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HomeMy WebLinkAbout1465 BrownIn Re: Roberta Brown, 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 -051 Order No. 1465 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. Brown, 06 -051 Page 2 I. ALLEGATIONS: That Roberta Brown, a public official /public employee in [her] capacity as Division Chief for the Bureau of Career and Technical Education of the Pennsylvania Department of Education, violated Section 1103(a) of the State Ethics Act (Act 93 of 1998), 65 Pa.C.S. §1103(a), when she used the authority of her public position for the private pecuniary gain of herself and /or members of her immediate family when she approved the hiring of her daughter as an employee of the Department of Education; when as a member of the Department of Education Advisory Committee she recommended and approved her husband's company to provide services to a recipient of a Department of Education Grantee [sic]; and when she approved the hiring of her husband as a consultant for the Department of Education's Professional Development Committee. II. FINDINGS: 1. Roberta Brown was employed by the Commonwealth of Pennsylvania, Department of Education from May 21, 1990, through July 8, 2006.* a. Roberta Brown held the position of Vocational Education Service Manager for the Pennsylvania Department of Education, Bureau of Career and Technical Education from approximately July 13, 2002, until her retirement on July 8, 2006.* * [Cf., Fact Finding 3a. The specific date of Brown's termination of Commonwealth employment in July 2006 is not material to our disposition of this matter.] b. Brown also had the position of Vocational Home Economics Education Advisor... to a Vocational Education Service Manager in the Bureau of Career and Technical Education from July 13, 2002, to July 8, 2006. 2. Roberta Brown annually filed a Statement of Financial Interests form by May 1* of each year containing information for the prior calendar year as a Vocational Home Economics Education Advisor and Vocational Education Services Manager. a. Calendar Year Filing Date Stated Public Position 2001 05/13/02* General Vocational Education Advisor 2002 05/1/03 Manager Systems Delivery Division 2003 04/08/04 Manager 2004 04/25/05 Vocational Education Services Manager 2005 04/25/06 Division Chief 2006 04/10/07 Division Chief (Former) * [sic]. [The discrepancy between the filing dates is not significant for purposes of our disposition of this matter.] 3. Records of the Pennsylvania Department of Education include a position description for the Vocational Education Service Manager, position code 25103. a) Roberta Brown held this position from July 13, 2002, through July 23, 2006.* * [Cf., Fact Finding 1 a. The specific date of Brown's termination of Commonwealth employment in July 2006 is not material to our disposition of this matter.] b) The position description included the following position purpose and general job duties: Brown, 06 -051 Page 3 Position Purpose The Manager of the Division of Program Standards and Quality Assurance is responsible for directing curriculum development, evaluating a local school program performance, issuing program delivery for school districts, career and technical education schools, chartered schools and community colleges, to improve the delivery of career and technical education services while managing the staff and assigned functions of the Bureau for the Division of Program Standards and Quality Assurance." 4. The Pennsylvania Department of Education provides funding to Vocational Technical Schools throughout the Commonwealth. a. Grant monies are awarded on an annual basis by PDE. b. The majority of funding for programs goes to the Dauphin County AVTS while the majority of funding for workshops goes to the Lehigh County AVTS. 5. The Dauphin County Vocational Technical School annually received funding from PDE as part of the PDE Curriculum Development Grant Program. a. The Dauphin County Vocational Technical School's Business Office serves as the grant administrator for budgetary purposes. b. The DCVTS's role in administering this re- occurring grant allocation is to pay invoices authorized and submitted by PDE. 1. DCVTS annually receives approximately $6,300.00 from PDE for this service. c. Approximately $160,000.00 is budgeted annually by PDE for this grant program. d. Curriculum Development Grant funds were to be used for non PDE employee salaries and reimbursable expenses. 6. Around December 2003 the Bureau of Career and Technical Education had need for assistance in developing a website so that information could be posted on it at a later date. a. Chris Weller, a Career and Technical Education Agriculture Advisor in the Bureau of Career & Technical Education, served as the program coordinator. b. Weller was a subordinate employee to Roberta Brown. c. Weller had a need for some technical assistance in developing the website. 1. Weller could not locate a company to provide assistance due to the relatively small size of the project. 