to vote, the Health /Code Officer is to be given direction and professional advice regarding the effect of proposed action by the board. 10. Attend all planning board meetings, advise board of permits obtained and seek [its] assistance in obtaining them if problems arise and assist planning board with implementation of adopted BOCA Codes. 11. Provide any necessary in- service to board members directed toward developing their ability to function effectively in the role of making decisions relative to health and community safety. 12. Serve as the agent of communication between the Board of Health, Planning Board, local businesses, and the community on official business of the City. Bornstein, 06 -070 Page 4 13. Provide for the selection, inventory, and distribution of health forms, licenses, and literature on health, rat poisons, or other materials deemed necessary to the public health /safety. 14. Provide for an efficient and effective method to record all complaints and inquiries. 15. Assist in resolving special problems which tend to interfere with the daily routine or policies of the board. 16. Keep informed on all important developments in the health /code fields as [to] how they may affect the health and safety of the residents of the City. 17. Assist the board in all matters pertaining to the general welfare and safety of [t]he residents of the City and perform such duties as the board may determine and direct. 18. Perform in all instances as the Health /Code Officer for the City of Connellsville with professional integrity honoring the confidences and loyalties ascribed to and required by this position. 4. Connellsville City Hall is located at 110 North Arch Street, Connellsville, PA 15425. a. The main telephone number associated with City Hall is (724) 628 -2020. 1. City employees have specific extension numbers assigned to their work stations /offices. b. The facsimile number for City Hall is also (724) 628 -2020. 5. Bornstein maintains a private office at City Hall in relation to the performance of her duties as Health /Code Enforcement /Zoning Officer. a. Bornstein's telephone extension is 207. 6. Bornstein has access to and utilizes various pieces of equipment and supplies in her office in the everyday performance of her duties. a. Various pieces of equipment and supplies maintained in Bornstein's office are owned /purchased by Connellsville. b. Connellsville equipment and supplies routinely utilized include a computer, printer, and telephone among other items. 1. Bornstein maintains no separate facsimile machine or copier in her office. 7 Additional equipment provided to Bornstein in the performance of her duties include[s] a Sunoco Fuel credit card and magnetic sign for her personal vehicle. a. Bornstein is budgeted $300.00 per year for fuel use in relation to her positions with Connellsville. 1. Bornstein utilizes her personal vehicle for travel required in her positions with the city. Bornstein, 06 -070 Page 5 8. Bornstein is employed in a full time capacity as the Connellsville Health /Code Enforcement /Zoning Officer. a. Bornstein works a regular schedule of Monday through Friday, 9:00 a.m. to 5:00 p.m. with a one hour paid lunch period. 1. Bornstein is permitted to flex her lunch hour to accommodate her daily work schedule. b. Bornstein accrues vacation, personal, and sick time in her position. c. Bornstein receives a yearly salary in her position. 9. Bornstein is permitted to utilize compensatory time /flex her normal work hours on a limited basis. a. Bornstein may flex her starting time in the morning if she works past her normal working hours the day before. b. Bornstein does not accrue compensatory time on an ongoing basis to be utilized at a future date. 10. Connellsville employees utilize handwritten time sheets to document days and hours worked. a. Information on time sheets maintained is limited to the date worked and the range of hours worked (i.e. 10/01/07 9 -5). 1. No specific description of activities performed is documented on the timesheets. 11. Employees utilizing vacation, personal, or sick time are to notify the City Clerk or Administrative Secretary of their intent to do so. a. The City Clerk or Administrative Secretary then forwards the leave usage to the City Bookkeeper for recording and processing. 12. Although Bornstein reports to the Board of Health as Health Officer and to the Director of Public Safety on behalf of City Council as the Code Enforcement Officer, no Connellsville representatives directly oversee Bornstein's activities on a daily basis. a. Bornstein appears at and leaves her City Hall office at various times during her normal work hours. b. City Hall staff are not consistently made aware of Bornstein's daily itinerary. c. Bornstein has autonomy over her daily activities. 13. In addition to Bornstein's employment with the City of Connellsville, Bornstein serves as the Health Officer for South Connellsville Borough, Dunbar Borough, and the City of Monongahela (hereafter Monongahela) on a part time, as- needed basis. a. Bornstein has been employed by South Connellsville Borough since May 2, 1994. 1. Bornstein was initially hired on an on -call basis at the rate of $25.00 Bornstein, 06 -070 Page 6 to $40.00 per inspection. 2. Bornstein's payment for services rendered was changed to that of a flat retainer of $50.00 per month effective January 1, 1997. 3. Bornstein currently receives a $60.00 per month flat retainer for services rendered. aa. The flat retainer accounts for Bornstein's salary and all expenses accrued (i.e. mileage, personal vehicle maintenance, etc.). bb. The retainer is typically issued in December each year for the past year's service. b. Bornstein has been officially employed by Dunbar Borough since March 18, 2002. 1. Although not officially retained until the March 18, 2002, borough council meeting, Bornstein received payment from Dunbar Borough in February 2002 for six months worth of services rendered in 2001. 2. Bornstein receives payment of $60.00 per month as a flat retainer for services performed. aa. The flat retainer accounts for Bornstein's salary and all expenses accrued (i.e. mileage, personal vehicle maintenance, etc.). bb. The retainer is typically issued twice per year for services performed throughout the year. c. Bornstein has been employed by Monongahela as an independent contractor on a part -time basis since April 3, 2006. 1. Bornstein's sub - contractor agreement with Monongahela documents Bornstein's compensation in the amount of $15.00 per hour and mileage reimbursement at the rate of $0.40 per mile. 14. Bornstein did not obtain authorization from the Director of Public Safety prior to seeking or accepting employment with South Connellsville Borough, Dunbar Borough, or Monongahela. a. No written approval of any authorization regarding Bornstein's employment with the municipalities listed exists at Connellsville City Hall. 15. Bornstein does not maintain an independent office at South Connellsville Borough, Dunbar Borough, or Monongahela. a. Bornstein's sole office is located at Connellsville City Hall. b. Bornstein has used her Connellsville City Hall office and equipment in relation to her part -time positions with Dunbar, Monongahela and South Connellsville. 16. As early as 2002, questions arose regarding Bornstein completing duties in association with her secondary health officer employment during normal working Bornstein, 06 -070 Page 7 hours for Connellsville. a. Concerns over Bornstein's activities and whereabouts were presented to John Whalen, Director of Health and Public Safety at that time. 1. Bornstein did not report to an immediate supervisor or provide [notice to] anyone at the City of her whereabouts on a day to day basis. 2. Whalen had received complaints that Bornstein was working in other municipalities during her regular working hours as a Connellsville employee. b. Whalen discussed the concerns and his solution to the situation with Bornstein on January 2, 2003. c. Whalen documented the discussion in correspondence to Bornstein dated January 3, 2003. 17. Correspondence issued to Bornstein from Whalen, dated January 3, 2003, specifically documented the following: a. Bornstein was expected to complete a daily log to document appointments, inspections, and daily mileage with any gas receipts attached. b. Bornstein was expected to complete a phone log to include name, time, and length of call and number as well as basic subject information. c. Logs to account for Bornstein's time were necessary as Whalen had to defend Bornstein's whereabouts on various occasions over the past "couple" months. 1. Whalen had received various complaints regarding Bornstein completing work in South Connellsville Borough during normal Connellsville working hours. 18. Bornstein utilized a Hewlett Packard Pavilion 545X desktop computer in her office at Connellsville City Hall to facilitate the performance of her duties as the Health /Code Enforcement /Zoning Officer. a. The Serial Number associated with Bornstein's City computer is MX31613307. b. Bornstein does not own a computer in her personal capacity. 19. City Council approved the purchase of the computer on June 10, 2003, under Resolution No. 6- 11 -03. a. The Resolution approved the purchase of a computer for the Health /Code Officer not to exceed $1,500.00. 20. Connellsville purchased the computer on June 18, 2003, via Capital Improvement Fundcheck number 154 in the amount of $999.99 from Radio Shack Store No. 01- 4117. a. The purchase is documented via Radio Shack Invoice No. 215219 and notes Connellsville as the customer. Bornstein, 06 -070 Page 8 b. The purchase is documented as a "Bundle" on the invoice. 1. The "Bundle" classification indicates that the computer was sold as a package including the computer tower, monitor, keyboard, and mouse. c. The "For" section of the check notes, "computer system Health Dept." 21. Bornstein routinely utilized the city computer assigned to her in the performance of her duties in other employment with Dunbar and South Connellsville Boroughs and Monongahela. a. Bornstein did not have a private computer to be able to perform these tasks. b. Bornstein was not authorized by Connellsville Officials to utilize city equipment for personal purposes, including other employment. 22. The Western Digital hard drive (Serial Number WCAAT5109274) maintained in Bornstein's computer at her Connellsville City Hall office revealed that Bornstein utilized the city computer along with various 3'/ inch floppy disks in support of her supplemental employment with South Connellsville Borough, Dunbar Borough, and the City of Monongahela, as well as other personal use as shown below: a. Three documents were generated by Bornstein pertaining to her employment with South Connellsville Borough as shown below: 1. Correspondence addressed to Attorney Richard Bower informed borough council and the mayor that the structure located at 2126 Second Street, South Connellsville, PA was unfit for human habitation. aa. The file regarding the letter was created on February 14, 2006, at 4:25 p.m. and was last written on February 20, 2006, at 3:21 p.m. 1. Bornstein's monthly timesheet for February 2006 documents Bornstein working_ for Connellsville from 9 a.m. — 5 p.m. on February 14 and 20 2006. 2. Correspondence dated May 10, 2006, addressed to Attorney Robert Slone informed borough council and the mayor of still existing violations at 2126 Second Street, South Connellsville, PA. aa. The file regarding the letter was created on May 11, 2006, at 10:02 a.m. and last written on May 11, 2006, at 10:26 a.m., during Bornstein's regular hours as a Connellsville employee. 1. Bornstein's May 2006 time sheet could not be located for review. 3. The third document consists of remnants of a text file which represented correspondence dated February 24, 2006, to Keith Cook at 467 Reidmore Road, South Connellsville, PA regarding sanitation violations at the property. aa. The file creation date could not be determined. Bornstein, 06 -070 Page 9 b. Bornstein's computer and floppy disks created by Bornstein revealed eleven documents generated by Bornstein pertaining to her employment with Dunbar Borough during her regular hours as a Connellsville employee. 1. Correspondence dated July 7, 2000 *, to Mr. and Mrs. Lou Ross addressed BOCA National Property Maintenance Code violations under Sections PM- 301.3- Vacant Structures and Land, and 304.7 - Roof regarding property owned at 86 Connellsville St., Dunbar, PA. aa. The file regarding the correspondence was created on February 18, 2000 *, at 11:26 a.m. and last written on July 7, 2000 *, at 12:57 p.m. bb. Although titled "Borough of Dunbar" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point for any questions. *[These dates appear to be typographical errors, as the other Stipulated Findings provide that the City computer utilized by Bornstein was not purchased until June 18, 2003. See, Fact Findings 18-20.] 2. Correspondence dated June 28, 2003, to John Maddas, Jr. addressed a violation of Section 302.1- Sanitation regarding property located at 7 Chestnut Street, Dunbar, PA. aa. The file regarding the correspondence was created on June 27, 2003, at 11:08 a.m. and last written on June 27, 2003, at 11:16 a.m. during her working hours as a Connellsville employee. 1. The file name is documented as "Bryner -6, Pottstown." 2. Bornstein's monthly time sheet for June 2003 documents Bornstein working for Connellsville from 9 a.m. - 5 p.m. on June 27, 2003. bb. Although titled "Dunbar Borough" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 3. Duplicate correspondence dated June 28, 2003, to John Maddas, Jr. addressed a violation of Section 302.1- Sanitation regarding property located at 7 Chestnut Street, Dunbar, PA. aa. The file regarding the correspondence was created on June 27, 2003, at 11:16 a.m. and last written on June 27, 2003, at 11:16 a.m., during Bornstein's regular hours as a Connellsville employee. 1. The file name is documented as " Maddas." 2. Bornstein's monthly time sheet for June 2003 documents Bornstein working for Connellsville from 9 a.m. — 5 p.m. on June 27, 2003. bb. Although titled "Dunbar Borough" the correspondence Bornstein, 06 -070 Page 10 documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 4. Correspondence dated June 28, 2003, to Timothy Herring addressed a violation of Section 302.4 -Weeds and High Grass regarding property located at 122 Connellsville Street, Dunbar, PA. aa. The file regarding the correspondence was created on June 27, 2003, at 10:59 a.m. and last written on June 27, 2003, at 10:59 a.m., during Bornstein's regular hours as a Connellsville employee. 1. Bornstein's monthly time sheet for June 2003 documents Bornstein working for Connellsville from 9 a.m. — 5 p.m. on June 27, 2003. bb. Although titled "Dunbar Borough" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 5. Correspondence dated July 7, 2005, to Tracy Shultz addressed a violation of Section 304.6- Exterior Walls regarding the structure located at 37 Walnut Street, Dunbar, PA. aa. The file regarding the correspondence was created on July 6, 2005, at 2:51 p.m. and was last written on July 6, 2005, at 2:52 p.m. 1. Bornstein's July 2005 time sheet could not be located for review. bb. Although titled "Dunbar Borough Board of Health" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 6. Correspondence dated August 30, 2005, to Chad Gales addressed violations of Section 302.8 -Motor Vehicles and Section 307.1 - Accumulation of Rubbish or Garbage of the Property Maintenance Code. aa. The file regarding the correspondence was created on August 30, 2005, at 3:00 p.m. and last written on August 30, 2005, at 3:01 p.m., during Bornstein's regular working hours as a Connellsville employee. 1. Bornstein's monthly time sheets for August 2005 document Bornstein working for Connellsville from 9 a.m. — 5 p.m. on August 30, 2005. bb. Although titled "Dunbar Borough Board of Health" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 7 Correspondence dated September 8, 2005, to David Hiles addressed the structure at 132 Connellsville Street, Dunbar, PA as unfit for Bornstein, 06 -070 Page 11 human habitation. aa. The file regarding the correspondence was created on September 8, 2005, at 3:05 p.m. and was last written on August 2, 2006, at 2:59 p.m., during Bornstein's hours as a Connellsville employee. 1. Bornstein's monthly time sheets for September 2005 document Bornstein working for Connellsville from 9 a.m. — 5 p.m. on September 8, 2005. 2. Bornstein's monthly time sheets for August 2006 document Bornstein working for Connellsville from 9 a.m. — 5 p.m. on August 2, 2006. bb. Although titled "Dunbar Borough Board of Health" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 8. Correspondence dated June 19, 2006, to Glen Ghrist, Jr. addressed various violations relating to a vacant structure located at 102 Connellsville Street, Dunbar, PA. aa. The file regarding the correspondence was created on June 19, 2006, at 10:21 a.m. and was last written on June 19, 2006, at 10:34 a.m. 1. Bornstein's monthly time sheets for June 2006 document Bornstein working for Connellsville from 9am- 5pm on June 19, 2006. bb. Although titled "Dunbar Borough" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 9. Undated correspondence to Hiles addressed violations of Section 110 - Demolition and Section 302.4 -Weeds regarding the structure at 132 Connellsville Street, Dunbar, PA. aa. The file regarding the correspondence was created on June 19, 2006, at 12:59 p.m. and was last written on June 19, 2006, at 12:59 p.m. 1. Bornstein's monthly time sheets for June 2006 document Bornstein working for Connellsville from 9 a.m. — 5 p.m. on June 19, 2006. bb. Although titled "Dunbar Borough" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 10. Correspondence dated June 19, 2006, to Karen Ross regarding Stone House was incomplete. aa. No subject /body was present in the correspondence. Bornstein, 06 -070 Page 12 1. The file name is documented as "Letterhead." bb. The file regarding the correspondence was created on June 19, 2006, at 10:43 a.m. and was last written on June 21, 2006, at 1:53 p.m. 1. Bornstein's monthly time sheets for June 2006 document Bornstein working for yonnellsville from 9 a.m. — 5 p.m. on June 19 and 21 s , 2006. cc. Although titled "Dunbar Borough Board of Health" the correspondence documented Connellsville City Hall's telephone number and Bornstein's extension as a contact point. 