7 Weller discussed his need for assistance with Roberta Brown. a. Brown, Weller's supervisor at the time, was supportive of the idea for a website. b. Brown informed Weller that either the Dauphin County Vo -Tech or Cumberland /Perry Vo -Tech could provide a student with sufficient program background to assist with the project. Brown, 06 -051 Page 4 c. Brown also advised that her daughter, Emily, a student at the Dauphin County Vocational Technical School, had some computer expertise and could also be used to assist Weller. 8. The Bureau of Career and Technical Education did not solicit any bids or proposals for web design services in or around December 2003. 9. Weller and Emily Brown spoke by telephone and met on one occasion to discuss the project. a. Weller agreed to use Emily Brown. 10. On December 15, 2003, Chris Weller, John Foster and Roberta Brown signed a Bureau of Career and Technical Education Internal Pre - Approval for Expenditures, Dauphin County Technical School Curriculum Development Project. a. This authorization was for $500.00 to be budgeted under the category of "honoraria." b. Brown signed the pre - approval as the "program coordinator's supervisor /manager." c. Payee is listed as Emily Brown, 103 N. 20 Street, Camp Hill, PA. d. The stated reason for services was "design of computer program to crosslink Ag standards to Academic Standards and lesson plans" "complete by January 20, 2004." 11. The DCVTS plays no role in determining the nature or scope of services to be provided through the Curriculum Development Grant Program. a. All purchasing decisions are made by the department utilizing the services. 12. Weller had one (1) meeting with Emily Brown when the project was initiated. a. Some communications were relayed by Weller to Emily Brown through Roberta Brown. 13. Two (2) payments totaling $500.00 were issued to Emily Brown for services performed pursuant to the December 15, 2003, internal pre - approval contract. a. The actual payments were made to Emily Brown from the Dauphin County Vocational Technical School. b. Funding used was provided to the Dauphin County VoTech from PDE through the curriculum development grant program. c. PDE written authorization was required for both payments to be made. 14. On March 29, 2004, John Bonchalk, Grants Funding Advisor, Division of Contract Administration, sent correspondence to Maria Zaharick, Business Administrator, Dauphin County AVTS, requesting payment in the amount of $250.00 under contract number 093 -04 -4001 to Emily Brown. a. Chris Weller, Program Director, signed the voucher request. Brown, 06 -051 Page 5 b. This voucher was paid by Dauphin County Technical School General Fund check number 33369 in the amount of $250.00 issued to Emily Brown on May 6, 2004. c. The reverse side of the check is signed by Emily M. Brown, pay to the order of Roberta Brown, followed by Roberta Brown's signature. 1. Emily Brown did not have an account to deposit the check. 2. Roberta Brown cashed the check and provided the funds to her daughter. 15. On June 16, 2004, correspondence was sent from Bonchalk to Zaharick requesting an additional $250.00 be paid to Emily M. Brown as reimbursable expenditures under contract number 093 -04 -4001. a. Attached voucher dated June 2, 2004, payment category 15.2260.320.960 Honoraria $250.00 signed Chris D. Weller, Program Coordinator. b. This voucher was paid by Dauphin County Technical School General Fund check number 33832 in the amount of $250.00 issued to Emily Brown on June 30, 2004. c. The reverse side of the check is signed for deposit only, Roberta Brown, followed by the signature of Emily M. Brown. 1. Emily Brown did not have an account to deposit the check. 2. Roberta Brown deposited the checks to her account and provided the funds to her daughter. 16. Around the end of 2003, Roberta Brown's Supervisor, John Foster, advised Brown that family members are not to be hired in the future. III. DISCUSSION: At all times relevant to this matter, the Respondent, Roberta Brown (hereinafter also referred to as "Brown "), has 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 Brown, a Division Chief for the Bureau of Career and Technical Education of the Pennsylvania Department of Education, violated Section 1103(a) of the Ethics Act when she used the authority of her public position for the private pecuniary gain of herself and /or members of her immediate family when she approved the hiring of her daughter as an employee of the Department of Education; when as a member of the Department of Education Advisory Committee she recommended and approved her husband's company to provide services to a recipient of a Department of Education grant; and when she approved the hiring of her husband as a consultant for the Department of Education's Professional Development Committee. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a) Conflict of interest. —No public official or public employee shall engage in conduct that constitutes a conflict of Brown, 06 -051 Page 6 interest. 65 Pa.C.S. § 1103(a). The term "conflict of interest" is defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. 