11. Blank letterhead [noted] the title, "Dunbar Borough 47 Connellsville Street, Dunbar, Pa 15431 Phone 628 -2020 ext. 207 Rita J. Bornstein, Health Code Officer." aa. No subject /body was present on the letterhead. 1. The file name is documented as "Ross & Hiles- Dunbar." bb. The file was created on June 19, 2006, at 10:43 a.m. and was last written on June 21, 2006, at 1:53 p.m. 1. Bornstein's monthly time sheets for June 2006 document Bornstein working for t Connellsville from 9 a.m. -5 p.m. on June 19 and 21 2006. c. A review of Bornstein's computer revealed one document generated by Bornstein pertaining to her employment with the City of Monongahela, during her hours as a Connellsville employee. 1. Correspondence dated April 18, 2006, to Frank and Anna Ursits c/o Sheila Lynch and Christopher Hastings addressed violations of Section 302.1- Sanitation and Section 110.1- Demolition regarding property located at 221 Union Street, Monongahela, PA. aa. The file regarding the correspondence was created on April 18, 2006, at 10:54 a.m. and was last written on April 18, 2006, at 12:39 p.m. 1. Bornstein's monthly timesheet for April 2006 documents Bornstein working for Connellsville from 9 a.m. — 5 p.m. on April 18, 2006. d. A review of Bornstein's computer revealed one document generated by Bornstein pertaining to the rental of property under the name of Bornstein Rentals. 1. Correspondence dated November 23, 2004, to Mr. R. Tamblyn and Mr. R. Hart served as an official eviction notice for failure to pay rent when due and also for failure to pay garbage bills. aa. The file regarding the correspondence was created on November 23, 2004, at 4:10 p.m. and was last written on Bornstein, 06 -070 Page 13 November 23, 2004, at 4:10 p.m. 2. The correspondence noted Bornstein and Ed Bornstein (Bornstein's spouse) as the property owners. aa. No specific address was documented in the correspondence. e. A review of Bornstein's computer revealed one document generated by Bornstein relating to West Side News, a private business owned by Bornstein and Ed Bornstein. 1. Correspondence dated August 14, 2006, to Joseph Wisilosky at 108 Wood Street, Connellsville, PA served as formal notice of Wisilosky's failure to respond to bad check charges. aa. The file regarding the correspondence was created on August 2, 2005, at 10:47 a.m. and was last written on August 25, 2006, at 1:40 p.m. 1. Bornstein's monthly time sheets for August 2005 document Bornstein working for Connellsville from 9 a.m. — 5 p.m. on August 2, 2005. 2. Bornstein's monthly time sheets for August 2006 document Bornstein working for Connellsville from 9 a.m. -5 p.m. on August 25, 2006. f. All creation dates and times associated with the correspondence discovered on Bornstein's computer represent regular working days and regular working hours for Connellsville employees, including Bornstein. 23. Connellsville long distance telephone service is provided through Verizon. a. Bornstein has access to a city telephone in her private Connellsville work office. 24. During or about September 2005, Connellsville initiated a system with Verizon telephone service which required the use of a specific code to make toll and long distance telephone calls. a. Connellsville employees are assigned specific, individual codes to utilize with the system. 1. The Controller is the only Connellsville employee with access to /knowledge of specific code numbers assigned to other Connellsville employees. b. Connellsville employees must first dial a "1" then the number to be called followed by the employee's specific code in order to place toll or long distance telephone calls. 25. Bornstein utilized Connellsville telephones and the Connellsville facsimile machine along with her telephone code during normal working hours in order to contact the Monongahela City Hall in association with her employment as Health Officer. a. Bornstein had no reason to contact the Monongahela City Hall in association with her employment with Connellsville. Statement End Date CaII Date Call Time Number Called April 10, 2006 03/27/06 1:14 p.m. 724 -258 -5500 03/30/06 10:25 a.m. 724 - 258 -5500 03/31/06 12:25 p.m. 724 - 258 -5500 03/31/06 3:11 p.m. 724 - 258 -5501 May 10, 2006 04/20/06 3:53 p.m. 724 - 258 -5500 04/20/06 3:57 p.m. 724 - 258 -8785 Bornstein, 06 -070 Page 14 1. Connellsville is located in Fayette County. 2. Monongahela is located in Washington County. 26. In March and April 2006, Bornstein utilized telephones and the Connellsville facsimile machine at Connellsville City Hall to contact the Monongahela Municipal Building in relation to her position of Health Officer with Monongahela as shown below: a. Telephone numbers assigned to Monongahela City Hall are (724) 258 -5500 and (724) 258 -5501. b. The facsimile machine at Monongahela City Hall is assigned facsimile number (724) 258 -8785. 27. Correspondence and /or documents located at South Connellsville Borough confirm Bornstein's receipt of telephone calls in her capacity as a South Connellsville Official at her Connellsville office, Bornstein's use of her Connellsville office telephone number as a contact point in relation to her South Connellsville position, and use of the Connellsville City Hall facsimile machine in relation to South Connellsville Borough complaints /issues. a. On February 17, 2004, then South Connellsville Borough Secretary Andrea Doppelheuer contacted Bornstein's Connellsville office and left a message for Bornstein regarding a complaint at 108 Hampton St. b. On or about February 20, 2004, Doppelheuer contacted Bornstein at her Connellsville office regarding a complaint at 1406 and 1408 Race Street. c. Correspondence generated by Bornstein dated August 25, 2004, to Mr. and Mrs. Charles Osler addressing violations at 2130 Second Street, South Connellsville, PA 15425 documented Connellsville City Hall's contact number (724- 628 -2020) along with Bornstein's office extension number (Ext. 207) in conjunction with South Connellsville Borough Municipal Building address information. d. A facsimile cover sheet generated by Bornstein on City of Connellsville letterhead to Pete Casini, South Connellsville Borough Mayor, documented a handwritten message from Bornstein to Casini on the cover sheet. 1. The two page facsimile transmission included the cover sheet and correspondence dated October 31, 2006, from Bornstein to Leslie and Denatta Howard regarding inspection violations at 1601 -1603 Hyndman Street. 28. Bornstein used her office telephone number with Connellsville Borough as a contact Bornstein, 06 -070 Page 15 point in relation [to] her position with Dunbar Borough. 29. Correspondence /documents located at Dunbar Borough revealed Bornstein's use of her Connellsville office telephone number as a contact point, use of the Connellsville City Hall facsimile machine, and the use of Connellsville placard notices in relation to Dunbar Borough complaints /issues. a. Correspondence dated June 28, 2003, to Margaret Bryner addressing a violation at 6 Pottstown Street, Dunbar, PA 15431 documented Connellsville City Hall's contact number (724- 628 -2020) along with Bornstein's office extension number (Ext. 207) in conjunction with Dunbar Borough Municipal Building address information. b. Correspondence dated August 29, 2003, to John Maddas addressing violations at 3 Walnut Street, Dunbar, PA 15431 documented Connellsville City Hall's contact number (724- 628 -2020) along with Bornstein's office extension number (Ext. 207) in conjunction with Dunbar Borough Municipal Building address information. c. Correspondence dated June 28, 2003, to Mr. & Mrs. Owade addressing violations at 51 Woodvale St, , Dunbar, PA 15431 documented Connellsville City Hall's contact number (724- 628 -2020) along with Bornstein's office extension number (Ext. 207) in conjunction with Dunbar Borough Municipal Building address information. d. A facsimile cover sheet generated on City of Connellsville letterhead to "Dunbar" dated September 5 th with no year specified, documented the transmission of seven pages of documents, including the cover sheet. 1. Included in the facsimile transmission was a register of Health and Code work performed by Bornstein in May, June, July, and August 2003 which noted eight certified letters sent at a cost of $4.42 per letter as well as copies of six of the letters sent. e. Several placards stating, "NOTICE! This property unfit for Human Habitation or Occupancy City of Connellsville By order of HEALTH DEPARTMENT Department of Public Safety $100.00 PENALTY FOR UNAUTHORIZED REMOVAL OF THIS NOTICE" were put by Bornstein in Bornstein's Health Officer file at the Dunbar Municipal Building. 30. Administrative personnel at Connellsville City Hall answered and forwarded various phone calls, forwarded various facsimile transmissions, and directed various walk -in individuals representative of Bornstein's outside employment to Bornstein at Connellsville City Hall during Bornstein's normal working hours with the city. a. Individuals calling City Hall or appearing at City Hall requesting Bornstein would identify who they were and where they were from to City Hall personnel. b. No documentation of telephone calls received, facsimile transmissions received, or meetings held was maintained. 31. Connellsville is governed in accordance with the provisions of [the] Third Class City Code. a. Article IX of the Third Class City Code addresses general provisions relating to city officers and employees. Bornstein, 06 -070 Page 16 32. Article IX, Section 912 of the Third Class City Code is titled, "City Property not to be Used by Officers for Gain" and mandates the following: a. No portion of the property of the city is to be used for private gain by any officer of the city, councilman, agent or employee of the city, or any department thereof; nor shall the same be willfully used or injured, or be sold or disposed of in any manner by any officer, councilman, agent or employee, without the consent of the council. b. Any person violating any provision of Section 912 is guilty of a misdemeanor, and, upon conviction, will be sentenced to pay a fine not exceeding five hundred dollars, or undergo imprisonment not exceeding one year, or both at the discretion of the court. 1. Upon conviction, the offending party will be removed from office or employment and will not be eligible for election or appointment to any place of profit or trust under the City or any department thereof. 33. In addition to mandates set forth by Section 912 of the Third Class City Code, Connellsville established a Code of Ethics for all Connellsville employees and members of Authorities, Boards, and Commissions. a. The Code of Ethics was established on May 14, 1990, by City Council under Ordinance No. 1300. b. The Code of Ethics was distributed by then City Clerk Marsha Bower on or about June 20, 1990, to the following: 1. All Connellsville Employees; 2. All Connellsville Redevelopment Authority Employees; 3. All Connellsville Municipal Authority Employees; 4. All Housing Authority Employees; and 5. All members of the Authorities, Boards, and Commissions created by City Council. c. Bornstein's resume on file with Connellsville documents her employment as the Connellsville Health Officer in 1990. 34. The Code of Ethics adopted by Connellsville sets forth mandates regarding the actions of all Connellsville public officials and public employees. a. Section 102- Findings, Subsection E of the Code sets forth those mandates in various sub - subsections which include, in part, those listed below: 1. Public officials and public employees are to give a full day's work for a full day's pay. 2. Public officials and public employees are to avoid conflicts of interest and strive to avoid the appearance of conflicts of interest, not only being above reproach, but appearing above reproach. 3. Public officials and public employees are to make no use of City Bornstein, 06 -070 Page 17 employment or resources for private gain or political benefit for any individual or entity or for other than official government purposes. b. Section 301 - Violation sets forth disciplinary actions in various Subsections which may occur as a result of violating the Code which include, in part, those detailed below: 1. Violation of the Code by public employees and appointed officials include [sic] the imposition of sanctions including: private formal reprimand, written reprimand, suspension without pay (up to five days), dismissal, and /or other types of penalties authorized by collective bargaining agreements or statutes. aa. Disciplinary action for violations of the Code is administered by the Department Director, or the equivalent, of the affected person. 2. Upon dismissal, and when warranted, the City will volunteer appropriate information to the proper local, state, or federal authorities for further action. 3. In addition, any violation[s] of the Code by public officials or public employees are subject to a fine not larger than $500.00 for a first violation, not to exceed $1,000.00 for each additional violation. aa. Violators may be imprisoned for no longer than seventy -two hours if in default of the monetary fines. 35. Bornstein realized a private pecuniary personal financial gain of at least $999.99 through her position of Health Officer /Code Enforcement Officer /Zoning Officer for Connellsville as a result of utilizing her City of Connellsville office and equipment to facilitate her secondary employment with South Connellsville Borough, Dunbar Borough, and Monongahela as well as her private employment with West Side News and Bornstein Rentals. a. Bornstein utilized her Connellsville office computer to generate correspondence for her secondary and private employment. 1. The computer utilized by Bornstein at her Connellsville office was valued at $999.99. 2. Bornstein utilized her Connellsville office computer to generate correspondence for her secondary and private employment during normal working days and hours for the City of Connellsville. aa. The time utilized by Bornstein in creating the correspondence was done [sic] during her hours as a Connellsville employee. b. Bornstein generated correspondence and accepted calls in relation to her outside employment during days when she was being compensated as a full - time City of Connellsville employee. c. Bornstein utilized the City of Connellsville facsimile machine and telephones during normal Connellsville working days and hours to facilitate her secondary employment. d. Bornstein utilized City of Connellsville time and office space to meet with Bornstein, 06 -070 Page 18 individuals residing in her secondary employment municipalities during regular Connellsville working hours. 36. Bornstein realized a private pecuniary benefit when she received compensation from South Connellsville Borough and Dunbar Borough as a result of work preformed at the office facilities and by using the telephones of Connellsville City. 37. Bornstein utilized the computer located in her Connellsville City office during the months of February 2006 and May 2006 to facilitate the development and /or amendment of correspondence relating to her position with South Connellsville Borough. a. Bornstein received $120.00 (gross) from South Connellsville Borough for work performed during February and May 2006. 1. Bornstein receives a flat $60.00 per month retainer from South Connellsville Borough. 38. Bornstein utilized the computer located in her Connellsville City office during the months of June 2003, July through September 2005, and June and August 2006 to facilitate the development and /or amendment of correspondence relating to her position with Dunbar Borough. a. Bornstein received $360.00 (gross) from Dunbar Borough for work performed during June 2003, July through September 2005, and June and August 2006. 1. Bornstein receives a flat $60.00 per month retainer from Dunbar Borough. THE FOLLOWING FINDINGS RELATE TO BORNSTEIN COMPLETING DUTIES ASSOCIATED WITH HER EMPLOYMENT AS HEALTH OFFICER FOR SOUTH CONNELLSVILLE BOROUGH AND MONONGAHELA DURING NORMAL CONNELLSVILLE WORKING HOURS. 39. As the Connellsville Health /Code Enforcement /Zoning Officer, Bornstein is to work Monday through Friday, 9:00 a.m. to 5:00 p.m. a. Normal business /working hours for Connellsville employees are Monday through Friday, 9:00 a.m. to 5:00 p.m. 40. Connellsville employees, including Bornstein, are responsible for completing hand written time sheets to account for hours worked (See Finding No. 23). a. Time sheets utilized document specific days and specific hours worked (i.e. 9 -5) for a one month period. 1. Time sheets utilized provide sections to account for vacation, sick, holiday, and personal time utilized during the month. b. Employees are responsible for providing the completed time sheet to the City Bookkeeper for recording and processing. 41. Bornstein does not have an established work schedule in her position as Health Officer for South Connellsville Borough or Monongahela. a. Bornstein performs work for South Connellsville Borough and Monongahela YEAR GROSS PAY HOURLY RATE 2002 $ 30,250.00 $ 14.49 2003 $ 34,160.00 $ 16.43 2004 $ 33, 049.20 $ 15.89 2005 $ 33, 372.76 $ 16.04 2006 $ 34, 363.15 $ 16.52 Bornstein, 06 -070 Page 19 on an as- needed basis only. b. Bornstein is to perform work for South Connellsville Borough and Monongahela on weekends or during weekday evening hours. 