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. Brown was employed by the Commonwealth of Pennsylvania, Department of Education ( "Department of Education ") from May 21, 1990, through July 2006. From July 13, 2002, until her retirement in July 2006, Brown held the positions of Vocational Education Service Manager and the Vocational Home Economics Education Advisor to a Vocational Education Service Manager, both of which positions were within the Department of Education, Bureau of Career and Technical Education ( "Bureau "). On her Statement of Financial Interests filed for calendar year 2005, Brown listed her public position as Division Chief. A portion of the position description for the position of Vocational Education Service Manager is set forth in Fact Finding 3(b). The Department of Education provides annual grant funding to Vocational Technical Schools throughout the Commonwealth. The majority of funding for the Vocational Technical programs goes to the Dauphin County Vocational Technical School ("DCVTS "). DCTVS annually received funding as part of the Department of Education's Curriculum Development Grant Program ( "Grant Program "). Approximately $160,000.00 is budgeted annually by the Department of Education for the Grant Program. The DCVTS's Business Office serves as the Grant Program administrator for budgetary purposes. The DCVTS plays no role in determining the nature or scope of services to be provided through the Grant Program, as all purchasing decisions are made by the department utilizing the services. Grant Program funds are /were to be used for employee salaries and reimbursable expenses for non - Department of Education employees. Brown, 06 -051 Page 7 In or about December 2003, Chris Weller ( "Weller "), a Career and Technical Education Agriculture Advisor in the Bureau, needed technical assistance in developing a website for the Bureau. Because of the relatively small size of the project, Weller could not locate a company to provide assistance. The Bureau did not solicit any bids or proposals for web design services in or around December 2003. Weller discussed his need for assistance with Brown, who was Weller's supervisor at the time. Brown was supportive of the idea for a website and informed Weller that either DCVTS or the Cumberland /Perry Vo -Tech could provide him with a student with sufficient program background to assist with the project. Brown advised Weller that Brown's daughter, Emily Brown, a student at DCVTS, had computer expertise and could assist Weller with developing the website. Weller and Emily Brown spoke by telephone and met on one occasion to discuss the project. Weller agreed to use Emily Brown to assist with the project. On December 15, 2003, Weller, Brown, and Brown's supervisor, John Foster, signed a Bureau of Career and Technical Education Internal Pre - Approval for Expenditures ( "Pre- Approval Contract ") for the Dauphin County Technical School Curriculum Development Project. The Pre - Approval Contract authorized $500.00 to be budgeted under the category of "honoraria." Brown signed the Pre - Approval Contract as the "program coordinator's supervisor /manager." The payee was listed as Emily Brown. The stated reason for services was "design of computer program to crosslinkAg standards to Academic Standards and lesson plans." The services were to be completed by January 20, 2004. Weller and Emily Brown met on one occasion when the project was initiated. Weller also relayed some communications to Emily Brown through Brown. Two payments of $250.00 each were made to Emily Brown for services performed pursuant to the Pre - Approval Contract. The actual payments were made to Emily Brown from DCVTS, using funding provided to DCVTS from the Department of Education for the Grant Program. Checks were issued to Emily Brown on May 6, 2004, and June 30, 2004. The checks were negotiated by Brown, who then provided the funds to her daughter. Having highlighted the Stipulated Findings and issues before us, we shall now apply the Ethics Act to determine the proper disposition of this case. The parties' Consent Agreement sets forth a proposed resolution of the allegations as follows: 3. The Investigative Division will recommend the following in relation to the above allegations: a. That an unintentional violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred when Brown, in her public position, recommended and participated in the hiring of her daughter to perform services paid for with Department of Education Curriculum Development grant funds; and b. That no violations of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred in relation to the allegation that Brown recommended and approved her husband's company to provide services to a recipient of a Department of Education Grantee [sic] and approving the hiring of her husband as consultant for the Brown, 06 -051 Page 8 Department of Education, due to the actions of Brown occurring beyond the five year statute of limitations of the Ethics Act; and c. That no violation of Section 1103(a) of the Public Official and Employee Ethics Law, 65 Pa.C.S. §1103(a) occurred in relation to the allegation that Brown recommended the hiring of her daughter for clerical services for the 2000 Governor's Institute due to Brown's actions occurring beyond the five year statute of limitations of the Ethics Act. 4. Brown agrees to make payment in the amount of $750.00 in settlement of this matter payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty (30) days of the issuance of the final adjudication in this matter. 