42. Bornstein's daily activities are not monitored by any City employees. a. Bornstein has no immediate reporting responsibility to any City employee regarding her daily activities. b. Bornstein does not consistently inform City employees of her daily itinerary prior to leaving City Hall. 43. Although a salaried employee of the City, Bornstein received a specific hourly rate in her positions of Health /Code Enforcement/Zoning Officer from 2002 through 2006 as shown below: Bornstein received wages earned on the fifteenth day and last day of each month as an employee for the City. b. Bornstein received twenty -four equal checks annually from Connellsville representing wages earned throughout the year in her position. 44. Bornstein is issued payment for services rendered as the Health Officer for South Connellsville Borough, Dunbar Borough, and Monongahela at various times throughout the year. a. Bornstein receives a monthly retainer from South Connellsville Borough annually near the conclusion of each year for services rendered throughout the year. b. Bornstein receives a flat monthly rate, paid twice per year, from Dunbar Borough for services performed throughout the year. c. Bornstein receives an hourly wage and mileage reimbursement from Monongahela for services performed. 1. Bornstein receives payment from Monongahela for services rendered once her hours worked are submitted to and processed by the City Clerk. a. 45. During the time frame of 2002 through 2006, Bornstein received wages (gross) in full for her positions with Connellsville, South Connellsville Borough and Monongahela as shown below: a. Connellsville Year Ck No. Ck. Date Ck. Amt. 2002 Salaried Salaried Salaried 2003 Salaried Salaried Salaried 2004 Salaried Salaried Salaried Date Description Hours ' City Hours Claimed Leave Utilized Ho Rate Financial Gain Unknown Pittsburgh Street: Junk In Yard 0.5 Unknown Unk nown N/A N/A Unknown Reidmore Street: Junk In Yard 0.5 Unknown Unknown N/A N/A Unknown Vine Street: Junk In Yard 0.5 Unknown Unknown N/A N/A Unknown Magistrate Haggerty's Office 0.5 Unknown Unk nown N/A N/A 03/15/02 1601 Hyndman Street: Residence Livability 4.0 8.0 (9a -5p) No $14.49 $57.96 02/14/06 2126 Second Street: Sewage Issues 0.5 8.0 (9a -5p) No $16.52 $8.26 04/03/06 Orientation for Monongahela 6.0 8.0 (9a -5p) No $16.52 $99.12 04/06 2126 Second Street: Sewage Issues 0.5 Unknown Unknown N/A N/A 09/18/06 1101/1103 West Gibson Avenue: Demolition of Structure 1.0 8.0 (9a -5p) No $16.52 $16.52 09/19/06 1101/1103 West Gibson Avenue: Demolition of Structure 1.0 9.0 (8a -5p) No $16.52 $16.52 Total 14.5 $198.38 Bornstein, 06 -070 Page 20 b. c. a. S. Connellsville Monongahela 2005 2006 Year 2002 2003 2004 2005 2006 Year 2006 2007 Salaried Salaried Ck No. 0841 0865 1052 1107 1167 Ck No. 012058 012736 Salaried Salaried Ck. Date 12/11/02 12/05/03 12/10/04 12/05/05 12/07/06 Ck. Date 06/30/06 06/12/07 Salaried Salaried Ck. Amt. $720.00 $720.00 $720.00 $720.00 $720.00 Ck. Amt. $362.80 $523.10 46. During the time frame of March 2002 through September 2006, Bornstein is known to have performed services for South Connellsville Borough and the City of Monongahela during normal City business hours of 9 a.m. - 5 p.m. valued at a minimum of $198.38 as shown in the chart below: Services performed on Pittsburgh, Reidmore, and Vine Streets on unknown dates represent inspections conducted by Bornstein and South Connellsville Police Chief Kevin Grippo. 1. Inspections conducted with Grippo occurred between the hours of 2 Bornstein, 06 -070 Page 21 p.m. - 4 p.m. 2. Exact dates of the inspections could not be determined. b. Bornstein's appearance at Magistrate Haggerty's office was in relation to an eviction hearing regarding a South Connellsville property. 1. The hearing was held between the hours of 9:00 a.m. and 11:00 a.m. 2. The exact date of the hearing could not be determined. c. The inspection performed by Bornstein in April 2006 regarding the property at 2126 Second Street represented a follow -up inspection of the property. 1. The follow -up inspection occurred between the hours of 4 p.m. -5 p.m. 2. The exact date of the follow -up inspection could not be determined. 47. Bornstein received payment of full wages from all municipalities represented although Bornstein performed a minimum of four hours work for South Connellsville Borough during normal Connellsville working hours in 2002 and a minimum of eight and one -half hours work for South Connellsville Borough and Monongahela during normal Connellsville working hours in 2006. a. Bornstein received payment from Connellsville in 2002 and 2006 for time utilized while performing services for South Connellsville and Monongahela. b. Bornstein did not utilize any accrued leave to account for the hours spent in performing services for South Connellsville Borough or Monongahela. c. Bornstein had no authorization from any Connellsville Official to perform duties for South Connellsville and Monongahela while simultaneously being compensated by the City of Connellsville. 48. Between 2003 and 2006, complaints of Bornstein performing employment duties for other Municipal entities during regular Connellsville working hours and Bornstein's use of equipment and materials from her Connellsville office to further her secondary employment continued. a. As a result of the ongoing complaints, a meeting between Bornstein, Council Member /Director of Health and Public Safety David McIntyre, and then City Clerk David Pinkosky was held in the fall of 2006. 49. During the meeting, McIntyre issued Bornstein a written warning dated September 25, 2006, which addressed the subject of City time and resources. a. Bornstein was instructed that, as the full time Health and Code Officer for Connellsville, she was to work Monday through Friday, from 9:00 a.m. to 5:00 p.m. [for a total of] forty hours per week. b. Bornstein was instructed to work only on business that pertained directly to Connellsville during normal business hours. c. Bornstein was instructed that any work she completed for other municipalities must be done before or after her normal working hours on her own time with her own resources. Munici •alit 2001 2002 2003 2004 2005 Connellsville 12/28/2001 None None None None South Connellsville Borough None None None None None Dunbar Borough None None None None None Bornstein, 06 -070 Page 22 d. The written warning prohibited Bornstein's use of Connellsville telephones, computers, copy machine, facsimile machine, etc. for business not related to the [City of] Connellsville. 50. Bornstein, in her position as the Health /Code Enforcement /Zoning Officer for Connellsville, realized a financial gain of approximately $198.38 as a result of performing Health Officer related services for South Connellsville Borough, Dunbar Borough, and Monongahela during normal Connellsville working hours. THE FOLLOWING FINDINGS RELATE TO ALLEGATIONS THAT BORNSTEIN FAILED TO FILE STATEMENTS OF FINANCIAL INTERESTS IN HER PUBLIC POSITIONS WITH THE CITY OF CONNELLSVILLE, SOUTH CONNELLSVILLE BOROUGH, AND DUNBAR BOROUGH 51. Statement of Financial Interests filing requirements for public officials and public employees are mandated by Section 1104 of the State Ethics Act. a. Bornstein was required to file Statements of Financial Interests by May 1 annually in her positions with Connellsville, South Connellsville Borough, and Dunbar Borough. 52. Bornstein was aware of the requirement to file Statements of Financial Interests regarding her Health Officer position (at a minimum) in association with her employment with Connellsville, South Connellsville Borough, and Dunbar Borough since at least 2001. a. Bornstein filed a Statement of Financial Interests in 2001 with Connellsville in her position of Health Officer. 53. A review of /request for records at Connellsville, South Connellsville Borough, and Dunbar Borough municipal buildings revealed the following Statements of Financial Interests on file for Bornstein for calendar years 2001 through 2005: a. Bornstein's 2001 calendar year Statement of Financial Interests documented her position of Health Officer. 1. Bornstein did not complete the Political Subdivision /Agency section of her Statement of Financial Interest[s] indicating where she held the position of Health Officer. 