5. The Investigative Division will recommend that the State Ethics Commission take no further action in this matter; and make no specific recommendations to any law enforcement or other authority to take action in this matter. Such, however, does not prohibit the Commission from initiating appropriate enforcement actions in the event of Respondent's failure to comply with this agreement or the Commission's order or cooperating with any other authority who may so choose to review this matter further. Consent Agreement, at 2. In applying Section 1103(a) of the Ethics Act to the stipulated facts, there were uses of the authority of Brown's public position by Brown. But for Brown's public position with the Department of Education, she would not have been in a position to suggest to a subordinate employee that Brown's daughter be hired to develop a website for the Bureau. Brown further would not have been in the position to pre- approve expenditures so that her daughter could be paid from funding from the Grant Program. Such actions were uses of the authority of Brown's public position by Brown (see, Juliante, Order 809). Further, Emily Brown, Brown's daughter, is a member of Brown's immediate family as that term is defined under the Ethics Act. See, 65 Pa.C.S. § 1102. The parties have stipulated that Emily Brown received $500 as payment for services performed pursuant to the Pre - approval Contract. We find that such amount was a private pecuniary benefit derived as a result of Brown's aforesaid uses of the authority of her public position. Intent is not a requisite element for a violation of Section 1103(a) of the Ethics Act. See, e.g., Yocabet v. State Ethics Commission, 531 A.2d 536 (Pa. Cmwlth. 1987). Nevertheless, we find that the aforesaid violation was unintentional. Based upon the facts as stipulated by the parties, it would appear that Brown was attempting to help Weller find assistance with the website when no company could be located due to the relatively small size of the project. Despite Brown's lack of intent to violate the Ethics Act, Brown did in fact use the authority of her public position for the private pecuniary benefit of her daughter, a member of her immediate family. We note that the Allegations reference Brown using the authority of her public position to approve the hiring of her daughter as an employee of the Department of Education. However, it would appear that the parties intended to refer to the hiring of Emily Brown as an independent contractor with the Bureau. Brown, 06 -051 Page 9 With regard to the amount of the private pecuniary benefit in this case, we are mindful of the judicial decision in Bixler v. State Ethics Commission, 847 A.2d 785 (Pa. Cmwlth. 2004) (holding that a net profit in the amount of $561.77 resulting from business transactions between a township supervisor's employer and the township would fall within the "de minimis" exclusion to the definition of "conflict of interest "). If the parties had not determined to enter into a Consent Agreement, we might have been presented with factual and legal issues as to whether, under the circumstances of this case, Bixler would apply as to the payments made to Brown's daughter. However, given: (1) that the parties have entered into a comprehensive Consent Agreement with the benefit of legal counsel to assist them in weighing all relevant factual and legal considerations, and (2) the parties are in agreement that a violation of Section 1103(a) as to the aforesaid payments would be appropriate as part of an overall settlement of this case, we shall accept the parties' proposed disposition. We note that this determination in this case based upon the agreement of the parties should not be considered as precedent for other cases, which would be determined based upon their facts and circumstances. We therefore hold that an unintentional violation of Section 1103(a) of the Ethics Act occurred when Brown, in her public position, recommended and participated in the hiring of her daughter to perform services paid for with Department of Education Curriculum Development Grant funds. We shall now consider the recommendation(s) of the Consent Agreement that no violations of Section 1103(a) of the Ethics Act occurred in relation to the allegations that: (1) Brown recommended and approved her husband's company to provide services to a recipient of a Department of Education grant and approved the hiring of her husband as a consultant for the Department of Education; and (2) Brown recommended the hiring of her daughter for clerical services for the 2000 Governor's Institute, due to the actions of Brown occurring beyond the five -year statute of limitations of the Ethics Act. See, 65 Pa.C.S. § 1108(m). It is administratively noted that the