2. Bornstein did not hold the position of Zoning Officer as of December 28, 2001. b. Bornstein failed to document the Calendar Year for which the form was filed on her 2001 calendar year Statement of Financial Interests. c. Bornstein failed to file Statements of Financial Interests for calendar years 2002 through 2005 with Connellsville and for calendar years 2001 through 2005 for South Connellsville and Dunbar Boroughs. Descri •tion Financial Gain Use of Connellsville Equipment $ 999.99 Compensation from Dunbar Borough $ 360.00 Compensation from South Connellsville Borough $ 120.00 Use of Connellsville Time $ 198.38 Total $1,678.37 Bornstein, 06 -070 Page 23 54. In a sworn statement provided to Commission investigators on November 16, 2007, Bornstein indicated the following: a. Bornstein was unfamiliar with Connellsville's Code of Ethics Policy adopted in 1990. b. Bornstein admitted use of the computer and telephone in her City office for her secondary employers and for personal use on a limited basis. c. Bornstein admitted limited use of the City facsimile machine to facilitate her secondary employment. d. Bornstein denied performing services for South Connellsville and Monongahela on March 15, 2002, and April 3, 2006, while on City time. 55. Bornstein received [a] minimum private pecuniary gain of approximately $1,678.37 as a result of utilizing City of Connellsville equipment and time to facilitate her secondary employment with South Connellsville Borough, Dunbar Borough, and Monongahela and her private employment with West Side News and Bornstein Rentals. III. DISCUSSION: As Health Officer /Code Enforcement Officer ( "Health /Code Officer ") for the City of Connellsville ( "City ") from January 10, 2000, to the present, Respondent Rita Bornstein (also referred to herein as "Respondent," "Respondent Bornstein," or "Bornstein ") has at all times relevant to these proceedings been 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 Bornstein violated Sections 1103(a), 1104(a), and 1104(d) of the Ethics Act when she, as the Health /Code Officer for the City, used the authority of her public position for a private pecuniary gain by utilizing her office, including equipment, materials and supplies, in support of her part -time positions as Health Code Officer for the Borough of South Connellsville and Dunbar Borough; when she performed duties related to these part -time positions during the same hours for which she was being compensated as an employee of the City; and when she failed to file Statements of Financial Interests for the 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with the City of Connellsville, South Connellsville Borough and Dunbar Borough. 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 Bornstein, 06 -070 Page 24 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. Section 1104(d) of the Ethics Act provides that no public official shall be allowed to take the oath of office, enter or continue upon his duties, or receive compensation from public funds unless he has filed a Statement of Financial Interests as required by the Ethics Act. 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. Respondent Bornstein has served as the full -time Health /Code Officer for the City from January 10, 2000, to the present. Bornstein has also served as the City Zoning Officer since at least 2003. The job description for Bornstein's position as the City Health /Code Officer sets forth her general and specific duties and responsibilities. Bornstein's duties and responsibilities as the City Health /Code Officer include, inter alia, being available for the prompt performance of her official duties at all times; working primarily with the interpretation and implementation of City ordinances affecting the health and safety of City residents; making sanitary inspections and monitoring any condition associated with environmental problems; quarantining places of communicable diseases in accordance with the law; issuing and signing all licenses to appropriate businesses and organizations; reporting any conditions found to be detrimental to public health; and exercising Bornstein, 06 -070 Page 25 professional judgment and discretion in executing and administering all policies, plans, rules, and regulations adopted by the City Board of Health ( "Board of Health "). The City follows the provisions of the Third Class City Code in relation to City governance. Article IX, Section 912 of the Third Class City Code, titled "City Property not to be Used by Officers for Gain," provides in pertinent part that "[n]o portion of the property of the city is to be used for private gain by any officer of the city, councilman, agent or employee of the city, or any department thereof; nor shall the same be willfully used or injured, or be sold or disposed of in any manner by any officer, councilman, agent or employee, without the consent of the council." (Fact Finding 32a). In addition to the mandates of Section 912 of the Third Class City Code, Connellsville established a Code of Ethics for all Connellsville employees and members of Authorities, Boards, and Commissions. The City Code of Ethics was established by City Ordinance on May 14, 1990. On June 20, 1990, the City Clerk distributed the City Code of Ethics to all City employees and various other individuals covered by the City Code of Ethics. Bornstein's resume on file with the City documents that she was employed as the City Health Officer in 1990. The City Code of Ethics sets forth mandates regarding the actions of all City public officials and public employees. Per the City Code of Ethics, public officials and public employees are to: give a full day's work for a full day's pay; avoid conflicts of interest and strive to avoid the appearance of conflicts of interest; and make no use of City employment or resources for private gain or political benefit for any individual or entity or for other than official government purposes. The City is governed by a five - member board consisting of four council members and a mayor. City Hall is located at 110 North Arch Street in the City. The main telephone number for City Hall is also the facsimile number for City Hall. City employees have specific extension numbers assigned to their work stations /offices. Bornstein maintains an office at City Hall in relation to the performance of her duties as Health /Code Officer and Zoning Officer. In her office, Bornstein has access to and utilizes various pieces of equipment and supplies that are owned /purchased by the City, including a computer, printer, and telephone. Bornstein has a specific telephone extension for her office but does not have a separate facsimile machine or copier in her office. As a full -time, salaried City employee, Bornstein works a regular schedule of 9:00 a.m. to 5:00 p.m., with a paid one -hour lunch period, from Monday through Friday. Bornstein is permitted to flex her lunch hour to accommodate her daily work schedule and to flex her starting time in the morning if she worked past her normal working hours the previous day. In her position, Bornstein accrues vacation, personal, and sick time but does not accrue compensatory time on an on -going basis to be utilized at a future date. City employees, including Bornstein, are responsible for completing monthly handwritten time sheets to document specific dates and hours worked during the period. The time sheets note the range of hours worked each day but do not document a specific description of the activities that were performed. When an employee intends to use vacation, personal, or sick leave, the employee is to notify the City Clerk or Administrative Secretary, who then forwards the leave usage to the City Bookkeeper for recording and processing. Although Bornstein reports to the Board of Health as the City Health Officer and to the City Director of Public Safety as the City Code Enforcement Officer, no City representatives directly oversee or monitor Bornstein's daily activities. Bornstein has autonomy over her daily activities and appears at and leaves her City Hall office at various times during her normal work hours. Bornstein does not consistently inform City Bornstein, 06 -070 Page 26 employees of her daily itinerary. In addition to her employment with the City, Bornstein serves on a part -time, as needed basis as the Health Officer for three other municipalities: South Connellsville Borough ( "South Connellsville "); Dunbar Borough ( "Dunbar"); and the City of Monongahela ( "Monongahela "). Bornstein has been employed by South Connellsville since May 1994 and by Dunbar since approximately March 2002. Currently, Bornstein receives a flat retainer of $60.00 per month from each of the aforesaid Boroughs for services rendered, which retainers account for Bornstein's salary and all accrued expenses. South Connellsville typically issues its retainer each December, while Dunbar typically issues its retainer twice per year. Since April 3, 2006, Bornstein has been employed by Monongahela as an independent contractor on a part -time basis. Per her agreement with Monongahela, Bornstein's compensation rate is $15.00 per hour and her mileage reimbursement rate is $0.40 per mile. Bornstein does not maintain an independent office in South Connellsville, Dunbar, or Monongahela, and her sole office is located at City Hall. In 2002, the City Director of Health and Public Safety received complaints that Bornstein was working in other municipalities during her regular City work hours. As a result of these concerns, Bornstein was informed that she was expected to complete daily logs to document her time, mileage, and telephone calls. On June 18, 2003, the City purchased a desktop computer, at a cost of $999.99, for use by the City Health /Code Officer. Bornstein used the City computer in her office at City Hall while performing her duties as the City Health /Code Officer and Zoning Officer. Bornstein also routinely utilized the City computer to perform duties related to her employment with the other municipalities, as she did not own a personal computer. City officials did not authorize Bornstein to utilize City