Stipulation of Findings contain no facts pertaining to these particular allegations, and it is apparent that to the extent such allegations were being pursued by the Investigative Division, the Investigative Division is no longer pursuing them. Per the Consent Agreement of the parties, we therefore hold that no violations of Section 1103(a) of the Ethics Act occurred in relation to the allegation that Brown recommended and approved her husband's company to provide services to a recipient of a Department of Education grant and approved the hiring of her husband as consultant for the Department of Education, due to the actions of Brown occurring beyond the five year statute of limitations of the Ethics Act. We further hold that no violation of Section 1103(a) of the Ethics Act occurred in relation to the allegation that Brown recommended the hiring of her daughter for clerical services for the 2000 Governor's Institute, due to Brown's actions occurring beyond the five year statute of limitations of the Ethics Act. As part of the Consent Agreement, Brown has agreed to make payment in the amount of $750 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within 30 days of the issuance of this adjudication and Order. Although the agreed amount of $750 to be paid by Brown is in excess of the private pecuniary benefit noted above, the parties through counsel have determined that this is the correct amount of restitution to be paid, and we shall accept that 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. Brown, 06 -051 Page 10 Per the Consent Agreement, Brown is directed to make payment in the amount of $750 payable to the Commonwealth of Pennsylvania and forwarded to this Commission within thirty days of the issuance of this adjudication and Order. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. Noncompliance will result in the institution of an order enforcement action. IV. CONCLUSIONS OF LAW: 1. Respondent Roberta Brown ( "Brown "), as a Vocational Education Service Manager, Vocational Home Economics Education Advisor to a Vocational Education Service Manager, and /or a Division Chief within the Commonwealth of Pennsylvania, Department of Education ( "Department of Education "), 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. Brown unintentionally violated Section 1103(a) of the Ethics Act when, in her public position, she recommended and participated in the hiring of her daughter to perform services paid for with Department of Education Curriculum Development Grant funds. 3. Brown did not violate Section 1103(a) of the Ethics Act in relation to the allegation that she recommended and approved her husband's company to provide services to a recipient of a Department of Education grant and approved the hiring of her husband as consultant for the Department of Education, due to the actions of Brown occurring beyond the five year statute of limitations of the Ethics Act. 4. Brown did not violate Section 1103(a) of the Ethics Act in relation to the allegation that she recommended the hiring of her daughter to perform clerical services for the 2000 Governor's Institute, due to Brown's actions occurring beyond the five year statue of limitations of the Ethics Act. In Re: Roberta Brown, Respondent ORDER NO. 1465 File Docket: 06 -051 Date Decided: 4/28/08 Date Mailed: 5/15/08 1. Respondent Roberta Brown ( "Brown "), a public official /public employee in her capacity as a Vocational Education Service Manager, a Vocational Home Economics Education Advisor to a Vocational Education Service Manager, and /or a Division Chief within the Commonwealth of Pennsylvania, Department of Education ( "Department of Education "), unintentionally violated Section 1103(a) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(a), when she, in her public position, recommended and participated in the hiring of her daughter to perform services paid for with Department of Education Curriculum Development Grant funds. 2. Brown did not violate Section 1103(a) of the Ethics Act in relation to the allegation that she recommended and approved her husband's company to provide services to a recipient of a Department of Education grant and approved the hiring of her husband as consultant for the Department of Education, due to the actions of Brown occurring beyond the five year statute of limitations of the Ethics Act. 3. Brown did not violate Section 1103(a) of the Ethics Act in relation to the allegation that she recommended the hiring of her daughter to perform clerical services for the 2000 Governor's Institute, due to Brown's actions occurring beyond the five year statue of limitations of the Ethics Act. 4. Per the Consent Agreement of the parties, Brown is directed to make payment in the amount of $750, payable to the Commonwealth of Pennsylvania and forwarded to the Pennsylvania State Ethics Commission within thirty days of the issuance of this Order. a. Compliance with the foregoing will result in the closing of this case with no further action by this Commission. b. Non - compliance will result in the institution of an order enforcement action. BY THE COMMISSION, Louis W. Fryman, Chair