equipment for her supplemental employment or other personal purposes. As revealed by the hard drive of the City computer, between June 2003 and August 2006, Bornstein utilized the City computer and floppy disks to generate correspondence pertaining to her supplemental employment with South Connellsville, Dunbar, and Monongahela, as well as to her private matters. During the aforesaid time period, Bornstein utilized the City computer to create and /or amend eleven letters relating to her employment with Dunbar, as detailed in Fact Finding 22 and various of its subparagraphs. The letters were generated between June 2003 and August 2006. The letters were addressed to various individuals and concerned issues related to Bornstein's employment as Dunbar's Health Officer, including code violations at various properties located in Dunbar. Ten of the eleven letters identified the telephone number of City Hall and Bornstein's extension number as a contact point, even though the letters were titled "Dunbar Borough" or "Dunbar Borough of Health." Bornstein also utilized the City computer to create two letters in or about February 2006 and one letter in May 2006 pertaining to her employment with South Connellsville. These three letters concerned conditions at properties located in South Connellsville. In April 2006, Bornstein used the City computer to create one letter pertaining to her employment with Monongahela, which letter concerned code violations at a property located in Monongahela. In addition to the above, Bornstein used the City computer to generate two Bornstein, 06 -070 Page 27 documents pertaining to private matters. In November 2004, Bornstein created a document that served as an official eviction notice for a property rented under the name of Bornstein Rentals. In August 2006, Bornstein created a document relating to West Side News, a private business owned by Bornstein and her spouse, Ed Bornstein, which document served as formal notice of an individual's failure to respond to bad check charges. The parties have stipulated that all creation dates and times associated with the above correspondence discovered on Bornstein's computer represent regular working days and regular working hours for City employees, including Bornstein. The Stipulated Findings set forth those instances where Bornstein's monthly time sheets document that she was working for the City on the dates and at the times that the letters were generated. In addition to using the City computer to generate the above documents, Bornstein used her City Hall office telephone and the City Hall facsimile machine in connection with her secondary employment. During Bornstein's normal City work hours, City Hall staff forwarded to Bornstein various phone calls and facsimile transmissions representative of Bornstein's outside employment. In February 2004, the South Connellsville Borough Secretary contacted Bornstein at her City Hall office regarding complaints at properties in South Connellsville. Correspondence generated by Bornstein in June 2003, August 2003, and August 2004, in connection with her positions as Health Officer with South Connellsville and Dunbar, listed City Hall's telephone number and Bornstein's office extension number as Bornstein's contact information. In March 2006 and April 2006, Bornstein used telephones and the facsimile machine at City Hall to contact the Monongahela City Hall in relation to her position as the Monongahela Health Officer. During the time frame of March 2002 through September 2006, Bornstein performed services for South Connellsville and Monongahela during her normal City work hours, as detailed in Fact Finding 46. Bornstein performed a minimum of four hours of work for South Connellsville in 2002 and a minimum of eight and one -half hours of work for South Connellsville and Monongahela in 2006, all during her normal City work hours. Bornstein did not utilize any accrued leave to account for the hours spent performing services for South Connellsville and Monongahela and was paid by the City for those hours. No City official authorized Bornstein to perform duties for South Connellsville and Monongahela while simultaneously receiving compensation from the City. In the fall of 2006, the City Clerk and David Maclntyre, a City Council Member and Director of Health and Public Safety, met with Bornstein because of continuing complaints that Bornstein was using City time, equipment and materials to perform duties related to her secondary employment. Bornstein was issued a written warning and was instructed that any work she completed for other municipalities must be done before or after her normal working hours, on her own time, and with her own resources. In a sworn statement provided to Commission investigators on November 16, 2007, Bornstein admitted to limited use of the City computer, the City facsimile machine, and the telephone in her City office for her secondary employment and for personal use. Bornstein indicated that she was unfamiliar with the City Code of Ethics adopted in 1990. The parties have stipulated that Bornstein received a minimum private pecuniary gain of approximately $1,678.37 as a result of utilizing City equipment and time for the aforesaid private purposes. See, Fact Finding 55. Turning to the Fact Findings pertaining to Bornstein's Statements of Financial Interests, the parties have stipulated that Bornstein was required to file Statements of Financial Interests by May 1 St annually in her positions as Health Officer with the City, Bornstein, 06 -070 Page 28 South Connellsville, and Dunbar. The parties have further stipulated that Bornstein failed to file Statements of Financial Interests for calendar years 2002, 2003, 2004, and 2005 with the City and Statements of Financial Interests for calendar years 2001, 2002, 2003, 2004, and 2005 with South Connellsville and Dunbar. Although Bornstein filed a Statement of Financial Interests with the City on December 28, 2001, she failed to list the calendar year for which the form was filed and did not list the political subdivision /agency where she held the position of Health Officer. 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 a violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a), occurred in relation to Bornstein, as Connellsville City Health Code Officer, utilizing her office including equipment, materials and [sic] in support of her part - time positions as Health Code Officer for the Borough of South Connellsville and Dunbar Borough; and b. That a violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a), occurred when Bornstein performed duties related to these part -time positions during the same hours for which she was being compensated as an employee of the City of Connellsville; and c. That a violation of Section 1104(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1104(a), occurred when Bornstein failed to file Statements of Financial Interests for 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with South Connellsville Borough and Dunbar Borough and failed to file Statements of Financial Interests for 2002, 2003, 2004 and 2005 calendar years, in her public position with the City of Connellsville. 4. Bornstein agrees to make payment in the amount of $2,928.37 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission. The Investigative Division agrees to accept a payment plan of nine (9) payments of $300 and one (1) payment of $228.37. Said payments to begin 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 Bornstein, 06 -070 Page 29 so choose to review this matter further. Consent Agreement, at 1 -2. Per the Consent Agreement, Bornstein has accepted the Consent Agreement solely for purposes of resolving this matter. Id. at 2. In considering the Consent Agreement, we agree with the parties that a violation of Section 1103(a) of the Ethics Act occurred when, as City Health /Code Officer, Bornstein utilized her office, including equipment and materials, in support of her part -time positions as Health Code Officer for South Connellsville and Dunbar. There were uses of authority of office on the part of Bornstein. But for the fact that Bornstein is the City Health /Code Officer, she would not have been in a position to use the City computer, telephones, and facsimile machine to perform duties related to her positions as Health Officer for South Connellsville and Dunbar. By utilizing City equipment and materials for her secondary employment, Bornstein obtained a financial gain by not having to pay such expenses out - of- pocket. Further, the pecuniary benefits were private. There was no authorization in law permitting Bornstein to utilize City equipment and materials for such purposes. To the contrary, such actions were specifically prohibited. See, Fact Findings 32a, 34a. Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred in relation to Bornstein, as City Health /Code Officer, utilizing her office, including equipment and materials, in support of her part -time positions as Health Code Officer for South Connellsville and Dunbar. Turning to the second recommended violation submitted by the parties, we agree that a violation of Section 1103(a) of the Ethics Act occurred when Bornstein performed duties related to her part -time positions with South Connellsville and Dunbar during the same hours for which she was being compensated as an employee of the City. Given that Bornstein is the City Health /Code Officer, she was in a position to utilize City equipment and supplies during normal work hours to create letters relating to her employment with Dunbar and South Connellsville. Bornstein chose not to submit leave to the City Clerk for the hours that she spent performing work for South Connellsville and Dunbar in 2002 and 2006 during her normal City work hours. Lastly, Bornstein accepted pay from the City for hours during which she was performing work related to her positions with South Connellsville and Dunbar. All such actions were uses of authority of office. Such uses of authority of office resulted in private pecuniary benefits to Bornstein consisting of the compensation that she received for performing duties related to her positions with South Connellsville and Dunbar during the same hours for which she was being compensated as a City employee. Lastly, there was no authorization in law permitting Bornstein to receive compensation for performing work related to her secondary employment while receiving compensation for her normal City work hours. Accordingly, we hold that a violation of Section 1103(a) of the Ethics Act occurred when Bornstein performed duties related to her part -time positions with South Connellsville and Dunbar during the same hours for which she was being compensated as an employee of the City. Finally, the parties have recommended that we find that a violation of Section 1104(a) of the Ethics Act occurred when Bornstein failed to file Statements of Financial Interests for the 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with South Connellsville and Dunbar, and when Bornstein failed to file Statements of Financial Interests for the 2002, 2003, 2004 and 2005 calendar years, in her public position with the City. It is clear that as City Health /Code Officer, Bornstein is a public employee subject to the Ethics Act and in particular, the requirement to file Statements of Financial Interests. Although the Stipulated Findings do not provide particular facts as to whether Bornstein's relationship with South Connellsville or Dunbar is as an employee or independent contractor, it is clear that the parties are in agreement that in those capacities, Bornstein is a public official /public employee subject to the Ethics Act. The Bornstein, 06 -070 Page 30 parties have stipulated that Bornstein failed to file Statements of Financial Interests for calendar years 2002, 2003, 2004, and 2005 with the City and Statements of Financial Interests for calendar years 2001, 2002, 2003, 2004, and 2005 with South Connellsville and Dunbar. Accordingly, we hold that a violation of Section 1104(a) of the Ethics Act occurred when Bornstein failed to file Statements of Financial Interests for the 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with South Connellsville and Dunbar, and when Bornstein failed to file Statements of Financial Interests for the 2002, 2003, 2004 and 2005 calendar years in her public position with the City. As for the portions of the allegations involving Section 1104(d) of the Ethics Act, it appears that the Investigative Division in the exercise of its prosecutorial discretion has elected to non pros this allegation. As part of the Consent Agreement, Bornstein has agreed to make payment in the amount of $2,928.37 in settlement of this matter as follows: nine (9) payments of $300 and one (1) payment of $228.37, with said payments made payable to the Commonwealth of Pennsylvania and forwarded to this Commission. The aforesaid payments are to begin within thirty (30) days of the issuance of this adjudication and Order. Although the amount of restitution recommended by the parties is greater than the stipulated private pecuniary benefit received by Respondent Bornstein in violation of Section 1103(a) of the Ethics Act, 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 the parties are in agreement that the appropriate amount of restitution for this case is $2,928.37. We shall accept the parties' recommendation. 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, per the Consent Agreement, Bornstein is directed to make payment in the amount of $2,928.37, as follows: nine (9) payments of $300 and one (1) payment of $228.37, with said payments made payable to the Commonwealth of Pennsylvania and forwarded to this Commission. The aforesaid payments are to begin within thirty (30) days of the issuance of this adjudication and Order. The Consent Agreement and Stipulation of Findings do not indicate whether Bornstein has now filed Statements of Financial Interests with South Connellsville and Dunbar for calendar years 2001, 2002, 2003, 2004, and 2005, or filed Statements of Financial Interests with the City for calendar years 2002, 2003, 2004, and 2005. Therefore, to the extent Bornstein has not already done so, Bornstein is directed to file Statements of Financial Interests with South Connellsville and Dunbar for calendar years 2001, 2002, 2003, 2004, and 2005, and to file Statements of Financial Interests with the City for calendar years 2002, 2003, 2004, and 2005, within thirty (30) days of the issuance of this adjudication and Order and to forward a copy of each such filing 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 Health Officer /Code Enforcement Officer ( "Health /Code Officer ") for the City of Connellsville ( "City ") from January 10, 2000, to the present, Respondent Rita Bornstein, 06 -070 Page 31 Bornstein ( "Bornstein ") has at all times relevant to these proceedings been 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. Bornstein, as City Health /Code Officer, violated Section 1103(a) of the Ethics Act when she utilized her office, including equipment and materials, in support of her part -time positions as Health Code Officer for the Borough of South Connellsville ( "South Connellsville ") and Dunbar Borough ( "Dunbar "). 3. Bornstein violated Section 1103(a) of the Ethics Act when she performed duties related to her part -time positions with South Connellsville and Dunbar during the same hours for which she was being compensated as an employee of the City. 4. Bornstein violated Section 1104(a) of the Ethics Act when she failed to file Statements of Financial Interests for the 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with South Connellsville and Dunbar and failed to file Statements of Financial Interests for the 2002, 2003, 2004 and 2005 calendar years in her public position with the City. In Re: Rita Bornstein, Respondent ORDER NO. 1463 File Docket: 06 -070 Date Decided: 4/28/08 Date Mailed: 5/15/08 1 Rita Bornstein ("Bornstein "), a public official /public employee in her capacity as Health Officer / ode Enforcement Officer ( "Health /Code Officer ") for the City of Connellsville ( "City ") from January 10, 2000, to the present, violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when she utilized her office, including equipment and materials, in support of her part -time positions as Health Code Officer for the Borough of South Connellsville ( "South Connellsville ") and Dunbar Borough ( "Dunbar "). 2. Bornstein violated Section 1103(a) of the Ethics Act when she performed duties related to her part -time positions with South Connellsville and Dunbar during the same hours for which she was being compensated as an employee of the City. 3. Bornstein violated Section 1104(a) of the Ethics Act when she failed to file Statements of Financial Interests for the 2001, 2002, 2003, 2004 and 2005 calendar years in her public positions with South Connellsville and Dunbar and failed to file Statements of Financial Interests for the 2002, 2003, 2004 and 2005 calendar years in her public position with the City. 4. Per the Consent Agreement of the parties, Bornstein is directed to make payment in the amount of $2,928.37 as follows: nine (9) payments of $300 and one (1) payment of $228.37, with said payments made payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission, and with said payments beginning within thirty (30) days of the issuance of this Order. 5. To the extent Bornstein has not already done so, Bornstein is directed to file Statements of Financial Interests with South Connellsville and Dunbar for calendar years 2001, 2002, 2003, 2004, and 2005, and to file Statements of Financial Interests with the City for calendar years 2002, 2003, 2004, and 2005, within thirty (30) days of the issuance of this Order and to forward a copy of each such filing to this Commission for compliance verification purposes. 6. Compliance with Paragraphs 4 and 5 above will result in the closing of this case with no further action by this Commission; non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair